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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      MICHAEL MORLAN, Appellant.

                             No. 1 CA-CR 14-0822
                               FILED 12-22-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-110604-001
               The Honorable Warren J. Granville, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Terry J. Adams
Counsel for Appellant
                           STATE v. MORLAN
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Jon W. Thompson and Judge Lawrence F. Winthrop joined.


H O W E, Judge:

¶1            Michael Morlan appeals his convictions and probation order
for possession of marijuana and drug paraphernalia. He argues that the trial
court abused its discretion in denying his motion to suppress evidence
because the police officers illegally seized him. For the following reasons,
we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            Late one evening, two police officers sat in an unmarked
police car conducting surveillance in an apartment parking lot. The officers
observed two people—later identified as Morlan and a female—enter the
parking lot in a pickup truck and park in a secluded area furthest from the
apartment buildings. The officers had a clear, unobstructed view of the
truck, and although the truck had tinted windows they could see Morlan
and the female inside.

¶3              During the following hour, the officers saw Morlan and the
female ignite a lighter several times and move around a lot inside the truck,
lying on top of each other. The officers decided to check the truck’s license
plate to see if someone had reported it as stolen, but no one had. Although
Morlan’s truck matched the license plate and registration, the officers knew
from personal experience as law enforcement officers that suspects
sometimes switch stolen license plates with plates from similar vehicles to
avoid detection, so they did not rule out the possibility of the truck’s being
stolen. Also during that hour, the officers saw the truck’s headlights and
taillights begin to flicker, which they believed may be related to its alarm
system. Morlan then got out of the truck and walked back and forth from
the driver’s seat to the hood of the truck trying to get it to start. After
spending five to ten minutes repeating this, Morlan got back inside the
truck.

¶4            The officers approached the truck on either side with
flashlights. One officer identified himself and asked the occupants to show



                                      2
                            STATE v. MORLAN
                            Decision of the Court

their hands. Morlan, whose eyes were bloodshot and glazed and whose
tongue had a green tint, immediately raised his right hand. He used his left
hand, however, to “manipulat[e] something underneath his leg” between
the passenger and center seats and did not raise it until two seconds later.
The officer then asked the occupants to get out of the truck and stand on
the curb next to it, which they did. Morlan gave the officer his name and
date of birth, but that information did not appear in any of the various
police databases that the officer checked. Morlan also stated that he had a
valid Arizona driver’s license and a clean criminal record, but the officer
could not verify either claim based on the information Morlan provided.

¶5           Unable to confirm Morlan’s identity, the officer believed that
Morlan had provided false identification so he handcuffed him. The officer
told Morlan that he would release him once he could confirm Morlan’s
identity. Morlan then told the officer that his identification was located
inside the truck but did not know exactly where, and gave the officer
permission to enter to search for it. As the officer approached the truck to
look for Morlan’s identification, he saw through the window a glass pipe
with burnt residue sitting between the passenger seat and the center
console. The officer entered the truck, removed it, and told Morlan that he
had found a glass pipe. The pipe contained a usable amount of marijuana.

¶6             The State subsequently charged Morlan with felony
possession of marijuana and drug paraphernalia, but later designated the
charges as misdemeanors. Morlan moved to suppress the glass pipe,
arguing that the officers violated his right against unreasonable seizures
and guarantee of privacy under the United States and Arizona
Constitutions by illegally seizing him. At the joint suppression hearing and
bench trial, an officer testified that he and the other officer had three reasons
to approach Morlan’s truck: “[o]ne was based on the belief that [he] thought
the vehicle could potentially be stolen, based on the totality of everything
that was occurring,” another was that “based on the light flashing inside, a
flame source, [he] believed they could potentially be using drugs,” and
finally, “based on the movements inside the vehicle with one subject on top
of the other subject, [he] believed that there could be, potentially, an
indecent sex act occurring in the parking lot.” After considering the
evidence, the trial court denied Morlan’s motion. The trial court found that
“there was no duty to inspect, there was no probable cause for the officer,
the officer was trying to figure out what was going on, made a warrantless
approach to . . . two folks in a vehicle. The Court finds nothing unlawful
about that.” The trial court ultimately convicted Morlan of both
misdemeanors, suspended sentencing, and imposed concurrent terms of
twelve months’ unsupervised probation. Morlan timely appealed.


