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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    NATHANIAL WILLIAMS, Appellant.

                             No. 1 CA-CR 14-0675
                               FILED 8-25-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-461405-001
                 The Honorable Jo Lynn Gentry, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Chris DeRose
Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix
By Paul J. Prato
Counsel for Appellant
                           STATE v. WILLIAMS
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge Lawrence F. Winthrop joined.


J O H N S E N, Judge:

¶1            Nathanial Williams appeals his conviction of possession or
use of marijuana, a Class 6 felony, and resulting probation grant, arguing
the superior court erred in denying his motion to suppress evidence. For
the following reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2           A detective and his partner on patrol one night in South
Phoenix stopped a vehicle with a broken taillight and expired registration.1
The car had three occupants; Williams sat in the front passenger seat.

¶3             As the detective approached the passenger side of the car (his
partner took the driver's side), he smelled marijuana emanating from where
Williams sat. Intending to search Williams for weapons, the detective asked
him to step out of the car with his hands on his head. According to the
detective, at some point before the search began, Williams "twist[ed] away"
from the detective. When the detective asked Williams why he was pulling
away, Williams replied that he had marijuana in his pocket. The detective
then searched Williams' pocket and found two small plastic bags of
marijuana. Williams was arrested and, after receiving Miranda warnings,
admitted the marijuana was his.2

¶4           A grand jury indicted Williams on a charge of possession or
use of marijuana, a Class 6 felony. Williams moved to suppress the
marijuana evidence and his incriminating statements, and the superior
court denied his motion without explanation. After a three-day trial, a jury


1      On review, we consider only the evidence presented at the
suppression hearing and view it in the light most favorable to upholding
the ruling. State v. Estrada, 209 Ariz. 287, 288, ¶ 2 (App. 2004).

2     See Miranda v. Arizona, 384 U.S. 436 (1966).



                                     2
                            STATE v. WILLIAMS
                            Decision of the Court

found Williams guilty as charged. The court suspended imposition of
sentence and placed Williams on supervised probation for two years.

¶5             Williams timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes sections 12-120.21(A)(1), 13-4031 and -4033(A)(1) (2015).3

                                DISCUSSION

¶6            "We review the superior court's ruling on [a] motion to
suppress for abuse of discretion if it involves a discretionary issue, but
review constitutional issues and purely legal issues de novo." State v.
Booker, 212 Ariz. 502, 504, ¶ 10 (App. 2006). We will affirm if the ruling is
legally correct for any reason supported by the record. See State v. Aguilar,
228 Ariz. 401, 403, ¶ 12 (App. 2011).

¶7             The Fourth Amendment protects the right of people to be free
from "unreasonable searches and seizures." U.S. Const. amend. IV. A
warrantless search is presumed unreasonable unless a specific, well-
delineated exception applies. State v. Blakley, 226 Ariz. 25, 27, ¶ 6 (App.
2010). One such exception is an investigatory stop and frisk. See Terry v.
Ohio, 392 U.S. 1, 30-31 (1968). Another exception to the warrant
requirement is a "search incident to a lawful arrest." See, e.g., Arizona v.
Gant, 556 U.S. 332, 338 (2009); United States v. Robinson, 414 U.S. 218, 235
(1973). Under this exception, a contemporaneous search incident to an
arrest is constitutionally permissible when there is probable cause for the
arrest. See State v. Bonillas, 197 Ariz. 96, 98, ¶ 7 (App. 1999). An officer may
search a suspect before a formal arrest, so long as there is probable cause
for the arrest at the time of the search. See id.; Rawlings v. Kentucky, 448 U.S.
98, 111 (1980).

¶8             On appeal, Williams argues only that the search did not come
within the Fourth Amendment exception for an investigatory stop and
frisk. See Arizona v. Johnson, 555 U.S. 323, 326-27 (2009); State v. Serna, 235
Ariz. 270, 275, ¶ 21 (2014). But the superior court reasonably could conclude
from the evidence presented at the suppression hearing that the detective
did not begin to search Williams until after he pulled away from the
detective and told him he had marijuana in his pocket.

¶9           The detective, who was the only witness at the suppression
hearing, could not recall precisely when the search began, but testified that

3      Absent material revision after the date of an alleged offense, we cite
a statute's current version.


                                       3
                            STATE v. WILLIAMS
                            Decision of the Court

Williams "started pulling away once he stepped out of the car." The
detective said, "I'm not sure if I got to the pat down [before Williams twisted
away]. . . . I mean, like once [he] got out of the car and I'm going to pat him
down, but prior to me being able to pat him down, he twists away." He
further testified, "I didn't get to the pat down, he's twisting away
immediately when he gets out of the car." Once Williams told the detective
of the marijuana in his pocket, the detective had probable cause to arrest
him. See, e.g., Maryland v. Pringle, 540 U.S. 366 (2003) (officer performing
traffic stop had probable cause to arrest all three occupants of vehicle after
cocaine was found in backseat of car behind armrest). Because the officer
had probable cause to arrest Williams, the contemporaneous search
incident to the arrest was constitutionally permissible. See Robinson, 414
U.S. at 235; Bonillas, 197 Ariz. at 98, ¶ 7.4 Accordingly, the superior court
did not abuse its discretion in denying Williams' motion to suppress
evidence.

                              CONCLUSION

¶10          Because the superior court could conclude that the detective
had probable cause to arrest Williams before the search, it did not err in
denying the motion to suppress evidence. We affirm.




                                    :ama




4      For this reason, Williams' reliance on People v. Medina, 1 Cal. Rptr. 3d
546 (2003), is misplaced. That case did not analyze the "search incident to
lawful arrest" exception to the warrant requirement, and, by contrast to
Medina, the detective in this case had probable cause to arrest Williams at
the time he conducted the search. See id. at 549 (officer's only reason for
searching the suspect during a traffic stop was the time and location of the
stop).


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