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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       GILE NICHOLS, JR., Appellant.

                             No. 1 CA-CR 15-0239
                               FILED 7-19-2016


           Appeal from the Superior Court in Maricopa County
                      No. CR2012-131588-001 DT
           The Honorable Robert L. Gottsfield, Judge (Retired)
           The Honorable Erin O’Brien Otis, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Terry M. Crist, III
Counsel for Appellee

Law Offices of Patricia A. Hubbard, Phoenix
By Patricia A. Hubbard
Counsel for Appellant
                           STATE v. NICHOLS
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Patricia K. Norris and Judge Kenton D. Jones joined.


W I N T H R O P, Presiding Judge:

¶1            Gile Nichols, Jr. (“Appellant”) appeals his convictions and
sentences, arguing the trial court erred in denying his motion to suppress
evidence derived from allegedly illegal searches and seizures. For the
following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            In June 2012, Phoenix police officers Michael Puskar and
Patrick Garcia were conducting a night-time patrol in a high crime
neighborhood, as well as investigating a crime unrelated to the present case.
They parked their police car facing north near the house where the offender
whom they were investigating was reportedly staying. At approximately
midnight, while sitting in the patrol car monitoring the activity in the
neighborhood, the officers were blinded by high beam lights from two cars
traveling southbound. The two cars stopped in front of the targeted house
and about six feet away from the patrol car, with the high beams still on.
One of the two cars was stopped about six feet away from the curb and the
other, a Lincoln in which Appellant was the front-seat passenger, was
stopped in the middle of the road. Because the positions of the vehicles and
the use of the high beam lights violated various traffic laws, the officers
decided to approach the cars. They activated their emergency lights, and
turned on the high beams and spotlights in the police car to better
illuminate the two cars and monitor their occupants’ movements. Officer
Puskar walked toward the Lincoln and Officer Garcia walked toward the
other car.

¶3            As Officer Puskar was walking toward the Lincoln, he noticed
Appellant leaning forward and down, appearing to reach under the seat
and, for a moment, Officer Puskar could only see the top of Appellant’s
head. Officer Puskar ordered Appellant and the other three occupants not
to move in a voice loud enough for them to hear him through the open front
windows of the Lincoln. Upon hearing the order, Appellant sat up, but
then leaned down and forward again, repeating the same apparent


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                            STATE v. NICHOLS
                            Decision of the Court

reaching movement. Officer Puskar shined his flashlight on Appellant and
ordered him to stay seated upright and not to move. When Officer Puskar
got to Appellant’s side of the car, he smelled a moderate odor of marijuana
coming from the interior of the car. The odor grew stronger when Officer
Puskar momentarily leaned toward the interior.

¶4             During this encounter, a party appeared to be going on at a
house nearby, with a lot of people in front of the house. Seeing police,
several of the partygoers started to walk toward the two cars. Feeling
outnumbered, the officers requested backup. Once backup arrived a few
minutes later, Officer Puskar asked Appellant whether there were any
weapons in the vehicle; Appellant replied, “No.” After that exchange,
Officer Puskar ordered Appellant to exit the car, frisked him without
finding any weapons or contraband, and handcuffed him. Officer Puskar
also ordered Appellant to sit on the curb by the car, where another
patrolman was watching. The rest of the occupants were then ordered to
exit the car and join Appellant on the curb.

¶5            After all occupants exited the car, the officers searched the
Lincoln and found a loaded handgun and a clear plastic bag of marijuana
under the front-passenger seat previously occupied by Appellant. Officer
Garcia also discovered Appellant was a prohibited possessor.

¶6             Appellant was formally arrested and taken to the police
station. At the station, search of Appellant’s clothing revealed a pill tightly
rolled inside a dollar bill. Appellant claimed the pill contained ecstasy; later
laboratory testing determined the pill contained ingredients mimicking the
effects of ecstasy.

¶7            Appellant was charged with one count of misconduct
involving weapons (“count 1”), one count of possession or use of dangerous
drugs (“count 2”), and one count of possession or use of marijuana (“count
3”). Before trial, Appellant moved to dismiss the case with prejudice or, in
the alternative, to suppress all evidence obtained through what he
contended was an illegal search of the car in direct violation of Arizona v.
Gant, 556 U.S. 332 (2009).1 In response, the State argued Gant was


1      The defendant in Gant was arrested in a friend’s yard for driving
with a suspended license after he had parked and walked away from his
vehicle. Gant, 556 U.S. at 335-36. The defendant and other suspects at the
scene were secured in police vehicles, and a search of the defendant’s car
revealed a weapon and cocaine. Id. at 336. The Supreme Court refined its



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                            STATE v. NICHOLS
                            Decision of the Court

inapplicable because it addressed a vehicle search incident to a lawful arrest
and Appellant was not under arrest before the vehicle search. The State
further argued the vehicle search was nevertheless lawful in the present
case under the automobile exception recognized in State v. Reyna, 205 Ariz.
374, 378, ¶ 15, 71 P.3d 366, 370 (App. 2003), which allows police to conduct
a warrantless search of a vehicle lawfully in police custody if probable cause
existed. The State’s view was that, at a minimum, the police had probable
cause based on the odor of marijuana. The trial court granted Appellant’s
motion, finding that, once the police backup arrived at the scene, the officers
were in a situation similar to Gant and, as a result, a warrant was required
to search the vehicle.