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                            STATE v. MORLAN
                            Decision of the Court

                               DISCUSSION

¶7             Morlan argues that the trial court erred in denying his motion
to suppress the evidence because the officers lacked reasonable suspicion
to stop him. We review a trial court’s denial of a motion to suppress for an
abuse of discretion. State v. Payne, 233 Ariz. 484, 502 ¶ 42, 314 P.3d 1239,
1257 (2013). But “whether an officer had a reasonable suspicion of criminal
activity that justified conducting an investigatory stop is a mixed question
of law and fact which we review de novo.” State v. Rogers, 186 Ariz. 508,
510, 924 P.2d 1027, 1029 (1996). We only consider the evidence presented at
the suppression hearing and view the facts in the light most favorable to
upholding the trial court’s ruling. State v. Yonkman, 233 Ariz. 369, 371 ¶ 4,
312 P.3d 1135, 1137 (App. 2013). Because the officers had reasonable
suspicion justifying their investigatory stop, the trial court did not abuse its
discretion in denying Morlan’s motion to suppress the glass pipe.

¶8             The Fourth Amendment to the United States Constitution
prohibits police officers from making unreasonable searches and seizures.1
A seizure occurs when an officer restrains a person’s liberty through
physical force or show of authority. Terry v. Ohio, 392 U.S. 1, 20 n.16 (1968).
But an officer may “stop and briefly detain a person for investigative
purposes if the officer has a reasonable suspicion supported by articulable
facts that criminal activity ‘may be afoot,’ even if the officer lacks probable
cause.” United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry, 392 U.S.
at 30). While officers must have more than an inchoate hunch, reasonable
suspicion requires only a “minimal, objective justification for an
investigatory detention.” State v. Teagle, 217 Ariz. 17, 23 ¶ 25, 170 P.3d 266,
272 (App. 2007). This objective justification is considered against the totality
of the circumstances so that officers may draw on their specialized training
to form the basis for a stop. State v. Woods, 236 Ariz. 527, 530 ¶ 11,
342 P.3d 863, 866 (App. 2015).

¶9             Here, three sets of articulable facts gave the officers the
requisite reasonable suspicion that criminal activity might have been afoot.
First, one officer testified that he believed the truck could have been stolen
because, based on his experience, he believed the truck’s flickering lights
may be related to its alarm system, and that even though no one had
reported the truck as stolen, suspects sometimes switch the license plate to

1     Morlan also challenges the seizure based on Article 2, Section 8 of
the Arizona Constitution. We note that in this context, the Arizona
Constitution is no broader than the Fourth Amendment. State v. Juarez,
203 Ariz. 441, 444 ¶ 14, 55 P.3d 784, 787 (App. 2002).


                                       4
                            STATE v. MORLAN
                            Decision of the Court

avoid detection. Further, he testified that he saw a lighter ignite several
times during the hour that Morlan remained in the truck, leading him to
believe that Morlan was using illegal drugs. Finally, the officer stated that
although the truck had tinted windows he could see Morlan and the female
passenger move around and lie on top of each other, leading the officer to
believe that the occupants were engaging in an indecent sex act. Taken in
totality with the circumstances that Morlan parked in the most secluded
area of the apartment parking lot and remained in the truck for an hour,
these facts gave the officer the minimal, objective justification needed to
conduct an investigatory stop of Morlan. The officer drew on his specialized
training to create this justification and acted on more than just an inchoate
hunch.

¶10            Morlan counters that the police contact became
nonconsensual and illegal because he yielded to police authority by raising
his hands and exiting the vehicle, and because the officers did not have
reasonable belief that Morlan was armed and dangerous. However, even
though a seizure occurred when Morlan complied with the officer’s
command, reasonable suspicion supported by articulable facts permitted
the investigatory stop from the initial contact. See State v. Ramsey,
223 Ariz. 480, 486 ¶ 27, 224 P.3d 977, 983 (App. 2010) (concluding that even
though a seizure occurred, the officers had reasonable suspicion to stop the
defendant). Further, police officers only need reasonable belief that a
suspect is armed and dangerous to conduct a frisk after an investigatory
stop, but not to conduct the investigatory stop itself as Morlan urges. See
State v. Serna, 235 Ariz. 270, 275 ¶ 21, 331 P.3d 405, 410 (2014) (concluding
that a frisk is only permissible if officers reasonably suspect both that
criminal activity is afoot and that the suspect is armed and dangerous).
Because a frisk did not occur here, the officers did not need such belief.
Accordingly, the officers did not violate Morlan’s Fourth Amendment
rights because articulable facts gave the officers reasonable suspicion to
justify the investigatory stop, and the trial court did not abuse its discretion
in denying Morlan’s motion to suppress the glass pipe.




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                   STATE v. MORLAN
                   Decision of the Court

                     CONCLUSION

¶11   For the foregoing reasons, we affirm.




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