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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                    JAMES WILLIAM FLYNN, Petitioner,

                                        v.

  THE HONORABLE PATRICIA ANN STARR, Judge of the SUPERIOR
    COURT OF THE STATE OF ARIZONA, in and for the County of
                MARICOPA, Respondent Judge,

STATE OF ARIZONA, in and for the County of MARICOPA, MESA CITY
          PROSECUTOR’S OFFICE, Real Party in Interest.

                             No. 1 CA-SA 19-0156
                               FILED 8-22-2019


 Petition for Special Action from the Superior Court in Maricopa County
                          No. LC2018-000456-001
                  The Honorable Patricia A. Starr, Judge

                   Mesa Municipal Court No. 2017088643

           JURISDICTION ACCEPTED; RELIEF GRANTED


                                   COUNSEL

Fountain Hills Law Firm, Fountain Hills
By Tait D. Elkie
Counsel for Petitioner

Mesa City Prosecutor’s Office, Mesa
By Stacey Good, John L. Belatti
Counsel for Real Party in Interest
                      FLYNN v. HON STARR/STATE
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Vice Chief Judge Kent E. Cattani and Judge Maria Elena Cruz joined.


J O N E S, Judge:

¶1            James Flynn petitions for special action relief from the
superior court’s order reversing the municipal court’s decision to suppress
evidence obtained following a traffic stop. For the following reasons, we
accept jurisdiction and grant relief.

                 FACTS AND PROCEDURAL HISTORY

¶2            In late 2017 and early 2018, Flynn was charged in the City of
Mesa municipal court with four counts of driving under the influence
(DUI). Flynn moved to suppress evidence obtained from the traffic stop,
alleging the arresting officer lacked reasonable suspicion to initiate it.

¶3            At the June 2018 evidentiary hearing, the officer testified that,
while on patrol for a DUI task force on December 7, 2017 around 9:30 p.m.,
he first observed Flynn when he was exiting a strip mall parking lot near
Dobson and Guadalupe Roads in Mesa. The strip mall contained several
restaurants that were open at the time but, because the officer knew there
was a hole in a fence on the opposite side of the complex that separated the
strip mall parking lot from an adjacent bar, he followed Flynn for
approximately two miles. During this time, the officer estimated Flynn’s
speed at between twenty-eight and thirty-five miles per hour, never
reaching the posted limit of forty-five miles per hour. In the course of
following Flynn, the officer observed no traffic violations or other clues of
impairment.

¶4            The officer testified he initiated the stop solely because Flynn
left the vicinity of a bar and then traveled at a speed that varied but
remained below the posted limit. However, the officer did not remember
how many times Flynn’s speed varied. He did not have any clear
recollection of where the fluctuations occurred or whether Flynn had been
required to stop or slow down for any of the seven light-controlled
intersections the pair encountered. Nor was he able to testify as to how




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                      FLYNN v. HON STARR/STATE
                          Decision of the Court

frequent or great a speed variance would need to be to qualify as a clue of
impairment.

¶5             After taking the matter under advisement, the municipal
court determined the State had not met its burden of proving the officer had
a valid, reasonable suspicion to initiate the traffic stop and granted Flynn’s
motion to suppress. On appeal, the superior court reversed. Flynn now
petitions this Court for special action relief from the superior court’s final
judgment. Because Flynn has no alternative remedy for the superior court’s
error, see Ariz. Rev. Stat. § 22-3751 (permitting an appeal from a final
judgment of the superior court in an action from a justice of the peace or
municipal court only “if the action involves the validity of a tax, impost,
assessment, toll, municipal fine or statute”); see also State ex rel. McDougall
v. Superior Court, 170 Ariz. 474, 475 (App. 1991); Ariz. Super. Ct. R. App. P.
(Crim.) 13(b), we accept special action jurisdiction, see Glenn H. v. Hoskins,
244 Ariz. 404, 407, ¶ 7 (App. 2018) (“Special action jurisdiction is proper
when a party has no ‘equally plain, speedy, and adequate remedy by
appeal.’”) (quoting Ariz. R.P. Spec. Act. 1(a)).

