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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      CHRISTOPHER PAUL MASON,
                              Appellant.

                             No. 1 CA-CR 19-0019
                              FILED 2-6-2020


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-119208-001
              The Honorable George H. Foster, Jr., Judge

                                  AFFIRMED


                                   COUNSEL

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

The Susser Law Firm, PLLC, Chandler
By Adam M. Susser
Counsel for Appellant

Christopher Paul Mason, Phoenix
Appellant
                             STATE v. MASON
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge James B. Morse Jr. joined.


J O H N S E N, Judge:

¶1            Christopher Paul Mason filed this appeal in accordance with
Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297
(1969), following his conviction of possession or use of dangerous drugs, a
Class 4 felony. Mason's counsel has searched the record on appeal and
found no arguable question of law that is not frivolous. See Smith v. Robbins,
528 U.S. 259, 284 (2000); Anders, 386 U.S. at 744; State v. Clark, 196 Ariz. 530,
537, ¶ 30 (App. 1999). Counsel now asks this court to search the record for
fundamental error. Mason filed a supplemental brief identifying various
issues, which we address below. After reviewing the entire record, we
affirm Mason's conviction and sentence.

              FACTS AND PROCEDURAL BACKGROUND

¶2           Driving through an apartment complex, Officer Jeffrey
Pittman pulled up beside Mason and his female companion and asked if
they would be willing to talk with him.1 After they said "sure," Mason
agreed to allow Pittman to search him, and Pittman found
methamphetamine in a cigarette pack in Mason's pocket. Police found
more methamphetamine in Mason's wallet after he was arrested.

¶3            The State charged Mason with one count of possession or use
of dangerous drugs, a Class 4 felony. See Arizona Revised Statutes
("A.R.S.") section 13-3407(A)(1) (2020).2 Mason moved to suppress the
methamphetamine, and the superior court denied the motion after a
hearing. At trial, the jury found Mason guilty as charged. The superior



1      Upon review, we view the facts in the light most favorable to
sustaining the jury's verdict and resolve all inferences against Mason. State
v. Gurrola, 219 Ariz. 438, 439, ¶ 1, n.1 (App. 2008).

2      Absent material revision after the date of an alleged offense, we cite
the current version of a statute or rule.


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                             STATE v. MASON
                            Decision of the Court

court sentenced Mason as a category-three offender to a presumptive term
of ten years, with 1,489 days of presentence incarceration credit.

¶4            Mason timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-
120.21(A)(1) (2020), 13-4031 (2020) and -4033(A)(1) (2020).

                                DISCUSSION

A.     Issues Raised in Supplemental Brief.

       1.     Legal principles.

¶5            In his supplemental brief, Mason raises several challenges to
the superior court's ruling on his motion to suppress. He argues the court
misstated the law in its ruling and erred by denying his motion because
Pittman illegally seized the drug, Mason's consent was involuntary and
Pittman exceeded the scope of Mason's consent.

¶6             "We review the denial of a motion to suppress evidence for
abuse of discretion, considering the facts in the light most favorable to
sustaining the ruling." State v. Weakland, 246 Ariz. 67, 69, ¶ 5 (2019) (citation
omitted). We defer to a superior court's factual findings absent clear error,
State v. Herrera, 183 Ariz. 642, 648 (App. 1995), considering only the facts
presented at the suppression hearing, State v. Blackmore, 186 Ariz. 630, 631
(1996). "We review questions of law de novo." State v. Richter, 245 Ariz. 1,
4, ¶ 11 (2018).3

       2.     Evidence at the suppression hearing.

¶7             Pittman testified at the hearing that, while on a routine patrol
and without emergency lights or siren, he stopped his car near Mason and
his companion in an apartment complex and asked if they would talk to
him. The duo agreed, and Pittman asked for their identification, which they
provided. Pittman ran a "records check" and found outstanding felony
warrants for Mason's companion, but none for Mason. Pittman arrested the
companion and then, before returning Mason's identification, asked if
Mason "had anything on him that [Pittman] needed to be concerned about."
Mason responded that "he didn't have any weapons on him." Pittman then
asked "if [he] could search him," and Mason answered, "Yes."



3      We deny Mason's renewed request to strike his counsel's brief and
accept his as an opening brief.


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                             STATE v. MASON
                            Decision of the Court

¶8            While patting Mason down, Pittman felt something in his
right-front pocket, and Mason volunteered, "those are my smokes." Before
removing anything from the pocket, Pittman asked "if [he] could look at
them and [Mason] said yes." Pittman then removed and opened two
cigarette packs, one of which contained the methamphetamine. Pittman
testified he used no physical force, nor did he draw his gun or threaten
Mason with a search warrant to obtain consent.

