                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                     VICTOR HUGO SILVA, Appellant.

                             No. 1 CA-CR 12-0618
                              FILED 3-20-2014


           Appeal from the Superior Court in Mohave County
                          S8015CR201000464
           The Honorable Derek C. Carlisle, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Adriana M. Zick
Counsel for Appellee

Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
                            STATE v. SILVA
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Jon W. Thompson joined.


G O U L D, Judge:

¶1             Victor Hugo Silva appeals from his convictions and
sentences of one count of transportation of dangerous drugs for sale, a
class 2 felony, and one count of possession of drug paraphernalia, a class 6
felony. He argues the court erred in denying his motion to suppress and
motion for mistrial. We disagree and affirm.

                FACTS AND PROCEDURAL HISTORY

¶2             While patrolling Interstate 15 around 1:40 am on February 4,
2010, Officer Callister observed a white car traveling 59 mph in a 55 mph
zone. He performed a traffic stop. The car contained three individuals;
Gustavo Flores, the driver, Nicole Daste, the front-seat passenger, and
Silva, riding in the back seat. Officer Callister questioned Flores while he
conducted the stop, verified Flores’ driver’s license and checked the car’s
VIN. He also questioned Daste and Silva regarding their travel plans.
After issuing Flores a warning for speeding and returning his documents,
Officer Callister asked Flores if he would answer more questions. Flores
agreed. The Officer asked if he could search the car and obtained signed
consent forms from Flores, Daste, and Silva. The search revealed
methamphetamine in the center console.

¶3            Silva, Daste and Flores were arrested. Flores and Silva were
tried together.1 Before trial, Flores filed a motion to suppress the
methamphetamine found in the car on Fourth Amendment grounds. The
court held a suppression hearing. Following the hearing, the court denied
Flores’ motion; it concluded the stop was valid because the officer had an
objective basis to stop the vehicle, the stop concluded when Officer
Callister issued Flores a warning and returned his documents, and the
encounter following conclusion of the stop was consensual. After the
court issued its ruling denying Flores’ motion, Silva filed a motion to join


1     Flores was present throughout the trial; Silva was tried in absentia.



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                             STATE v. SILVA
                            Decision of the Court

Flores’ motion to suppress. The court granted Silva’s motion to join –
with respect to the validity of the stop only – and denied Silva’s motion to
suppress.

¶4            At the close of the State’s case, the court granted a mistrial as
to Flores and severed his case from Silva’s case.2 The court stated:

       I know that the jury is supposed to follow the limiting
       instructions given by the Court. But at this point in time,
       Mr. Silva’s not here, he’s not subject to cross-examination,
       he’s not able to explain his statement, and I think that his
       statement was clearly – the way it was provided by the
       witness, it’s clearly inculpatory of Mr. Flores.

       ...

       At this point in time, I think it’s appropriate to sever the
       cases.

The court then sent Silva’s case to the jury. Silva was convicted on both
counts and sentenced to concurrent terms of six months and five years.
He timely appeals.

                               DISCUSSION

I.     Motion to Suppress

¶5            “In reviewing a trial court’s decision on a motion to
suppress, we view the facts in the light most favorable to upholding the
trial court’s ruling and consider only the evidence presented at the
suppression hearing.” State v. Teagle, 217 Ariz. 17, 20, ¶ 2, 170 P.3d 266,
269 (App. 2007). We will defer to the court’s factual determinations, “but
the ultimate ruling is a conclusion of law we review de novo.” State v.
Box, 205 Ariz. 492, 495, ¶ 7, 73 P.3d 623, 626 (App. 2003).

2      The mistrial was based on a Bruton violation that occurred during
trial. Detective Schoch testified about Silva’s statements implicating
Flores. “The United States Supreme Court held in Bruton that a defendant
is deprived of his Sixth Amendment right to cross examine witnesses
when a non-testifying co-defendant’s confession incriminating the
defendant is admitted at their joint trial.” State v. Blackman, 201 Ariz. 527,
538, ¶ 42, 38 P.3d 1192, 1203 (App. 2002). Accordingly, the court granted
Flores a mistrial.



                                      3
                            STATE v. SILVA
                           Decision of the Court

¶6            On February 4, 2010 around 1:40 a.m., Officer Callister was
patrolling the area of Interstate 15 between Mesquite, NV and St. George,
UT, referred to as the Arizona strip. He was running his stationary radar
when a white passenger car drove by; the radar indicated it was traveling
59 mph in a 55 mph zone. Officer Callister caught up to the vehicle and
paced it traveling between 59 and 60 mph. Officer Callister conducted a
traffic stop.