¶8             The State moved for reconsideration, raising a new argument
that, as a passenger in the car, Appellant did not have standing to challenge
the search of the car.2 The trial court reversed its prior ruling and granted
the State’s motion, finding a warrant was not required under Gant because
Officer Puskar had valid reasons to believe the vehicle might contain
evidence relevant to the offense for which the arrest was made.

¶9           Following trial, the jury was hung on count 1, but found
Appellant guilty on counts 2 and 3. Appellant then entered a plea
agreement with the State on count 1, pleading guilty and admitting two
prior felony convictions in exchange for a sentence of no more than the
presumptive term to run concurrently with those for counts 2 and 3. The
court sentenced Appellant to seven years’ imprisonment for counts 1 and 2
and three years’ imprisonment for count 3, all to run concurrently, with
thirty-one days of presentence incarceration credit. Appellant timely



earlier position in New York v. Belton, 453 U.S. 454 (1981), which authorized
a contemporaneous search of the passenger compartment of a vehicle
incident to arrest of an occupant of the vehicle. Gant, 556 U.S. at 346, 350-
51; Belton, 453 U.S. at 462-63. The Court in Gant held the police may search
the passenger compartment of a vehicle under the incident to arrest
exception to the warrant requirement only if it was reasonable to believe
the arrestee may access the vehicle at the time of search or that it contains
evidence of the offense for which the arrest was made. Gant, 556 U.S. at
346, 351.

2      The court did not order a response from Appellant but held a hearing
on the motion.




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                            STATE v. NICHOLS
                            Decision of the Court

appealed; we have jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) section 12-2101(A)(1)3 to review counts 2 and 3.4

                                  ANALYSIS

¶10           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 legal conclusions de novo.” Id.

       I.     Standing

¶11           In his motion to suppress, Appellant challenged only the
search of the car, contending the search violated the Fourth, Fifth, and
Fourteenth Amendments of the U.S. Constitution and Article 2, §§ 3, 4, 8,
and 24 of the Arizona Constitution.

¶12          No person shall be subject to unreasonable search or seizure.
U.S. Const. Amend. IV.5 For a defendant to challenge a search or seizure, it
must have violated the defendant’s reasonable expectation of privacy in the
place invaded or the property seized. Rakas v. Illinois, 439 U.S. 128, 143, 148-
49 (1978). A defendant “always has a Fourth Amendment interest in his
own person,” and therefore has standing to challenge the search or seizure



3     Absent material changes after the relevant date, we cite a statute’s
current version.

4     We lack jurisdiction to review count 1 pursuant to A.R.S. § 13-
4033(B) (disallowing the right to appeal in a noncapital case from a
judgment or sentence entered according to a plea agreement).

5      Although Appellant cited the Arizona Constitution in his motion to
suppress, he did not suggest, or provide any analysis to support, that the
Arizona Constitution would grant him broader protection against search or
seizure. In fact, Arizona courts have not applied the Arizona Constitution
to grant protection against search or seizure broader than that provided
under the U.S. Constitution, except in cases involving warrantless home
entries. State v. Juarez, 203 Ariz. 441, 444-45, ¶ 14, 55 P.3d 784, 787-88 (App.
2002).



                                       5
                            STATE v. NICHOLS
                            Decision of the Court

of his person. State v. Dungan, 149 Ariz. 357, 363, 718 P.2d 1010, 1016 (App.
1985).

¶13            The trial court found Appellant had standing to challenge the
vehicle search, reasoning Appellant’s position was similar to that in Belton
where the defendant was also a passenger. The Supreme Court in Belton
did address the merits of the defendant’s challenge, implicitly holding the
defendant had standing to challenge the warrantless vehicle search. Belton,
453 U.S. at 455-57. We note, however, that, in Belton, and like Gant, the
defendant was arrested before the police officers searched the vehicle. Gant,
556 U.S. at 336; Belton, at 455-56. Here, although the parties seemingly agree
Appellant was not arrested before the vehicle search, and the issue of
whether he was arrested was not specifically addressed below, it seems
obvious that, on this record, Appellant was de facto arrested before the
vehicle search.

¶14            For an investigatory stop to become an arrest, a reasonable
person in the defendant’s position would have understood he or she was
subject to restraints on freedom comparable to those associated with a
formal arrest. Berkemer v. McCarty, 468 U.S. 420, 441-42 (1984). Use of
handcuffs is not determinative in concluding a defendant was under arrest
but, together with other factors, can transform a stop into a de facto arrest.
State v. Boteo-Flores, 230 Ariz. 105, 109, ¶¶ 19-21, 280 P.3d 1239, 1243 (2012).
In Boteo-Flores, the defendant was handcuffed at first because the officer was
alone with him. Id. at 107, ¶ 5, 280 P.3d at 1241. After other officers arrived,
the defendant continued to be handcuffed for more than thirty minutes
before being formally arrested. Id. at ¶¶ 6-7. Our supreme court held the
continued use of handcuffs in the absence of a safety threat or flight risk,
and the lack of evidence showing the scope of the investigatory stop had
been limited to what was necessary to effectuate the purpose of the stop,
transformed the stop into a de facto arrest. Id. at 108-09, ¶¶ 14, 19-21, 280
P.3d at 1242-43.