¶9             Mason offered a different version of events at the hearing. He
testified Pittman turned on his emergency lights as he approached and that
after Pittman detained Mason's companion, he asked Mason, "Can I pat you
down for weapons to check to make sure you don't go around the corner
and come back and shoot me because we're arresting your girlfriend[?]"
According to Mason, he agreed only to allow Pittman to pat him down for
weapons. He testified that during the pat-down, Pittman pulled out the
cigarette pack and asked to look inside. Mason testified he objected, but
Pittman nevertheless opened the pack, slammed Mason against the hood of
the police car and arrested him.

¶10           After the hearing, the superior court denied the motion to
suppress, finding the encounter consensual and the searches legal. The
court later denied Mason's motion to reconsider its ruling.

       3.     The superior court's statement of law.

¶11            Mason first argues the superior court misstated the law in its
suppression ruling. An error of law in reaching a discretionary conclusion
is an abuse of discretion. Romer-Pollis v. Ada, 223 Ariz. 300, 302, ¶ 12 (App.
2009). In its ruling, the court here stated, "[I]t's uncontroverted that police
may search for weapons . . . even [in] a consensual encounter for their
safety. There's no argument that they can't. Even the defendant
acknowledged this consent to search for weapons."

¶12           In his argument, Mason relies on State v. Serna, 235 Ariz. 270,
271, ¶ 1 (2014), which held that even if an encounter begins as a consensual
one, "an officer must have reasonable suspicion that criminal activity is
afoot before frisking the individual." But Serna is distinguishable. In that
case, an officer called out to the defendant, who then walked toward the
officer. Id. at 272, ¶ 3. The officer noticed a bulge in the defendant's
waistband and asked if he had any firearms, and the defendant said he had
a gun. Id. "The officer then ordered [the defendant] to put his hands on his
head and removed the gun." Id.




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                             STATE v. MASON
                            Decision of the Court

¶13           In contrast to Serna, during what began as a consensual
encounter, Pittman asked if he could search Mason, who answered "yes."
There was no contention in Serna that the defendant there was asked to
consent to a search. See id. at 276, ¶ 27. Regardless of the statement by the
superior court here about the right of an officer to search for weapons
during a run-of-the-mill "consensual encounter," the court correctly stated
that when a person consents to a search of his or her person for weapons,
the officer may perform such a search. See id. at 272, ¶ 8 (citing Florida v.
Bostick, 501 U.S. 429, 434 (1991)). And the court did not err by merely
acknowledging a fact the parties agreed on – that Mason had, at the very
least, consented to a weapons search. See supra ¶¶ 7, 9.

       4.     Purported seizure before consent.

¶14            Mason next argues that because Pittman impermissibly
detained him before he acquiesced to any search, the searches and ultimate
seizure of the drug violated the Fourth Amendment. Because Mason failed
to raise this argument before the superior court, he has "forfeited review
except for fundamental, prejudicial error." State v. Salcido, 238 Ariz. 461,
465, ¶ 16 (App. 2015).

¶15           On this record, the superior court did not commit
fundamental error by failing to sua sponte suppress the methamphetamine
on a ground neither party raised, developed or argued. The suppression
hearing and ruling focused on the factual issue of whether Mason had
consented to Pittman's searches, not on whether Pittman illegally detained
Mason for purposes of the Fourth Amendment by retaining his
identification before asking for consent to the search. Although Mason
introduced some evidence at the suppression hearing pertinent to the
argument he makes now, when he failed to raise the issue before the
superior court, he deprived the State of the opportunity to develop critical
facts bearing on the purported detention.

¶16           Whether a person was seized for purposes of the Fourth
Amendment depends on whether a reasonable person would have felt free
to leave under the totality of the circumstances. State v. Childress, 222 Ariz.
334, 338, ¶ 11 (App. 2009) (citing United States v. Mendenhall, 446 U.S. 544,
554 (1980)). For that reason, a challenge to evidence on that ground cannot
be reviewed in the absence of a ruling on the issue by the superior court
based on a full factual record. See State v. Cook, 170 Ariz. 40, 58-59 (1991)
(appellate court will not engage in fundamental-error review of superior
court's failure to suppress testimony by witness whose plea agreement
required him to testify when defendant raised issue for first time on


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                             STATE v. MASON
                            Decision of the Court

appeal). For the same reason, we will not address Mason's argument, made
for the first time in his supplemental brief, that the original stop and request
for identification violated Article 2, Section 8, of the Arizona Constitution
because Pittman lacked a reasonable suspicion of illegal conduct.

¶17            Because we decline to consider Mason's argument that he was
illegally detained before Pittman asked his consent to search, we need not
consider Mason's related contention that his consent to the subsequent
search was not sufficiently attenuated to avoid exclusion.

