                             IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                     THE STATE OF ARIZONA,
                            Appellee,

                                v.

                   CARLOS UBALDO GONZALEZ,
                           Appellant.

                     No. 2 CA-CR 2013-0296
                       Filed July 15, 2014

          Appeal from the Superior Court in Pima County
                       No. CR20112829002
         The Honorable Teresa Godoy, Judge Pro Tempore

                           AFFIRMED


                            COUNSEL

Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By David A. Sullivan, Assistant Attorney General, Tucson
Counsel for Appellee

Angela C. Poliquin, Hamilton, Montana
Counsel for Appellant


                            OPINION

Judge Miller authored the decision of the Court, in which Judge
Vásquez and Judge Howard concurred.
                        STATE v. GONZALEZ
                         Opinion of the Court


M I L L E R, Judge:

¶1            After a jury trial, Carlos Gonzalez was convicted of theft
of a means of transportation and criminal trespass, and sentenced to
a total of four years in prison. He raises a single issue: whether the
trial court erred in concluding that a police officer investigating a
suspicious activity call had not detained Gonzalez in his vehicle
before discovering that he was smoking marijuana. For the reasons
that follow, we conclude Gonzalez was not detained prior to the
officer smelling marijuana as he approached the vehicle. Therefore,
the court correctly denied the motion to suppress all evidence
discovered after the officer detected the odor of marijuana.

              Facts Presented at Suppression Hearing

¶2           In reviewing a motion to suppress, we consider only the
evidence presented at the suppression hearing and view the facts in
the light most favorable to sustaining the trial court’s ruling. State v.
Hausner, 230 Ariz. 60, ¶ 23, 280 P.3d 604, 614 (2012). At the
suppression hearing, a Marana police officer testified he was
dispatched to a restaurant parking lot for a “suspicious activity call.”
He learned from the dispatch that someone had called 9-1-1 and
reported that she had seen three individuals, one sitting in a parked
car and two outside the car. One of the people outside the car was
“looking over” at a neighboring business, and the other was talking
on a cellular telephone. The officer testified it was daylight and he
believed the rental car company was closed at the time.

¶3            The officer testified that Gonzalez’s car had been parked
in a spot with a fixed barrier in front that prevented it from pulling
forward. The officer parked his vehicle at an angle about ten to
fifteen feet behind Gonzalez, making it either difficult or impossible
for Gonzalez to back out and leave without hitting the patrol car.
The officer did not turn on his sirens or spotlight, but did turn on his
“rear deck” overhead lights, which flashed toward the back of his
patrol car, so another vehicle would not “come in and hit [him] in
the parking lot.” He did not believe the lights could be seen by
someone in front of his car in daylight.



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                       STATE v. GONZALEZ
                        Opinion of the Court

¶4         The officer testified that he got out of his patrol car and
walked slowly and deliberately toward the car, without drawing his
weapon. As he did so, he smelled marijuana.

¶5           At the suppression hearing, the key questions were
whether a seizure had occurred before the officer smelled marijuana,
and if so, whether he had reasonable suspicion at the time of the
seizure. The trial court concluded that the car was blocked in,
noting, “I think to argue [that Gonzalez could leave] would kind of
defy physics.”      In its under advisement ruling, the court
nevertheless denied the motion to suppress, relying on State v.
Canales, 222 Ariz. 493, ¶¶ 7-9, 217 P.3d 836, 838 (App. 2009), and
concluding that no seizure had occurred before the officer smelled
marijuana because the officer had not done “something additional
conveying to the parties involved that they were the subject of
inquiry.”

                         Motion to Suppress

¶6          Gonzalez argues the trial court erred in denying his
motion to suppress the statements he had made to the police officer.
He contends he was seized without reasonable suspicion in violation
of his rights under the Fourth Amendment of the United States
Constitution and Article II, § 8 of the Arizona Constitution.1

¶7            We review a denial of a motion to suppress for an abuse
of discretion, but review constitutional issues de novo. State v. Gay,
214 Ariz. 214, ¶ 4, 150 P.3d 787, 790 (App. 2007). In a motion to
suppress based on the lawfulness of the acquisition of evidence, the
state carries the burden of persuasion. State v. Hyde, 186 Ariz. 252,
266, 921 P.2d 655, 669 (1996); see also Ariz. R. Crim. P. 16.2(b).

