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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    ANTHONY RODRIGUEZ, Appellee.

                             No. 1 CA-CR 18-0127
                              FILED 4-23-2019


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201700911
             The Honorable Richard Weiss, Judge Retired

                                  VACATED


                                   COUNSEL

Mohave County Attorney’s Office, Kingman
By Jaimye Ashley
Counsel for Appellant

Law Offices of Shawn B. Hamp, Kingman
By Shawn B. Hamp, Virginia L. Crews, Troy Anderson
Counsel for Appellee
                          STATE v. RODRIGUEZ
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.


C A T T A N I, Judge:

¶1             The State of Arizona appeals the superior court’s order
granting Anthony Rodriguez’s motion to suppress evidence and statements
in connection with drugs found during a traffic stop. We vacate the
suppression ruling and remand because the superior court did not address
(1) whether the arresting officer had reasonable suspicion to conduct the
traffic stop, and (2) whether Rodriguez’s admission that there were drugs
in the car was made as part of a consensual discussion after the officer had
returned Rodriguez’s driver’s license and issued a warning.

             FACTS AND PROCEDURAL BACKGROUND

¶2              In late June 2017, Rodriguez was arrested and charged with
one count of transportation of dangerous drugs for sale and one count of
possession of dangerous drugs for sale after an Arizona Department of
Public Safety trooper stopped Rodriguez’s vehicle for an alleged traffic
violation and found methamphetamine in the trunk. Rodriguez moved to
suppress evidence and statements obtained during the traffic stop, and the
superior court conducted a suppression hearing at which only the arresting
officer testified.

¶3            The officer testified that, while driving “several hundred feet
at least” behind Rodriguez on an interstate highway, he observed
Rodriguez make an “abrupt” lane change without using his turn indicator,
pulling in front of another vehicle at an unsafe distance (only
approximately one car-length).         The officer then drove up beside
Rodriguez, who appeared “stress[ed]” because he was “grimac[ing]” and
gripping the steering wheel with his arm straight.

¶4            The officer then turned on his emergency lights, and
Rodriguez pulled over onto the shoulder. After noting that both Rodriguez
and the one passenger in the car appeared “exceptional[ly]” nervous, the
officer told Rodriguez he was going to issue a warning and had Rodriguez
get out of the car. While completing the warning, the officer noted



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                          STATE v. RODRIGUEZ
                           Decision of the Court

discrepancies between how Rodriguez and the passenger described the
purpose of their trip, as well as that Rodriguez was driving a rental car but
did not have the rental contract with him.

¶5            The officer then handed Rodriguez his driver’s license and the
warning, and directly asked if he had anything illegal in the car. Rodriguez
denied having any illegal items and stated, “Go ahead and check if you
want.” When the officer provided a consent to search form, Rodriguez
asked if he could refuse to consent to the search. The officer told Rodriguez
“of course, yes,” but immediately followed with, “do you have drugs in the
vehicle?” Rodriguez then answered, “well, I have a little.” The officer
asked if there was anything else, and Rodriguez admitted to having a
couple of pounds of methamphetamine in the trunk. The officer detained
Rodriguez, searched the car, and located methamphetamine in the trunk.

¶6             The superior court granted Rodriguez’s motion to suppress.
The court expressed some skepticism regarding the officer’s stated basis for
the initial stop and observed that “I don’t really disagree that the officer
didn’t have an ability to pull over Mr. Rodriguez for a traffic violation.”
The court further found that “when Mr. Rodriguez decided that he didn’t
want to sign the consent form and he said no, well, then everything after
that now becomes an illegal search.” The court subsequently granted the
State’s motion to dismiss the case without prejudice.

¶7             The State timely appealed from the suppression ruling. We
have jurisdiction under Arizona Revised Statutes (“A.R.S.”) § 13-4032(6).
See State v. Bejarano, 219 Ariz. 518, 522–23, ¶ 14 (App. 2008).

                               DISCUSSION

¶8             We review a suppression order for abuse of discretion,
deferring to the superior court’s factual findings but considering the court’s
legal conclusions de novo. State v. Teagle, 217 Ariz. 17, 22, ¶ 19 (App. 2007);
State v. Booker, 212 Ariz. 502, 504, ¶ 10 (App. 2006). We consider only
evidence presented at the suppression hearing, and we view the facts in the
light most favorable to upholding the court’s ruling. State v. Butler, 232
Ariz. 84, 87, ¶ 8 (2013).

