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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     RIGOBERTO MEZA-CONTRERAS,
                              Appellant.

                              No. 1 CA-CR 15-0458
                                FILED 5-24-2016


            Appeal from the Superior Court in Mohave County
                         No. S8015CR201300435
                The Honorable Lee Frank Jantzen, Judge

                                   AFFIRMED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Adele Ponce
Counsel for Appellee

Law Offices of Harriette P. Levitt, Tucson
By Harriette P. Levitt
Counsel for Appellant
                      STATE v. MEZA-CONTRERAS
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kenton D. Jones joined.


O R O Z C O, Judge:

¶1           Rigoberto Meza-Contreras (Defendant) appeals his
convictions and sentences for transportation of dangerous drugs for sale
(methamphetamine)      and     possession    of   drug    paraphernalia
(methamphetamine). For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2             Department of Public Safety Officer Callister conducted a
traffic stop of a northbound pickup truck on I-15 in northwestern Arizona
after noticing that a Global Positioning System (GPS) device affixed to the
truck’s windshield was unlawfully obstructing the driver’s view.
Defendant was the truck’s sole passenger. Alonso, the driver, presented
Officer Callister with his driver’s license and a rental agreement showing
the truck had been rented the previous day in California by Defendant’s
wife. The rental agreement indicated that she was the only authorized
driver of the truck, and the vehicle was to remain in California during the
one-week rental period.

¶3             Officer Callister had Alonso exit the truck and proceed to the
patrol vehicle. In response to Officer Callister’s questioning, Alonso stated
he and Defendant were going to Colorado and planned to stay for fifteen
days to visit friends. When Officer Callister returned to the truck,
Defendant stated that he and Alonso were going to stay in Colorado for one
day to visit family before returning to California.

¶4            After speaking with Defendant, Officer Callister returned the
driver’s license and rental agreement to Alonso, issued him a warning
regarding the GPS device attached to the windshield, and asked if he could
search the truck. According to the trial evidence, either Alonso or
Defendant consented to a search, and Officer Callister ultimately found
fourteen one-pound bags of methamphetamine located in the driver and
passenger door panels.




                                     2
                       STATE v. MEZA-CONTRERAS
                           Decision of the Court

¶5            The State charged Defendant with one count of transportation
of dangerous drugs for sale (methamphetamine) (Count 1), a class 2 felony;
and one count of possession of drug paraphernalia (methamphetamine)
(Count 2), a class 6 felony. Before trial, Defendant moved to suppress the
drugs, arguing they were seized pursuant to an unconstitutional
warrantless search of the truck. The trial court held an evidentiary hearing
and denied the motion. Defendant also moved in limine to preclude, on
hearsay grounds, Alonso’s statements to Officer Callister regarding his and
Defendant’s travel plans to Colorado. The court denied the motion.

¶6            Defendant was found guilty on both counts, sentenced, and
timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of
the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections
12-120.21.A.1, 13-4031, and -4033.A.1 (West 2016).1

                               DISCUSSION

I.            Motion to Suppress

¶7            Defendant challenges the trial court’s denial of his motion to
suppress, arguing Officer Callister unreasonably detained him during the
traffic stop. Defendant, a native Spanish speaker, also argues that his
consent to search the truck was involuntary because of his limited English
proficiency. Specifically, Defendant contends he was unaware that he
could withhold his consent to the search, and he believed he was required
to sign a consent form so Officer Callister could check the truck for
“driveability.”

¶8             Both the Fourth Amendment to the United States
Constitution and Article 2, Section 8, of the Arizona Constitution prohibit
unreasonable searches and seizures. U.S. CONST. amends. 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 (App. 2007). We therefore
rely on Fourth Amendment jurisprudence in reviewing the trial court’s
suppression ruling.



1     We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.


                                       3
                       STATE v. MEZA-CONTRERAS
                           Decision of the Court

¶9              Generally, a warrantless search is per se unreasonable under
the Fourth Amendment. State v. Branham, 191 Ariz. 94, 95 (App. 1997)
(citing State v. Castaneda, 150 Ariz. 382, 389 (1986)). However, a warrantless
search is valid if the search is conducted after voluntary consent is given.
State v. Paredes, 167 Ariz. 609, 612 (App. 1991). “The voluntariness of a
defendant’s consent to search is a question of fact determined from the
totality of circumstances.” Id. (citing Schneckloth v. Bustamonte, 412 U.S. 218,
248-49 (1973)). It is the State’s burden to establish by clear and convincing
evidence that a defendant’s consent was freely and intelligently given. Id.

