State v. Tucker

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TYRONE LEE TUCKER, Appellant.

No. 1 CA-CR 17-0487
FILED 4-26-2018

Appeal from the Superior Court in Mohave County
No. S8015CR201501556
The Honorable Billy K. Sipe, Judge

AFFIRMED

COUNSEL

Janelle A. McEachern, Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Jason Lewis
Counsel for Appellee
 STATE v. TUCKER
Decision of the Court

MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Peter B. Swann joined.

B E E N E, Judge:

¶1 Tyron Lee Tucker (“Tucker”) appeals his convictions and
resulting sentences. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 After midnight on December 16, 2015, Trooper Todd
Dickinson conducted a traffic stop on Interstate 40 in Kingman. The driver,
Shuron Jones (“Jones”), and the passenger, Tucker, were in a rental car and
produced California identification. Based on Jones’s behavior and the
discrepancies in statements given by Jones and Tucker, Dickinson detained
the pair to conduct a search of the car. A bag containing two pounds of
methamphetamine was found in the car, and Tucker’s fingerprints were
found on the exterior and interior bags.

¶3 Tucker was charged with possession of methamphetamine
for sale (count 1), transportation of methamphetamine for sale (count 2),
and possession of drug paraphernalia (count 3). Before trial, Tucker moved
to suppress the evidence found in the car arguing (1) no reasonable
suspicion supported the initial traffic stop, (2) no reasonable suspicion
supported extending the traffic stop to conduct the K9 search, (3) no
probable cause existed to conduct the K9 search, and (4) the K9 search was
unreliable. After full briefing and oral argument, the superior court denied
Tucker’s motion. Tucker then unsuccessfully moved to sever his trial from
that of his co-defendant, Jones.

¶4 Following a three-day trial, the jury convicted Tucker on all
counts, and the superior court sentenced him to 7.5 years in prison for
counts 1 and 2, and six months for count 3, to be served concurrently. This
timely appeal followed. We have jurisdiction pursuant to Article 6, Section
9, of the Arizona Constitution and Arizona Revised Statutes (“A.R.S.”) §§
12-120.21(A)(1), 13-4031, and -4033(A).

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DISCUSSION

I. Motion to Suppress

¶5 Tucker argues that the superior court erred in denying his
motion to suppress because law enforcement lacked reasonable suspicion
to extend the traffic stop beyond its original purpose.1 Thus, he argues, the
drugs and drug paraphernalia discovered during the search of the car must
be suppressed. We disagree.

¶6 Pursuant to the Fourth Amendment of the United States
Constitution and Article 2, Section 8, of the Arizona Constitution, persons
are protected from unreasonable searches and seizures. State v. Allen, 216
Ariz. 320, 323, ¶ 9 (App. 2007). When a violation of the Fourth Amendment
or its state counterpart is determined to have occurred, the exclusionary
rule generally requires the suppression at trial of any evidence directly or
indirectly gained as a result of the violation. State v. Schinzel, 202 Ariz. 375,
382, ¶ 28 (App. 2002).

¶7 “We review a trial court’s ruling on a motion to suppress for
abuse of discretion, considering only the evidence presented at the
suppression hearing and viewing the facts in a light most favorable to
sustaining the trial court’s ruling.” State v. Adair, 241 Ariz. 58, 60, ¶ 9 (2016).
Although we generally defer to the court’s factual findings if the evidence
reasonably supports them, we review the court’s ultimate legal
determination that the search complied with the Fourth Amendment de
novo. State v. Evans, 237 Ariz. 231, 233, ¶ 6 (2015); State v. Davolt, 207 Ariz.
191, 202, ¶ 21 (2004). “We do not reweigh the evidence on appeal and will
overturn the trial court’s findings only if no substantial evidence supports
them.” State v. Rodriguez, 205 Ariz. 392, 397, ¶ 18 (App. 2003).

¶8 “[P]olice can stop and briefly detain a person for investigative
purposes if the officer has a reasonable suspicion supported by articulable
facts that criminal activity ‘may be afoot,’ even if the officer lacks probable
cause.” Evans, 237 Ariz. at 234, ¶ 7 (citation omitted). “In determining

1 Tucker does not challenge the constitutionality of the initial traffic
stop or the K9 search. Because Tucker has failed to raise these arguments
on appeal, we deem them waived and do not address them. See State v.
Carver, 160 Ariz. 167, 175 (1989) (“In Arizona, opening briefs must present
significant arguments, supported by authority, setting forth an appellant’s
position on the issues raised. Failure to argue a claim usually constitutes
abandonment and waiver of that claim.”).

