                                                                      FILED BY CLERK
                           IN THE COURT OF APPEALS                        OCT 13 2009
                               STATE OF ARIZONA                           COURT OF APPEALS
                                 DIVISION TWO                               DIVISION TWO




THE STATE OF ARIZONA,                         )
                                              )
                              Appellant,      )       2 CA-CR 2009-0023
                                              )       DEPARTMENT B
                   v.                         )
                                              )       OPINION
MARCOS ADRIAN CANALES,                        )
                                              )
                               Appellee.      )
                                              )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                               Cause No. CR20081220

                        Honorable Michael J. Cruikshank, Judge

                                     AFFIRMED


Barbara LaWall, Pima County Attorney
 By Jacob R. Lines                                                               Tucson
                                                                 Attorneys for Appellant

The Law Offices of Stephen P. Barnard, P.C.
 By Stephen P. Barnard                                                          Tucson
                                                                 Attorneys for Appellee


V Á S Q U E Z, Judge.
¶1            The State of Arizona appeals the trial court’s dismissal of charges against

Marcos Canales after an evidentiary hearing on Canales’s motion to dismiss based on a lack

of probable cause to arrest him for driving under the influence of intoxicating liquor (DUI).

Because we conclude the officer lacked reasonable suspicion to detain Canales, we affirm.

                           Facts and Procedural Background

¶2            We view the evidence presented at the suppression hearing in the light most

favorable to upholding the trial court’s ruling. State v. Rosengren, 199 Ariz. 112, ¶ 2, 14

P.3d 303, 306 (App. 2000). Just after 11:00 p.m. on March 11, 2008, Pima County Sheriff’s

Deputy Audetat was dispatched to an apartment complex to investigate a suspicious vehicle

in the parking lot. An unidentified person had called 911 and reported the vehicle. Audetat

parked directly behind a car closely matching the description that had been provided and

shined the patrol car’s alley light toward the vehicle. As he approached on foot, he noticed

Canales, who was sitting in the driver’s seat, place a twenty-four-ounce beer can behind the

passenger’s seat. Audetat smelled an odor of alcohol coming from the vehicle and observed

Canales had red, watery, bloodshot eyes. After back-up officers arrived, Audetat asked

Canales to step out of the vehicle and perform two field sobriety tests. On the walk-and-turn

test, Canales demonstrated three cues of impairment, and on the one-leg-stand test, he

demonstrated one. A preliminary breath test revealed the presence of alcohol. Audetat

arrested Canales for DUI, and another deputy performed a blood draw.




                                             2
¶3            Based on the results of the blood test, Canales was charged with aggravated

DUI while his license was suspended, revoked, or in violation of a restriction; aggravated

DUI with an alcohol concentration of 0.08 or more while his license was suspended, revoked,

or in violation of a restriction; aggravated DUI having two or more prior DUI convictions;

and aggravated DUI with an alcohol concentration of 0.08 or more, having two or more prior

DUI convictions. Before trial, Canales filed motions to dismiss for lack of reasonable

suspicion and probable cause, and after a hearing, the trial court dismissed based on the lack

of probable cause. The state has timely appealed.

                                          Discussion

¶4            In the single issue raised on appeal, the state contends the trial court abused its

discretion in granting the motion to dismiss because Audetat had probable cause to arrest

Canales for DUI. Canales counters that the officer detained him without “any reasonable

suspicion of criminal activity or a traffic violation,” 1 which he maintains violated his rights

under the Fourth Amendment to the United States Constitution and article II, § 8 of the

Arizona Constitution. Because we find the reasonable suspicion issue dispositive, we do not

reach the issue of whether the officer had probable cause to arrest Canales. See State v.

Canez, 202 Ariz. 133, ¶ 51, 42 P.3d 564, 582 (2002) (appellate court may affirm trial court

if correct for any reason).




