State v. Payan

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TOMMIE PAYAN, Appellant.

No. 1 CA-CR 16-0683
FILED 9-19-2017

Appeal from the Superior Court in Maricopa County
No. CR2015-100139-001
The Honorable Justin Beresky, Judge Pro Tempore

AFFIRMED AS MODIFIED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael T. O’Toole
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant
 STATE v. PAYAN
Decision of the Court

MEMORANDUM DECISION

Presiding Judge James P. Beene delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Kent E. Cattani joined.

B E E N E, Judge:

¶1 Tommie Payan (“Payan”) appeals his convictions and
sentences for resisting arrest and possession of marijuana. For the
following reasons, we affirm Payan’s convictions, and also affirm his
sentences as modified.

FACTS AND PROCEDURAL HISTORY 1

¶2 At approximately 3:00 a.m. on January 2, 2015, a patrol officer
responded to a dispatch call regarding a suspicious white Dodge sedan that
had reportedly followed an unidentified person home and was parked
across the street from the individual’s residence. When the officer arrived
at the scene, he located a vehicle matching the reported description and
parked his patrol car directly behind it, illuminating the Dodge with his
patrol car’s overhead and side-mounted spotlights.

¶3 As the officer got out of the patrol car and approached the
Dodge, he saw two occupants, a female driver and a male passenger who
was later identified as Payan. While speaking to the driver through the
open driver’s-side window, the officer observed Payan’s darting eyes and
“furtive movements” toward his pockets, waist, and seat. The officer
ordered Payan to stop moving, but Payan complied only momentarily.
Based on Payan’s continued movements and overall nervous demeanor, the
officer feared for his safety and asked both occupants to get out of the car
and sit on the curb.

¶4 At that point, the officer’s supervising sergeant arrived at the
scene. As he walked past the Dodge, the sergeant smelled “a faint odor of

1 In reviewing the denial of Payan’s motion to suppress, we consider
only “evidence presented at the suppression hearing and view the facts in
the light most favorable to sustaining the trial court’s ruling.” State v.
Hausner, 230 Ariz. 60, 70, ¶ 23 (2012).

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marijuana emanating” from inside the vehicle. 2 While the sergeant
remained at the curb with the driver and Payan, the officer checked the
occupants’ names and the vehicle’s license plate on his patrol car’s
computer. After learning neither occupant had an outstanding warrant and
discovering that the Dodge was parked in front of Payan’s residence, the
officer returned to the vehicle and shined his flashlight through the car’s
windows. The officer saw on the floorboard behind the driver’s seat a
plastic bag imprinted with “small cloverleafs” that contained “an oily, flaky
substance.” Believing the plastic bag held marijuana residue, the officer
asked the driver for consent to search the vehicle, which she provided.
During the subsequent search, the officer found a purse containing a small
amount of marijuana and a marijuana grinder on the front passenger
floorboard where Payan had been seated.

¶5 Concluding he had probable cause to arrest both occupants,
the officer ordered Payan to stand and searched him, finding marijuana in
Payan’s front left short’s pocket. At that point, the officer attempted to
place Payan in handcuffs, but Payan tried to run away. After several
attempts to wrestle Payan to the ground, the officer subdued Payan with
pepper spray.

¶6 The State charged Payan with one count of felony resisting
arrest (Count 1) and one count of possession of marijuana (Count 2). The
State also alleged aggravating circumstances, that Payan had prior felony
convictions, and was ineligible for mandatory probation.

¶7 After a five-day trial, the jury found Payan not guilty of felony
resisting arrest, guilty of the lesser-included offense of misdemeanor
resisting arrest (passive resistance), and guilty of possession of marijuana. 3

2 At the motion to suppress hearing, the patrol officer did not recall
whether the sergeant had conveyed this observation to him.

3 As the State noted, the sentencing minute entry incorrectly
designates the conviction for resisting arrest as a Class 6 felony. Because
the jury found Payan not guilty of felony resisting arrest, and convicted him
of the lesser-included offense of resisting arrest through passive resistance,
a misdemeanor, we modify the sentence to a Class 1 misdemeanor
designation. See Ariz. Rev. Stat. (“A.R.S.”) § 13-2508(B); Ariz. R. Crim. P.
31.17(d) (authorizing court to modify a judgment); A.R.S. § 13-4037(A)
(authorizing an appellate court to “correct” an illegal sentence).

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After a trial on the prior convictions, the court found Payan had three
historical prior felony convictions and sentenced him to time served for
Count 1 and a three-year term of imprisonment on Count 2. Payan timely
appealed and we have jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033(A) (2017). 4

DISCUSSION

I. Denial of Motion to Suppress

¶8 Payan argues the superior court erred by failing to suppress
the evidence seized from the January 2, 2015 predawn search. He contends
the patrol officer lacked (1) reasonable suspicion to stop the vehicle, (2)
reasonable suspicion to prolong his detention, and (3) probable cause to
arrest him.