¶10           “An investigatory stop of a motor vehicle constitutes a seizure
under the Fourth Amendment.” State v. Gonzalez-Gutierrez, 187 Ariz. 116,
118 (1996). An officer needs only reasonable suspicion that the driver has
committed an offense to stop a vehicle. Berkemer v. McCarty, 468 U.S. 420,
439 (1984). Reasonable suspicion exists when the totality of circumstances
provides a “particularized and objective basis” for suspecting the particular
person has violated the law. Gonzalez-Gutierrez, 187 Ariz. at 118 (quoting
United States v. Cortez, 449 U.S. 411, 417-18 (1981)).

¶11            The exclusionary rule prevents the introduction of evidence
seized in violation of a person’s Fourth Amendment rights. State v.
Hackman, 189 Ariz. 505, 508 (App. 1997). In reviewing the denial of a motion
to suppress evidence purportedly seized in violation of the Fourth
Amendment, we review only the evidence submitted at the suppression
hearing, State v. Blackmore, 186 Ariz. 630, 631 (1996), and we view those facts
in the manner most favorable to upholding the trial court’s ruling. State v.
Sheko, 146 Ariz. 140, 141 (App. 1985). The trial court determines the
credibility of witnesses. State v. Ossana, 199 Ariz. 459, 461, ¶ 7 (App. 2001).
Although we defer to the trial court’s factual determinations, we review de
novo its ultimate legal conclusion. State v. Valle, 196 Ariz. 324, 326, ¶6 (App.
2000).

¶12            Here, the record reveals, and Defendant does not dispute, that
Officer Callister reasonably suspected Alonso was driving the truck in
violation of Arizona law, which prohibits the operation of a motor vehicle
with an object affixed to the windshield in a manner that obstructs or
restricts the driver’s clear view. See A.R.S. § 28-959.01.B; see also A.R.S. § 28-
1594 (An officer “may stop and detain a person as is reasonably necessary
to investigate an actual or suspected violation” of Title 28). Accordingly,
the initial stop of the truck to investigate the placement of the GPS device
and Officer Callister’s review of Alonso’s driver’s license and the rental
agreement did not violate the Fourth Amendment. See Paredes, 167 Ariz. at
611.


                                        4
                       STATE v. MEZA-CONTRERAS
                           Decision of the Court

¶13            Instead, Defendant contends that the stop became an
unconstitutional detention after Officer Callister issued Alonso the warning
and returned the license and rental agreement to him.2 Defendant does not
assert, and the record does not reflect, that his post-warning encounter with
Officer Callister was involuntary or was unreasonably prolonged. See
Teagle, 217 Ariz. at 23, ¶ 24 (citing United States v. Olivera-Mendez, 484 F.3d
505, 510-11 (8th Cir. 2007) (stating that “an officer does not violate the
Fourth Amendment by asking a few questions about matters unrelated to
the traffic violation, even if this conversation briefly extends the length of
the detention”). Furthermore, the Fourth Amendment not only permits an
investigating officer to ask questions unrelated to the traffic stop, it allows
the officer to request consent to search the vehicle. See generally Ohio v.
Robinette, 519 U.S. 33 (1996) (consent to search was voluntary where a
defendant was stopped for speeding, officer gave a verbal warning and
returned defendant’s driver’s license, and then asked defendant if he had
any contraband or weapons in the car; defendant replied “no” and
consented to search of the car). “An officer’s inquiries into matters
unrelated to the justification for the traffic stop do not convert the encounter
into something other than a lawful seizure, so long as the inquiries do not
measurably extend the stop’s duration.” Ariz. v. Johnson, 555 U.S. 323, 325
(2009).

¶14             The traffic stop here was not “measurably” delayed to the
extent it became unlawful. The record shows Officer Callister, immediately
after issuing the warning, had a short conversation with Alonso about the
weather and asked if he had anything illegal in the truck. When Alonso
said that he did not, Officer Callister requested and obtained Alonso’s
signature on a consent form that detailed Alonso’s rights in both English
and Spanish. Officer Callister then returned to the truck where Defendant
was seated and obtained his oral and written consent to search the truck.
As the trial court noted, nothing in the record indicates Officer Callister
exhibited overbearing authority at any time during his encounter with
Defendant. Importantly, Defendant testified at the suppression hearing
that he felt free to leave the scene. Under these circumstances, the court did
not abuse its discretion in finding Defendant’s short post-warning

2      The State argues this issue should be reviewed for fundamental error
because Defendant did not raise these specific arguments with the trial
court. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). However,
because we discern no error, we need not engage in fundamental error
review. See State v. Lavers, 168 Ariz. 376, 385 (1991) (“Before we may engage
in a fundamental error analysis, however, we must first find that the trial
court committed some error.”).


