                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                       MARKITA MCCOY, Appellant.

                             No. 1 CA-CR 18-0029
                               FILED 11-20-18


           Appeal from the Superior Court in Mohave County
                         No. CR-2016-01012
                The Honorable Billy K. Sipe Jr., Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael Valenzuela
Counsel for Appellee

Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
                            STATE v. MCCOY
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.


M c M U R D I E, Judge:

¶1            Markita McCoy appeals her convictions and sentences for
transportation of narcotic drugs for sale, possession of narcotic drugs for
sale, transportation of dangerous drugs for sale, possession of dangerous
drugs for sale, possession of marijuana, and possession of drug
paraphernalia. For the following reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND 1

¶2            While conducting a routine traffic stop on the right shoulder
of the interstate, a trooper noticed a blue car approaching in the adjacent
lane. The trooper walked toward his fully marked patrol vehicle, with its
blue and red emergency lights flashing, and motioned for the approaching
car to move over into the unoccupied lane. Despite the trooper’s gestures,
the blue car remained in the its lane and passed by without decelerating.
Because the vehicle drove very close to the shoulder, the trooper felt
compelled to retreat, taking evasive action to ensure his safety.

¶3            After he completed the traffic stop already in progress, the
trooper “chased down” and pulled over the blue car. When the trooper
contacted the vehicle’s two occupants, the driver, McCoy, provided an Ohio
driver’s license and apologized for failing to comply with the trooper’s
request to move over.

¶4           Observing that both occupants appeared “very nervous,” the
trooper asked McCoy to step out of the vehicle. As he proceeded to draft a
written warning, the trooper engaged McCoy in “casual conversation,”
asking about the nature of her trip. In response to the trooper’s questions,


1       In reviewing the denial of a motion to suppress, we consider only
the evidence presented at the suppression hearing and view that evidence
in the light most favorable to sustaining the superior court’s decision. State
v. Mendoza-Ruiz, 225 Ariz. 473, 474, ¶ 2, n.1 (App. 2010).



                                      2
                             STATE v. MCCOY
                            Decision of the Court

McCoy stated that she and the passenger had flown from Toledo to Las
Vegas for “fun,” stayed at the MGM hotel, and acquired a rental vehicle to
drive back to Ohio. As the trooper continued speaking with McCoy, he
reviewed the vehicle’s rental contract and noted that a third party had
rented the vehicle and no other drivers were listed. When asked about her
omission from the rental agreement, McCoy explained that the absent third
party “was the one with all the money.”

¶5             To lighten the tone of the conversation, at some point, the
trooper also asked McCoy whether she, as a resident of Ohio, could explain
the origin of the phrase “holy Toledo.” McCoy answered, “I don’t do drugs
or anything like that.” Believing this unprompted reference to drugs—as
well as the circumstances surrounding the rental vehicle and McCoy’s
faltering     voice,    averting     eyes,      and      overall     escalating
nervousness—indicated possible criminal activity, the trooper checked the
vehicle identification number. As he did so, the trooper questioned the
passenger, who stated that she and McCoy had driven to Las Vegas “for
fun,” stayed at a small, unidentified hotel, left their vehicle in Nevada, and
rented a car for the drive back to Ohio. Based on the substantial
discrepancies between McCoy’s account and the passenger’s statements,
the trooper concluded something “nefarious” was afoot.

¶6           Upon issuing the written warning to McCoy and returning
her documents, the trooper asked whether there was anything illegal in the
rental car. Denying the presence of any contraband, McCoy invited the
trooper to search the vehicle. When the trooper handed her a written
consent form a few moments later, however, McCoy rescinded her consent
to a search.

¶7            At that point, the trooper asked McCoy whether she was
willing to wait for a drug dog and she consented. After the trooper called
for a canine unit, he started to “press” McCoy, telling her that he knew there
were drugs in the car and asking her to be honest. In response, McCoy
admitted that she had marijuana in her purse and acknowledged that there
were other drugs in the vehicle, though explaining she did not know the
type of drugs in the car because she had been paid to transport them for
someone else. After McCoy’s confession, the trooper arrested the women
and searched McCoy’s purse and the rental vehicle, seizing marijuana,
methamphetamine, and Fentanyl.