       1
      The state opted not to file a reply brief and therefore has provided no response to this
argument.

                                               3
¶5             We review de novo whether there was reasonable suspicion to conduct an

investigatory stop, State v. Rogers, 186 Ariz. 508, 510, 924 P.2d 1027, 1029 (1996), and

defer to the trial court’s factual findings that are supported by the record, State v. Rosengren,

199 Ariz. 112, ¶ 9, 14 P.3d 303, 307 (App. 2000), viewing them in the light most favorable

to upholding the trial court’s ruling, State v. Gay, 214 Ariz. 214, ¶ 4, 150 P.3d 787, 790

(App. 2007).

¶6             Not all interactions between police officers and citizens implicate the Fourth

Amendment. Terry v. Ohio, 392 U.S. 1, 20 n.16 (1968); State v. Wyman, 197 Ariz. 10, ¶ 7,

3 P.3d 392, 395 (App. 2000). Only when the encounter is not voluntary and results in the

restraint of the individual’s liberty is the individual “seized” within the meaning of the

Constitution. Terry, 392 U.S. at 20 n.16; see also State v. Guillory, 199 Ariz. 462, ¶ 11, 18

P.3d 1261, 1264 (App. 2001) (seizure requires use of physical force or submission to

assertion of authority). “Whether an encounter is a detention . . . depends on whether the

police conduct would have conveyed to a reasonable person that he or she was not free to

decline the officer’s requests or otherwise terminate the encounter.” United States v.

Hernandez, 93 F.3d 1493, 1498 (10th Cir. 1996).

¶7             Audetat testified at the suppression hearing that when he entered the parking

lot, he parked his police car “in such a way that [Canales’s] vehicle could not back out,” so

that it was “kind of immobilized . . . by [his] car.” He then turned on his “alley light,” which

shone “in the direction” of the inside of Canales’s car, and immediately approached the


                                               4
driver’s side window on foot. The trial court concluded that this amounted to a “stop,

certainly, with the deputy parking behind the vehicle, even though the vehicle had not been

moving.”

¶8            Audetat’s actions had made it physically impossible for Canales to terminate

the encounter by leaving in his vehicle, and by shining a light toward the interior of the car

and directly approaching the driver’s side door, Audetat had conveyed to Canales that he was

the subject of the inquiry. Under these circumstances a reasonable person would not have

believed he was free “to disregard the police and go about his business.” California v.

Hodari D., 499 U.S. 621, 628 (1991). Canales was, therefore, detained. See Rogers, 186

Ariz. at 510-11, 924 P.2d at 1029-30 (defendant detained when officers approached on foot,

displayed badge, and said, “we need to talk to you”); see also United States v. Kerr, 817 F.2d

1384, 1386-87 (9th Cir. 1987) (where police officer in marked vehicle blocked driveway as

defendant attempted to back out, officer “provided [defendant] with no reasonable alternative

except an encounter with the police”); People v. Cascio, 932 P.2d 1381, 1387 (Colo. 1997)

(noting courts have found detention exists when police car “wholly blocks the defendant’s

ability to leave”); Riley v. State, 892 A.2d 370, 374 (Del. 2006) (detention occurred when

police approached vehicle with badges and flashlights, after parking their vehicle in such a

way as to prevent defendant from driving away); State v. Jestice, 861 A.2d 1060, 1062-63

(Vt. 2004) (defendant detained where defendant would have had to back up and maneuver

around police car and officer to exit parking lot and officer shined headlights into vehicle);



                                              5
McChesney v. State, 988 P.2d 1071, 1075 (Wyo. 1999) (noting use of police car to block

defendant’s car has been found to constitute seizure).

¶9            However, this conclusion does not end our analysis. We must also determine

whether the detention was supported by reasonable suspicion, which is “a justifiable

suspicion that the particular individual to be detained is involved in criminal activity.” State

v. Graciano, 134 Ariz. 35, 37, 653 P.2d 683, 685 (1982). Canales contends the anonymous

citizen’s telephone tip 2 was insufficient to justify the investigatory stop and Audetat

personally had not observed any behavior that would have created reasonable suspicion of

criminal activity. To support his argument Canales relies on State v. Altieri, 191 Ariz. 1, 951

P.2d 866 (1997), in which our supreme court held that an anonymous tip about criminal

activity was insufficient to support reasonable suspicion.3

¶10           In Altieri, the Arizona Department of Public Safety received an anonymous tip

claiming that a man was driving a car containing 150 pounds of marijuana. 191 Ariz. 1, ¶ 2,

951 P.2d at 867. The informant provided the name and age of the driver; the make, model,

appearance, and license plate number of the vehicle; and the vehicle’s approximate location.