                                       5
                      STATE v. MEZA-CONTRERAS
                          Decision of the Court

encounter with Officer Callister was consensual. No Fourth Amendment
violation occurred. See Johnson, 555 U.S. at 325.

¶15            Regarding Defendant’s consent to the vehicle search, the
record reflects that he read—or at least had the opportunity to read—and
signed a consent form that, in both English and Spanish, explained he could
refuse to allow the search, he could withdraw his consent at any time, and
any evidence discovered during a search could be used in court. Although
Defendant testified he did not read the consent form and he believed that
Officer Callister was going to inspect the truck not for contraband but for
“driveability” based on the officer’s use of the Spanish word “inspeccionar”
rather than “revisar,” the court was not required to accept this testimony.
Indeed, the consent form expressly uses the terms “revisado” and
“revisen,” conjugations of the Spanish verb “revisar,” and Officer Callister
testified that Defendant appeared to understand his oral request in English
to search the truck after Defendant denied anything illegal was in it.

¶16           Defendant’s encounter with Officer Callister after Alonso
received the traffic warning was consensual and the traffic stop was not
unduly extended. Defendant also voluntarily consented to the vehicle
search. Accordingly, Officer Callister’s search of the truck and the resulting
seizure of the methamphetamine did not violate Defendant’s rights under
the Fourth Amendment. The court did not err in denying the motion to
suppress.

II.           Motion in Limine

¶17           Defendant argues the court should have granted his motion
in limine to preclude admission of Alonso’s statements to Officer Callister
explaining he and Defendant were planning to stay in Colorado for fifteen
days. Defendant contends these statements are hearsay and their improper
admission violated his constitutional right to confront Alonso. “‘Hearsay’
[is] a statement . . . offer[ed] in evidence to prove the truth of the matter
asserted[,]” and generally is not admissible as evidence. Ariz. R. Evid.
801(c), 802.

¶18            The Confrontation Clause of the Sixth Amendment protects a
defendant’s ability to prove a witness’s motive or bias. U.S. CONST. amend.
VI; Davis v. Alaska, 415 U.S. 308, 316-17 (1974). “[T]he Confrontation Clause
prohibits the admission of testimonial evidence from a declarant who does
not appear at trial unless the declarant is unavailable and the defendant had
a prior opportunity to cross-examine the declarant.” State v. King, 213 Ariz.
632, 637, ¶ 17 (App. 2006) (citing Crawford v. Wash., 541 U.S. 36, 68 (2004)).



                                      6
                       STATE v. MEZA-CONTRERAS
                           Decision of the Court

“The [Confrontation] Clause . . . does not bar the use of testimonial
statements for purposes other than establishing the truth of the matter
asserted.” Crawford, 541 U.S. at 59 n.9. Thus, the Confrontation Clause is
inapplicable to non-hearsay statements.

¶19          We generally review a trial court’s ruling on the admissibility
of evidence for a clear abuse of discretion. King, 213 Ariz. at 636, ¶ 15.
However, we review de novo challenges to admissibility based on the
Confrontation Clause. Id.

¶20            The State’s purpose in admitting Alonso’s statement that he
and Defendant were going to stay in Colorado for fifteen days was not to
prove that the two men were, in fact, planning on that length of sojourn.
Rather, the evidence was presented to show that Alonso and Defendant
gave different responses about their travel plans. The different responses,
both of which were in conflict with the one-week rental period of the truck,
were suspicious and provided a basis for Officer Callister to ask Alonso and
Defendant whether the truck contained contraband, and when they
answered in the negative, to request permission to search the vehicle. The
evidence, therefore, is not hearsay, and its admission did not violate
Defendant’s rights under the Confrontation Clause. We find no abuse of
discretion or legal error in denying Defendant’s motion in limine.

III.          Willits Instruction

¶21            During his search of the truck, Officer Callister noticed a one-
inch gap between the driver’s door and the door’s interior panel. He also
noticed a rivet on the driver-side floor board, which in addition to the gap
and mud found on the door panel, “showed tampering[.]” Officer Callister
proceeded to roll down the door window, but the window would not fully
retract into the door. Officer Callister shined his flashlight inside the door
panel and observed clear plastic packages containing the drugs, whereupon
he arrested Defendant and Alonso. Officer Callister proceeded to seize the
packaged drugs from the door panels. He did not seize the rivet and he did
not photograph it.