       5.     Voluntariness of consent.

¶18            Mason also argues his consent to Pittman's search of his
person and the cigarette packs was involuntary. Although Mason failed to
explicitly make this argument before the superior court, when the State
relies on consent to justify a warrantless search, it has the burden of proving
the consent was voluntary. Bumper v. North Carolina, 391 U.S. 543, 548
(1968). "Voluntariness is assessed from the totality of the circumstances."
State v. Butler, 232 Ariz. 84, 87, ¶ 13 (2013) (citing Schneckloth v. Bustamonte,
412 U.S. 218, 227 (1973)).

¶19           Based on the evidence the State presented at the suppression
hearing – that Pittman neither used lights or sirens, drew his gun, used
physical force, nor threatened Mason before obtaining his consent, and that
Mason had many prior encounters with police – the State carried its burden
of proving Mason voluntarily consented to the searches. Though Pittman
retained Mason's identification and arrested his companion before asking
for Mason's consent to search him, these facts by themselves did not render
Mason's consent involuntary under the totality of the circumstances.
Mason also argues Pittman's purported statement to the effect that Mason
might "go around the corner and come back and shoot [him]" coerced his
consent by "implying officer safety," but the superior court was free to
discredit Mason's disputed testimony that this occurred. See State v.
Alvarado, 158 Ariz. 89, 92 (App. 1988) ("It is for the trial court to resolve
conflicting testimony and to weigh the credibility of witnesses.").
Moreover, the record does not support Mason's contention that the superior
court "did not make any ruling on voluntariness." By denying the motion
to suppress, the court implicitly found that he voluntarily consented to the
searches. Cf. State v. Hardy, 230 Ariz. 281, 289-90, ¶¶ 32, 42 (2012) (superior
court "implicitly" found evidence was not unduly prejudicial when it
decided to admit it).




                                       6
                            STATE v. MASON
                           Decision of the Court

      6.     Scope of consent.

¶20           Finally, Mason argues Pittman exceeded the scope of Mason's
consent by searching inside the cigarette pack after Mason consented only
to a pat-down for weapons. See State v. Paredes, 167 Ariz. 609, 612 (App.
1991) ("The scope of a consensual search is limited to the scope of the
consent given."). Although Mason testified he objected when Pittman
asked to look inside the cigarette pack, Pittman testified Mason consented
to a general search, volunteered "those are my smokes" during the pat-
down, then further consented after Pittman asked if he could look at the
cigarettes. See supra ¶¶ 7-9. By finding the search was legal, the superior
court credited Pittman's testimony over Mason's, and we defer to its factual
findings, including its implicit finding that Mason consented to a request
by Pittman to open the cigarette packs to allow him to look inside. See
Alvarado, 158 Ariz. at 92. Because the evidence viewed in the light most
favorable to upholding the ruling shows Pittman did not exceed Mason's
scope of consent, no error occurred.4

B.    Due-Process Review.

¶21            The record reflects Mason received a fair trial. He was
represented by counsel at all stages of the proceedings against him except
at sentencing, at which the superior court found Mason knowingly,
intelligently and voluntarily waived his right to counsel and permitted him
to proceed pro per with advisory counsel. Mason was either present at all
critical stages or his counsel waived his presence. The court held
appropriate pretrial hearings, and Mason did not request a voluntariness
hearing. See State v. Bush, 244 Ariz. 575, 590, ¶ 61 (2018).

¶22            The State presented both direct and circumstantial evidence
sufficient to allow the jury to convict. The jury was properly comprised of
eight members. The court properly instructed the jury on the elements of
the charges, the State's burden of proof and the necessity of a unanimous
verdict. The jury returned a unanimous verdict, which was confirmed by
juror polling. The court received and considered a presentence report,
addressed its contents during the sentencing hearing and imposed a legal
sentence for the crime of which Mason was convicted.




4      Mason also raises, but does not argue, three issues "to preserve them
for future proceedings." We do not address them here. See Ariz. R. Crim.
P. 31.10(a)(7); State v. Fitzgerald, 232 Ariz. 208, 217, ¶ 51, n.6 (2013).


                                     7
                            STATE v. MASON
                           Decision of the Court

                               CONCLUSION

¶23           We have reviewed the entire record for reversible error and
find none, and therefore affirm the conviction and resulting sentence. See
Leon, 104 Ariz. at 300.

¶24           Defense counsel's obligations pertaining to Mason's
representation in this appeal have ended. Counsel need do no more than
inform Mason of the outcome of this appeal and his future options, unless,
upon review, counsel finds "an issue appropriate for submission" to the
Arizona Supreme Court by petition for review. See State v. Shattuck, 140
Ariz. 582, 584-85 (1984). On the court's own motion, Mason has 30 days
from the date of this decision to proceed, if he wishes, with a pro per motion
for reconsideration. Mason has 30 days from the date of this decision to
proceed, if he wishes, with a pro per petition for review.5




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




5      We deny as moot Mason's "Motion to Stay Direct Appeal Pending
Special Action," filed December 23, 2019.


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