State v. Richcreek

OPINION

GERBER, Judge.

Appellant Daniel Charles Richcreek (Rich-creek) appeals his conviction for one count of theft, a class 4 nondangerous felony. The sole issue before us is whether the trial court erred when it refused to suppress all evidence against him. For reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

According to the record, the relevant facts are as follows: On April 9, 1994, Scottsdale Police Officer Robert DeHaven (DeHaven) investigated an abandoned, recently-wrecked automobile. DeHaven had over eighteen years of law enforcement experience. During his investigation at the site of the abandoned vehicle, he saw a car slow to a near stop ahead of the accident site, pull slightly to the side of the road and then speed away.

DeHaven later testified that “[a]t first I thought this is the driver or a relative or somebody coming back to tell us what’s going on.” He stopped the vehicle and Richcreek exited and began asking DeHaven questions about the accident. In response to DeHa-ven’s request for identification, Richcreek produced a driver’s license. DeHaven asked for the vehicle’s registration and discovered that the car had been stolen.

Richcreek moved to suppress all evidence against him, consisting of DeHaven’s report, a stolen vehicle recovery supplement and copies of the arrest/booking and vehicle recovery slips. The trial court denied his motion. After a bench trial, the court found him guilty based on these documents, suspended his sentence and placed him on probation for three years. He timely appealed. This court has jurisdiction pursuant to Arizona Revised Statutes Annotated (A.R.S.) sections 12-120.21(A)(1), 13-4031 and 13-4033(A).

ISSUE ON APPEAL

The sole issue before us is whether the trial court erred when it refused to suppress all evidence against Richcreek.

ANALYSIS

Richcreek argues that the stop and subsequent seizure of his car was illegal because DeHaven did not have reasonable suspicion of wrongful activity. He urges us to follow United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981), where the United States Supreme Court held that reasonable suspicion requires articulable facts coupled with reasonable inferences of criminal activity. See also State v. Ochoa, 112 Ariz. 582, 584, 544 P.2d 1097, 1099 (1976). Richcreek contends that he was merely “rubbernecking,” which is not suspicious or criminal behavior. See United States v. Garcia-Camacho, 53 F.3d 244, 247 (9th Cir.1995). See also United States v. Robert L., 874 F.2d 701, 704 (9th Cir.1989).

The state responds by saying that DeHa-ven acted reasonably. It urges us to follow Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889 (1968), where the United States Supreme Court held that a police officer may make reasonable inquiries when the officer suspects criminal activity. The state contends that DeHaven’s stop and subsequent seizure of Richcreek’s vehicle was reasonable given the totality of the circumstances. See Cortez, 449 U.S. at 417-18, 101 S.Ct. at 694-95. It alleges that DeHaven observed behavior which led him, as an experienced police officer, to suspect criminal activity.

We agree with the state for two distinct reasons. DeHaven had “a particularized and *461objective basis” for suspecting that Rich-creek might have information relevant to the accident he was investigating. See United States v. Rodriguez, 976 F.2d 592, 594 (9th Cir.1992), modified, 997 F.2d 1806 (9th Cir. 1993). At a minimum, AR.S. section 28-667 requires police to investigate traffic accidents and interview potential witnesses, irrespective of the officer’s independent suspicion of crime. Arizona law prohibits the abandoning of a vehicle; a companion statute provides that officers investigate such vehicles. AR.S. § 28-1401.01(A) and (E). The occurrence of the accident, the abandoned vehicle and Richcreek’s proximity to it constitute all the reason needed for the investigating officer to seek information from him about the abandoned vehicle. See South Dakota v. Op-perman, 428 U.S. 364, 375, 96 S.Ct. 3092, 3100, 49 L.Ed.2d 1000 (1976) (affirming validity of seizure pursuant to abandoned vehicle report based on noncriminal purpose of police activity). See also Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973) (“Local police officers ... frequently investigate vehicle accidents in which there is no claim of criminal liability ... and engage in what may be described as community caretaking functions;” seizure pursuant to such a “community caretaking function” in wake of automobile accident given reduced scrutiny under Fourth Amendment as compared to seizure in criminal investigation).

In addition to the accident investigation justification, the facts also support a stop based on suspicion of a crime. The abandoned, wrecked vehicle on a lonely stretch of desert highway was made all the more suspicious by Richcreek’s driving behavior, including his flight from the scene. In State v. Jarzab, 123 Ariz. 308, 311, 599 P.2d 761, 764 (1979), our Supreme Court pointedly held that “an officer, when he commences an investigation, need [not] be convinced that ‘criminal activity is afoot.’ ” The officer had reasonable cause to detain Richcreek for investigation based on the near-stop of his vehicle at the scene of the accident and its speeding away. DeHaven initially stopped him merely to obtain more information, not to arrest him. See Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 1922-23, 32 L.Ed.2d 612 (1972).

The facts in this case differ from those in both Garcia-Camacho and Robert L. and from the Arizona case of State v. Weitman, 22 Ariz.App. 162, 525 P.2d 293 (1974), cited by the dissent. In those cases, officers stopped individuals without connection to activities under investigation, based on racial and often stereotypical prejudgments of criminal behavior. Weitman, 22 Ariz.App. at 162-63, 525 P.2d at 293-94; Garcia-Camacho, 53 F.3d at 245; Robert L., 874 F.2d at 702. Nothing here indicates that Officer DeHaven based his suspicion of Richcreek on these types of assumptions. He detained Richcreek because he either might know something about the accident or be criminally involved. The discovery that Richcreek’s car was stolen was incidental. Given these two separate justifications for the stop, the trial court properly denied Richcreek’s motion to suppress the evidence against him.

CONCLUSION

We have reviewed the record for fundamental error and have found none. For the reasons given above, we affirm Richcreek’s conviction and sentence.

THOMPSON, J., concurs.