                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                    JESUS FELIPE HOLGUIN, Appellant.

                             No. 1 CA-CR 15-0233
                              FILED 1-26-2016


          Appeal from the Superior Court in Maricopa County
                     No. CR2014-121864-001 SE
          The Honorable Virginia L. Richter, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Christopher M. DeRose
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Peter C. Rosales
Counsel for Appellant
                            STATE v. HOLGUIN
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Donn Kessler joined.


W I N T H R O P, Judge:

¶1           Jesus Felipe Holguin (“Appellant”) appeals his convictions
and sentences for possession of dangerous drugs and drug paraphernalia.
He argues the trial court erred in denying his pretrial motion to suppress
the evidence against him. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY1

¶2             At approximately 11:30 p.m. on May 8, 2014, Phoenix police
officers Louisoder and Yoder were on patrol in a fully marked Chevrolet
Tahoe when they observed Appellant riding his bicycle. To the officers’
knowledge, Appellant had committed no crimes or traffic infractions;
nonetheless, without activating the Tahoe’s lights or siren, Officer Yoder
pulled the vehicle over to the side of the road next to Appellant, and Officer
Louisoder rolled down his window and asked Appellant if he would be
willing to talk to him.2 Appellant replied, “Sure.”



1      In reviewing a trial court’s denial of a motion to suppress, we
examine only the evidence submitted at the suppression hearing. State v.
Aguilar, 228 Ariz. 401, 401, ¶ 2, 267 P.3d 1193, 1193 (App. 2011) (citation
omitted). We view the facts presented in the light most favorable to
sustaining the court’s ruling, State v. Mendoza-Ruiz, 225 Ariz. 473, 474 n.1,
¶ 2, 240 P.3d 1235, 1236 n.1 (App. 2010); State v. Walker, 215 Ariz. 91, 94,
¶ 16, 158 P.3d 220, 223 (App. 2007) (citations omitted), and resolve all
reasonable inferences in favor of the State. State v. Olson, 134 Ariz. 114, 116,
654 P.2d 48, 50 (App. 1982).

2      Officer Louisoder, who testified at the hearing on Appellant’s
motion to suppress, asserted that he engaged Appellant as part of his
routine patrol activity and in furtherance of the city’s community-based
policing policy, which encourages building relationships between law
enforcement officers and residents of the neighborhoods they patrol.



                                       2
                           STATE v. HOLGUIN
                           Decision of the Court

¶3             Officer Louisoder then exited the Tahoe, approached
Appellant, and shined his flashlight on Appellant. Officer Yoder eventually
also stepped out of the vehicle, and at approximately that time, he activated
the vehicle’s rear red-and-blue lights to alert any approaching motorists.

¶4               Meanwhile, Officer Louisoder asked Appellant if he had any
weapons in his possession.3 Appellant responded that he possessed a knife.
Officer Louisoder asked Appellant whether he could see Appellant’s
identification. Appellant agreed, and handed his identification to Officer
Louisoder, who handed it to Officer Yoder. Appellant also volunteered that
he believed he was subject to an outstanding arrest warrant for unpaid
traffic tickets.

¶5            Officer Louisoder asked if he could pat Appellant down for
weapons, and Appellant again responded affirmatively. Officer Louisoder
found the knife Appellant had mentioned, but nothing else. Meanwhile,
Officer Yoder had run Appellant’s identification through the Motor Vehicle
Department’s database, which confirmed that an outstanding warrant
existed for Appellant’s arrest. The officers took Appellant into custody. A
search of Appellant’s backpack4 revealed a small case containing a green
glass pipe and a plastic bag containing two baggies of a substance later
determined to be methamphetamine.5

¶6            The State later charged Appellant by indictment with Count
I, misconduct involving weapons (for possessing the knife while being a
prohibited possessor), a class four felony; Count II, possession or use of a
dangerous drug (the methamphetamine), a class four felony; and Count III,
possession of drug paraphernalia (the pipe), a class six felony.




3     Officer Louisoder asserted this was a question the officer routinely
asked as a safety precaution in encounters with members of the public.

4      Officer Louisoder testified that Appellant agreed to allow the officers
to search his backpack. It appears from the record that Appellant consented
to that search before his arrest; however, the record is not entirely clear on
that point.

