State v. Brissette

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MARCUS LEE BRISSETTE, Appellant.

No. 1 CA-CR 17-0526
FILED 12-20-2018

Appeal from the Superior Court in Maricopa County
No. CR2015-155847-001
The Honorable Mark H. Brain, Judge
The Honorable George H. Foster, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jennifer L. Holder
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Edward F. McGee
Counsel for Appellant
 STATE v. BRISSETTE
Decision of the Court

MEMORANDUM DECISION

Presiding Judge James P. Beene delivered the decision of the Court, in
which Judge Michael J. Brown and Judge James B. Morse Jr. joined.

B E E N E, Judge:

¶1 Appellant Marcus Lee Brissette appeals his conviction and
sentence for possession of a dangerous drug, a class 4 felony. 1 For the
following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On an afternoon in December 2015, Officer Pilkington was
talking with Detectives Kelley and Lauritzen while the detectives were
conducting a traffic stop. The officers were in an area of Chandler known
for gang activity. During the stop, the officers noticed a male walking down
the street. This individual was wearing a red hoodie and red sneakers,
which Detective Kelley identified as being the colors worn by the Eastside
Chandler gang. The individual appeared nervous and was trying to avoid
looking in the officers’ direction. As he walked north, removing his hood,
the officers saw that the individual was black with long hair. The officers
believed that this individual was another subject who lived in the area and
who Detectives Kelley and Lauritzen had previously contacted, Ona
Woods. After completing the traffic stop, Officer Pilkington ran a record
check that showed that Ona Woods had several outstanding warrants.

¶3 The three officers approached the individual, who had
already been stopped and seated on the sidewalk by another officer,
Sergeant Moore. While seated, Sergeant Moore asked the individual for his
name and was eventually provided with a birthdate and the name “Chris
Cane.” The individual stated he had no identification on him and
continued to appear very nervous. Officer Pilkington walked to his patrol
car to conduct a record check on the name and birthdate provided.

1 Brissette also pled guilty to misconduct involving weapons while
being a prohibited possessor, a class 4 felony. However, Brissette does not
appeal that conviction or sentence.

2
 STATE v. BRISSETTE
Decision of the Court

¶4 While Detective Pilkington conducted the records check,
Detective Kelley asked the individual if he had any weapons on him, to
which the individual responded, “no.” Detective Kelley then conducted a
Terry2 search and found a handgun in the individual’s pocket. The
detective removed the gun and arrested the individual for failure to inform
the officers of the concealed weapon. See Ariz. Rev. Stat. (“A.R.S.”) §
13-3102(A)(1)(b). A search incident to arrest revealed a large bulge in the
individual’s other pocket that was later identified as methamphetamine.
Officer Pilkington then returned from running the record check, which
showed no records for “Chris Cane,” a process that took a total of one
minute.

¶5 Officer Pilkington transported the individual to a Gilbert
holding facility, where fingerprint analysis identified him as Marcus Lee
Brissette. After he was identified, Brissette admitted that he knew he
should not have carried the gun and the methamphetamine, denied
possessing two ounces of methamphetamine, and said he “had like an
ounce maybe an ounce and a half” of methamphetamine.

¶6 The State charged Brissette with possession of dangerous
drugs (methamphetamine) for sale, a class 2 felony, and misconduct
involving weapons, a class 4 felony. See A.R.S. §§ 13-3407(A)(2),
(B)(2), -3102(A)(4), (M). The court later severed the drug charge from the
misconduct-involving-weapons charge, and Brissette plead guilty on the
misconduct-involving-weapons charge.

¶7 Before trial on the methamphetamine possession charge,
Brissette moved to suppress all evidence and statements obtained during
the stop, arguing that: (1) although the initial contact was consensual, it
evolved into a seizure when the officers ordered Brissette to stop walking
and sit on the curb; (2) Brissette’s continued seizure by police was not
supported by reasonable suspicion that he committed a crime; and (3) the
Terry search was not supported by reasonable suspicion that Brissette had
committed a crime, was armed, or was dangerous. The court denied the
motion.

¶8 A jury convicted Brissette of the lesser-included offense of
possession of dangerous drugs, a class 4 felony. See A.R.S. § 13-3407(A)(1),
(B)(1). The superior court sentenced Brissette to the presumptive term of
10 years, with 484 days of presentence incarceration credit, for the

2 Terry v. Ohio, 392 U.S. 1 (1968).

3
 STATE v. BRISSETTE
Decision of the Court

methamphetamine-possession count, and the presumptive term of 2.5
years, to run concurrently with the first sentence, for the misconduct-
involving-weapons count. See A.R.S. § 13-703(J).

¶9 Brissette did not timely appeal but later petitioned the
superior court for leave to file a delayed appeal under Arizona Rule of
Criminal Procedure 32.1(f).3 The superior court granted Brissette’s petition,
and Brissette timely filed a delayed notice of appeal. We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution and
A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A).

