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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       CARLOS J. GARFIO, Appellant.

                             No. 1 CA-CR 18-0745
                              FILED 8-22-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR 2018-104567-001
            The Honorable Susan M. Brnovich, Judge Retired

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Casey Ball
Counsel for Appellee

Maricopa County Legal Defender’s Office, Phoenix
By Cynthia D. Beck
Counsel for Appellant
                            STATE v. GARFIO
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge James B. Morse Jr. and Judge David D. Weinzweig joined.


C A M P B E L L, Judge:

¶1            Carlos Garfio appeals his conviction and sentence for
possession of dangerous drugs for sale asserting that his Miranda rights
were violated. Miranda v. Arizona, 384 U.S. 436 (1966). A person is entitled
to Miranda warnings when in custody and subject to interrogation. Id.
Because we conclude the officer’s question did not amount to an
interrogation, we affirm.

                             BACKGROUND

¶2            A sergeant with the Tucson Police Department, working with
federal law enforcement, approached Officer Hurley and asked him to
conduct a traffic stop of a Toyota Camry that would soon be driving past.
Hurley saw the vehicle make several improper lane changes and initiated a
traffic stop. Hurley asked the driver and passenger, Garfio, for
identification. Garfio was sitting in the backseat with a backpack between
his legs. Hurley ran a standard warrant check and learned Garfio had an
outstanding misdemeanor warrant for arrest. Hurley asked Garfio to exit
the vehicle and placed him under arrest.

¶3             Officer Hurley noticed that Garfio left the backpack in the
vehicle and asked whether it belonged to him. Garfio responded “yes.”
Hurley then asked the driver to whom the backpack belonged, and the
driver said it was Garfio’s. The driver explained that Garfio was a fare from
Google rideshare—a car service where passengers request rides, similar to
Uber or Lyft. Hurley took Garfio’s backpack and searched it to ensure there
were no weapons. In the backpack, he found approximately 12 pounds of
methamphetamine.

¶4           Officer Hurley again asked the driver if the backpack
belonged to him, and he responded “no.” Hurley searched the rest of the
vehicle and after finding no other contraband, released the driver and
transported Garfio to jail. Hurley read Garfio his Miranda rights at the jail.
Using a slang term for methamphetamine, he told Garfio they found “it” in



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                            STATE v. GARFIO
                           Decision of the Court

his backpack. Garfio nodded his head yes in response. Hurley asked Garfio
to explain why it was in there, and Garfio subsequently invoked his right
to remain silent. Garfio was charged with possession of dangerous drugs
for sale.

¶5             Before trial, Garfio moved to suppress the statement he made
to Officer Hurley—his “yes” answer to Hurley’s question about ownership
of the backpack. Garfio argued he was subjected to a custodial interrogation
before being read his Miranda rights. The court denied the motion, finding
the question did not represent a custodial interrogation, but was instead the
sort of question posed “normally attendant to arrest.” Hurley was arresting
Garfio on an outstanding warrant and only asked about the backpack to
ensure that Garfio had not inadvertently left his possessions behind. The
court explained that Hurley had no information that Garfio was the focus
of the stop; he was taken into custody because he “happened to have a
warrant.” Hurley testified that he asked Garfio if the bag belonged to him
so he could take his property with him.

¶6            A jury ultimately convicted Garfio of possession of dangerous
drugs for sale. The superior court sentenced Garfio as a category 3 repetitive
offender to the presumptive term of 15.75 years in prison. This timely
appeal followed.

                               DISCUSSION

¶7            Garfio challenges the superior court’s denial of his motion to
suppress for two reasons. First, he argues the superior court erred in finding
that the question about ownership of the backpack was the type typically
attendant to arrest. Second, he argues the question was intended to elicit an
incriminating response, basing this argument on the officer’s specialized
training in narcotics interdiction.

¶8            We review the superior court’s ruling on a motion to suppress
for abuse of discretion, considering only the evidence presented at the
suppression hearing. State v. Wilson, 237 Ariz. 296, 298, ¶ 7 (2015). We view
the evidence in the light most favorable to sustaining the superior court’s
ruling and defer to the court’s factual findings unless clearly erroneous.
State v. Rosengren, 199 Ariz. 112, 116, ¶ 9 (App. 2000). We review legal
conclusions, including the admissibility of statements, de novo. Id.