5       Officer Louisoder could not recall the Tahoe’s spotlight being
activated until just before his search of Appellant’s backpack.




                                      3
                            STATE v. HOLGUIN
                            Decision of the Court

¶7             Before trial, Appellant moved to suppress all evidence related
to the officers’ search—including the knife, methamphetamine, and glass
pipe—claiming a violation of his rights under the Fourth Amendment to
the United States Constitution and the Arizona Constitution.6 In response,
the State argued the officers’ initial contact with Appellant had been
consensual and therefore had not violated Appellant’s rights.

¶8            On February 10, 2015, the trial court held an evidentiary
hearing, receiving testimony from Officer Louisoder and Appellant.7 At the
conclusion of the hearing, the court denied Appellant’s motion to suppress,



6       Both the Fourth Amendment to the United States Constitution and
Article 2, Section 8, of the Arizona Constitution prohibit unreasonable
searches and seizures. State v. Ault, 150 Ariz. 459, 463, 724 P.2d 545, 549
(1986); see also U.S. Const. amend. IV (“The right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated . . . .”), XIV; Ariz. Const. art. 2, § 8 (“No
person shall be disturbed in his private affairs, or his home invaded,
without authority of law.”). In general, the federal and state protections are
coterminous, except in cases involving warrantless home entries. State v.
Teagle, 217 Ariz. 17, 22 n.3, ¶ 19, 170 P.3d 266, 271 n.3 (App. 2007). We
therefore rely on Fourth Amendment jurisprudence in reviewing the trial
court’s suppression ruling.

7       Appellant testified that, when he was first stopped, the street was
“really dark,” with only “one light post or two light posts for the whole
street,” and the officers shined “a big spotlight” on him and advised him he
was being stopped for failure to have a front headlight on his bicycle, a fact
he disputed. Appellant also maintained the officers activated the Tahoe’s
flashing “blue-and-red lights” as the vehicle stopped, and that Officer
Louisoder ordered him to stop with his handlebars turned toward the
officer and “stay in that position with my hands on my handle [bars] and
the bike between me.” He stated he complied with the officer’s order and
did not feel free to leave. When asked if he had weapons, he admitted
having “a knife that I use as a box cutter at work.” He testified the officer
then patted him down for weapons. Appellant made inconsistent
statements regarding whether the officer took his identification without his
consent, although he acknowledged voluntarily advising the officer he
“might have a warrant for nonpayment.”




                                       4
                            STATE v. HOLGUIN
                            Decision of the Court

reasoning that the evidence supported the conclusion that the officers’
contact with Appellant was consensual.

¶9            Before trial, the trial court granted a motion to sever Count I
from Counts II and III, and trial proceeded on the two remaining counts.8
After a two-day trial, the jury found Appellant guilty as charged on both
counts. The trial court determined Appellant had six prior felony
convictions committed on five occasions, and sentenced him to a less-than-
presumptive term of eight years’ incarceration in the Arizona Department
of Corrections for Count II and a concurrent, presumptive term of 3.75
years’ incarceration for Count III.

¶10           Appellant filed a timely notice of appeal.          We have
jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and
Arizona Revised Statutes sections 12–120.21(A)(1) (2003), 13–4031 (2010),
and 13–4033(A) (2010).

                                 ANALYSIS

¶11            Appellant argues the trial court erred in denying his pretrial
motion to suppress. He maintains that, from the outset of the encounter, a
reasonable person in his position would not have believed he was at liberty
to leave; accordingly, everything that followed was the product of an illegal
stop.

¶12            We review a trial court’s ruling on a motion to suppress for
an abuse of discretion if it involves a discretionary issue, but review de novo
constitutional and legal issues. State v. Moody, 208 Ariz. 424, 445, ¶ 62, 94
P.3d 1119, 1140 (2004); see also Walker, 215 Ariz. at 94, ¶ 16, 158 P.3d at 223
(reviewing a ruling on a motion to suppress evidence for “clear and
manifest error” (citation omitted)). We accord great deference to the trial
court’s credibility determinations because that court is in the best position
to observe the demeanor of the testifying witnesses. See State v. Olquin, 216
Ariz. 250, 252, ¶ 10, 165 P.3d 228, 230 (App. 2007). We will affirm the trial
court’s decision if correct for any reason supported by the record. See
Aguilar, 228 Ariz. at 403, ¶ 12, 267 P.3d at 1195; State v. Ahumada, 225 Ariz.
544, 545, ¶ 5, 241 P.3d 908, 909 (App. 2010).