¶8           A jury found McCoy guilty as noted above and the superior
court sentenced her to an aggregate term of ten years’ imprisonment.
McCoy timely appealed, and we have jurisdiction pursuant to Arizona


                                      3
                             STATE v. MCCOY
                            Decision of the Court

Revised    Statutes     (“A.R.S.”)     sections    12-120.21(A)(1),     13-4031,
and -4033(A)(1).

                                DISCUSSION

¶9           McCoy contends the superior court improperly denied her
motion to suppress. Asserting the trooper lacked reasonable suspicion to
detain her once he had issued the written warning, McCoy argues the
trooper’s continued questioning, without her consent, unlawfully
expanded the scope of the traffic stop.

¶10           Before trial, McCoy moved to suppress all statements she
made after the trooper issued the warning and all evidence seized during
the trooper’s subsequent search. At the evidentiary hearing held on the
motion, the trooper testified that he did not delay the traffic stop to converse
with McCoy and the passenger, but timely drafted the written warning as
they spoke. According to the trooper, once he returned McCoy’s documents
and issued the warning, he “simply kep[t] talking” and “asking her
questions.” In response, McCoy never expressed a desire to leave, although
the trooper acknowledged that had she attempted to do so, he
“[a]bsolutely” would have detained her because he believed she was
involved in “drug activity.”

¶11          After considering the evidence presented, the superior court
found that McCoy’s interaction with the trooper was consensual once the
purpose of the traffic stop concluded. Accordingly, the court found it was
unnecessary to determine whether the trooper had reasonable suspicion to
detain McCoy and denied the motion to suppress.

¶12           We review the denial of a motion to suppress evidence for an
abuse of discretion, Brown v. McClennen, 239 Ariz. 521, 524, ¶ 10 (2016), but
review de novo the superior court’s ultimate legal conclusion that a search
and seizure “complied with the dictates of the Fourth Amendment,” State
v. Valle, 196 Ariz. 324, 326, ¶ 6 (App. 2000). In doing so, we defer to a
superior court’s determination of witnesses’ credibility, see Mendoza-Ruiz,
225 Ariz. at 475, ¶ 6, and uphold the court’s ruling if it is legally correct for
any reason, State v. Huez, 240 Ariz. 406, 412, ¶ 19 (App. 2016).

¶13           The federal and state constitutions protect individuals against
unreasonable searches and seizures, U.S. Const. amend. IV; Ariz. Const. art.
2, § 8, and “any evidence collected in violation” of these provisions “is
generally inadmissible in a subsequent criminal trial,” State v. Valenzuela,
239 Ariz. 299, 302, ¶ 10 (2016). Although a stop of a motor vehicle
constitutes a seizure, it is less intrusive than an arrest, and therefore


                                       4
                               STATE v. MCCOY
                              Decision of the Court

“officers need only possess a reasonable suspicion that the driver has
committed an offense to conduct a stop.” State v. Kjolsrud, 239 Ariz. 319, 322,
¶ 9 (App. 2016) (internal quotation omitted). “[T]he tolerable duration of
police inquiries in the traffic-stop context is determined by the seizure’s
‘mission’—to address the traffic violation that warranted the stop,” and
“[a]uthority for the seizure thus ends” once the officer has returned the
driver’s documents and issued a warning or citation. Rodriguez v. United
States, 135 S.Ct. 1609, 1614 (2015); see also State v. Teagle, 217 Ariz. 17, 23, ¶ 21
(App. 2007). At that point, “the driver must be permitted to proceed on his
way without further delay or questioning” unless: (1) the encounter
between the driver and the officer becomes consensual, or (2) during the
encounter, the officer develops a reasonable and articulable suspicion that
criminal activity is afoot. Teagle, 217 Ariz. at 23, ¶ 22 (quoting United States
v. Mendez, 118 F.3d 1426, 1429–30 (10th Cir. 1997)); see also Arizona v. Johnson,
555 U.S. 323, 333 (2009) (“An officer’s inquiries into matters unrelated to the
justification for the stop . . . do not convert the encounter into something
other than a lawful seizure, so long as those inquiries do not measurably
extend the duration of the stop.”).