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whether reasonable suspicion exists, officers and courts reviewing their
actions take into account the totality of the circumstances—the whole
picture of what occurred at the scene”—and “[f]rom that whole picture the
officers must derive a particularized and objective basis for suspecting the
particular person stopped of criminal activity.” Id. at ¶ 8 (internal citations
and quotations omitted). “Although a mere unparticularized suspicion or
hunch does not establish reasonable suspicion,” courts must give
consideration “to the specific reasonable inferences [that an officer] is
entitled to draw from the facts in light of his experience.” Id. (quoting Terry
v. Ohio, 392 U.S. 1, 27 (1968)) (internal quotations omitted); see State v. Teagle,
217 Ariz. 17, 24, ¶ 26 (App. 2007) (“In reviewing the totality of the
circumstances, we accord deference to a trained law enforcement officer’s
ability to distinguish between innocent and suspicious actions.”); see also
United States v. Arvizu, 534 U.S. 266, 273-74 (2002) (reviewing reasonable-
suspicion determinations in view of the totality of the evidence, giving due
weight to officers’ experience and specialized training).

¶9 A traffic stop becomes an unlawful seizure “if it is prolonged
beyond the time reasonably required to complete th[e] mission of issuing a
ticket for the violation.” Rodriguez v. United States, 135 S. Ct. 1609, 1612
(2015) (internal quotation and citation omitted). Police “may not extend an
otherwise-completed traffic stop, absent reasonable suspicion, in order to
conduct a dog sniff.” State v. Driscoll, 238 Ariz. 432, 434, ¶ 8 (App. 2015)
(citing Rodriguez, 135 S. Ct. at 1614) (internal quotation omitted).

¶10 At the suppression hearing, Trooper Dickinson testified that
he had been a law enforcement officer for nine years. In that time, he
received advanced training in criminal interdiction, DUI, and collision
investigations; investigated numerous drug cases; and conducted
thousands of traffic stops.

¶11 Dickinson testified that on December 16, 2015, at
approximately 12:40 a.m., he was on routine patrol on Interstate 40 at a
stationary post. He observed a car travelling at 70 mph in a 75-mph zone.
Once the car passed Dickinson, it slowed abruptly and pulled into the right
lane, now driving at 50 mph, 25 mph under the speed limit. Dickinson
followed the car and observed it move from the right lane to the left lane,
cross the left lane fog line, drive off the left shoulder one or two times, then
move back in the right lane in front of Dickinson. Traffic at that time of
night was moderate so the car did not have to make those moves to drive
around traffic. Dickinson testified that based on his training, this type of
driving indicated the driver may be impaired.

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¶12 Dickinson conducted a traffic stop, approached the car, and
asked the driver to come back to his patrol car. Jones, the driver, produced
a California driver’s license and a rental car agreement showing the car was
rented by Clara Tucker, Tucker’s mother. When asked why he was not able
to maintain his lane, Jones replied that he was not used to driving long
distances and was driving from California to Farmington, New Mexico.
Jones said he and his passenger were going to stay in New Mexico for five
days for a cousin’s birthday party. However, the rental car agreement Jones
produced indicated the car was rented for three days only, not five. When
Dickinson asked his cousin’s name, Jones hesitated and did not provide a
name or any other details. Dickinson testified that Jones seemed overly
nervous, very unsure about the facts surrounding his trip and that he
suspected that Jones’s statements were made-up. Dickinson stated that
typically a person pulled over by the police would be nervous at first, but
it would subside. Jones’s nervousness, however, did not subside.
Dickinson asked Jones if he had a family and, if so, why he was travelling
from California to New Mexico so close to the holidays. Jones replied that
he had a family and the trip was “spur-of-the-moment.”

¶13 Tucker, who was in the passenger seat, yelled out through the
window, “Is this going to take too long?” Dickinson approached Tucker,
told him it would not be much longer, and asked him about their travel
plans. As with Jones, Tucker said they were going to Farmington, New
Mexico. But, Tucker said they would be in New Mexico for eight days, not
five days as Jones said, and Tucker said they were visiting his cousin,
William, not Jones’s cousin. Upon questioning, Tucker advised that he and
Jones were both unemployed at the time.