¶7            When the vehicle pulled over, Officer Callister spoke with
the driver, Flores, requesting his license, through the passenger-side
window. He noticed the female front-seat passenger appeared to be very
nervous. While verifying the driver’s license, Officer Callister asked
Flores to exit the vehicle and stand by his patrol car. There, Officer
Callister asked Flores a number of questions about where he was headed,
what he was going to do there, and how long he would be there. Flores
replied that he was headed to Salt Lake to gamble at the casinos.

¶8             During the course of the stop Officer Callister learned that
the female passenger, Daste, had recently been given the vehicle as a gift;
while he checked the car’s VIN number to verify its registration he also
asked Daste and Silva questions about their travel plans. Specifically, he
asked what they planned to do in Salt Lake, whether they knew anyone
there, whether they had been there before and when they were planning
to return. He also asked how much Daste paid for the car and whether
either she or Silva were working. His questioning lasted about a minute.

¶9            Officer Callister then returned to Flores standing by his
patrol car and issued him a warning for speeding. He returned Flores’
driver’s license, handed him all his papers and verified that he was “good
to go.” Officer Callister next asked Flores if he minded him asking a few
more questions. Flores indicated he was agreeable to answering some
questions, and Officer Callister questioned him further regarding his
travel plans; specifically, he asked how they could be going to gamble in
Salt Lake where there were no casinos.

¶10           Callister left Flores for a moment and approached the car to
ask Daste and Silva similar questions about their plans to gamble. He
returned to Flores and asked him whether he had any drugs in the car or
on his person, specifically listing different drugs. Flores replied that he
did not. When Officer Callister asked Flores if he could search the car,
Flores replied that it was not his car but when Officer Callister asked if he
could search his belongings, Flores said, “No problem with me.”




                                     4
                             STATE v. SILVA
                            Decision of the Court

¶11           After obtaining Flores’ consent to search his possessions,
Officer Callister returned to the car and informed Daste and Silva that he
had issued Flores a warning and they were “good to go.” He then asked
them if he could ask a few questions, they agreed, and in the course of his
questioning they consented to a search of the car. Officer Callister then
had Flores, Daste and Silva read and sign a consent form, and he waited
for backup to search the car. A search of the vehicle produced 27.4 grams
of methamphetamine hidden in the center console. The traffic stop lasted
approximately 12 minutes and concluded when Officer Callister issued
Flores a warning. The entire encounter from the time Officer Callister
stopped the vehicle to the time he obtained consent to search the vehicle
lasted approximately 20 minutes.

¶12           Silva argues he was illegally detained beyond the duration
of the traffic stop because Officer Callister’s questions improperly
prolonged the stop. Silva also claims the court erred in determining that
(1) the stop ended when Officer Callister returned Flores’ papers and
issued a warning and (2) the subsequent questioning was a consensual
encounter. Below, Silva joined Flores’ motion to suppress adopting all of
Flores’ arguments challenging the traffic stop and the resulting search.
Silva did not advance any arguments specific to his detention. The court
granted Silva’s motion to join with respect to the traffic stop but denied
his motion to join with respect to “any issues regarding whether Flores
was seized or the encounter was consensual.”

¶13            The Fourth Amendment provides that the “right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated.” Terry v. Ohio,
392 U.S. 1, 8 (1968). “The protection against unreasonable seizures
‘extend[s] to brief investigatory stops of persons or vehicles that fall short
of traditional arrest.’” Teagle, 217 Ariz. at 22, ¶ 20, 170 P.3d at 271 (quoting
U.S. v. Arvizu, 534 U.S. 266, 273 (2002)).

¶14            “[T]he violation of a traffic law provides sufficient grounds
to stop a vehicle.” State v. Acosta, 166 Ariz. 254, 257, 801 P.2d 489, 492
(App. 1990); see also Box, 205 Ariz. at 497, ¶ 15, 73 P.3d at 628 (stating that
traffic stop was not unreasonable seizure because it was justified by
speeding); State v. Orendain, 185 Ariz. 348, 352, 916 P.2d 1064, 1068 (App.
1996) overruled on other grounds, State v.Orendain, 188 Ariz. 54, 932 P.2d
1325 (1997) (traffic stop of vehicle for following another vehicle too
closely, in violation of traffic laws, was not unreasonable seizure).




                                       5
                              STATE v. SILVA
                             Decision of the Court

¶15           During a valid traffic stop both the driver and the
passengers are “seized” under the Fourth Amendment. Arizona v. Johnson,
555 U.S. 323, 327 (2009). Any subjective motives of an officer do not
invalidate an otherwise lawful traffic stop. Whren v. United States, 517 U.S.
806, 813 (1996).