¶14            Here, McCoy does not dispute that the initial traffic stop was
reasonable. Instead, she argues that the trooper unlawfully prolonged the
detention by asking additional questions after issuing the warning. Because
an extended detention, beyond the time reasonably required to complete
the traffic-related purpose of a stop, is unconstitutional absent an
independent basis, the first question before us is whether this stop became
a consensual encounter. See Kjolsrud, 239 Ariz. at 322, 325–26, ¶¶ 10, 21–24;
see also Florida v. Royer, 460 U.S. 491, 498, 500 (1983) (explaining “an
investigative detention must be temporary and last no longer than is
necessary to effectuate the purpose of the stop,” and a motorist may not be
detained “even momentarily without reasonable, objective grounds for
doing so”).

¶15           To determine whether this encounter was consensual or
amounted to an additional seizure, we consider the totality of the
circumstances and whether a reasonable person under those circumstances
would have felt free to leave. See United States v. Mendenhall, 446 U.S. 544,
554 (1980) (“[A] person has been ‘seized’ within the meaning of the Fourth
Amendment only if, in view of all the circumstances surrounding the
incident, a reasonable person would have believed that he was not free to
leave.”). A traffic stop may become consensual once an officer returns a
driver’s documents and issues a warning or citation, so long as the officer
proceeds without an “overbearing show of authority.” State v. Box, 205 Ariz.
492, 498–99, ¶¶ 21–22 (App. 2003), abrogated in part on other grounds by


                                         5
                             STATE v. MCCOY
                            Decision of the Court

Rodriguez, 135 S.Ct. at 1615–16. Factors that indicate an additional seizure
include: (1) the threatening presence of several officers, (2) the display of a
weapon by an officer, (3) some physical touching or restraint, and (4) the
use of language or tone of voice indicating that compliance with the officer’s
request might be compelled. Mendenhall, 446 U.S. at 554. Absent such
evidence, “otherwise inoffensive contact between a member of the public
and the police cannot, as a matter of law, amount to a seizure of that
person.” Id. at 555. Moreover, when assessing the “Fourth Amendment
implications of police conduct,” an officer’s “subjective intent” is relevant
“only to the extent” that it “has been conveyed to the person confronted.”
Michigan v. Chesternut, 486 U.S. 567, 575, n.7 (1988).

¶16            In this case, there is no evidence that the trooper threatened
McCoy, touched or restrained her person, displayed a weapon, used
language or an authoritative tone that compelled her compliance, or
otherwise exhibited overbearing authority. Immediately upon returning
her documents and issuing the warning, the trooper asked McCoy whether
there was contraband in the vehicle and she responded by inviting the
trooper to search the rental car. Moments later, McCoy rescinded her
consent to a search of her vehicle, but then immediately agreed to wait for
a canine unit. On this record, the trooper never communicated, through
words or actions, his subjective intent to detain McCoy if she attempted to
leave, and never exhibited overbearing authority compelling her
compliance. Therefore, the superior court did not abuse its discretion by
denying McCoy’s motion to suppress after finding that McCoy’s brief,
post-citation encounter with the trooper was consensual. See State v.
Acinelli, 191 Ariz. 66, 69–70 (App. 1997) (concluding the defendant was free
to leave after the officer returned his documents and explained the issued
citations were warnings, and therefore the officer’s continued “dialogue
with the defendant” was lawful and the defendant’s consent to a search of
his vehicle was valid).

                               CONCLUSION

¶17           For the foregoing reasons, we affirm the convictions and
sentences.




                            AMY M. WOOD • Clerk of the Court
                            FILED:    JT
                                         6
