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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

         Nos. 1 CA-CR 16-0135; 1 CA-CR 16-0481 (Consolidated)
                          FILED 6-29-2017


           Appeal from the Superior Court in Maricopa County
             Nos. CR 2014-134702-001; CR 2011-160033-001
                  The Honorable Mark H. Brain, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Kevin D. Heade
Counsel for Appellant
                            STATE v. ZAMORA
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Donn Kessler joined.


J O N E S, Judge:

¶1            Antonio Zamora appeals the trial court’s denial of his motion
to suppress, arguing the court should not have admitted evidence of
incriminating statements obtained from him while he was subject to
custodial interrogation but before he was advised of his Miranda rights. See
generally Miranda v. Arizona, 384 U.S. 436 (1966). For the following reasons,
we affirm.

                 FACTS1 AND PROCEDURAL HISTORY

¶2             At approximately 6:45 p.m. on July 18, 2014, Chandler Police
Officer Octavio A. watched an individual later identified as Zamora ride
his bicycle through a four-way stop sign, without stopping, and continue
traveling against oncoming traffic. Officer A. attempted a traffic stop,
during which he “noticed something being tossed from [Zamora’s] hand to
the ground.” Officer A. notified another officer, who retrieved the items
Zamora had dropped. Based upon his training and experience, Officer A.
believed the items contained heroin.

¶3            Officer A. arrested Zamora and advised him of his Miranda
rights. Zamora stated he did not understand English and wanted his rights
read to him in Spanish. Thereafter, Officer A. did not ask any further
questions of Zamora.

¶4            Officer A. performed a search incident to arrest and found a
bag in Zamora’s left pocket containing “a white crystal-like substance” that
Officer A. believed to be methamphetamine. Officer A. held the substance
“about [an] arm[’s] length from [his] chest” while he evaluated it. Zamora


1       In reviewing a trial court’s ruling on a motion to suppress, we
consider only the evidence presented at the suppression hearing and view
that evidence in the light most favorable to upholding the court’s ruling.
State v. Nissley, 241 Ariz. 327, 329, ¶ 3 (2017) (citing State v. Valenzuela, 239
Ariz. 299, 301, ¶ 3 (2016)).


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                            STATE v. ZAMORA
                            Decision of the Court

then “turn[ed] his whole body” to look over his shoulder at what Officer A.
had found and stated “that is mine.” Subsequent testing confirmed the
substances found were, in fact, heroin and methamphetamine.

¶5             Before trial, Zamora moved to suppress his statement to
Officer A. In ruling on the motion, the trial court initially noted “it is clear
that [Zamora] was in custody” before analyzing whether Zamora had been
subjected to interrogation or the functional equivalent thereof. Applying
the law found in Rhode Island v. Innis, 446 U.S. 291 (1980), the court found
that, in the course of Officer A.’s search incident to Zamora’s arrest, Officer
A. “made no direct or overt act toward [Zamora] and did not engage in any
behavior that could lead a reasonable person to believe that they were
expected to respond.” After concluding Zamora had not been subject to
interrogation, the court denied Zamora’s motion to suppress.

¶6             The jury ultimately convicted Zamora of one count of
possession of a dangerous drug and one count of possession of a narcotic
drug. After finding the State had proved five historical prior felonies, the
trial court sentenced Zamora as a non-dangerous, repetitive offender to two
presumptive, concurrent terms of ten years’ imprisonment. Moreover, the
court revoked Zamora’s probation for a drug possession offense committed
in 2011 and sentenced him as a non-dangerous, non-repetitive offender to
a less-than-presumptive sentence of 271 days’ imprisonment. Zamora
timely appealed, and this Court has jurisdiction pursuant to Arizona
Revised Statutes (A.R.S.) §§ 12-120.21(A)(1),2 13-4031, and -4033(A)(1).

                                DISCUSSION

¶7             “We review a trial court’s ruling on a motion to suppress
evidence for an abuse of discretion.” State v. Cruz, 218 Ariz. 149, 161, ¶ 47
(2008) (citing State v. Prion, 203 Ariz. 157, 160, ¶ 14 (2002)). In doing so, we
defer to the trial court’s factual findings absent an abuse of discretion, but
review the court’s conclusions of law de novo. See State v. Valle, 196 Ariz.
324, 326, ¶ 6 (App. 2000) (citations omitted). Additionally, we will infer
findings necessary to support the trial court’s decision, so long as they do
not conflict with the court’s express findings. State v. Zamora, 220 Ariz. 63,
67, ¶ 7 (App. 2009) (citing State v. Ossana, 199 Ariz. 459, 461, ¶ 8 (App. 2001),
and Coronado Co. v. Jacome’s Dep’t Store, Inc., 129 Ariz. 137, 139 (App. 1981)).
A trial court abuses its discretion by issuing a legally incorrect ruling or one
unsupported by the record. State v. Chapple, 135 Ariz. 281, 297 (1983),


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


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                            STATE v. ZAMORA
                            Decision of the Court

superseded on other grounds by A.R.S. § 13-756 (citing Grant v. Pub. Serv. Co.,
133 Ariz. 434, 455-56 (1982)).