¶9           Under the Fifth Amendment of the United States
Constitution, a person is shielded from compulsory self-incrimination.
Miranda, 384 U.S. at 478–79. To ensure this right is upheld, law enforcement
officers must provide Miranda warnings before interrogating a person in


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                             STATE v. GARFIO
                            Decision of the Court

custody. Id. “Miranda safeguards come into play whenever a person in
custody is subjected to either express questioning or its functional
equivalent.” Rhode Island v. Innis, 446 U.S. 291, 300–01 (1980). However, “not
every question posed in a custodial setting is equivalent to interrogation,”
and Miranda warnings are only required if “the questions are reasonably
likely to elicit an incriminating response.” State v. Waggoner, 139 Ariz. 443,
445 (App. 1983). Questions that are “normally attendant to arrest and
custody” do not constitute interrogation for purposes of Miranda. Innis, 446
U.S. at 301; State v. Landrum, 112 Ariz. 555, 559 (1976) (explaining Miranda
does not apply to a detective’s “clearly neutral, nonaccusatory” questions
“in furtherance of proper preliminary investigation”). “The focus in
ascertaining whether particular police conduct amounts to interrogation
. . . is not on the form of the words used, but the intent of the police officers
and the perceptions of the suspect.” State v. Finehout, 136 Ariz. 226, 230
(1983).

¶10           Garfio argues his “yes” response to Officer Hurley’s question
about who owned the backpack should have been suppressed because it
was elicited while he was in custody and before he was advised of his right
to remain silent. He argues the court abused its discretion in finding the
question was simply attendant to a typical arrest. We reject his argument
for two independent reasons.

¶11             First, the evidence reflects that Officer Hurley asked the
question incident to Garfio’s arrest. Generally, police may ask a person in
custody about the ownership of property to ensure that the property is
safeguarded without conducting an interrogation for purposes of Miranda.
See, e.g., United States v. Conley, 156 F.3d 78, 84 (1st Cir. 1998) (describing a
question about ownership of money found in a defendant’s wallet as an
“informational inquiry incident to the arrest, as opposed to a query
designed to induce an inculpatory remark”); United States v. Regilio, 669
F.2d 1169, 1177 (7th Cir. 1981) (noting that “inventorying of a suspect’s
property” is “not interrogation”); United States v. La Monica, 472 F.2d 580,
581 (9th Cir. 1972) (finding no Miranda violation because the “officer who
asked [defendant] about the receipt was not seeking evidence but was
trying to identify and inventory [defendant’s] personal effects”); see also
Miranda, 384 U.S. at 477 (excluding general on-the-scene questioning from
the definition of custodial interrogation); Innis, 466 U.S. at 301. Hurley
testified that he was arresting Garfio on an unrelated warrant, only asked
about the backpack to make sure Garfio left nothing behind, was unaware
there would be illegal drugs in the backpack, and first learned about the
drugs when conducting a routine search of Garfio’s possessions. We defer



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                            STATE v. GARFIO
                           Decision of the Court

to the superior court’s decision to credit Hurley’s testimony about these
facts. See Rosengren, 199 Ariz. at 116, ¶ 9.

¶12            Garfio also argues Officer Hurley’s question was intended to
elicit incriminating information. He bases this claim on Hurley’s prior
training with drug investigations, asserting that he knew the purpose of the
stop was to find illegal drugs. However, Hurley testified his question
regarding ownership of the backpack was unrelated to his specialized
narcotics training. He explained that at the time he asked the question he
had no knowledge that there were drugs in the car he had yet to find. The
record does not indicate Hurley intended to elicit an incriminating response
when he posed the question. Hurley asked the question before he even
knew about the drugs, not to ascertain who was transporting the drugs. See
Oregon v. Vondehn, 236 P.3d 691, 707 n.2 (2010) (Linder, J., concurring)
(noting that because of officers need to “ascertain the owner of property in
order to ask for consent to search,” questions “to determine the identity of
the owner may potentially qualify as the kind of routine questioning
normally attendant to” arrest). Thus, the question was the type normally
attendant to arrest.

¶13           Second, even if we were to assume Garfio’s affirmative
response to Officer Hurley’s question was in fact the result of a custodial
interrogation in violation of Miranda, admission of the statement would
amount to a harmless error because it amounts to cumulative evidence. See
State v. Williams, 133 Ariz. 220, 226 (1982). Garfio acknowledged his
ownership of the backpack after he received his Miranda rights, prior to
invocation of his right to remain silent. After receiving Miranda warnings,
he nodded his head in agreement when told drugs were found in the
backpack. Even without Garfio’s pre-Miranda statement, the jury would
have received evidence that Garfio was in the backseat with the backpack
between his legs, the driver’s response that the backpack was not his, and
Garfio’s post-Miranda acknowledgment that there were drugs found in the
backpack. We find no reversible error.




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                           STATE v. GARFIO
                          Decision of the Court

                             CONCLUSION

¶14           For the foregoing reasons, we affirm the superior court’s
denial of Garfio’s motion to suppress and his conviction and sentence.




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




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