Id. Officers located and stopped the car based solely on this information. Id. ¶ 3. On appeal,

       2
        Despite multiple opportunities below and on appeal, the state has never suggested that
the caller was identifiable.
       3
       Canales also cites two cases from other jurisdictions: State v. Guernsey, 84 P.3d 524
(Haw. App. 2001), and Commonwealth v. Riggieri, 759 N.E.2d 340 (Mass. App. 2001).
However, both have been overruled by their respective supreme courts. See State v.
Guernsey, 85 P.3d 177 (Haw. 2004); Commonwealth v. Riggieri, 782 N.E.2d 497 (Mass.
2003).

                                               6
Altieri contended the tip was insufficient to provide reasonable suspicion to stop his vehicle.

The court of appeals affirmed the trial court’s denial of his motion to suppress, and the

supreme court reversed. Id. ¶¶ 5-6.

¶11            The supreme court acknowledged that “an anonymous tip may, in some

circumstances, be sufficient to support a stop, [if it] . . . show[s] sufficiently detailed

circumstances to indicate that the informant came by his information in a reliable way.” Id.

¶ 9. And it noted that when the tip “fails to provide sufficient underlying circumstances

demonstrating the reliability of the information, the reliability may be supplied by

independent observations of the police corroborating the information in the tip.” Id.; see

State v. White, 122 Ariz. 42, 43, 592 P.2d 1308, 1309 (App. 1979). However, to provide

reasonable suspicion, the tip “must contain ‘a range of details relating not just to easily

obtained facts and conditions existing at the time of the tip, but to future actions of third

parties ordinarily not easily predicted.’” Altieri, 191 Ariz. 1, ¶ 9, 951 P.2d at 868, quoting

Alabama v. White, 492 U.S. 325, 332 (1990). Ultimately, our supreme court concluded the

tip leading to Altieri’s arrest did not provide reasonable suspicion for the initial stop, because

it contained only “neutral, non-predictive information about the defendant and his activities.”

Id. ¶ 14.

¶12            In State v. Gomez, 198 Ariz. 61, 6 P.3d 765 (App. 2000), Division One of this

court expanded upon the reasoning in Altieri. In Gomez an unidentified caller stated she had

observed a passenger in a vehicle pointing a gun out of the window and waving it in the air.



                                                7
198 Ariz. 61, ¶ 3, 6 P.3d at 766. The caller provided identifying information about the

vehicle, and an officer located and stopped the vehicle. Id. After arresting the passenger for

an outstanding warrant, officers searched him and found drugs and drug paraphernalia in one

of his socks. Id. Relying on Altieri, Gomez asserted the police lacked reasonable suspicion

to stop the vehicle in which he was a passenger. Id. ¶ 9.

¶13            The state argued Altieri was distinguishable because the tip had been provided

by a “‘citizen complaint’ rather than a mere ‘anonymous tip.’” Id. ¶ 15. The court noted in

Gomez that prior cases had suggested “‘reliability is enhanced’ when ‘an ordinary citizen

volunteers information which he has come upon in the ordinary course of his affairs,

completely free of any possible ordinary gain.’” Id., quoting State ex rel. Flournoy v. Wren,

108 Ariz. 356, 364, 498 P.2d 444, 452 (1972). However, relying on a concurrence in a

Supreme Court case, Gomez distinguished truly anonymous telephone calls in which “the

informant has not placed his credibility at risk and can lie with impunity” from phone calls

that are traceable, notwithstanding the caller’s failure to identify himself or herself during the

call. Id. ¶¶ 16-17, quoting Florida v. J.L., 529 U.S. 266, 274-75 (2000) (Kennedy, J.

concurring). The court in Gomez thus concluded the facts in that case were distinguishable

from the facts in Altieri, in which it presumed the call had been truly anonymous, and

concluded that because the caller in Gomez had called 911 from her home telephone, making

the call traceable, she had “placed her credibility at risk,” providing the necessary “‘enhanced




                                                8
reliability’ of information volunteered by a disinterested private citizen.” Id. ¶¶ 17-18,

quoting State v. Lawson, 144 Ariz. 547, 551-52, 698 P.2d 1266, 1270-71 (1985).

