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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

               ANTONIO CURIEL-RODRIGUEZ, Appellant.

                             No. 1 CA-CR 16-0049
                               FILED 12-15-2016


            Appeal from the Superior Court in Apache County
                         No. S0100CR201300256
            The Honorable Michael P. Roca, Judge Pro Tempore

               AFFIRMED IN PART; VACATED IN PART


                                   COUNSEL

Hamblin Law Office, PLC, Eager
By Bryce Hamblin
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Michael T. O’Toole
Counsel for Appellee
                     STATE v. CURIEL-RODRIGUEZ
                         Decision of the Court




                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Chief Judge Michael J. Brown joined.


W I N T H R O P, Judge:

¶1           Antonio Curiel-Rodriguez (“Appellant”) appeals his
convictions and sentences for transportation of a dangerous drug for sale,
possession of a dangerous drug, and possession of a dangerous drug for
sale. Appellant argues the trial court erred in denying his motion to
suppress evidence. For the following reasons, we affirm the conviction and
sentence for transportation of a dangerous drug for sale, but vacate the
convictions and sentences for the other two offenses.

                FACTS AND PROCEDURAL HISTORY

¶2            On November 14, 2013, Deputy Sheriff Clark was on duty
monitoring traffic on Interstate 40. Just before 2:00 a.m., Deputy Clark
noticed a white Volkswagen weaving on the highway. Deputy Clark
initiated a traffic stop and approached the vehicle to speak with the
occupants. Appellant, who was sitting in the front passenger seat, avoided
eye contact with Deputy Clark and appeared nervous, his hands “shaking
and trembling.”

¶3            Deputy Clark received information through his dispatch that
Appellant had two outstanding felony warrants and the driver of the
vehicle had a suspended license. At some point during the encounter,
Deputy Clark arrested Appellant and asked the driver for consent to search
the vehicle.1 The driver consented.

¶4            During the search, the driver was sitting in another officer’s
patrol car and Appellant was standing in front of Deputy Clark’s patrol car.
In searching the subject vehicle, Deputy Clark found a glass pipe wrapped
in white tissue inside a woman’s purse in the back seat. The pipe had
residue in the bubble. Deputy Clark also observed obvious tool marks on


1      It is unclear from the record whether Appellant was already under
arrest when the driver consented to the search.


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                      STATE v. CURIEL-RODRIGUEZ
                          Decision of the Court

the plastic surrounding the gear shifter and, after prying up the plastic, saw
dust disturbance, fingerprints, and other non-factory modifications. He
also saw a “trap door” with a trunk latch in a hidden compartment.

¶5             Deputy Clark then went back to the patrol car to speak with
the driver of the vehicle. When the driver got out of the patrol car to speak
with Deputy Clark, she left a brown paper bag containing another glass
pipe inside the patrol car.

¶6             Deputy Clark then arrested the driver, and a detective
transported the driver and Appellant to the county jail and continued
searching the vehicle. The detective found another hidden compartment
on the left side of the vehicle. Inside the compartment, he discovered seven
packages containing a white crystal substance, which a field test revealed
to be methamphetamine.

¶7             Appellant was charged with transportation of a dangerous
drug for sale, a class two felony (“Count 1”); possession of a dangerous
drug, a class four felony (“Count 2”); and possession of a dangerous drug
for sale, a class two felony (“Count 3”). Before trial, Appellant moved to
suppress the evidence obtained from the stop and search of the vehicle,
arguing that both the stop and search were unlawful under the Fourth
Amendment of the U.S. Constitution, and Article 2, §§ 4 and 8 of the
Arizona Constitution. Appellant argued that the stop was unjustified
because no traffic violations were committed, and that the search of the
vehicle exceeded the scope of the driver’s consent. After an evidentiary
hearing, the trial court denied both motions.

¶8            Following trial, the jury returned a guilty verdict on all three
counts. The court then sentenced Appellant to the presumptive term of 10
years’ incarceration for Counts 1 and 3, and 2.5 years’ incarceration for
Count 2, with the sentences to run concurrently.

                                  ANALYSIS

¶9            We review the trial court’s ruling on a motion to suppress for
abuse of discretion. State v. Mitchell, 234 Ariz. 410, 413, ¶ 11, 323 P.3d 69, 72
(App. 2014). In this review, we “consider only the evidence presented at
the suppression hearing and view that evidence in the light most favorable
to sustaining the trial court’s ruling.” Id. “Although we defer to the trial
court’s factual determinations, we review its legal conclusions de novo.” Id.




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                      STATE v. CURIEL-RODRIGUEZ
                          Decision of the Court

       I.     The Request for Consent to Search the Vehicle Did Not Unlawfully
              Prolong the Seizure

¶10           Appellant argues that Deputy Clark’s request for consent to
search the vehicle was unlawful because Deputy Clark had no reasonable
suspicion of criminal activity at the time the consent was requested, and
therefore the request unlawfully prolonged the seizure.

¶11            Because Appellant did not raise this argument below, we
review for fundamental error only. See State v. Newell, 212 Ariz. 389, 398,
¶ 34, 132 P.3d 833, 842 (2006) (stating that, although failure to assert an
argument in the trial court normally precludes appellate review of the
claim, this court may review a suppression argument that is raised for the
first time on appeal for fundamental error). On fundamental error review,
Appellant must establish that a fundamental error exists and that he was
prejudiced by the error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 20, 115
P.3d 601, 607 (2005).