¶14 At that point, Dickinson walked back to Jones and issued him
a warning for unsafe lane usage and failure to signal lane changes. Because
Jones appeared unusually nervous, Dickinson asked to take Jones’s pulse
and he agreed. Jones’s pulse rate was 160 beats per minute. Pursuant to
his training and experience, Dickinson testified that a normal resting pulse
rate is 60-90 beats per minute, where someone using methamphetamine has
a pulse rate of 120-160 beats per minute. Jones explained that his pulse rate
was so high because he consumed an energy drink earlier. Dickinson asked
Jones if he had anything illegal in the car. Jones replied that he did not
know because it was a rental car and other people drove it. Dickinson
advised Jones that Arizona had a problem with drug trafficking and money
laundering. To that statement, Dickinson testified, Jones became
aggravated, threw his hand up and down, as if throwing a tantrum, and
said “I don’t do drugs. Do I look like someone that does drugs? . . . Take
my blood and test it.” At this point, Dickinson believed Jones and Tucker

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were involved in criminal activity and, based on Jones’s response to
Dickinson’s comment, the car would contain money or drugs. Jones
refused to consent to a search of the car, stating, “You don’t have probable
cause. I don’t do drugs. No.” Dickinson called for another officer to assist.
Dickinson testified that at that point, the traffic stop lasted approximately
10-15 minutes.

¶15 Dickinson went back to the passenger side and made contact
with Tucker again. Dickinson told Tucker that Arizona had a problem with
drug trafficking and asked if he could search the car. Tucker yelled back to
Jones through the window, “You’re not gonna let him search the vehicle,
are you?” With no consent to search the car, Dickinson called for a K9 unit,
which arrived approximately 15-25 minutes later. After the dog alerted on
the car, Dickinson conducted a search and found a football-sized trash bag
in the trunk by the spare tire. The substance inside was later identified as
methamphetamine.

¶16 Dickinson testified that he stopped Jones and Tucker at 12:40
a.m., called for the K9 unit approximately 20 minutes later, and was notified
the K9 unit was in route eight minutes after that. The K9 unit arrived
approximately 15-25 minutes after Jones refused to consent to the search.
Upon discovering the drugs in the car, Tucker and Jones were arrested at
1:38 a.m. By Dickinson’s calculations, from the time of the initial stop to
arrest, Jones had been detained for approximately one hour.

¶17 In denying Tucker’s motion to suppress, the superior court
found that, based on Dickinson’s extensive training and experience,
evidence of (1) the inconsistencies in the statements provided by Tucker
and Jones as to their travel plans in New Mexico—Jones said they were
staying for five days, Tucker said eight days, but the rental car agreement
was for three days only; and (2) Jones’s extreme nervousness, substantially
more than the average motorist, coupled with a pulse rate of 160 beats per
minute provided Dickinson with reasonable suspicion to investigate
further and extend the traffic stop.

¶18 Given the totality of the circumstances considering
Dickinson’s training and expertise, reasonable suspicion existed to believe
that Tucker and Jones may be involved in criminal activity. Thus,
prolonging the otherwise-completed traffic stop for unsafe lane usage and
failure to signal lane changes to investigate and conduct a K9 search for
possible drugs was not an unlawful seizure. See Rodriguez, 135 S. Ct. at 1614;
Driscoll, 238 Ariz. at 434, ¶ 8. Because substantial evidence supports the

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superior court’s findings, it did not abuse its discretion in denying Tucker’s
motion to suppress.2

II. Motion to Sever

¶19 Tucker argues that the superior court erred in denying his
motion to sever his trial from Jones’s trial because each defendant’s case
prejudiced the other’s defense.

¶20 “Two or more defendants may be joined if each defendant is
charged with each alleged offense, or if the alleged offenses are part of an
alleged common conspiracy, scheme, or plan, or are otherwise so closely
connected that it would be difficult to separate proof of one from proof of
the others.” Ariz. R. Crim. P. 13.3(b). However, a defendant’s trial must be
severed from his co-defendant’s “if necessary to promote a fair
determination of any defendant’s guilt or innocence of any offense[.]” Ariz.
R. Crim. P. 13.4(a).

¶21 We review the superior court’s denial of a motion to sever for
an abuse of discretion. State v. Blackman, 201 Ariz. 527, 537, ¶ 39 (App. 2002).
To establish an abuse of discretion, a defendant must show that he would
be prejudiced absent severance—a “compelling prejudice against which the
trial court was unable to protect.” State v. Murray, 184 Ariz. 9, 25 (1995)
(citations and internal quotations omitted). Prejudice occurs when:

(1) evidence admitted against one defendant is facially
incriminating to the other defendant, (2) evidence admitted
against one defendant has a harmful rub-off effect on the

