from the Superior Court in Pima County No. CR20163874001 The
Honorable Paul E. Tang, Judge.
Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief
Counsel By Karen Moody, Assistant Attorney General, Tucson
Counsel for Appellee
Feinman, Pima County Public Defender By Abigail Jensen,
Assistant Public Defender, Tucson Counsel for Appellant
Arizona Attorneys for Criminal Justice, Phoenix By Brian
Thredgold and Mikel Steinfeld and American Civil Liberties
Union Foundation of Arizona, Phoenix By Kathleen E. Brody,
William B. Peard, and Jared G. Keenan Counsel for Amici
Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Staring and Judge Brearcliffe concurred.
ECKERSTROM, CHIEF JUDGE.
David Green appeals from his convictions and sentences for
two counts of possession of a narcotic drug and one count of
possession of drug paraphernalia, all non-dangerous,
repetitive offenses. Green argues the trial court erroneously
denied his motion to suppress evidence because police
unlawfully extended his detention. He further argues the
court was required to sentence him to probation under A.R.S.
§ 13-901.01. We affirm in part and vacate and remand in
and Procedural History
"In reviewing a motion to suppress, we consider only the
evidence presented at the suppression hearing and view the
facts in the light most favorable to sustaining the trial
court's ruling." State v. Gonzalez, 235
Ariz. 212, ¶ 2 (App. 2014). In an early morning of
August 2016, an officer with the Tucson Police Department saw
a truck parked in a secluded part of Fort Lowell Park several
hours after the park had closed for the night. The officer
approached the driver's door and saw a pipe on the center
console that, based on his training and experience, was a
type used only for "smoking [il]licit substances."
The officer handcuffed Green, the driver, and sat him in the
back of his patrol car while he searched the truck, finding
another similar pipe. The officer then removed Green from the
patrol car, read him his Mirandarights, and
arrested him for possession of one of the pipes. Although the
officer intended to release Green after citing him for
trespassing and possession of the pipe, he nevertheless
returned Green to the patrol car in order to check whether he
was in violation of federal immigration laws pursuant to
Senate Bill 1070 and department policy. See A.R.S.
The check revealed no immigration issues and, when the
officer removed Green from the car a second time, he saw a
small plastic bag with a "crystalized substance"
fall from Green's lap. The officer conducted a field test
for narcotics, and the substance tested positive for the
presence of illegal drugs. He then placed Green under
custodial arrest. During a search of Green's person
incident to that arrest, the officer found a plastic package
with heroin and a container with morphine pills.
Before trial, Green filed a motion to suppress the drug
evidence, arguing his detention had been unreasonably
prolonged after the officer had decided merely to cite and
release him for trespassing and possession of the pipe.
Following an evidentiary hearing, the trial court denied the
motion, finding the length of the delay had not been
unreasonable and, in any event, police had not "gain[ed]
any advantage" from it. Following trial, the jury found
Green guilty of the offenses as described
Before sentencing, Green filed a motion arguing he was
entitled to mandatory probation under § 13-901.01.
Specifically, he urged that his 2006 conviction for
solicitation to sell a narcotic drug was not a disqualifying
prior conviction, or "strike." See §
13-901.01(H)(1). Following a hearing, the court denied the
motion and sentenced Green to concurrent prison terms, the
longest of which were six years. Green appealed; we have
jurisdiction. See A.R.S. §§ 13-4031,
Green first argues the trial court erroneously denied his
motion to suppress because, after the officer completed his
investigation into the trespassing and paraphernalia
offenses, he would not have discovered any controlled
substances but for having unlawfully prolonged the detention
in order to complete an immigration check. We review a trial
court's ruling on a motion to suppress for an abuse of