                               IN THE
            ARIZONA COURT OF APPEALS
                           DIVISION ONE


                   STATE OF ARIZONA, Appellant,

                                  v.

                ANTHONY JEROME WOODS, Appellee.

                         No. 1 CA-CR 13-0655
                           FILED 2-3-2015


          Appeal from the Superior Court in Maricopa County
                       No. CR2011-153603-001
                The Honorable Bruce R. Cohen, Judge

                   REVERSED AND REMANDED


                             COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Arthur Hazelton
Counsel for Appellant


Anthony Jerome Woods, Tucson
Appellee
                             STATE v. WOODS
                            Opinion of the Court



                                 OPINION

Judge Randall M. Howe delivered the opinion of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Maurice Portley joined.



H O W E, Judge:

¶1             The State of Arizona appeals the superior court’s grant of
Anthony Jerome Woods’s motion to suppress evidence of marijuana
packages discovered in his car. The superior court ruled that a police officer
did not have reasonable suspicion to detain Woods for a narcotics dog sniff
of his car despite Woods’s extensive criminal history of drug transportation
and the officer’s testimony that circumstances indicated that Woods’s
actions were suspicious. Upon our de novo review whether the undisputed
facts constitute reasonable suspicion, we hold that the police officer had
reasonable suspicion to detain Woods for the dog sniff. We therefore
reverse the superior court’s ruling and remand for further proceedings.

                 FACTS AND PROCEDURAL HISTORY

¶2            At the time of the evidentiary hearing, Officer McWhirter had
served the Arizona Department of Public Safety as a patrol officer for more
than 11 years. He had more than “200 some hours” of classroom training
on drug interdiction and spent two months assigned to the Casa Grande
drug canine unit riding with canine officers and “specifically working
interdictions.” During his career, he had personally seized “a lot of drug
loads” and “a lot of human smuggling loads.” In 2010 alone, he interdicted
1,500 pounds of marijuana and 14 pounds of cocaine and seized “between
50 and 75 vehicles” for human smuggling.

¶3            At 5:45 a.m. on November 23, 2010, Officer McWhirter
stopped Woods on Interstate 10 in Chandler for swerving his car and
traveling at varying speeds. The officer approached Woods to obtain his
driver’s license and vehicle registration, which Woods provided, along
with a rental car agreement. When the officer asked Woods where he was
going, Woods stated that he was going to visit a friend in Phoenix who had
cancer. Woods added that he was taking his friend to “rehab,” but could
not identify which hospital or the type of rehabilitation. Woods’s answers
“confused” and “perplexed” Officer McWhirter and made him suspicious.


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                             STATE v. WOODS
                            Opinion of the Court

¶4            Seeing no personal belongings in the car, Officer McWhirter
asked Woods if he planned to stay in Phoenix. Woods stated that he did
not. The officer then ran a records check, which revealed that Woods had
“a very, very big rap sheet with drugs” and “an extremely extensive
background” of transporting and manufacturing drugs in Chicago.

¶5             Officer McWhirter then asked Woods for consent to search his
car, and Woods agreed to the search and signed a consent form. The officer
discovered two plain and unaddressed cardboard shipping boxes in the
trunk. The boxes were sealed with tape and had a “very solid weight,”
weighing between five and ten pounds. The officer believed that the boxes
were consistent with packages used for transporting drugs. When the
officer asked Woods about the contents of the boxes, Woods replied that
they were “Christmas presents” that he was going to ship once he was in
Phoenix. He asked Woods why the boxes “didn’t have any address labels
or anything” and were “just completely plain.” Woods “didn’t have a good
reason why they weren’t labeled” and merely said that he was going to do
it in Phoenix. These statements and the discovery of the boxes further raised
Officer McWhirter’s suspicions about Woods’s activity. He asked if he
could open the packages, but Woods refused.

¶6             Officer McWhirter then requested that a narcotics dog be
brought to the scene. No city police canine unit was on duty that early in
the morning; the closest canine unit was in Maricopa. When that unit
arrived about 40 minutes later, the narcotics dog sniffed the car and alerted
on the trunk and bit one of the boxes. A search of the boxes revealed
marijuana. The State subsequently charged Woods with one count of sale
or transportation of marijuana and alleged that Woods had several
historical prior convictions and committed the offense while on community
supervision release.