¶12             We find no fundamental error. First, Appellant’s reliance on
Rodriguez v. United States, 135 S. Ct. 1609 (2015) to support his argument that
Deputy Clark unlawfully prolonged the seizure is misplaced. Although
Rodriguez holds that an investigatory stop may not “exceed[] the time
needed to handle the matter for which the stop was made,” Id. at 1612,
there, the officer’s testimony clearly indicated that the traffic stop was
complete at the time the officer asked for permission to conduct a dog sniff
of Rodriguez’s vehicle. See id. at 1613. The officer had returned the
documents he had obtained from the individuals he pulled over, had given
them a copy of the written warning, and “got all the reason[s] for the stop
out of the way.” Id. Here, in contrast, the record does not demonstrate that
Deputy Clark had completed the traffic stop prior to requesting consent to
search the car. Rather, Deputy Clark testified that he “started writing [the
driver] a warning and while [he] was writing the warning [he] ran the
warrants and driver’s license check with the dispatcher.” The check
revealed the driver had a suspended license and Appellant had two
outstanding felony arrest warrants, which reasonably prompted further
investigation. Deputy Clark then spoke to the driver again, requesting (and
obtaining) consent to search the vehicle. Simply stated, Rodriguez, where
the investigatory stop was complete at the time the officer conducted the
dog sniff, is inapposite.

¶13          Further, even assuming, arguendo, the traffic stop was
complete after Deputy Clark ran the check with the dispatcher, at that point
Deputy Clark already had probable cause to arrest both Appellant and the


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                      STATE v. CURIEL-RODRIGUEZ
                          Decision of the Court

driver. See A.R.S. §§ 13-3887 and 28-3473(A). Thus, the evidence Appellant
seeks to suppress would have been inevitably discovered during the
ensuing inventory search of the car.2 See State v. Rojers, 216 Ariz. 555, 559,
¶ 18, 169 P.3d 651, 655 (App. 2007) (“The inevitable discovery doctrine . . .
provides that illegally obtained evidence is admissible [i]f the prosecution
can establish by a preponderance of the evidence that the illegally seized
items or information would have inevitably been seized by lawful means.”)
(citation and internal quotations omitted). Accordingly, even assuming
error, it was neither fundamental nor prejudicial.

       II.     The Scope of the Search Was Lawful

¶14            “Determining the validity of a law enforcement officer’s
search based on consent generally involves two factors: (1) whether the
consent was voluntarily given and (2) whether the search was within the
scope of the consent.” State v. Becerra, 239 Ariz. 90, 92, ¶ 8, 366 P.3d 567, 569
(App. 2016). Here, Appellant does not argue that the driver’s consent was
not voluntarily given. Nor does Appellant argue on appeal that Deputy
Clark’s more extensive search of the vehicle after his discovery of the pipe
exceeded the scope of the driver’s consent. Rather, Appellant contends that
the scope of Deputy Clark’s search was unconstitutional because the search
was unconstitutional at the outset. However, as discussed in Part I, supra,
Deputy Clark’s request to search the vehicle was not unlawful and the
subsequent search was authorized based on the driver’s consent. And even
assuming the overall search went beyond the driver’s initial consent (as
Appellant argued in the trial court), Deputy Clark’s discovery of the pipe
in the car, coupled with tool marks on the plastic surrounding the gear
shifter, established probable cause to search other areas of the car. See State
v. Swanson, 172 Ariz. 479, 585, 838 P.2d 1340, 1346 (App. 1992) (probable
cause gives an officer authority to search even areas outside the scope of the
suspect’s consent).




2       Although Appellant states that “Deputy Clark had apparently
initially determined to let the couple go,” but “changed his mind,” the
record does not support this assertion. Deputy Clark stated that, after
learning of the driver’s suspended license, he had not yet decided whether
he would let the driver go. There is no testimony in the record to indicate
Deputy Clark had any plans to let Appellant go notwithstanding his two
felony arrest warrants.



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                     STATE v. CURIEL-RODRIGUEZ
                         Decision of the Court

¶15        Accordingly, the trial court did not abuse its discretion in
denying Appellant’s motion to suppress the evidence against him.

      III.   Counts 2 and 3 are Lesser-Included Offenses of Count 1

¶16            The State requests that we vacate Appellant’s convictions and
sentences for possession of a dangerous drug (Count 2) and possession of a
dangerous drug for sale (Count 3), acknowledging that both are lesser-
included offenses of transportation of a dangerous drug for sale (Count 1).
See State v. Cheramie, 218 Ariz. 447, 451, ¶ 22, 189 P.3d 374, 378 (2008)
(holding that possession of a dangerous drug is a lesser-included offense of
transportation for sale of a dangerous drug); State v. Chabolla-Hinojosa, 192
Ariz. 360, 363, ¶ 13, 965 P.2d 94, 97 (App. 1998) (stating that “when a
possession for sale charge is incidental to a transportation for sale charge,
the former is a lesser-included offense”). Accordingly, we vacate
Appellant’s sentences and convictions for Counts 2 and 3. See Chabolla-
Hinojosa, 192 Ariz. at 365, ¶ 21, 965 P.2d at 99 (vacating a lesser-included
offense as a remedy for a double-jeopardy violation).

                              CONCLUSION

¶17           Appellant’s conviction and sentence for transportation of a
dangerous drug for sale is affirmed, and his convictions and sentences for
possession of a dangerous drug and possession of a dangerous drug for sale
are vacated.




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




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