¶13           A consensual encounter between law enforcement and a
member of the public does not implicate Fourth Amendment concerns,
even when officers have no basis for suspecting a particular individual of
criminal activity. Florida v. Bostick, 501 U.S. 429, 434 (1991) (“Our cases make

8      After trial, the court dismissed Count I on motion of the State.

                                       5
                            STATE v. HOLGUIN
                            Decision of the Court

it clear that a seizure does not occur simply because a police officer
approaches an individual and asks a few questions.”); State v. Hummons,
227 Ariz. 78, 80, ¶ 7, 253 P.3d 275, 277 (2011) (“Law enforcement officers
have wide latitude to approach people and engage them in consensual
conversation.” (citation omitted)); State v. Wyman, 197 Ariz. 10, 13, ¶ 7, 3
P.3d 392, 395 (App. 2000) (stating that police may “approach and question
people without implicating the Fourth Amendment, provided that the
interaction is consensual” (citations omitted)). Law enforcement officers
are also free to request a person’s identification. Hummons, 227 Ariz. at 80,
¶ 7, 253 P.3d at 277 (citations omitted); see also Bostick, 501 U.S. at 437 (“No
seizure occurs when police ask questions of an individual, ask to examine
the individual’s identification, and request consent to search his or her
luggage—so long as the officers do not convey a message that compliance
with their requests is required.”).

¶14            “The test [for whether an encounter is consensual] is whether,
in light of all the circumstances, the police conduct would ‘have
communicated to a reasonable person that he was not at liberty to ignore
the police presence and go about his business.’” Wyman, 197 Ariz. at 13,
¶ 7, 3 P.3d at 395 (quoting Michigan v. Chesternut, 486 U.S. 567, 569 (1988));
see also Bostick, 501 U.S. at 439 (“We adhere to the rule that, in order to
determine whether a particular encounter constitutes a seizure, a court
must consider all the circumstances surrounding the encounter to
determine whether the police conduct would have communicated to a
reasonable person that the person was not free to decline the officers’
requests or otherwise terminate the encounter. That rule applies to
encounters that take place on a city street . . . .”).

¶15            Accordingly, police generally do not “seize” an individual
when the person agrees to a mere request to talk or to answer questions,
absent the use of physical force or a show of authority. See State v. Gonzalez,
235 Ariz. 212, 214, ¶ 8, 330 P.3d 969, 971 (App. 2014); United States v. Orman,
486 F.3d 1170, 1175 (9th Cir. 2007), disagreed with on other grounds by State v.
Serna, 235 Ariz. 270, 275, ¶¶ 20-22, 331 P.3d 405, 410 (2014); see also Wyman,
197 Ariz. at 13, ¶ 8, 3 P.3d at 395 (noting that an agreement to an officer’s
initial request to speak to a defendant was consensual, in part because the
officer “did not draw his gun or otherwise physically compel a response”
(citation omitted)).

¶16            The record, construed in the light most favorable to affirming,
see Mendoza-Ruiz, 225 Ariz. at 474 n.1, ¶ 2, 240 P.3d at 1236 n.1, supports the
trial court’s conclusion that Appellant’s encounter with the officers was
consensual and not occasioned by physical force or an improper show of


                                       6
                             STATE v. HOLGUIN
                             Decision of the Court

authority. According to Officer Louisoder, Officer Yoder pulled the Tahoe
to the curb next to Appellant, rather than in front of him, and did not restrict
his movement; the Tahoe maintained its normal speed when it pulled over;
the officers never activated the siren and no light was initially turned on
Appellant; without using a bullhorn or speaker, Officer Louisoder rolled
his window down and asked rather than commanded Appellant to speak
with him; Appellant expressly agreed to stop and speak with the officer; it
appears only Officer Louisoder exited the vehicle initially; and although the
officer did at that point shine his flashlight on Appellant, the Tahoe’s
overhead red-and-blue lights were never activated, and no indication exists
that either officer produced his badge, drew his gun, or threatened
Appellant in any way.9 Appellant later expressly agreed to produce his
identification, volunteered he had an outstanding warrant for his arrest,
and expressly agreed to a pat-down for weapons10 and to permit Officer
Louisoder to search his backpack.11 Although Appellant’s version of the
events differs from Officer Louisoder’s on some points, we defer to the trial
court’s determinations of the credibility of the officers and the


