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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     FREDDIE GENE CRUZ, Appellant.

                             No. 1 CA-CR 14-0272
                               FILED 6-4-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR 2013-426904-001
          The Honorable Carolyn K. Passamonte, Judge Pro Tem

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eliza Ybarra
Counsel for Appellee

The Hopkins Law Office, P.C., Tucson
By Cedric Martin Hopkins
Counsel for Appellant
                             STATE v. CRUZ
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Kenton D. Jones and Judge Jon W. Thompson joined.


D O W N I E, Judge:

¶1           Freddie Gene Cruz appeals his convictions and sentences for
possession of dangerous drugs and possession of drug paraphernalia. He
contends the superior court erred by denying his suppression motion.
Finding no error, we affirm.

                FACTS AND PROCEDURAL HISTORY1

¶2            Officer Baynes stopped Cruz for riding his bicycle through
an alley, using it as a thoroughfare in violation of the Phoenix City Code.
Officer Baynes requested identification, which Cruz provided. The officer
asked whether Cruz was on probation or parole. Cruz responded he was
not, but stated he “had court the next day for a possession charge.”
Officer Baynes inquired whether Cruz had drugs in his possession, which
Cruz denied. The officer then asked whether Cruz “had any pipes,
needles, or weapons,” which Cruz also denied. Officer Baynes asked Cruz
for permission to search him, and Cruz consented.

¶3            The officer found a small piece of plastic in Cruz’s pocket
that “appeared to be used as a makeshift baggie.” Officer Baynes asked
what was inside the baggie, and Cruz replied it was “cocaine or meth
dust.” At that point, Cruz was arrested and read his Miranda rights. After
the arrest, Cruz told Officer Baynes that there was a syringe in a black bag


1       Our factual recitation is based on Cruz’s motion to suppress
because there was no evidentiary hearing, and the appellate record
includes no written response. Although the parties discuss testimony that
was presented at trial, we do not consider that evidence because it was not
before the superior court when it ruled on the suppression motion. Cf.
State v. Spears, 184 Ariz. 277, 284, 908 P.2d 1062, 1069 (1996) (“In reviewing
the denial of a motion to suppress, this court looks only at the evidence
presented to the trial court during the suppression hearing.”).




                                      2
                             STATE v. CRUZ
                           Decision of the Court

on his bicycle’s handlebars. The officer searched the bag and found “loose
methamphetamine” and a used syringe.

¶4              Cruz was charged with one count of possession or use of
dangerous drugs and one count of possession of drug paraphernalia.
Prior to trial, he moved to suppress all statements made to Officer Baynes
before receiving Miranda warnings, as well as all evidence seized as a
result of those statements. The superior court denied the motion without
conducting an evidentiary hearing. Cf. State v. Peterson, 228 Ariz. 405, 408,
¶ 9, 267 P.3d 1197, 1200 (App. 2011) (defendant must state prima facie case
for suppression to be entitled to a hearing).2

¶5           At trial, Cruz was convicted on both counts and was
sentenced to concurrent terms of 10 and 5 years in prison. He timely
appealed. We have jurisdiction pursuant to Article 6, Section 9, of the
Arizona Constitution, and Arizona Revised Statutes (“A.R.S.”) sections
12-120.21(A)(1), 13-4031, and -4033(A)(1).

                               DICUSSION

¶6             Cruz’s sole contention on appeal is that he “was in custody
and asked incriminating questions without being read his Miranda rights.”
We review the trial court’s denial of a motion to suppress for an abuse of
discretion. State v. Jacot, 235 Ariz. 224, 227, ¶ 9, 330 P.3d 981, 984 (App.
2014). We defer to any factual determinations by the trial court but review
its legal conclusions de novo. State v. Olm, 223 Ariz. 429, 432, ¶ 7, 224 P.3d
245, 248 (App. 2010).

¶7            In his suppression motion, Cruz acknowledged that Officer
Baynes stopped him “for improper use of an alley as a thoroughfare,” in
violation of the Phoenix City Code. And Cruz concedes on appeal that
“interrogation relating to one’s identify or a request for identification by
the police does not, by itself, constitute a Fourth Amendment seizure.” He
argues, though, that the permissible encounter with Officer Baynes
“morphed into a seizure” when the officer sought consent to search him
and, “[i]f not at that moment, then, without question . . . when Baynes
actually searched” Cruz. We disagree.


2    Cruz has not challenged the superior court’s decision not to hold an
evidentiary hearing.




                                      3
                               STATE v. CRUZ
                             Decision of the Court

¶8             “Miranda’s procedural safeguards apply only to custodial
interrogation.” State v. Smith, 193 Ariz. 452, 457, ¶ 18, 974 P.2d 431, 436
(1999). Police officers may generally ask questions of an individual,
including requesting consent to search, without implicating Fourth
Amendment seizure concerns. See Florida v. Rodriguez, 469 U.S. 1, 5-6
(1984); I.N.S. v. Delgado, 466 U.S. 210, 216 (1984) (“[P]olice questioning, by
itself, is unlikely to result in a Fourth Amendment violation.”); Ohio v.
Robinette, 519 U.S. 33, 35-36 (1996) (officer conducting traffic stop may ask
driver questions and seek permission to search); State v. Teagle, 217 Ariz.
17, 23, ¶ 23, 170 P.3d 266, 272 (App. 2007) (officer may ask questions
unrelated to traffic stop); cf. State v. Acinelli, 191 Ariz. 66, 70, 952 P.2d 304,
308 (App. 1997) (search is not inherently non-consensual simply because
officer asks permission to conduct it). Miranda warnings become
necessary “when police have both reasonable grounds to believe that a
crime has been committed and reasonable grounds to believe that the
person they are questioning is the one who committed it.” State v. Pettit,
194 Ariz. 192, 195, ¶ 15, 979 P.2d 5, 8 (App. 1998). Before that point,
“[n]eutral, nonaccusatory questioning in furtherance of a proper
preliminary investigation is permissible under Miranda.” Id. at ¶ 16.

¶9             These legal tenets make clear that Officer Baynes did not
take Cruz into custody simply by seeking permission to search him or by
conducting a consensual search. It was not until Cruz advised that the
makeshift baggie found on his person contained “cocaine or meth dust”
that Officer Baynes had reasonable grounds to believe Cruz had
committed a crime. It was at that point that the officer placed Cruz under
arrest and read him Miranda warnings. Cruz’s suppression motion did
not allege force by the officer, an overt show of authority, a statement that
he was not free to leave, or an edict that Cruz must submit to a search.
See, e.g., United States v. Drayton, 536 U.S. 194, 206-07 (2002) (“The Court
has rejected in specific terms the suggestion that police officers must
always inform citizens of their right to refuse when seeking permission to
conduct a warrantless consent search.”); State v. Carter, 145 Ariz. 101, 105-
06, 700 P.2d 488, 492-93 (1985) (absence of handcuffs or demonstration of
force supports determination defendant was not in custody). Under these
circumstances, the court did not err by denying the suppression motion.




                                        4
                    STATE v. CRUZ
                  Decision of the Court


                     CONCLUSION

¶10   We affirm Cruz’s convictions and sentences.




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