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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                                        v.

                         SIMONE KEARNS, Appellee.

                             No. 1 CA-CR 16-0321
                               FILED 4-13-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-115861-001
                  The Honorable Jose S. Padilla, Judge

                      REVERSED AND REMANDED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Amanda M. Parker
Counsel for Appellant

Maricopa County Public Defender’s Office, Phoenix
By Terry Reid
Counsel for Appellee
                            STATE v. KEARNS
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Peter B. Swann delivered the decision of the court, in
which Judge Kent E. Cattani and Judge Donn Kessler joined.


S W A N N, Judge:

¶1            The State appeals from the superior court’s order granting
Simone Kearns’s motion to suppress evidence seized from her vehicle
during a traffic stop. For the reasons that follow, we reverse and remand.

                FACTS AND PROCEDURAL HISTORY

¶2            Two police officers in the same patrol car were patrolling
near a Phoenix residence known to have been previously involved with
drug activity. The officers watched Kearns exit the residence, get into a
pickup truck that was parked in front, and drive away.

¶3            As the officers followed her in their patrol car, neither could
read the truck’s full license plate, only the letters and numbers toward the
plate’s edges. Officer Yoder, who was driving the patrol car, testified that
the license plate was “covered up by a trailer — a tow hitch and also by
some wire that was hanging down.” Officer Louisoder also testified that
the hitch and hanging wires blocked the middle portion of the plate.

¶4             The officers pulled Kearns over for failing to maintain a
legible license plate. When Kearns stopped her truck, the officers parked
their patrol car behind it. Both officers testified that they could not read
the truck’s license plate until they exited their vehicle and walked toward
the truck. Officer Yoder testified that he could not read the license plate
until he was standing approximately 10 to 15 feet away from it; Officer
Louisoder testified that he could read the license plate when he “walked
up to the vehicle and stood close by it.”

¶5            When Kearns could not produce her driver’s license or any
other form of identification, Officer Yoder placed her under arrest. Officer
Yoder handcuffed Kearns, and placed her in the back of the patrol car.
Both officers testified their standard practice, when a person is unable to
provide identification, is to take the person into custody.




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                           Decision of the Court

¶6            While in the patrol car, Kearns told Officer Louisoder that
her identification might be in her truck’s glove compartment. Officer
Louisoder asked for permission to search the glove compartment; Kearns
granted permission. Officer Louisoder searched the glove compartment
while Officer Yoder remained with Kearns in the patrol car. When Officer
Louisoder could not find Kearns’s identification in the glove
compartment, he searched her purse, which was sitting on the driver’s
seat. Officer Louisoder did not find Kearns’s identification inside her
purse, but he found a baggie of methamphetamine, which was not in plain
view.

¶7             Officer Louisoder testified that the Phoenix Police
Department’s inventory policy required him to search and inventory the
entire pickup truck, including any containers, before booking Kearns into
jail. The officers could have started an inventory search immediately after
searching the glove compartment, but admitted that he had not started the
inventory search when he searched her purse. Later, after conducting a
full inventory search of the pickup truck, Officer Louisoder was still
unable to locate Kearns’s identification.

¶8            Following the inventory search, Kearns was transported to
the police station, booked into jail and released soon thereafter. Kearns
was cited for possessing dangerous drugs, failing to provide
identification, and failing to maintain a legible license plate. Kearns was
later charged with possession of a dangerous drug, a class 4 felony.

¶9             Kearns filed a motion to suppress the methamphetamine
under the Fourth Amendment of the United States Constitution and
Article 2, Section 8 of the Arizona Constitution.

¶10           At the April 22, 2016, evidentiary hearing on that motion,
Kearns did not dispute the officers’ testimony that a tow hitch and wiring
obstructed their view of her license plate, and admitted that she was
found responsible in city court for the license-plate violation. She agreed
with Officer Louisoder’s testimony that she had given him consent to
search the glove compartment, but not her purse.

¶11            In granting Kearns’s motion to suppress, the court stated, in
relevant part:

      [The officers] believed that bumper hitch obstructed the
      plate. The Court disagrees with that simply because Officer
      Yoder indicated that within 10 or 15 feet, which is
      approximately the distance between two vehicles, when they


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                           Decision of the Court

      parked, he noticed that he could see the entire plate plain
      and simple. . . .

      ....

      [T]here is no reasonable basis for the stop. And there is
      something just wrong with saying, [w]ell, this is a basis for a
      stop, when the officers, essentially, are closing their eyes. If I
      close my eyes to the fact that there is a license plate there, I
      don’t see it. As far as I’m concerned, subjectively I obstruct
      it. So if you put yourself in a position where you can’t see it
      because it’s in front of the car, it’s obstructed. You can’t see
      it. But if it’s open to the public and readable from the public
      view, it is open to the public. Ten to 15 feet, the officer
      admitted, he saw the plate. It was highly legible.

      This part about the wires obstructing it, I’m not buying that
      at all. So I find the credibility is lacking as to that.

      As to the bumper hitch, yes, it might have obstructed it, but
      if you just move your head to the side or the other one or
      one officer or the other, they would have been able to see it.
      So, again, I find that the officers placed themselves in the
      position where they created the offense. There is federal
      case law on that issue. You cannot create an exigent
      circumstance. The same thing applies to the making of a
      crime.