¶8             Zamora contends the trial court erred in applying the law set
forth in Innis. In that case, the U.S. Supreme Court explained that, should
a defendant be subjected to custodial interrogation, he must be provided
certain procedural safeguards — i.e. the Miranda warnings — to protect his
Fifth and Fourteenth Amendment privilege against compulsory self-
incrimination. Innis, 446 U.S. at 297. As in the present case, the defendant
in Innis was undoubtedly in custody at the time he made incriminating
statements, so the Innis court only addressed the definition of interrogation
and whether the defendant was interrogated after he invoked his right to
counsel. Id. at 298.

¶9            In defining interrogation, the Supreme Court held “that the
Miranda safeguards come into play whenever a person in custody is
subjected to either express questioning or its functional equivalent.” Id. at
300-01. Conduct other than express questioning is the “functional
equivalent” of interrogation if it consists of “any words or actions on the
part of the police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to elicit an
incriminating response from the suspect.” Id. at 301. The Innis court
elaborated that this definition “focuses primarily upon the perceptions of
the suspect, rather than the intent of the police.” Id. However, “[t]his is
not to say that the intent of the police is irrelevant,” because any knowledge
the police have concerning the susceptibilities of a particular defendant
may be an important factor in determining whether the police should have
known their conduct was reasonably likely to elicit an incriminating
response. Id. at 301-02 & n.7.

¶10          Here, Zamora asserts the trial court placed too much
emphasis on the objective intent of the police and how the abstract
“reasonable person” would have reacted to Officer A.’s conduct.
According to Zamora, the court should have more closely examined his
subjective perceptions or susceptibilities and whether the police should
have known of those susceptibilities.3 Specifically, Zamora focuses on the

3      The dissent in Innis effectively summarized the objective and
subjective components of the majority’s definition of interrogation as
requiring “an objective inquiry into the likely effect of police conduct on a
typical individual, taking into account any special susceptibility of the
suspect to certain kinds of pressure of which the police know or have reason



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                            STATE v. ZAMORA
                            Decision of the Court

fact that there was a Spanish-speaking officer on scene who could have
easily provided Zamora with a Spanish-language Miranda advisement, as
well as the fact that Officer A. was forcibly detaining Zamora as he held out
the methamphetamine discovered in Zamora’s pocket.

¶11            Zamora’s argument misses the mark. We agree with the trial
court in its objective analysis: Officer A.’s actions could not reasonably be
interpreted as likely to elicit an incriminating response. Officer A. initiated
a lawful search incident to arrest, at which time he discovered a substance
he believed to be methamphetamine. As Officer A. assessed the substance
behind Zamora’s back, Zamora had to turn completely around to determine
what Officer A. had discovered before he admitted the substance was his.
Officer A.’s actions were those normally attendant to arrest and custody,
and the record reflects Zamora’s incriminating statement was spontaneous
and unsolicited.

¶12            The trial court did not explicitly discuss Zamora’s
susceptibilities or other subjective factors, but his Spanish-language
preference is irrelevant where, as here, Officer A. ceased communication
upon learning of Zamora’s Spanish-language preference. Where there was
no interrogation, there was no duty to provide further Miranda advisement.
Moreover, the record does not demonstrate Officer A. held the
methamphetamine out to Zamora, or manipulated it in a way that would
elicit a response from a reasonable person; rather, Officer A. held the
evidence out, away from Zamora, for his own examination, and Zamora
viewed it only by twisting his body around to see.

¶13            Although the trial court’s summary of the Innis test was not
perfect, the record reflects the law was, in fact, applied correctly. The court
was clear in its finding the police had not acted in a way in which Zamora
or any reasonable person would have believed they were being
interrogated. Accordingly, we find no error.4



to know.” Innis, 446 U.S. at 305 (Marshall, J., dissenting); see also State v.
Mauro, 159 Ariz. 186, 191 (1988) (noting “[the Innis] standard clearly
involves two prongs: the perceptions of the suspect and the intent of the
police”).

4      Because the trial court acted within its discretion in denying
Zamora’s motion to suppress, “we need not address [Zamora]’s argument
that, because his [statements at the scene of his arrest] violated Miranda, his



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                           STATE v. ZAMORA
                           Decision of the Court

                              CONCLUSION

¶14          Zamora’s convictions and sentences are affirmed.




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




[later] statements [made at the police station] should also have been
suppressed based on Missouri v. Seibert, 542 U.S. 600 (2004), or Oregon v.
Elstad, 470 U.S. 298 (1985).” State v. Maciel, 240 Ariz. 46, 52, ¶ 29 (2016).


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