                                 IN THE
              ARIZONA COURT OF APPEALS
                           DIVISION TWO


                      THE STATE OF ARIZONA,
                             Appellee,

                                   v.

                      RUSTY JAMES DRISCOLL,
                            Appellant.

                      No. 2 CA-CR 2014-0086
                      Filed November 6, 2015


          Appeal from the Superior Court in Pima County
                       No. CR20124099002
            The Honorable Richard D. Nichols, Judge
               The Honorable Paul E. Tang, Judge

                            AFFIRMED


                                COUNSEL

Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By David A. Sullivan, Assistant Attorney General, Tucson
Counsel for Appellee

Barton & Storts, P.C., Tucson
By Brick P. Storts, III
Counsel for Appellant
                        STATE v. DRISCOLL
                        Opinion of the Court


                              OPINION

Judge Howard authored the opinion of the Court, in which
Presiding Judge Vásquez and Judge Brammer1 concurred.


H O W A R D, Judge:

¶1           After a jury trial, appellant Rusty Driscoll was convicted
of possession of a dangerous drug and possession of drug
paraphernalia and sentenced to concurrent, presumptive prison
terms, the longer of which is ten years. On appeal, Driscoll
challenged his convictions and sentences, contending the search of
his person and vehicle and his arrest were illegal and the same jury
that rendered guilty verdicts should have decided aggravating
factors. This court affirmed his convictions and sentences. State v.
Driscoll, No. 2 CA-CR 2014-0086, ¶ 17 (memorandum decision filed
Feb. 9, 2015).       The supreme court thereafter vacated our
memorandum decision and directed us to review this case in light of
Rodriguez v. United States, ___ U.S. ___, 135 S. Ct. 1609 (2015), which
concluded that a traffic stop cannot be extended to allow a dog sniff.
Having done so, we again affirm Driscoll’s convictions and
sentences.

                Factual and Procedural Background

¶2           Because our substantive review is limited to the effect of
Rodriguez on this case, we review only the facts relevant to the
motion to suppress. In reviewing the trial court’s ruling, “we
consider only the evidence presented at the suppression hearing and
view the facts in the light most favorable to sustaining the . . .
ruling.” State v. Gonzalez, 235 Ariz. 212, ¶ 2, 330 P.3d 969, 970 (App.
2014). “We review a denial of a motion to suppress for an abuse of
discretion, but review constitutional issues de novo.” Id. ¶ 7.

      1 The   Hon. J. William Brammer, Jr., a retired judge of this
court, is called back to active duty to serve on this case pursuant to
orders of this court and our supreme court.


                                  2
                        STATE v. DRISCOLL
                        Opinion of the Court

¶3           In October 2012, an Arizona Department of Public
Safety officer observed Driscoll driving a pickup truck with a
malfunctioning license plate light at approximately 2:40 a.m. and
initiated a traffic stop. While writing a repair order for the
malfunctioning light, the officer casually conversed with Driscoll
about where he was going and what he was doing. Based on
Driscoll’s evasive answers, the officer began to suspect that Driscoll
was engaged in criminal activity.

¶4           After issuing Driscoll the repair order, the officer’s
certified canine conducted a “sniff” of the truck, and alerted to the
presence of narcotics. The officer searched the truck and found,
among other things, a glass pipe, a two- to three-inch drinking
straw, and a stolen handgun. After arresting Driscoll, the officer
searched him and discovered a bag of methamphetamine in the
waistband of his pants.

¶5           The state charged Driscoll with the two drug counts
described above. 2 Before trial, Driscoll moved to suppress the
evidence obtained during the traffic stop; the trial court denied the
motion after an evidentiary hearing. A jury subsequently found
Driscoll guilty of the two drug offenses and, after a second jury
found aggravating circumstances, he was sentenced as noted above.

¶6           On appeal, Driscoll argued the trial court erred by
denying his motion to suppress and by allowing a different jury to
determine aggravating factors. With respect to the former, we
concluded he had waived any issue concerning the length of his
detention by the officer because he had failed to “cite any facts in the
record or relevant legal authority to support [his] assertions.”
Driscoll, No. 2 CA-CR 2014-0086, ¶ 7; see also Ariz. R. Crim. P.
31.13(c)(1)(vi) (arguments “shall contain . . . citations to the
authorities, statutes and parts of the record relied on”); State v.

      2 Driscoll  also initially was charged with possession of a
deadly weapon by a prohibited possessor. On the first day of trial,
the parties and the court agreed the prohibited-possessor count
would be severed and tried separately. A jury ultimately found
Driscoll not guilty of that charge.