                                DISCUSSION

¶6             Flynn argues the superior court decision to reverse the
municipal court’s suppression order is error. On appeal, “[w]e view the
facts in the light most favorable to support the trial court’s ruling on a
motion to suppress.” State v. Hernandez, 244 Ariz. 1, 3, ¶ 8 (2018) (citing
State v. Cook, 115 Ariz. 188, 192 (1977)). We likewise “defer to the [trial]
court’s determinations of the credibility of the officers and the
reasonableness of the inferences they drew.” State v. Mendoza-Ruiz, 225
Ariz. 473, 475, ¶ 6 (App. 2010) (citing State v. Gonzalez-Gutierrez, 187 Ariz.
116, 118 (1996)). We accept the court’s factual findings unless clearly
erroneous but review its ultimate legal determination that the investigatory
stop was justified de novo. State v. Rogers, 186 Ariz. 508, 510 (1996) (citing
Ornelas v. United States, 517 U.S. 690, 699 (1996)).

¶7             The Fourth Amendment protects against “unreasonable
searches and seizures.” U.S. Const. amend. IV. “A law enforcement stop
of a vehicle constitutes a seizure under the Fourth Amendment and ‘must
be justified by some objective manifestation that the person stopped is, or
is about to be engaged in criminal activity.’” State v. Gutierrez, 240 Ariz. 460,
463, ¶ 7 (App. 2016) (quoting State v. Richcreek, 187 Ariz. 501, 503-04 (1997)).


1      Absent material changes from the relevant date, we cite the current
version of statutes and rules.


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                      FLYNN v. HON STARR/STATE
                          Decision of the Court

“Hunches, intuition, and ‘unparticularized suspicion’ are not enough.”
Richcreek, 187 Ariz. at 505 (quoting State v. Graciano, 134 Ariz. 35, 37 (1982)).
Rather, “the ‘totality of the circumstances’ must provide ‘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)).

¶8             Although we might typically afford deference to “a trained
law enforcement officer’s ability to distinguish between innocent and
suspicious actions,” State v. Teagle, 217 Ariz. 17, 24, ¶ 26 (App. 2007) (citing
United States v. Arvizu, 534 U.S. 266, 273-74 (2002)), such deference is not
appropriate here. As the municipal court’s order makes clear, the officer
did not provide a factual basis for his suspicion that Flynn was impaired.
Indeed, the court specifically found the officer had no objective reason to
believe Flynn was not conducting legitimate business within the strip mall,
the officer could not remember when or how often Flynn’s speed varied,
and the officer could not articulate any standard upon which to conclude a
speed variance resulted from impairment. These findings are supported by
the record and indicate the municipal court did not find the officer’s
assessment of the circumstances credible. Moreover, we agree with other
courts that have recognized that driving below the posted speed limit does
not by itself furnish reasonable suspicion. See, e.g., Price v. Kramer, 200 F.3d
1237, 1247 (9th Cir. 2000); Faunce v. State, 884 So. 2d 504, 507 (Fla. Dist. Ct.
App. 2004); State v. Brown, 509 N.W.2d 69, 71 (N.D. 1993); Richardson v. State,
39 S.W.3d 634, 640 (Tex. Ct. App. 2000); see also Salt Lake City v. Bench, 177
P.3d 655, 660, ¶ 13 (Utah Ct. App. 2008) (“Prudent driving — going slower
than the posted speed limit . . . — is simply not suspicious. It is
commendable.”).

¶9            When considering all the above factors together, viewing the
evidence in the light most favorable to the municipal court’s order granting
Flynn’s motion to suppress, and deferring to the fact-finder’s assessment of
the arresting officer’s credibility, as we must, see supra ¶ 6, we cannot say
the municipal court abused its discretion in concluding the State failed to
meet its burden of showing a reasonable suspicion of criminal activity
justifying the stop. The superior court erred when it failed to give the
municipal court’s decision proper deference, second-guessed the municipal
court’s assessment of witness credibility, and reweighed the evidence.
Accordingly, we accept jurisdiction and grant relief.




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                     FLYNN v. HON STARR/STATE
                         Decision of the Court

                              CONCLUSION

¶10           The superior court erred in substituting its judgment for that
of the municipal court. Accordingly, the decision of the superior court is
reversed. The case is remanded to the municipal court for proceedings
consistent with this decision.




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




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