State v. Martinez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ELISEO MARTINEZ, Appellant.

No. 1 CA-CR 19-0463
FILED 12-3-2020

Appeal from the Superior Court in Maricopa County
No. CR2018-130714-001 SE
The Honorable Laura Johnson Giaquinto, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Jesse Finn Turner
Counsel for Appellant
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MEMORANDUM DECISION

Judge D. Steven Williams delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge David D. Weinzweig
joined.

W I L L I A M S, Judge:

¶1 Eliseo Martinez appeals his conviction and sentence for
possession of narcotic drugs. Martinez argues the superior court erred by
denying his motion to suppress evidence purportedly obtained in violation
of the Fourth Amendment. For reasons that follow, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Chandler Police Department Sergeant David Pilkington was
on patrol when he heard over his radio a description of suspects involved
in a nearby vehicle theft. The Sergeant then noticed two men walking along
the street who generally matched the description. Pilkington stopped his
vehicle and approached the men to investigate.

¶3 Pilkington asked the men, one of whom was Martinez, some
general questions, before asking them to sit down. Two more officers
arrived. At that point, the security guard who observed the occupants of
the stolen vehicle and had provided their physical descriptions to police
accompanied a police officer to the location where Pilkington was detaining
Martinez and Noriega. After conducting a lineup procedure, the security
guard was “unsure” whether Martinez and Noriega were the individuals
he saw earlier in connection with the stolen vehicle.

¶4 Pilkington then asked Martinez and Noriega whether he
could search them. 1 Martinez consented, and Pilkington found loose
Oxycodone pills in his pants pocket. Martinez did not have a prescription
for the pills.

1 At trial, the parties stipulated that Sergeant Pilkington and Martinez
“engaged in a legal encounter[.]” Thus, the jury was not presented with
details of the encounter. We consider evidence from the suppression
hearing to describe those details.

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¶5 The State charged Martinez with possession of narcotic drugs,
a class 4 felony. Before trial, Martinez moved to suppress evidence of the
pills, asserting the encounter with Pilkington violated his Fourth
Amendment rights. The superior court conducted an evidentiary hearing
on the motion where, in addition to other evidence, the State presented a
video of the encounter captured by Pilkington’s body camera. The court
denied the motion.

¶6 The jury subsequently found Martinez guilty as charged, and,
given his prior criminal history, the court imposed a ten-year prison term.
Martinez timely appealed. 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)(1).

DISCUSSION

¶7 Arguing the superior court erred by denying his motion to
suppress, Martinez first contends Sergeant Pilkington lacked reasonable
suspicion to lawfully detain him. Martinez also asserts he did not
voluntarily consent to the search Pilkington conducted. We view the
evidence presented at the suppression hearing and the reasonable
inferences therefrom in the light most favorable to sustaining the ruling on
the motion to suppress. State v. May, 210 Ariz. 452, 454, ¶ 4 (App. 2005).

¶8 The Fourth Amendment prohibits the police from making
unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 9 (1968).
The exclusionary rule prohibits the introduction of evidence seized in
violation of a person’s Fourth Amendment rights. State v. Hackman, 189
Ariz. 505, 508 (App. 1997). An investigatory stop is a seizure that is justified
under the Fourth Amendment if it is “‘supported by reasonable suspicion’
that criminal activity is afoot.” State v. Rogers, 186 Ariz. 508, 510 (1996)
(quoting Ornelas v. United States, 517 U.S. 690, 693 (1996)).

¶9 The reasonable suspicion necessary to justify an investigatory
stop is based on the totality of the circumstances such that the investigating
officers can demonstrate “‘a particularized and objective basis’ for
suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273
(2002) (quoting United States v. Cortez, 449 U.S. 411, 417–18 (1981)). We
consider “such objective factors as the suspect’s conduct and appearance,
location, and surrounding circumstances, such as the time of day, and
taking into account the officer’s relevant experience, training, and
knowledge.” State v. Fornof, 218 Ariz. 74, 76, ¶ 6 (App. 2008). Further, the
grounds for a stop must be based on “a justifiable suspicion that the

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particular individual to be detained is involved in criminal activity.” Id. at
76, ¶ 5 (emphasis omitted) (quoting State v. Graciano, 134 Ariz. 35, 37 (1982)).

¶10 A consensual encounter between a police officer and a citizen
is not a “seizure” for Fourth Amendment purposes. Florida v. Bostick, 501
U.S. 429, 434 (1991). Similarly, a consensual search generally does not
violate the Fourth Amendment’s prohibition against unreasonable searches
and seizures. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (noting
that a search conducted without a warrant is unreasonable unless it is
conducted pursuant to consent).

¶11 A ruling on a motion to suppress will not be reversed on
appeal absent an error constituting an abuse of discretion. State v. Zamora,
220 Ariz. 63, 67, ¶ 7 (App. 2009).

I. The Investigatory Stop: Reasonable Suspicion

¶12 The specific issue of “whether the police had a reasonable
suspicion of criminal activity that justified conducting an investigatory stop
is a mixed question of law and fact which we review de novo.” Rogers, 186
Ariz. at 510.