DISCUSSION

¶10 Brissette argues the superior court reached clearly erroneous
conclusions of fact and reversibly erred when it denied his motion to
suppress. Brissette asserts that: (1) any reasonable suspicion the officers
might have had to initiate the stop dissipated once they approached him
and saw he was not Ona Woods; and (2) the Terry search was not supported
by reasonable suspicion because the officers should have recognized that
he was not Woods before performing the search.4

I. Standard of Review.

¶11 We review the superior court’s denial of a motion to suppress
for an abuse of discretion. State v. Gutierrez, 240 Ariz. 460, 463, ¶ 6 (App.
2016). When reviewing the denial of 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 trial court’s ruling.”
Id. “We defer to the superior court’s factual determinations, including its

3 Rule 32.1(f) provides relief if “the failure to file a . . . notice of appeal
within the required time was not the defendant’s fault[.]”

4 Brissette also argues the initial stop was not supported by reasonable
suspicion of criminal activity. However, we do not address this argument
because Brissette argued the initial stop was consensual in his motion to
suppress. See State v. Tison, 129 Ariz. 526, 535 (1981) (“Issues concerning the
suppression of evidence which were not raised in the trial court are waived
on appeal.”); see also Ariz. R. Crim. P. 16.1(c) (“The court may preclude any
motion, defense, objection, or request not timely raised by [pretrial] motion
. . . unless the basis was not then known and could not have been known
through reasonable diligence, and the party raises it promptly after the
basis is known.”).

4
 STATE v. BRISSETTE
Decision of the Court

evaluation of the credibility of the witnesses, but review its conclusions of
law de novo.” Id. We must affirm the superior court’s ruling “if legally
correct for any reason and, in doing so, we may address the [S]tate’s
arguments to uphold the court’s ruling even if those arguments otherwise
could be deemed waived by the [S]tate’s failure to argue them below.” State
v. Boteo-Flores, 230 Ariz. 551, 553, ¶ 7 (App. 2012).

II. The Stop Was Not Unreasonably Prolonged.

¶12 Brissette argues officers should have ended the stop once they
“got a good look at [him]” because Detectives Lauritzen and Kelley had
previously interacted with Woods and should have known he was not
Woods. We disagree.

¶13 A police officer may conduct an investigatory stop “if the
officer has a reasonable suspicion supported by articulable facts that
criminal activity ‘may be afoot,’ even if the officer lacks probable cause.”
United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v. Ohio, 392 U.S.
1, 30 (1968)); State v. Evans, 237 Ariz. 231, 234, ¶ 7 (2015). “[A]n investigatory
detention must be temporary and last no longer than is necessary to
effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500 (1983);
Boteo-Flores, 230 Ariz. at 108, ¶ 14. “Whether the scope of an investigatory
stop is reasonable demands careful consideration of the totality of the
circumstances.” Boteo-Flores, 230 Ariz. at 108, ¶ 14 (citation omitted). There
is no rigid time limit for an investigative stop—“the appropriate inquiry is
whether the police diligently pursued a means of investigation that was
likely to confirm or dispel their suspicions quickly, during which time it
was necessary to detain the defendant.” Id. (quoting United States v. Sharpe,
470 U.S. 675, 686 (1985); see also Rodriguez v. United States, 135 S. Ct. 1609,
1614 (2015) (stating a Terry stop’s length “is determined by the seizure’s
‘mission,’ which is to address the . . . violation that warranted the stop.”).

¶14 Sufficient evidence supports the conclusion that Brissette’s
continued detention was not unreasonably prolonged. The record indicates
that even though Officer Pilkington had a photo of Woods and Detective
Kelley had interacted with Woods before, both officers continued to believe
Brissette was Woods after approaching him. Brissette was unable to
provide identification to dispel this suspicion, justifying his continued
detention while the officers ran a record check to confirm or dispel their
suspicion that Brissette was Woods. See Adams v. Williams, 407 U.S. 143, 146
(1972) (“A brief stop of a suspicious individual, in order to determine his
identity or to maintain the status quo momentarily while obtaining more
information, may be most reasonable in light of the facts known to the

5
 STATE v. BRISSETTE
Decision of the Court

officer at the time.”). Furthermore, the stop was not unreasonably long;
footage from Officer Pilkington’s chest camera shows that the process of
running the record check took approximately one minute. No unnecessary
delay occurred between asking Brissette for his identifying information and
running the record check. Accordingly, the stop was not unreasonably
prolonged.

III. The Terry Frisk Was Not Supported by Reasonable Suspicion that
Brissette Was Armed and Dangerous.

¶15 Brissette argues reasonable suspicion did not support the
Terry frisk. We agree.