¶15            Here, Officer Puskar handcuffed Appellant after backup
officers had arrived and he had frisked Appellant without finding any
weapons on him. Appellant, however, continued to be handcuffed, even
though safety was not an apparent concern. Neither was potential flight,
as Appellant was sitting on the curb being watched by a police officer.
Instead, the investigatory stop exceeded the scope of investigating the
original traffic violations of parking the car in the middle of the road and
having high beams on in traffic. A reasonable person would have therefore
believed the physical and positional restraints imposed were comparable to



                                       6
                            STATE v. NICHOLS
                            Decision of the Court

those associated with a formal arrest. Accordingly, Appellant was de facto
arrested and a vehicle search incident to that arrest followed.6

       II.    Search Incident to Arrest

¶16            Once a person is lawfully arrested, the police may search “the
arrestee’s person and the area ‘within his immediate control’—. . . the area
from within which he might gain possession of a weapon or destructible
evidence.” Chimel v. California, 395 U.S. 752, 753, 762-63 (1969). For a
warrantless arrest to be lawful, “[t]he officer making the arrest must have
probable cause to believe that a felony has been committed and that the
person arrested committed it.” State v. Richards, 110 Ariz. 290, 291, 518 P.2d
113, 114 (1974). “Probable cause exists where the arresting officers have
reasonably trustworthy information of facts and circumstances which are
sufficient in themselves to lead a reasonable man to believe an offense is
being or has been committed and that the person to be arrested is
committing or did commit it.” Id. Here, probable cause existed because
Officer Puskar smelled marijuana coming from inside the car, and noticed
Appellant was the only occupant who moved after the stop was initiated.
Appellant also failed to comply with Officer Puskar’s orders not to move,
and his movements seemed to indicate he was hiding, if not grabbing,
something underneath his seat. Based on these uncontested facts and
circumstances, the arrest would unquestionably be lawful.

¶17            After lawful arrest of an occupant of a vehicle, the police may
search the vehicle only if they could “reasonably have believed either that
[the arrestee] could have accessed his car at the time of the search or that
evidence of the offense for which he was arrested might have been found therein.”
Gant, 556 U.S. at 344 (emphasis added). The police officer smelled
marijuana coming from the car and observed, before reaching the car or
confronting Appellant, that Appellant appeared to be tucking, if not
grabbing, something underneath his seat. Under these circumstances, it

6      Even assuming the detention did not constitute an arrest, because
Appellant did not assert any property or possessory interest in the car or
any interest in the items seized, he lacked standing to challenge the vehicle
search, and the denial of the motion to suppress would still be proper. See
Rakas, 439 U.S. at 143, 148-49; State v. Brooks, 127 Ariz. 130, 137 n.1, 618 P.2d
624, 631 n.1 (App. 1980) (concluding the defendant lacked standing to
challenge the vehicle search because he was a mere passenger and did not
assert any interest in the item seized during the search).




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                           STATE v. NICHOLS
                           Decision of the Court

was reasonable for the officer to believe evidence of contraband could be
found in the car. Therefore, the vehicle search was lawful and the trial court
properly denied Appellant’s motion to suppress.7

                              CONCLUSION

¶18           Appellant’s convictions and sentences are affirmed.




                                  :AA




7      The vehicle search was legal also under the “plain-smell” doctrine.
Under this doctrine, before conducting a warrantless search, “[(1)] a police
officer must lawfully be in a position to []smell the object, [(2)] its
incriminating character must be immediately apparent, and [(3)] the officer
must have a lawful right of access to the object.” State v. Baggett, 232 Ariz.
424, 427-28, ¶ 16, 306 P.3d 81, 84-85 (App. 2013). All of those requirements
are met in the instant case. Officer Puskar was lawfully in a position to
smell the marijuana during the traffic stop, the incriminating character of
the odor was immediately apparent, and the odor of marijuana emanating
from the car, absent facts suggesting use or possession permitted under the
Arizona Medical Marijuana Act (“AMMA”), gave the officer probable
cause. See State v. Sisco, CR-15-0265-PR, slip op. at ¶¶ 1, 26 (Ariz. July 11,
2016) (holding the smell or sight of marijuana alone establishes probable
cause unless other facts would suggest the use or possession complies with
AMMA); see also State v. Cheatham, CR-15-0286-PR, slip op. at ¶¶ 11-12 (Ariz.
July 11, 2016) (applying the “odor unless” standard adopted in Sisco to
determine probable cause for automobile search).


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