¶13 According to the evidence at the suppression hearing,
Sergeant Pilkington saw two males—Martinez and Noriega—within
minutes after learning a witness reported seeing white or Hispanic males
running from a stolen vehicle one-half mile away. It was approximately 1:30
a.m., and aside from Martinez and Noriega, no other pedestrians were in
the area. Also, Pilkington testified that Martinez appeared “very nervous”
upon seeing Pilkington approach in his patrol vehicle.

¶14 Martinez and Noriega also generally matched the description
of the vehicle theft suspects. For example, the suspects were described as
two Hispanic males, approximately five feet seven inches tall, one wearing
“a plaid shirt and dark-colored pants,” the other wearing a white T-shirt
and blue jean pants. Martinez was wearing a hat, a white T-shirt with blue
lettering, and dark-colored pants. Noriega was wearing long, dark-colored
jean shorts, and his socks were pulled up, which, in combination, Sergeant
Pilkington described as looking like pants from a distance.

¶15 To be sure, there were differences between the suspects’
descriptions and Martinez’s and Noriega’s appearances. Only one of the
suspects was described as wearing a hat—one that bore a “Cardinals”
logo—while Martinez and Noriega were both wearing hats, neither of
which had such a logo. Martinez was carrying a “rather large pole,” and

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Noriega was carrying a backpack, although neither item was included in
the description of the suspects involved in the vehicle theft. Martinez was
six feet one inch tall.

¶16 Focusing on those discrepancies, Martinez argues Sergeant
Pilkington lacked the reasonable suspicion necessary to conduct the
investigatory stop. However, a perfect match to a suspect’s physical
attributes is not required to justify an investigatory stop. See State v. Kinney,
225 Ariz. 550, 556, ¶ 15 (App. 2010) (upholding investigatory detention
based on totality of circumstances where defendant “somewhat matched”
suspect’s physical description). And Pilkington testified at the suppression
hearing that, based on his training and experience, police will generally
stop and investigate individuals who match a suspect’s description
“somewhat, but not 100%.” Specifically, Pilkington testified that Martinez
and Noriega “matched the [suspects’] description close enough to warrant
further investigation[.]”

¶17 Under the totality of the circumstances, notably the lack of
other people in the area when Pilkington encountered Martinez shortly
after the suspects were observed running from a stolen vehicle one-half
mile away, coupled with Martinez’s general similarity to the description of
the suspects, Pilkington had a sufficiently specific and objective basis to
suspect that Martinez may have been involved in the theft. Pilkington’s
suspicion was therefore reasonable. See State v. Ramsey, 223 Ariz. 480, 484,
¶ 18 (App. 2010) (standard for reasonable suspicion is lower than that
required for probable cause and requires a showing that is considerably less
than a preponderance of the evidence). The investigatory stop was justified
under the Fourth Amendment.

II. The Search: Voluntary Consent

¶18 Martinez next challenges Sergeant Pilkington’s search of his
pockets, arguing the superior court erred by finding the search was
consensual. Martinez contends that, to the contrary, he “merely
acquiesce[d] to a claim of lawful authority.” According to Martinez, he was
subject to “continu[al] . . . commands” during the encounter with
Pilkington. Additionally, Martinez notes he observed Pilkington search
Noriega before telling Noriega he could leave. Thus, when Sergeant
Pilkington told Martinez, “You’re going to be good to go,” before asking to
search him, Martinez contends he submitted to the search believing it was
necessary to end his detention. Thus, Martinez claims his consent was
involuntary.

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¶19 We consider the totality of the circumstances to determine
whether the superior court properly determined that a person voluntarily
consents to a search. State v. Acinelli, 191 Ariz. 66, 70 (App. 1997).

¶20 The record is consistent with one aspect of Martinez’s
description of the encounter: Sergeant Pilkington testified at the
suppression hearing that he told Martinez, “You’re going to be good to go,”
before asking if he could search Martinez’s pockets. Pilkington further
testified that, in response to his request, Martinez “put his arms out in a --
almost like an airplane-type of fashion,” which Pilkington construed as
implied consent to conduct the search.

¶21 But contrary to Martinez’s assertion that he was subject to a
demonstration of Sergeant Pilkington’s authority as a police officer, the
video of the encounter shows Pilkington did not convey at any time that
compliance with his requests was required. He never brandished a weapon,
made threats, or used aggressive language; rather, he was cordial and polite
during the entire encounter. And although Pilkington did inform Martinez
“You’re going to be good to go,” the United States Supreme Court “has
rejected in specific terms the suggestion that police officers must always
inform citizens of their right to refuse when seeking permission to conduct
a warrantless consent search.” United States v. Drayton, 536 U.S. 194, 206
(2002).

¶22 Considered in context with the encounter’s non-threatening
atmosphere, Sergeant Pilkington’s statement cannot reasonably be
interpreted as a demand that Martinez submit unwillingly to a search
before being allowed to leave. Accordingly, in reviewing the totality of the
circumstances, there was sufficient evidence for the superior court to find,
implicit in its order denying the motion to suppress, that Martinez
voluntarily consented to the search of his person. See H.M.L. v. State, 131
Ariz. 385, 387 (App. 1981) (this court implies findings of fact and
conclusions of law, which are reasonably supported by the record, to
support superior court’s judgment). The search, therefore, complied with
the Fourth Amendment.

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CONCLUSION

¶23 For the foregoing reasons, we affirm Martinez’s conviction
and sentence.

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

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