¶22           Officer Callister also did not seize luggage found in the truck.
Although he searched the luggage, he found only clothes and toiletries. The
luggage remained in the truck when the vehicle was eventually returned to
the rental company.

¶23          After the close of evidence, Defendant requested the jury be
instructed pursuant to State v. Willits, 96 Ariz. 184 (1964), with respect to the



                                       7
                       STATE v. MEZA-CONTRERAS
                           Decision of the Court

rivet and the luggage. The trial court declined to give the requested
instruction, a ruling Defendant argues was reversible error.

¶24             A Willits instruction tells jurors that they may draw an
inference from the State’s loss or destruction of material evidence that the
evidence would have been unfavorable to the State. State v. Fulminante, 193
Ariz. 485, 503, ¶ 62 (1999). However, a defendant is not automatically
entitled to a Willits instruction when evidence is destroyed or not retained.
State v. Murray, 184 Ariz. 9, 33 (1995). Further, a Willits instruction is not
required merely because the State could have undertaken a more thorough
or exhaustive investigation. Id. To be entitled to a Willits instruction, the
defendant must prove that the State failed to preserve evidence that is
material, accessible, and which might tend to exonerate the defendant. Id.
We review the refusal to give a Willits instruction for an abuse of discretion.
State v. Speer, 221 Ariz. 449, 457, ¶ 39 (2009).

¶25            We do not see the materiality of the rivet and the luggage or
how those items had a tendency to exonerate Defendant. As for the rivet,
Officer Callister testified that although the rivet initially indicated the truck
had been tampered with, it ultimately did not match the rivets that attached
the door panel to the door and therefore it had no evidentiary value.
Regarding the luggage, Officer Callister testified that he did not retain it
because “there’s nothing there to aid in prosecution or assist in proving
innocence of anybody there. It’s just items that belonged to them.”

¶26            Because the rivet and the luggage did not have any apparent
exculpatory value at the time of the search, the State was not required to
retain the items, and Defendant was not entitled to a Willits instruction. See
State v. Davis, 205 Ariz. 174, 180, ¶ 37 (App. 2002) (to merit a Willits
instruction, “[e]vidence must possess exculpatory value that is apparent
before it is destroyed.”). Furthermore, Defendant’s speculation that the
contents of the luggage would have tended to support his and Alonso’s
conflicting statements regarding how long they planned to stay in Colorado
does not sufficiently establish the exculpatory nature of such evidence as to
require a Willits instruction.3 See State v. Glissendorf, 235 Ariz. 147, 150, ¶ 9
(2014) (“To show that evidence had a ‘tendency to exonerate,’ the defendant

3      In his brief, Defendant implies that he told Officer Callister he was
planning to stay in Colorado for one day while Alonso would be staying
there longer. The record, however, reflects that Defendant informed Officer
Callister that both he and Alonso were going to stay for one day. The record
also establishes that Alonso explained to Officer Callister that both he and
Defendant were planning on staying in Colorado for fifteen days.


                                       8
                      STATE v. MEZA-CONTRERAS
                          Decision of the Court

must do more than simply speculate about how the evidence might have
been helpful. . . . [T]here must be a real likelihood that the evidence would
have had evidentiary value.”). Nothing in the record indicates what items
of clothing were in the luggage, and in any event, regardless of the clothing
items, they would not be probative of Defendant’s knowledge of the
fourteen pounds of methamphetamine found in the truck’s door panels.
The trial court acted within its discretion in denying Defendant’s request
for a Willits’ instruction.

IV.          Count 2: Pronouncement of Sentence

¶27          At sentencing, the trial court ordered a mitigated seven-year
prison sentence without specifying for which count the sentence was
imposed. Defendant requests he be resentenced on Count 2, because the
seven-year sentence was apparently intended to apply to the class 2 felony
in Count 1, yet could be construed as unlawfully applying to the class 6
felony in Count 2.

¶28           Defendant’s request is moot. The trial court issued a
supplemental ruling approximately three weeks after sentencing
Defendant. In that ruling, the court clarified that Defendant’s sentence for
Count 2 is a mitigated ten-month prison term to run concurrently with the
seven-year sentence imposed for Count 1.

                              CONCLUSION

¶29           For the foregoing reasons, we affirm Defendant’s convictions
and the resulting sentences.




                                   :ama




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