2 We previously examined a similar situation in State v. Sweeney, 224
Ariz. 107 (App. 2010), in which we arrived at a different conclusion. There,
Sweeney was stopped for a traffic violation by a K9 unit officer travelling
with his drug interdiction dog. Id. at 109, ¶ 1-2. During the stop, the officer
became suspicious that Sweeney was involved in criminal activity based on
a number of observations. Id. at 110, ¶ 9. Nevertheless, the officer issued
Sweeney a citation, told him he was free to go, and “wished him a safe trip.”
Id. at 109, ¶ 5. Sweeney, however, is distinguishable from the instant case.
Here, several intervening events following completion of the initial traffic
stop gave rise to reasonable suspicion supporting the continued detention
of Jones and Tucker to investigate further — that being Jones’s unusually-
elevated nervousness, high pulse rate, and extreme aggravation and
response to Dickinson’s statement regarding Arizona’s problem with drug
trafficking.

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other defendant, (3) there is significant disparity in the
amount of evidence introduced against the defendants, or (4)
co-defendants present antagonistic, mutually exclusive
defenses or a defense that is harmful to the co-defendant.

Id.

¶22 Tucker does not argue that he and Jones presented
antagonistic defenses. In fact, Tucker admits that “neither defendant was
attempting to say that the drugs belonged to the other. Both were denying
that they knew or placed the drugs in the car in the first place.” Nor does
Tucker contend evidence admitted against either defendant was facially
incriminating to the other or that there was a significant disparity in the
amount of evidence introduced. Tucker claims only that his and Jones’s
defenses were “polluted” because Dickinson cited Jones’s behavior as one
of the reasons for detaining them and searching the vehicle and Tucker’s
prints were found on the drug packaging. In essence, Tucker asserts those
two pieces of evidence had a harmful rub-off effect to which the superior
court was unable to protect. We disagree.

¶23 “Rub-off occurs when the jury’s unfavorable impression of
the defendant against whom the evidence is properly admitted influence[s]
the way the jurors view the other defendant.” State v. Tucker, 231 Ariz. 125,
142, ¶ 42 (App. 2012) (citations and internal quotations omitted). “[A] court
is not required to sever a defendant’s trial based on rub-off if under all
circumstances the jurors are capable of following the court’s instructions,
keeping the evidence relevant to each defendant separate, and rendering a
fair and impartial verdict as to each.” Id. “[M]ere introduction of evidence
concerning one defendant’s conduct that does not involve the other
defendant generally does not constitute sufficient grounds for severance.”
State v. Van Winkle, 186 Ariz. 336, 339 (1996).

¶24 Tucker has failed to show prejudicial rub-off effect
warranting severance. During the presentation of evidence and argument,
the prosecutor and State’s witnesses clarified which evidence involved
Tucker and how that evidence proved the charges against him. At the close
of the State’s case-in-chief, Tucker renewed his motion to sever. The
superior court denied his motion, finding that there was “simply no factual
or legal basis whatsoever to sever these defendants for trial. And I think
that’s really been reaffirmed based on what was presented and not
presented during the trial.”

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¶25 Tucker did not present evidence in his defense, but Jones
testified at trial on his own behalf. His testimony reveals nothing
incriminating against Tucker. Jones merely explained his behavior as
observed by Dickinson and emphasized that he did not inspect the rental
car before driving it and did not know the black trash bag was in the trunk
or that it contained drugs. He did not, at any time, suggest the drugs
belonged to Tucker. Counsel for both Jones and Tucker cross-examined
each witness and presented argument on behalf of their respective clients.
Closing argument for each defendant showed their defenses were
consistent and complimentary to each other.

¶26 The superior court instructed the jury that it “must consider
the charged offense against each defendant separately . . . [and] determine
the verdict as to the crime charged based on that defendant’s own conduct
and from the evidence which applies to that defendant as if that defendant
were being tried alone.” This proper jury instruction “effectively cured any
potential prejudice due to rub-off.” Tucker, 231 Ariz. at 142, ¶ 43; see also
Murray, 184 Ariz. at 25 (A properly instructed jury “is presumed to have
considered the evidence against each defendant separately.”); State v.
Prince, 204 Ariz. 156, 158, ¶ 9 (2003) (“We . . . presume that jurors follow
instructions.”).

¶27 Tucker has failed to show, nor can we find, how evidence of
Jones’s driving and behavior or evidence of Tucker’s fingerprints on the
drug package prejudicially influenced the way jurors viewed his defense.
Therefore, the superior court did not abuse its discretion in denying
Tucker’s motion to sever.

CONCLUSION

¶28 For the foregoing reasons, we affirm Tucker’s convictions and
resulting sentences.

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

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