¶7           Woods moved to suppress evidence of the marijuana.
Although he did not contest the validity of the initial stop, he argued that
once he refused to allow the officer to search the boxes, reasonable
suspicion did not exist to detain him until the narcotics dog arrived. He also
argued the length of his detention awaiting the narcotics dog was
unreasonable. At the subsequent evidentiary hearing, the superior court
heard testimony from Officer McWhirter about the stop and the search.

¶8           The superior court suppressed the evidence. Although the
court found that the initial stop and subsequent search of the car pursuant
to Woods’s consent were lawful, it ruled that once Woods refused to allow
Officer McWhirter to search the boxes, Officer McWhirter had no


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                             STATE v. WOODS
                            Opinion of the Court

information “to suggest a basis for reasonable suspicion as to the
transportation of illegal substances.” The court acknowledged that Officer
McWhirter believed that “the consistency and density of the boxes w[ere]
consistent with his experience with packaging of illegal substances,” but
without any other evidence found that “his beliefs were far more akin to
speculation than reasonable suspicion.” The court found that the time of
year—late November—and the location of the boxes—the car’s trunk—
were consistent with Woods’s statement that the boxes were Christmas
gifts. The court noted that “but for” the discovery of Woods’s prior criminal
history of drug activity, “the officer would not have found anything to be
suspicious about the packages.”

¶9           Following the suppression ruling, the State dismissed the
charges and timely appealed.1

                                DISCUSSION

¶10           The State argues that the superior court erred by ruling that
Officer McWhirter did not have reasonable suspicion to detain Woods to
obtain a dog sniff of his rental car. In reviewing a superior court’s ruling
that a detention and consequent search violated the Fourth Amendment,
we defer to the superior court’s factual findings, but review de novo mixed
questions of law and fact and the superior court’s ultimate legal conclusions
about whether the totality of the circumstances warranted an investigative
detention and whether its duration was reasonable. Ornelas v. United States,
517 U.S. 690, 699 (1996); State v. Teagle, 217 Ariz. 17, 22 ¶ 19, 170 P.3d 266,
271 (App. 2007).

¶11            A police officer may make a limited investigatory stop if the
officer has an “articulable, reasonable suspicion” that “the suspect is
involved in criminal activity.” Teagle, 217 Ariz. at 22–23 ¶ 20, 170 P.3d at
271–72. “By definition, reasonable suspicion is something short of probable
cause.” State v. O’Meara, 198 Ariz. 294, 296 ¶ 10, 9 P.3d 325, 327 (2000). While
law enforcement must have more than a simple hunch or an “inchoate and
unparticularized suspicion,” reasonable suspicion requires a “minimal


1       Woods did not file an answering brief. “When a debatable issue is
raised on [appeal], the failure to file an answering brief generally
constitutes a confession of error.” Gibbons v. Indus. Comm’n of Ariz., 197 Ariz.
108, 111 ¶ 8, 3 P.3d 1028, 1031 (App. 1999). We may, however, exercise our
“discretion to waive this general rule to address a purely legal issue.” Id.
Because “[t]his case presents such an issue,” we address the merits of the
State’s appeal. Id.


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                              STATE v. WOODS
                             Opinion of the Court

level of objective justification” and is “considerably less than proof of
wrongdoing by a preponderance of the evidence.” Teagle, 217 Ariz. at 24
¶¶ 25–26, 170 P.3d at 273. “In deciding whether the police have a
particularized and objective basis for suspecting that a person is engaged in
criminal activity, we look at the ‘whole picture,’ or the ‘totality of the
circumstances,’” O’Meara, 198 Ariz. at 295 ¶ 7, 9 P.3d at 326. Considering
the totality of the circumstances permits officers to draw on their
specialized training—as well as their common sense knowledge about
human behavior—to form their particularized and articulable basis for a
stop. Teagle, 217 Ariz. at 24 ¶ 26, 170 P.3d at 273. “There is a ‘gestalt’ to the
totality of the circumstances test.” O’Meara, 198 Ariz. at 296 ¶ 10, 9 P.3d at
327.