¶8          The Fourth Amendment to the United States
Constitution protects “[t]he right of the people to be secure in their

      1   Although Gonzalez raised an Arizona constitutional
argument on appeal, he does not argue that Arizona’s protections
differ from those provided by the Fourth Amendment. We apply
the same standard to his state and federal constitutional claims. See
State v. Thornton, 187 Ariz. 325, 331 n.3, 929 P.2d 676, 682 n.3 (1996).


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                        STATE v. GONZALEZ
                         Opinion of the Court

persons . . . against unreasonable searches and seizures.” U.S.
Const. amend. IV. But not all interactions between police officers
and citizens result in a seizure of the person. Terry v. Ohio, 392
U.S. 1, 19 n.16 (1968). “[A] person has been ‘seized’ within the
meaning of the Fourth Amendment only if, in view of all the
circumstances surrounding the incident, a reasonable person would
have believed that he was not free to leave.” United States v.
Mendenhall, 446 U.S. 544, 554 (1980). A seizure requires either
physical force or a show of authority to which the person submits.
See California v. Hodari D., 499 U.S. 621, 625-29 (1991); see also State v.
Guillory, 199 Ariz. 462, ¶ 11, 18 P.3d 1261, 1264 (App. 2001).

¶9          Both Gonzalez and the state rely on Canales to support
their arguments. In Canales, a sheriff’s deputy was dispatched to an
apartment complex at night to investigate a suspicious vehicle. 222
Ariz. 493, ¶ 2, 217 P.3d at 837. The deputy parked behind a car
matching the description of the vehicle and shined his patrol car’s
spotlight toward it. Id. When the officer got out of his car and
walked to the suspicious car, he saw the defendant place a beer
behind the passenger seat and smelled alcohol. Id.

¶10           We upheld the trial court’s grant of a motion to
suppress, finding that Canales had been detained. 2 Id. ¶ 8.
Specifically, we concluded that the deputy’s actions in making it
physically impossible for Canales to leave and shining the spotlight
while approaching the driver’s door “conveyed to Canales that he
was the subject of the inquiry,” and that “a reasonable person would
not have believed he was free ‘to disregard the police and go about
his business.’” Id., quoting Hodari D., 499 U.S. at 628.

¶11         The trial court distinguished Canales because the officer
had not shined a light or taken other “additional action” other than
blocking Gonzalez’s car. The court found the officer “did nothing to
convey to the parties involved that they were the subject of inquiry.”
Gonzalez contends the only difference is that the facts in Canales
took place at night, while Gonzalez was detained during the day,

      2 We
         also found lack of reasonable suspicion because the
anonymous tip had provided no reliable information. Id. ¶ 16.


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                        STATE v. GONZALEZ
                         Opinion of the Court

making the use of the spotlight as an additional show of authority
unnecessary.

¶12           We agree that the officer’s actions constituted the show
of authority necessary for a seizure. When the officer pulled up
behind Gonzalez’s car in a marked police cruiser and blocked it into
its parking space, Gonzalez could have been aware he was the
subject of police inquiry, just as Canales was when the officer shined
the spotlight at night. 222 Ariz. 493, ¶ 2, 217 P.3d at 837.
Additionally, several federal circuit courts and state courts applying
the Fourth Amendment similarly have held that blocking a parked
vehicle with occupants inside may constitute a seizure. See United
States v. Gross, 662 F.3d 393, 399 (6th Cir. 2011) (noting spotlight in
facts, but stating, “[W]hen [the officer] blocked the car in, he began
an investigatory . . . stop”); United States v. See, 574 F.3d 309, 311-12
(6th Cir. 2009) (officer seized defendant by parking patrol car in
front of parked vehicle so that it could not drive away); United States
v. Burton, 441 F.3d 509, 511 (7th Cir. 2006) (bicycle officers seized
vehicle stopped in roadway by placing bicycles so driver could not
drive away); United States v. Tuley, 161 F.3d 513, 515 (8th Cir. 1998)
(blocking vehicle so occupant unable to leave during course of
investigatory stop reasonable to maintain status quo while
completing purpose of stop.); Robinson v. State, 754 S.E.2d 862, 866,
869 (S.C. 2014) (investigatory stop occurred when officer blocked
vehicle in parking lot with patrol car); People v. Wilkins, 231 Cal.
Rptr. 1, 2-3 (Cal. Ct. App. 1986) (defendant seized when officer
parked behind parked vehicle “essentially blocking” any exit); but cf.
United States v. Kim, 25 F.3d 1426, 1428, 1431 & n.2 (9th Cir. 1994)
(noting in dicta that even fully blocking in vehicle with unmarked
car may not have amounted to seizure because defendant could
walk away).