¶9 Before trial, Payan moved to suppress all evidence seized
from the search. After a two-day evidentiary hearing, the trial court entered
a detailed ruling denying the motion, finding in relevant part: (1) no
reasonable suspicion was required for the officer to approach the Dodge;
(2) even if reasonable suspicion was necessary, an individual’s report that
the Dodge followed him home and then remained in the vicinity, given the
time of night, provided a reasonable basis “for the officer to contact the
vehicle to determine” whether criminal activity was afoot; (3) Payan’s
furtive movements, darting eyes, and overall nervous demeanor provided
sufficient indicia of criminal activity to warrant an investigative stop; (4)
the officer’s “brief flashlight search” of the vehicle was lawful to determine
whether any indicia of criminal activity, “such as weapons or burglary
tools,” was present; and (5) once the officer “observed what he believed to
be marijuana residue, he had probable cause to arrest [the] occupants of the
vehicle” because both the driver and Payan were within reach of the
contraband.

¶10 We review the denial of a motion to suppress evidence for an
abuse of discretion. Brown v. McClennen, 239 Ariz. 521, 524, ¶ 10 (2016). We
will uphold the trial court’s ruling if it is legally correct for any reason. State
v. Huez, 240 Ariz. 406, 412, ¶ 19 (App. 2016).

4 Absent material revision after the date of an alleged offense, we cite
a statute’s current version.

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¶11 The United States Constitution and Arizona Constitution,
with limited exceptions not relevant here, protect individuals against
unreasonable searches and seizures. U.S. Const. amend. IV; Ariz. Const.
art. 2, § 8. “[A]ny evidence collected in violation” of these provisions “is
generally inadmissible in a subsequent trial.” State v. Valenzuela, 239 Ariz.
299, 302, ¶ 10 (2016). “Not all interactions between police officers and
citizens implicate” these protections, however. State v. Canales, 222 Ariz.
493, 494, ¶ 6 (App. 2009). Only involuntary encounters that restrain an
individual’s liberty are constitutionally proscribed. Id. at 495, ¶ 6.
“Whether an encounter is a detention . . . depends on whether the police
conduct would have conveyed to a reasonable person that he or she was
not free to decline the officer’s requests or otherwise terminate the
encounter.” Id.

¶12 At the suppression hearing, defense counsel asked the patrol
officer whether the Dodge’s occupants could have driven away after the
officer positioned his patrol car directly behind their vehicle and turned on
his overhead and side-mounted spotlights. Given the relative location of
the patrol and suspect vehicles on the open surface street, the officer stated
the occupants were not physically prevented from leaving the scene. When
defense counsel then asked whether the officer would have pursued the
occupants had they done so, the officer responded that he most likely
would have followed the vehicle, but would not have effectuated a stop,
absent some additional basis.

¶13 Relying primarily on Canales, Payan argues he was detained
when the patrol officer pulled behind the Dodge and shined the patrol car’s
spotlights toward the vehicle. In Canales, an unidentified person called 9-
1-1 to report a suspicious vehicle at an apartment complex. 222 Ariz. at 494,
¶ 2. The responding patrol officer “parked directly behind a car closely
matching the description that had been provided and shined the patrol car’s
alley light toward the vehicle.” Id. Reasoning the officer’s use of the alley
light “conveyed to Canales that he was the subject” of an inquiry, and
finding the location of the police car prevented Canales from backing out
of the parking lot, we held that Canales was not “free to disregard the
police” and was therefore detained. Id. at 495, ¶ 8.

¶14 Unlike the circumstances in Canales, here, Payan was not
physically prevented from leaving the scene. Although the officer’s use of
multiple spotlights to illuminate the Dodge conveyed that Payan and the
driver were the focus of an inquiry, “the relatively unintrusive
investigatory step of shining a spotlight” on the car, alone, neither
constituted “an unlawful search of the vehicle nor a seizure of [its

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occupants].” State v. Stuart, 168 Ariz. 83, 86 (App. 1990). It is
uncontroverted that the occupants parked the Dodge voluntarily, not in
response to any police action, and the officer did not activate his emergency
lights or otherwise make a show of authority. See Terry v. Ohio, 392 U.S. 1,
19 n. 16 (1968) (explaining a seizure occurs “[o]nly when [an] officer, by
means of physical force or show of authority, has in some way restrained
the liberty of a citizen”). Therefore, on these facts, Payan was not seized by
the officer’s spotlight illumination of the Dodge or his approach of the
already-parked car. See State v. Robles, 171 Ariz. 441, 443 (App. 1992)
(holding police officers did not seize the defendant when they approached
him after he voluntarily parked his car).