¶12             A suspect’s criminal history is part of the totality of the
circumstances. It informs an officer’s judgment about whether criminal
activity may be afoot and “may cast a suspicious light on . . . seemingly
innocent behavior.” United States v. Simpson, 609 F.3d 1140, 1147 (10th Cir.
2010); see also United States v. Chamberlin, 644 F.2d 1262, 1265 (9th Cir. 1980);
State v. Lee, 658 N.W.2d 669, 678 (Neb. 2003). Although such history cannot
alone establish reasonable suspicion to support detention, United States v.
Cotterman, 709 F.3d 952, 968 (9th Cir. 2013), “[i]n conjunction with other
factors, criminal history contributes powerfully to the reasonable suspicion
calculus,” United States v. White, 584 F.3d 935, 951 (10th Cir. 2009).
Accordingly, a suspect’s criminal history is part of the “totality of the
circumstances” that informs an officer’s reasonable suspicion of criminal
activity.

¶13            In reviewing whether reasonable suspicion existed under the
totality of the circumstances, “we accord deference to a trained law
enforcement officer’s ability to distinguish between innocent and
suspicious actions.” Teagle, 217 Ariz. at 24 ¶ 26, 170 P.3d at 273. Police
officers have specialized training and experience that allows them to make
inferences from and deductions about cumulative information that “might
well elude an untrained person.” United States v. Arvizu, 534 U.S. 266, 273
(2002) (quoting United States v. Cortez, 449 U.S. 411, 418 (1981)). The facts as
a police officer observes them “must be seen and weighed . . . as understood
by those versed in the field of law enforcement.” Cortez, 449 U.S. at 418; see
also Ornelas, 517 U.S. at 695 (stating that reasonable suspicion and probable
cause “are commonsense, nontechnical conceptions that deal with ‘the
factual and practical considerations of everyday life on which reasonable
and prudent men, not legal technicians, act’”) (quoting Illinois v. Gates, 462
U.S. 213, 231 (1983)).



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                            STATE v. WOODS
                           Opinion of the Court

¶14           According proper deference to Officer McWhirter’s expertise
and experience and examining the totality of the circumstances of his
encounter with Woods, we find that Officer McWhirter had reasonable
suspicion to detain Woods until the narcotics dog arrived. Officer
McWhirter had extensive expertise and experience in detecting the
transportation of drugs. He had served as a DPS patrol officer for more than
11 years and had personally seized “a lot” of drug and human smuggling
loads. In one year, he had interdicted 1,500 pounds of marijuana.

¶15           Using his expertise and experience, Officer McWhirter had
particularized and objective reasons for suspecting that Woods was
transporting illegal drugs. Woods was driving a rental car with no personal
belongings. His explanations for his trip so early in the morning—in one
breath stating that he was going to visit his friend who had cancer and then
in the next stating that he was taking his friend for “rehab”—were
confusing and contradictory. Woods had an extensive criminal history of
transporting illegal drugs. In the trunk of the car, Woods had two unlabeled
boxes taped shut that had solid weights that were consistent with drug
packages. These facts gave Officer McWhirter reason to suspect that Woods
may be transporting illegal drugs and justified detaining Woods until the
narcotics dog arrived.

¶16            We review de novo the legal issue whether the facts as the
superior court found them constitute reasonable suspicion. Ornelas, 517
U.S. at 699. As the superior court noted in its ruling, the facts were
undisputed; the question was what the facts meant. The superior court
ruled that in its view, Officer McWhirter’s beliefs about the meaning of the
facts “were far more akin to speculation than reasonable suspicion.” That is
the ultimate legal conclusion, however. Upon our de novo review of the
record and considering that Woods was using a rental car with no personal
belongings inside, provided confusing explanations about the purpose of
his trip, had an extensive criminal history of drug transportation, and had
two unlabeled taped boxes in the trunk of his car that had a weight and
density consistent with drug packages, we find that under the totality of the
circumstances, Officer McWhirter had reasonable suspicion to detain
Woods until the narcotics dog arrived.

¶17          We therefore reverse the superior court’s ruling suppressing
the evidence. Because the superior court did not rule on Woods’s motion
that the length of his detention was unreasonable, we remand to the
superior court for further proceedings.




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                         STATE v. WOODS
                        Opinion of the Court

                          CONCLUSION

¶18         For these reasons, we reverse the ruling suppressing the
evidence and remand for proceedings consistent with this opinion.




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