¶16 “[W]hen an encounter between a police officer and an
individual is not based on consent, and an officer has a reasonable suspicion
both that criminal activity is afoot and that the individual is armed, the
officer may conduct a Terry frisk without specifically assessing the
likelihood that the individual is presently dangerous.” Gastelum v. Hegyi,
237 Ariz. 211, 214, ¶ 11 (App. 2015). “The officer need not be absolutely
certain that the individual is armed; the issue is whether a reasonably
prudent man in the circumstances would be warranted in the belief that his
safety or that of others was in danger.” Terry, 392 U.S. at 27.

¶17 Here, insufficient evidence supports the conclusion that
reasonable suspicion supported the Terry frisk. Officer Kelley stated that
he performed the frisk because Officer Pilkington still had not identified
Brissette and because Brissette seemed nervous at the time. However, even
if, as the court found, “while one officer was running the name [Brissette]
provided, they still reasonably suspected he could be Woods, a gang
member with warrants,” the evidence presented does not support the
conclusion that Brissette was armed.

¶18 Footage from Officer Pilkington’s chest camera reveals that
when the three officers approached Sergeant Moore and Brissette, Brissette
was seated on the ground. Four officers stood around him when Officer
Pilkington left to run the record check. When Officer Pilkington returned
from running the record check approximately one minute later, Brissette
was in handcuffs. During this minute-long period, Detective Kelly asked
Brissette if he was armed and Brissette said no. Detective Kelley denied
that the officers had seen Brissette’s gun before the frisk, and Detective
Kelley denied he had ever spoken with Woods about his gang affiliation or
activity, thus dispelling the notion that the officers believed Woods, and
accordingly Brissette, was a gang member. This evidence does not support

6
 STATE v. BRISSETTE
Decision of the Court

the conclusion that the officers were “warranted in the belief that [their]
safety or that of others was in danger,” see Terry, 392 U.S. at 27, therefore
the Terry frisk was improper.

IV. The Evidence Acquired after the Terry Frisk Need Not Be
Suppressed.

¶19 The State asserts that regardless of the improper Terry frisk,
the superior court was correct bydenying the motion to suppress under the
inevitable discovery doctrine. See State v. Rosberry, 237 Ariz. 507, 508, ¶ 7
(2015) (“We will affirm a trial court’s decision if it is legally correct for any
reason.”). We agree.

¶20 Under the inevitable discovery doctrine, “a court can admit
illegally obtained physical evidence in appropriate circumstances if the
[S]tate proves by a preponderance of the evidence that the disputed
evidence inevitably would have been seized by lawful means.” Brown v.
McClennen, 239 Ariz. 521, 524, ¶ 13 (2016). “The preponderance of the
evidence standard requires that the fact-finder determine whether a fact
sought to be proved is more probable than not.” Kent K. v. Bobby M., 210
Ariz. 279, 284, ¶ 25 (2005). The inevitable discovery doctrine applies “if the
evidence would have been lawfully discovered despite the unlawful
behavior and independent of it.” Brown, 239 Ariz. at 525, ¶ 14.

¶21 The evidence should not be suppressed despite the improper
Terry frisk. When Officer Pilkington, Detective Kelley, and Detective
Lauritzen approached Brissette, Sergeant Moore was asking Brissette for his
identifying information. Brissette provided a name and birthdate. Officer
Pilkington then went to his patrol car to run a record check, which showed
no result. Detective Kelley testified that, in his experience, the only time a
record check would show no result was if the suspect was a juvenile or was
lying. Thus, because Brissette provided a false name and birthdate, the
officers had probable cause to arrest him. See Utah v. Strieff, 136 S. Ct. 2056,
2063 (2016) (holding that later discovery of arrest warrant attenuated the
impact of an unlawful stop); see also A.R.S. § 13-2907.01(A) (criminalizing
“knowingly mak[ing] to a law enforcement agency . . . a false . . . report or
statement” and “knowingly misrepresent[ing] a fact for the purpose of . . .
misleading a peace officer”); see also State v. Keener, 206 Ariz. 29, 32, ¶ 15
(App. 2003) (“Probable cause derives from reasonably trustworthy
information and circumstances that would lead a person of reasonable
caution to believe that a suspect has committed an offense. . . . [W]hether
probable cause exists depends on all the facts and circumstances known at
the time of arrest.”) (citation omitted). The officers would have been

7
 STATE v. BRISSETTE
Decision of the Court

entitled to search Brissette incident to his arrest, see State v. Lamb, 116 Ariz.
134, 138 (1977), at which point they would have discovered the weapon and
methamphetamine. Accordingly, the officers would have discovered these
items even if Detective Kelley had not performed the improper Terry frisk.
The superior court did not err by failing to suppress the weapon and the
methamphetamine.

CONCLUSION

¶22 For the foregoing reasons, we affirm Brissette’s conviction
and sentence for Possession of Dangerous Drugs (Methamphetamine).

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

8