¶16           An officer’s questions during a traffic stop do not violate the
Fourth Amendment so long as they do not unreasonably prolong the stop.
Teagle, 217 Ariz. at 23, ¶ 24, 170 P.3d at 272 (citing United States v. Olivera-
Mendez, 484 F.3d 505, 510-11 (8th Cir. 2007), for the proposition that “an
officer does not violate the Fourth Amendment by asking a few questions
about matters unrelated to the traffic violation, even if this conversation
briefly extends the length of the determination”). Thus, an officer may ask
questions directly related to the stop, such as requesting the defendant’s
driver’s license and registration. State v. Paredes, 167 Ariz. 609, 611, 810
P.2d 607, 609 (1991). In addition, an officer may also ask for consent to
search the defendant’s vehicle or ask questions unrelated to the traffic
stop. See Ohio v. Robinette, 519 U.S. 33 (1996) (consent to search was
voluntary where defendant was stopped for speeding, officer gave a
verbal warning and returned defendant’s driver’s license, and then asked
defendant if he had any contraband or weapons in the car; defendant
replied “no” and consented to search of the car); Box, 205 Ariz. at 498, ¶
21, 73 P.3d at 629 (permissible for officer, after concluding traffic stop, to
ask driver whether he carried drugs or money and ask permission to
search the vehicle for drugs or money).

¶17            Generally, a traffic stop is over once the officer hands the
driver his documents, issues a citation or warning, and informs the driver
he is free to leave. Teagle, 217 Ariz. at 23, ¶ 23, 170 P.3d at 272; Box, 205
Ariz. at 498, ¶ 21, 73 P.3d at 629; see also Brendlin v. California, 551 U.S. 249,
255 (2007) (looking at whether in view of all circumstances surrounding
the incident, a reasonable person would have felt free to leave).

¶18            During a consensual encounter, a police officer may, without
reasonable suspicion of criminal activity, ask questions about a person’s
identity, request to see their identification, ask for consent to search their
person, or ask for consent to search their belongings. United States v.
Drayton, 536 U.S. 194, 200-01 (2002); Florida v. Bostick, 501 U.S. 429, 434, 437
(1991). A consensual encounter may become a seizure when, based upon
the totality of the circumstances, a reasonable person would not have felt
free to leave or otherwise terminate their encounter with the police.
Drayton, 536 U.S. at 201; United States v. Mendenhall, 446 U.S. 544, 553-54
(1980). The standard for reasonableness is an objective one, and takes into


                                        6
                             STATE v. SILVA
                            Decision of the Court

account that although “there is an element of psychological inducement
when a representative of the police . . . initiates a conversation,” this does
not render every encounter with the police a seizure under the Fourth
Amendment. United States v. Ayon-Meza, 177 F.3d 1130, 1133 (9th Cir.
1999).

¶19             Fourth Amendment rights cannot be asserted vicariously,
and as a result, “a defendant can urge the suppression of evidence
obtained in violation of the Fourth Amendment only if that defendant
demonstrates that his Fourth Amendment rights were violated by the
challenged search or seizure.” United States v. Padilla, 508 U.S. 77, 81
(1993); see also Rakas v. Illinois, 439 U.S. 128, 133-34 (1978). A passenger has
standing to object to a traffic stop but does not have standing to challenge
any detention of the driver once the stop is over. Rakas, 439 U.S. at 133-34.
A passenger with no possessory interest in the car, or reasonable
expectation of privacy in the area searched has no standing to challenge
the search. United States v. Pulliam, 405 F.3d 782, 786 (9th Cir. 2005);
Alderman v. United States, 394 U.S. 165, 171-72 (1969) (stating that
“suppression of the product of a Fourth Amendment violation can be
successfully urged only by those whose rights were violated by the search
itself”).

¶20            Silva does not argue the initial stop was unconstitutional
and we do not find it to be so. At the suppression hearing, Officer
Callister’s testimony that he conducted a traffic stop because Flores was
exceeding the speed limit was uncontested.

¶21           Silva contends, however, that the court should have
considered his challenge to any detention once the traffic stop ended.
Once Officer Callister issued the warning, handed Flores his documents,
and inquired whether he was “good to go,” the traffic stop was over;
Flores was free to leave. See Box, 205 Ariz. at 498, ¶ 21, 73 P.3d at 629
(stating that when the officer returned the driver’s documents and handed
him the warning he was fee to leave and the stop had ended). However,
Officer Callister “was equally free to ask [Flores] additional questions
unrelated to the traffic stop.” Teagle, 217 Ariz. at 23, ¶ 23, 170 P.3d at 272
(quoting Box, 205 Ariz. at 498, ¶ 21, 73 P.3d at 629). Here, Flores consented
to the officer’s further questioning and ultimately to a search of the
vehicle.