¶14           Altieri and Gomez are both consistent with the Supreme Court’s jurisprudence

concerning anonymous tips. The Supreme Court has “recognized that an anonymous tip

alone seldom demonstrates the informant’s basis of knowledge or veracity inasmuch as

ordinary citizens generally do not provide extensive recitations of the basis of their everyday

observations and given that the veracity of persons supplying anonymous tips is ‘by

hypothesis largely unknown, and unknowable.’” White, 496 U.S. at 329, quoting Illinois v.

Gates, 462 U.S. 213, 237 (1983). Thus, in White, where the unidentified tipster had stated

that a named woman would be leaving a certain building at a specified time in a specific car

and would be proceeding to a specific motel, the Court held the officer had reasonable

suspicion to stop her vehicle just before she reached the motel, having taken the most direct

route there. 496 U.S. at 331.

¶15           In contrast, the Court found in J.L. that officers did not have reasonable

suspicion to detain the defendant because the tip merely provided a physical description and

an unsupported assertion that he was carrying a gun. 529 U.S. at 271. “The anonymous call

. . . provided no predictive information and therefore left the police without means to test the

informant’s knowledge or credibility.” Id. Thus, the tip was insufficient to provide

reasonable suspicion because “[a]ll the police had to go on . . . was the bare report of an




                                               9
unknown, unaccountable informant who neither explained how he knew about the gun nor

supplied any basis for believing he had inside information about J.L.” Id.

¶16           The common thread in these cases is that an anonymous tip is not a sufficient

and independent basis for reasonable suspicion unless it is “reliable in its assertion of

illegality, not just in its tendency to identify a determinate person.” Id. at 272. The tip here

does not satisfy this requirement.      According to Deputy Audetat, the caller reported

suspicious activity in the parking lot of an apartment complex and gave a description of the

suspicious vehicle and its license plate. The caller apparently was concerned that the

occupant of the vehicle was “possibly preparing” to burglarize other vehicles in the area.

And, although Audetat was able to locate a vehicle that fit the general description and had

a license plate number close to that given, standing alone, the tip provided no reliable

information to support a reasonable suspicion that the vehicle’s occupant was engaging in

criminal activity. See Altieri, 191 Ariz. 1, ¶ 14, 951 P.2d at 869 (“neutral, non-predictive

information about the defendant and his activities” insufficient basis for reasonable

suspicion); see also J.L., 529 U.S. at 271; White, 496 U.S. at 329.

¶17           We are mindful that as he approached Canales’s vehicle, Audetat observed him

place a beer can behind the passenger seat. Although this observation could have provided

the basis for reasonable suspicion to initiate a DUI investigation, it did not occur until after

Audetat had blocked Canales’s vehicle and had shined his alley light to see inside the car.

Thus, the detention had already occurred before Audetat observed conduct that arguably was



                                              10
sufficient to support the reasonable suspicion necessary to detain Canales. Therefore, the

trial court did not err in dismissing the indictment, albeit on another ground. See Canez, 202

Ariz. 133, ¶ 51, 42 P.3d at 582 (appellate court may affirm trial court if correct for any

reason).

                                        Disposition

¶18           For the reasons stated above, we affirm the trial court’s dismissal of the

indictment.




                                               ____________________________________
                                               GARYE L. VÁSQUEZ, Judge

CONCURRING:




____________________________________
PETER J. ECKERSTROM, Presiding Judge




____________________________________
ANN A. SCOTT TIMMER, Judge*




*The Honorable Ann A. Scott Timmer, Chief Judge of Division One of the Arizona Court
of Appeals, is authorized to participate in this appeal pursuant to A.R.S. § 12-120(F) (2003).



                                             11
