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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
RICK EUGENE MALIN, Appellant.
No. 1 CA-CR 16-0189
FILED 11-29-2016
Appeal from the Superior Court in La Paz County
No. S1500CR201400171
The Honorable Samuel E. Vederman, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
David Goldberg, Ft. Collins, CO
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Patricia A. Orozco joined.
STATE v. MALIN
Decision of the Court
G O U L D, Judge:
¶1 Appellant Rick Malin appeals from his convictions for DUI,
arguing the superior court erred by denying his motion to suppress. For
the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND1
¶2 On the Fourth of July weekend of 2014, Deputy R. was
assigned to a special detail in Parker, Arizona, that was tasked with traffic
enforcement, “with emphasis on alcohol enforcement and seat belt
restraint[s].”
¶3 On Saturday, July 5, Deputy R. was monitoring traffic on
Highway 95 in Parker. Around midnight, he saw Malin’s car make a “wide
sweeping turn” northbound onto Highway 95 from Lakeside Boulevard,
passing from the curb lane to the inside lane without using his turn signal.
After driving past Deputy R., Malin moved into the left turn lane at
Riverside Drive, again without using his turn signal.
¶4 Based on his training and experience, Deputy R. recognized
that Malin’s “wide sweeping turn” and failure to signal lane changes were
signs of driving while impaired. As a result, Deputy R. followed Malin and
pulled him over. When Deputy R. spoke to Malin, he admitted that he had
an interlock device restriction on his license, and that he had consumed 2½
rum and cokes earlier that day. After Malin performed poorly on several
field sobriety tests, Deputy R. arrested him for driving under the influence.
Malin’s breath samples later showed a BAC of 0.15 and 0.147, and his blood
samples revealed a BAC of between .144 to .159.
¶5 Malin was charged with two counts of aggravated driving
under the influence pursuant to Arizona Revised Statutes (“A.R.S.”)
sections 28-1383(A)(4) and 28-1381(A)(1). Before trial, Malin filed a motion
to suppress on the grounds there was no reasonable suspicion justifying the
stop. Following an evidentiary hearing, the superior court denied Malin’s
motion to suppress.
1 “In reviewing a trial court's denial of a motion to suppress, we view
the facts in the light most favorable to upholding its ruling.” State v. Moreno,
236 Ariz. 347, 349, ¶ 2 (App. 2014).
2
STATE v. MALIN
Decision of the Court
¶6 In denying Malin’s motion, the court determined there was
reasonable suspicion to stop Malin’s vehicle on multiple grounds. First, by
failing to signal his turns and lane changes, Malin violated A.R.S. §§ 28-
754(A), (B). The court further found that Malin’s violation of A.R.S. § 28-
754 “may have affected other traffic.” Second, Malin’s wide turn onto
Highway 95 violated A.R.S. § 28-751(1). Third, the court found that Malin’s
failure to signal and his wide turn provided reasonable suspicion to stop
him for driving while impaired in violation of A.R.S. § 28-1381(A).
¶7 The case proceeded to trial, and the jury found Malin guilty
on both counts. Malin timely appeals.
DISCUSSION
¶8 On appeal, Malin challenges the court’s determination there
was reasonable suspicion for the traffic stop based on his alleged violation
of A.R.S. §§ 28-754(A), (B). Malin does not challenge the court’s other
findings supporting reasonable suspicion.
¶9 We review a trial court’s ruling on a motion to suppress
evidence for an abuse of discretion. State v. Peterson, 228 Ariz. 405, 407, ¶ 6
(App. 2011) (citations omitted). We consider only the evidence before the
trial court at the suppression hearing, and defer to the court’s factual
findings that are supported by the record and are not clearly erroneous.
State v. Estrada, 209 Ariz. 287, 288, ¶ 2 (App. 2004). However, we review the
trial court’s legal conclusions de novo, including whether there was a
Fourth Amendment violation. Id.
¶10 An officer may conduct a traffic stop based on reasonable
suspicion the defendant has violated the law. See State v. Evans, 237 Ariz.
231, 234, ¶ 7 (2015) (citations omitted). Reasonable suspicion for a traffic
stop consists of “some minimal level of objective justification” under the
totality of the circumstances, including specific reasonable inferences an
officer is warranted in making in light of his training and experience. Id. at
234, ¶¶ 7-8. (citations omitted).
¶11 Because Malin has not challenged the court’s finding the stop
was justified based on a reasonable suspicion he was driving while
impaired, he has abandoned this argument on appeal. ARCAP 13(a)(6);
DeElena v. S. Pac. Co., 121 Ariz. 563, 572 (1979) (issues not argued on appeal
are deemed abandoned). However, we have discretion to address this
issue, and choose to do so, because it provides an undisputed basis to
resolve this appeal. Cf. State v. Payne, 223 Ariz. 555, 568 n.8, ¶ 47 (App. 2009)
(“‘If application of a legal principle, even if not raised below, would dispose
3
STATE v. MALIN
Decision of the Court
of an action on appeal and correctly explain the law, it is appropriate for us
to consider the issue.’”) (internal citations omitted); State v. Smith, 203 Ariz.
75, 79, ¶ 12 (2002) (appellate court may address argument otherwise
waived).
¶12 Here, the record shows there was reasonable suspicion to stop
Malin for driving while impaired in violation of A.R.S. § 28-1381(A).
Deputy R. observed Malin make a wide turn and repeatedly fail to signal
his lane changes; both of these observations indicated to Deputy R., based
on his training and experience, that Malin may have been driving while
impaired by alcohol.2 Accordingly, we find no error.
CONCLUSION
¶13 For the above reasons, we affirm the superior court’s denial
of Malin’s motion to suppress.
AMY M. WOOD • Clerk of the Court
FILED: AA
2 Because we conclude the stop was justified based on reasonable
suspicion of DUI, we need not reach the issue of whether the stop was
justified based on a violation of A.R.S. § 28-751(1).
4