¶22            Even if we did not conclude that Flores consented to Officer
Callister’s further questioning, Silva cannot challenge the constitutionality
of Flores’ detention beyond the traffic stop. Rakas, 439 U.S. at 133-34.


                                       7
                             STATE v. SILVA
                            Decision of the Court

Neither can he urge suppression of the methamphetamine in the car. At
the suppression hearing Silva did not assert that he had a possessory
interest in the car or any reasonable expectation of privacy in the center
console. See id. at 148 (concluding that no “legitimate expectation of
privacy in the glove compartment or area under the seat of the car in
which they were merely passengers”).          Silva, “[a] person who is
aggrieved . . . only through the introduction of damaging evidence
secured by a search of a third person’s premises or property[,] has not had
any of his Fourth Amendment rights infringed.” Id. at 134. The court
correctly denied his motion to suppress.

II.   Motion for Mistrial

¶23           Silva argues the court denied his right to due process when
it granted a mistrial for his co-defendant, Flores, but sent his case to the
jury. Silva objected to the court’s decision to grant Flores a mistrial and
sever his case from Silva’s after the close of the State’s evidence. He
argued he was prejudiced because it gave the appearance that the case
against Flores was dismissed leaving Silva as the only culpable individual.
The court did not see any prejudice to Silva and denied his motion for
mistrial. Silva next requested a specific jury instruction explaining that
Flores was no longer present for a legal reason; the court denied Silva’s
request to explain to the jury why Flores was no longer present. The court
reasoned that doing so would draw improper attention to Flores’ absence.

¶24           We review the denial of a motion for mistrial for an abuse of
discretion. Blackman, 201 Ariz. at 538, ¶ 41, 38 P.3d at 1203. “A
declaration of mistrial is the most dramatic remedy for trial error and is
appropriate only when justice will be thwarted if the current jury is
allowed to consider the case.” State v. Nordstrom, 200 Ariz. 229, 250, ¶ 68,
25 P.3d 717, 738 (2001), abrogated on other grounds by State v. Ferrero, 229
Ariz. 239, 243, ¶ 20, 274 P.3d 509, 513 (2012).

¶25           The court did not abuse its discretion in denying Silva’s
motion. State v. Cruz, 137 Ariz. 541, 546, 672 P.2d 470, 475 (1983) (stating
that ordering a severance and mistrial as to one co-defendant is an
appropriate remedy for a Bruton violation). Silva argued the jury might
infer from Flores’ sudden absence that Flores was acquitted leaving Silva
as the only guilty person. On appeal, Silva also argues the jury could have
inferred that Flores pled guilty, and thereby have concluded that Silva
was also guilty as an accomplice. However, Silva admits that the jury
could have attributed Flores’ sudden absence to illness or some other,
non-prejudicial, condition.


                                     8
                            STATE v. SILVA
                           Decision of the Court

¶26           The many possible and competing inferences the jury could
have made shows there was no prejudice to Silva. See State v. Lamar, 205
Ariz. 431, 439, 72 P.3d 831, 839 (2003) (finding no prejudice where tenuous
link between claimed error and prejudicial inference by the jury). Further,
the court properly instructed the jury regarding Flores’ absence on two
occasions.3 Id. at 439, 72 P.3d at 839 (stating that curative instruction can
overcome any probability that the jury would draw improper
conclusions). Accordingly, we find no reversible error.




3


      The only determination for you now will be whether or not
      the State has proven the defendant Victor Silva is guilty
      beyond a reasonable doubt. You are not to speculate or
      guess as to why that is, and you’re not to consider the
      reasons for that at all in making your deliberation – in your
      deliberations or making your decision.

      ...

      The only matter for you to determine – for you to determine
      is whether the State has proved Victor Hugo Silva guilty
      beyond a reasonable doubt. The defendant’s guilt or
      innocence is not affected by the fact that another person or
      persons might have participated or cooperated in the crime
      and are not on trial now. You should not guess about the
      reason any other person is absent from the courtroom.




                                     9
                         STATE v. SILVA
                        Decision of the Court

                           CONCLUSION

¶27         For the above reasons, Silva’s convictions and sentences are
affirmed.




                                :mjt




                                  10