9       In his reply brief, Appellant states, “It is interesting to note that even
Officer Louisoder seemed to agree with the characterization of driving
around in the police vehicle; ‘stopping people and talking to them’ was part
of a ‘show of authority.’” In the portion of the transcript Appellant cites for
this statement, defense counsel on cross-examination interjected the term
“showing that authority” while asking the officer a question about
community policing. Although the officer did not expressly disavow
defense counsel’s terminology, the officer also did not expressly adopt it,
but simply agreed it was “important to make your presence known in the
community.”

10     Because Appellant gave his express consent, the pat-down appears
to comport with our supreme court’s holding in Serna. See 235 Ariz. at 276,
¶ 28, 331 P.3d at 411 (holding that, in circumstances in which police wish to
search a person with whom they are engaged in a consensual encounter,
“absent consent, an officer may frisk an individual only when the officer
possesses both a reasonable suspicion that the person to be searched has
engaged or is about to engage in criminal activity and a reasonable belief
that the person is armed and dangerous“ (emphasis added)).

11     Officer Louisoder testified that Appellant was free to leave until the
officers learned of the status of the arrest warrant.




                                        7
                           STATE v. HOLGUIN
                           Decision of the Court

reasonableness of the inferences they drew. See id. at 475, ¶ 6, 240 P.3d at
1237.

¶17           As for the subsequent search of Appellant’s backpack—which
yielded both the methamphetamine and the glass pipe—the search is
supported by Appellant’s express consent to the search. See State v. Guillen,
223 Ariz. 314, 317, ¶ 11, 223 P.3d 658, 661 (2010) (“One long recognized
exception to the warrant requirement is consent.” (citations omitted)).12

¶18            The primary case relied upon by Appellant is distinguishable.
In State v. Canales, 222 Ariz. 493, 217 P.3d 836 (App. 2009), this court
determined a defendant was objectively not free to leave after a deputy
“immobilized” his vehicle by parking directly behind it, making it
“physically impossible . . . to terminate the encounter by leaving,” and
flooded the defendant’s vehicle with light. Id. at 495, ¶¶ 7–8, 217 P.3d at
838. Appellant argues the presence of a fully marked police vehicle is a
“mobile ‘show of authority,’” especially if the police vehicle’s rear red-and-
blue lights are at some point activated, and should be treated as similar to
immobilizing a person’s vehicle while shining a spotlight into it, as
happened in Canales. He cites no authority to support such reasoning,
however, and we find none. Moreover, as Appellant acknowledges, law
enforcement officers do not violate the Fourth Amendment merely by
approaching an individual on the street and asking him if he is willing to
answer some questions, see Wyman, 197 Ariz. at 13, ¶ 7, 3 P.3d at 395, and
the police officers who approached him did not block his only exit from the
scene, as happened in Canales, nor did they activate the overhead red-and-
blue lights.

¶19           Because the record supports the conclusion that the initial
contact between the police officers and Appellant was consensual—at least
until the police confirmed a warrant existed for Appellant’s arrest and

12     Pursuant to the doctrine of inevitable discovery, the search might
also be supported by Officer Louisoder’s testimony that an inventory
search occurred after the officers confirmed Appellant had a warrant for his
arrest and took Appellant into custody. See Colorado v. Bertine, 479 U.S. 367,
371-73 (1987); State v. Rojers, 216 Ariz. 555, 558-62, ¶¶ 12-33, 169 P.3d 651,
654-58 (App. 2007) (stating that although a search of the defendant’s vehicle
did not fit within the search incident to arrest exception, the evidence was
admissible under the inevitable discovery doctrine because it would
inevitably have been discovered during the inventory search that would
have taken place after the car was impounded).



                                      8
                         STATE v. HOLGUIN
                         Decision of the Court

placed him in custody—the trial court did not err in denying Appellant’s
motion to suppress the evidence against him.

                            CONCLUSION

¶20          Appellant’s convictions and sentences are affirmed.




                                 :ama




                                   9