                                   3
                        STATE v. DRISCOLL
                        Opinion of the Court

Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (failure to argue
issue on appeal waives review of issue). We further concluded he
had forfeited and waived any argument concerning lack of probable
cause for the search of the vehicle and his arrest. Driscoll, No. 2 CA-
CR 2014-0086, ¶ 8. Additionally, we determined he had failed to
establish any constitutional violation in the search incident to arrest.
Id. ¶ 10. We also approved of the trial court using a second jury to
determine aggravating factors. Id. ¶ 16. Accordingly, we affirmed
his convictions and sentences. Id. ¶ 17.

¶7           Driscoll then petitioned the supreme court for review of
our decision. It granted review only as to the suppression issue
presented in his petition,3 vacated our decision, remanded the case
to this court, and directed us to reconsider our decision in light of
Rodriguez. In that case, the United States Supreme Court determined
that law enforcement officers may not extend an otherwise-
completed traffic stop, absent reasonable suspicion, in order to
conduct a dog sniff. ___ U.S. at ___, 135 S. Ct. at 1614. We requested
supplemental briefs from the parties on the following issues:

             a. How, absent waiver, the holding and
                reasoning from Rodriguez should apply
                to this case; and,
             b. If the rule in Rodriguez was violated
                under the facts of this case, whether that
                requires suppression of the evidence
                here, in light of Davis v. United States,
                ___ U.S. ___, 131 S. Ct. 2419 (2011).

We address each issue in turn.4




      3 Accordingly, and in order to avoid any confusion, we re-
affirm our decision concerning the second jury determining
aggravating factors.
      4We also requested briefing on the waiver issue. After
reviewing the briefing, we conclude that Driscoll waived any issue
concerning the length of the stop. However, in deference to the

                                   4
                        STATE v. DRISCOLL
                        Opinion of the Court

                      Application of Rodriguez

¶8             In Rodriguez, the United States Supreme Court held that
law enforcement officers may not “extend an otherwise-completed
traffic stop, absent reasonable suspicion, in order to conduct a dog
sniff.” ___ U.S. at ___, 135 S. Ct. at 1614, 1616. As Driscoll points
out, the Court noted that a dog sniff “is not an ordinary incident of a
traffic stop” and cannot be “fairly characterized as part of the
officer’s traffic mission.” Id. at ___, 135 S. Ct. at 1615.

¶9           Driscoll argues the arresting officer here did not have
reasonable suspicion to detain him beyond the issuance of the repair
warning. He contends the officer had completed the repair order
when he removed Driscoll’s passenger from the vehicle and
conducted the dog sniff. The trial court found that, although “there
was not an undue detention of the defendant,” “the officer did not
have independent grounds to justify searching the vehicle other than
the sniff performed by the K9.” The state agrees that had Driscoll
properly argued his Rodriguez claim, he likely would have prevailed.

¶10           Based on the facts developed at the suppression
hearing, the officer had written the repair order and completed the
traffic stop prior to conducting the dog sniff. Thus, in order to effect
the dog sniff, the officer extended the stop absent reasonable
suspicion. Accordingly, under Rodriguez the additional detention
was unconstitutional. Rodriguez, ___ U.S. at ___, 135 S. Ct. at
1615-16.

                    Suppression of the Evidence

¶11          The state, however, argues that, under Davis v. United
States, 564 U.S. ___, 131 S. Ct. 2419 (2011), the evidence should not be
suppressed even if the stop was extended unconstitutionally. In
Davis, the United States Supreme Court stated the sole purpose of
the exclusionary rule was to deter Fourth Amendment violations.
564 U.S. at ___, 131 S. Ct. at 2426. It noted: “[W]e have ‘never
applied’ the exclusionary rule to suppress evidence obtained as a

supreme court’s order, we also review the merits of the Rodriguez
issue.


                                   5
                        STATE v. DRISCOLL
                        Opinion of the Court

result of nonculpable, innocent police conduct.” Id. at ___, 131 S. Ct.
at 2429, quoting Herring v. United States, 555 U.S. 135, 144 (2009).
Relying on Herring and Hudson v. Michigan, 547 U.S. 586 (2006), two
influential cases on exclusion, the Court wrote “[o]ur cases hold that
society must swallow th[e] bitter pill [of exclusion] when necessary,
but only as a ‘last resort.’ For exclusion to be appropriate, the
deterrence benefits of suppression must outweigh its heavy costs.”
Davis, 564 U.S. at ___, 131 S. Ct. at 2427 (internal citations omitted),
quoting Hudson v. Michigan, 547 U.S. 586, 591 (2006). Based on these
principles, the Supreme Court stated that the absence of police
misconduct dooms an exclusionary claim and held that “[e]vidence
obtained during a search conducted in reasonable reliance on
binding precedent is not subject to the exclusionary rule.” Id. at ___,
131 S. Ct. at 2429.