¶13           But the fact the officer blocked Gonzalez’s car does not
end the analysis. Absent use of physical force, a defendant is not
seized until he becomes “aware of and submit[s] to the assertion or
display of police authority.” G.M. v. State, 19 So. 3d 973, 977, 983
(Fla. 2009); cf. Hodari D., 499 U.S. at 625-29 (finding fleeing person
did not submit); Guillory, 199 Ariz. 462, ¶ 11, 18 P.3d at 1264 (same).
“Where police seek to stop someone, but the subject is ‘in fact


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                       STATE v. GONZALEZ
                        Opinion of the Court

stopped . . . by a different means,’ no seizure occurs.” Leaf v.
Shelnutt, 400 F.3d 1070, 1090 (7th Cir. 2005) (where two officers had
guns pointed at man sleeping in bed, failure to flee could “be
attributed to the fact that he was asleep” rather than due to show of
authority), quoting Brower v. Cnty. of Inyo, 489 U.S. 593, 597 (1989).

¶14          The officer testified that Gonzalez and the others never
tried to leave in the vehicle and Gonzalez was not “looking back”
when he pulled up. The court’s own questions focused on the
determinative issue:      “Officer, as you were approaching did
anybody in the vehicle do anything that indicated that they even
saw you coming?” The officer answered in the negative.

¶15           We find the reasoning persuasive and the facts similar
to those considered by the Florida Supreme Court in G.M. v. State, 19
So. 3d 973 (Fla. 2009). There, police officers in an unmarked car
were watching a group of juveniles sitting in and standing around
vehicles in the parking lot of a public park. Id. at 974. The officers
activated the emergency lights, drove to the parking lot, and parked
behind the vehicles. Id. When one of the officers approached a
vehicle, he saw G.M. in the backseat with his head lowered, rolling a
“blunt” of marijuana. Id. at 974, 980. The court determined that
although a reasonable person would not feel free to end an
encounter of this nature and leave, its Fourth Amendment analysis
necessarily relied on the fact that G.M. was not in a position to see
the police vehicle and continued to engage in illegal conduct,
supporting a conclusion that he “was not aware of the activated
police lights and did not become aware of the police presence until
[the officer] actually appeared at the window of the vehicle.” Id. at
981.

¶16          Viewing the facts in the light most favorable to
upholding the trial court’s ruling, we conclude the court did not err
in its implicit determination that there was no submission to the
show of authority before the officer smelled marijuana. See U.S. v.
Williams, 413 F.3d 347, 349, 353 (3d Cir. 2005) (defendant who held
up bag with leafy green substance while officers approached but
before noticing officers and attempting to discard bag could not
“persuasively claim that he submitted to a show of authority when
he did not even see the officers approach”); Tate v. People, 290 P.3d

                                  6
                       STATE v. GONZALEZ
                        Opinion of the Court

1268, 1270 (Colo. 2012) (officer testified defendant asleep, officer had
to knock on window); Houston v. State, 925 So. 2d 404, 408 (Fla. Dist.
Ct. App. 2006) (officers in plain clothes and defendant unaware they
were officers); Mackey v. State, 861 P.2d 1250, 1251-52 (Idaho Ct. App.
1993) (defendant testified he had not seen patrol car before backing
into it). The trial court did not err in denying the motion to
suppress.

                             Disposition

¶17          For the foregoing reasons, we affirm Gonzalez’s
convictions and sentences.




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