The court ruled that because the officers lacked reasonable suspicion to
stop Kearns’s truck, the resulting search and discovery of the
methamphetamine were improper.

¶12            The State moved to dismiss the case without prejudice and
filed a notice of appeal from the court’s ruling.

                              DISCUSSION

¶13           The State contends that the court erred by finding that the
officers could read Kearns’s license plate “when they parked;” that the
court erred by concluding that the officers did not have reasonable
suspicion that Kearns violated A.R.S. § 28-2354(B)(3), which requires that a
license plate be displayed “so it is clearly legible;” and that the
methamphetamine in Kearns’s purse inevitably would have been
discovered as part of the inventory search.


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                            STATE v. KEARNS
                           Decision of the Court

¶14           We conclude that the court erred in granting the motion to
suppress. Because the court granted the motion based on the validity of
the stop, and did not address any other issue, we address only the validity
of the stop.

¶15            We review the grant or denial of a motion to suppress
evidence for abuse of discretion. State v. Carter, 145 Ariz. 101, 110 (1985).
We must view the evidence in the light most favorable to upholding the
court’s ruling, State v. Sheko, 146 Ariz. 140, 141 (App. 1985), deferring to
the court’s factual determinations, including its evaluation of the
credibility of witness testimony, State v. Estrada, 209 Ariz. 287, 292, ¶ 22
(App. 2004); State v. Box, 205 Ariz. 492, 495, ¶ 7 (App. 2003) (“In reviewing
the denial of a motion to suppress evidence, we defer to the trial court’s
factual determinations, but the ultimate ruling is a conclusion of law we
review de novo.”). The court’s findings of fact, however, must be
supported by the record and cannot be clearly erroneous. Estrada, 209
Ariz. at 288, ¶ 2. An abuse of discretion exists when the record is “devoid
of competent evidence to support” the decision, Fought v. Fought, 94 Ariz.
187, 188 (1963), or when the trial court makes an error of law in the
process of making its decision, State v. Simon, 229 Ariz. 60, 62, ¶ 7 (App.
2012); State v. Noceo, 223 Ariz. 222, 224, ¶ 3 (App. 2009).

¶16             As the court held, the stop required a reasonable basis, that
is, a particularized and objective basis, to suspect Kearns had violated the
law. State v. Nevarez, 235 Ariz. 129, 133, ¶ 7 (App. 2014). We review de
novo whether the officers had reasonable suspicion, based on the totality
of the circumstances, to perform an investigatory stop of Kearns’s truck.
Id. at 132, ¶ 6; State v. Vera, 196 Ariz. 342, 343, ¶ 4 (App. 1999).

¶17            Based on this record, the officers had reasonable suspicion to
stop Kearns’s truck. A.R.S. § 28-2354(B)(3) requires that a license plate be
displayed “so it is clearly legible.” Even giving appropriate deference to
the court’s findings of fact and assessment of witness credibility, we must
conclude that the court’s ruling was based on a mistaken perception of the
testimony and a flawed application of that statute.

¶18          The court concluded that “Officer Yoder indicated that
within 10 or 15 feet, which is approximately the distance between two
vehicles, when they parked, he noticed that he could see the entire plate
plain and simple.” The State correctly argues this equates to a finding that
Officer Yoder could read Kearns’s license plate while they were in the
patrol car. Yet such a finding is contrary to the only evidence presented
on the question: both officers testified that they could not read the license


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                            STATE v. KEARNS
                           Decision of the Court

plate until they parked, exited their patrol car, and walked toward the
truck.

¶19            In addition, the court’s conclusion that the bumper hitch
“might have obstructed” the license plate but that the officers could have
“just move[d their] head[s] to the side” to see it results in an illogical
application of A.R.S. § 28-2354(B)(3). We must “interpret and apply
statutory language in a way that will avoid an untenable or irrational
result,” State v. Estrada, 201 Ariz. 247, 251 ¶ 16 (2001), and we must also
“apply practical, common sense constructions rather than hypertechnical
ones that would tend to frustrate legislative intent when we interpret
criminal statutes,” State v. Seyrafi, 201 Ariz. 147, 151, ¶ 11 (App. 2001). We
give words their commonly accepted meanings, unless a statutory term is
defined, in which case we apply that meaning. State v. Bon, 236 Ariz. 249,
251, ¶ 6 (App. 2014). Here, the statute requires that a license plate be
“clearly legible,” not that it be potentially legible from only one particular
angle or from only a particular distance. License plates “need to be easily
read . . . to facilitate law enforcement and ordinary citizens in reporting
and investigating hit-and-run accidents, traffic violations, gas-pump drive
offs, and other criminal activity.” Parks v. State, 247 P.3d 857, 860, ¶ 12
(Wyo. 2011) (finding that trailer hitch ball that partially obstructed license
plate violated statute requiring that plate be “plainly visible” and “clearly
legible”).

                              CONCLUSION

¶20           For the foregoing reasons, we conclude the court erred by
granting Kearns’s motion to suppress the methamphetamine because the
officers lacked reasonable suspicion for the traffic stop. We vacate the
suppression order and remand for proceedings consistent with this
decision.




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




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