¶12           The state claims the additional detention that occurred
here was both minimal and permissible under previous precedent,
citing State v. Box, 205 Ariz. 492, ¶¶ 16-24, 73 P.3d 623, 628-30 (App.
2003). In Box, this court concluded a detention that briefly extended
beyond what was necessary for the purposes of a traffic stop, in
order to conduct a dog sniff, was minimally intrusive and did not
violate the constitution. Id. ¶ 20. The state notes that other courts
had reached the same conclusion. See Illinois v. Caballes, 543 U.S. 405,
408-09 (2005) (holding reasonably conducted dog sniff “would not
change the character of a traffic stop . . . unless the dog sniff itself
infringed respondent’s constitutionally protected interest in
privacy”); United States v. Suitt, 569 F.3d 867, 870-72 (8th Cir. 2009)
(dog sniff constitutional when traffic stop not prolonged
unreasonably); People v. Thomas, 24 N.E.3d 1, 6-7 (Ill. App. Ct. 2014)
(dog sniff constitutional when performed during lawful traffic stop
not prolonged unreasonably); State v. Sellars, 730 S.E.2d 208, 212-13
(N.C. Ct. App. 2012) (holding Caballes de minimis rule applies in
North Carolina), overruled as recognized by State v. Warren, 775 S.E.2d
362, 365 (N.C. 2015) (expressly noting Rodriguez overruled Caballes
de minimis rule ).

¶13         Further, the trial court specifically cited Box as
controlling precedent justifying the dog sniff in its order denying
suppression. Pursuant to Box, the court found “the dog sniff lasted


                                   6
                         STATE v. DRISCOLL
                         Opinion of the Court

only a few minutes; there was no unduly lengthy detention of the
defendant; the officer did not physically or manually restrain the
defendant; and the officer did not have to call or wait for back up
units to assist.”

¶14           Considering Davis, the sole issue here is whether the
officer reasonably relied on precedent in extending the stop for the
purpose of the dog sniff. Driscoll asserts Davis is factually
distinguishable, apparently focusing on the fact Davis involved a
search incident to arrest, which is not at issue here.5 But the Davis
holding was not confined to the search incident to arrest context.
Driscoll also asserts that reliance on appellate precedent was
“glaringly absent in the present case.” But Box supported the
officer’s actions and this assertion fails to undermine the state’s
argument that the reasoning and holding in Davis apply equally
here. Driscoll’s reliance on Arizona v. Gant, 556 U.S. 332 (2009)
similarly misses the issue. Gant did not concern the applicability of
the exclusionary rule.

¶15          Additionally, Driscoll relies on State v. Rogers, 186 Ariz.
508, 924 P.2d 1027 (1996), to argue that the law before Rodriguez did
not permit the dog sniff. In Rogers, our supreme court concluded the
initial stop was an investigatory one and officers did not have
reasonable suspicion to justify the stop. Id. at 510-11, 924 P.2d at
1029-30. It therefore concluded the evidence should have been
suppressed. Id. at 511, 924 P.2d at 1030.

¶16           Rogers has no application to this case. It did not involve
an extension of the detention after a legal stop. It did not involve a
dog sniff. Therefore, Rogers does not support Driscoll’s contention
that the officer was not acting reasonably in view of prior precedent.
Thus, Driscoll has failed to effectively dispute that the holding in
Davis would prevent application of the exclusionary rule here.




      5Although    a search incident to arrest occurred in this case, that
aspect of the traffic stop is not an issue before this court.


                                    7
                       STATE v. DRISCOLL
                       Opinion of the Court

                            Disposition

¶17          We conclude the extension of the traffic stop to conduct
a dog sniff violated the rule in Rodriguez. However, because at the
time of Driscoll’s stop Box was controlling Arizona law, we conclude
the officer acted reasonably in conducting a dog sniff that did not
unreasonably prolong the stop. Even Driscoll notes that Rodriguez
broke new ground in concluding that a dog sniff conducted after a
completed traffic stop unconstitutionally extended the stop. Because
Box allowed a de minimis extension of the stop, applying the
exclusionary rule to the evidence the officer discovered would not
be appropriate here. Accordingly, we affirm Driscoll’s convictions
and sentences.




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