I.     Traffic Stop.

¶9            To initiate a traffic stop, an officer must have articulable,
reasonable suspicion that the person committed a traffic violation. Arizona
v. Johnson, 555 U.S. 323, 326 (2009); State v. Salcido, 238 Ariz. 461, 464, ¶ 7
(App. 2015). If an officer reasonably suspects that a driver committed a


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                            Decision of the Court

traffic violation, the subjective intentions of the officer do not affect the
validity of a traffic stop. Whren v. United States, 517 U.S. 806, 810–13 (1996);
Jones v. Sterling, 210 Ariz. 308, 311, ¶ 10 (2005).

¶10           In Arizona, a driver passing another vehicle must do so “at a
safe distance” and must give “an appropriate signal in the manner
provided by this article in the event any other traffic may be affected by the
movement.” A.R.S. §§ 28-723(1), -754(A). In construing these statutes, we
have held that a driver must use a turn signal if the lane change “enters into
the decision-making calculus of a nearby driver.” State v. Starr, 222 Ariz.
65, 72, ¶¶ 24–25 (App. 2009).

¶11            The superior court’s ruling is not clear as to whether the court
found the initial stop to be defective. After suggesting that the officer
pulled up beside Rodriguez’s vehicle in an attempt to “find more violations”
(emphasis added), the court then stated that “I don’t really disagree that the
officer didn’t have an ability to pull over Mr. Rodriguez for a traffic
violation.” Although the latter statement arguably conveys the superior
court’s belief that the officer did not have reasonable suspicion of a traffic
violation to justify the stop, the court provided no rationale for this
conclusion. The officer testified that Rodriguez made an abrupt and unsafe
lane change without using a turn indicator, and there was no contrary
evidence. The superior court could have discounted the officer’s credibility
or ability to observe, but it made no such finding. Accordingly, lacking any
basis on which to affirm a finding that the initial traffic stop was not
justified by reasonable suspicion, we vacate the court’s ruling in this regard
and remand for clarification.

II.    Continued Contact After the Traffic Stop Concluded.

¶12             A traffic stop is considered reasonable (and thus permissible
under the Fourth Amendment) as long as it is supported by reasonable
suspicion and lasts no longer than necessary to effectuate the purpose of
the stop. See State v. Sweeney, 224 Ariz. 107, 111–12, ¶¶ 16–17 (App. 2010).
Once an officer has issued a traffic citation and concluded the purpose of
the stop, “the driver must be permitted to proceed on his way without
further delay or questioning” unless (1) the encounter becomes consensual
or (2) the officer has by that time gained reasonable suspicion of other illegal
activity. Teagle, 217 Ariz. at 23, ¶ 22. If police otherwise prolong the
detention—even minimally—the seizure becomes unlawful, see Rodriguez
v. United States, 135 S. Ct. 1609, 1615–16 (2015), and evidence obtained
therefrom is subject to exclusion. See Wong Sun v. United States, 371 U.S.
471, 484–86 (1963).


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                          STATE v. RODRIGUEZ
                           Decision of the Court

¶13            Here, the traffic stop ended when the officer returned
Rodriguez’s driver’s license and issued a warning—before Rodriguez
admitted having drugs in the vehicle—and the court arguably explained
why the officer’s observations to that point did not amount to reasonable
suspicion of illegal activity. The superior court did not, however, address
whether the encounter with Rodriguez became consensual after the officer
issued the warning, and instead ruled only that once Rodriguez decided
that he did not want to sign the consent form, the encounter became an
illegal search.

¶14           But an officer’s brief questioning after issuing a traffic
violation warning can be a permissible consensual encounter if the driver
agrees to answer questions. See Teagle, 217 Ariz. at 23, ¶ 23. There is not “a
litmus-paper test for distinguishing a consensual encounter from a
seizure.” Florida v. Royer, 460 U.S. 491, 506 (1983). Instead, a determination
of whether the continued stop violates the Fourth Amendment turns on “all
the circumstances surrounding the encounter” and focuses on whether the
police conduct would have communicated to a reasonable person that the
person was not free to decline the officer’s requests or otherwise terminate
the encounter. Florida v. Bostick, 501 U.S. 429, 439 (1991). Because the
superior court did not address whether the officer’s conduct communicated
to a reasonable person in Rodriguez’s position that the person was not free
to terminate the encounter, we vacate the suppression ruling in this regard
and remand for further consideration.

                              CONCLUSION

¶15           For the foregoing reasons, we vacate the superior court’s
ruling on the motion to suppress and remand for further proceedings
consistent with this decision.




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