¶15 After the officer approached the vehicle and briefly spoke to
the occupants through the driver’s-side window, however, he ordered both
Payan and the driver to get out of the vehicle and sit on the curb. Without
question, the officer detained Payan at this point. Indeed, the officer
testified that Payan was not free to leave once the officer ordered him to get
out of the vehicle.

¶16 A law enforcement official may “briefly detain a person for
investigative purposes if the officer has a reasonable suspicion supported
by articulable facts that criminal activity may be afoot[.]” State v. Evans, 237
Ariz. 231, 234, ¶ 7 (2015) (internal quotations omitted). “In determining
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.” Id. at 234, ¶ 8 (internal quotations
omitted).

¶17 Viewing the totality of the circumstances in this case, the
officer had reasonable suspicion that Payan may be involved in criminal
activity, which justified a brief investigatory detention. First, an
unidentified individual alerted the police that the occupants of the vehicle
had followed him home in the middle of the night and remained outside
his residence. Second, Payan’s conduct during the officer’s brief contact
with the occupants through the driver’s-side window reasonably caused
the officer to fear for his own safety. Rather than looking directly at the
officer, Payan’s eyes “dart[ed]” about as he repeatedly reached into his
clothing and around his seat. Payan’s nervous demeanor and refusal to
follow the officer’s order to keep his hands still and visible was sufficiently
suspect to justify the officer’s belief that criminal activity may be afoot.

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¶18 Nonetheless, Payan argues his continued detention, after the
officer had checked the occupants’ names and vehicle information on the
patrol car computer, was unlawful. That is, he contends any reasonable
suspicion dissipated once the officer learned neither occupant had an
outstanding warrant, the Dodge had not been reported stolen, and the
vehicle was parked in front of Payan’s residence.

¶19 “[A]n investigative detention must be temporary and last no
longer than is necessary to effectuate” its purpose. Florida v. Royer, 460 U.S.
491, 500 (1983). When an officer lacks probable cause, “duration is an
essential element in determining whether the initially lawful intrusion
takes on the characteristics of an unlawful detention.” State v. Sweeney, 224
Ariz. 107, 112, ¶ 17 (App. 2010). “To determine the reasonableness of the
length of a detention, we must consider the degree of intrusion on an
individual’s privacy and weigh that against the purpose of the [detention]
and the diligence with which the officer pursued that purpose.” Id. at ¶ 18.

¶20 In this case, the officer approached the parked vehicle to
investigate a report that its occupants had followed an unidentified person
home in the middle of the night. The officer’s subsequent discovery that
Payan lived at the residence where the Dodge was parked ordinarily would
have dispelled any suspicion. However, the officer’s observation of Payan’s
demeanor and conduct during their brief contact independently aroused
suspicion that the occupants may be dangerous and involved in illegal
activity. Given Payan’s suspicious behavior, the officer’s flashlight search
of the vehicle was reasonable to ensure no indicia of criminal activity was
present. Moreover, the officer’s brief walk around the exterior of the vehicle
did not “measurably extend the duration” of the investigation, and
therefore did not convert the lawful detention into an unlawful, prolonged
detention. Arizona v. Johnson, 555 U.S. 323, 333 (2009).

¶21 Finally, Payan asserts the officer lacked probable cause to
arrest him, and therefore the search attendant to his arrest was unlawful.
Specifically, Payan argues the location of the marijuana and drug
paraphernalia, behind the driver’s seat and inside the driver’s purse, did
not provide probable cause that he was in possession of drugs or drug
paraphernalia.

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¶22 “To make a warrantless arrest, a police officer must have
probable cause to believe both that a crime has been committed and that the
person to be arrested committed the crime.” 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.” Id. (internal
quotations omitted). “[W]hether probable cause exists depends on all of
the facts and circumstances known at the time of the arrest,” including “the
collective knowledge of all of the officers involved in the case.” Id.; see also
State v. Lawson, 144 Ariz. 547, 553 (1985) (explaining it is “not essential that
the arresting officer personally be in possession of all the facts as long as
probable cause exists from the collective knowledge of all the law
enforcement agents involved”).

¶23 Applying these principles here, the officers had probable
cause to arrest and search Payan. By the time the patrol officer searched
Payan, the officer had discovered a small amount of marijuana and drug
paraphernalia on the floorboard of the vehicle where Payan had been
seated. Pursuant to statute, it is unlawful to knowingly possess marijuana,
either through actual physical possession or the exercise of dominion and
control. A.R.S. § 13-3405(A)(1); A.R.S. § 13-105(34). Payan’s darting eyes,
nervous demeanor, repeated furtive movements around the seat of the car,
and refusal to comply with the officer’s order to remain still reasonably led
the officer to believe that Payan knew of the contraband’s presence and had
access to it. See State v. Moses, 24 Ariz. App. 305, 307 (1975) (explaining the
critical elements of constructive possession are knowledge of a drug’s
presence and access to it); see also State v. Little, 121 Ariz. 377, 379 (1979) (“In
the context of drug investigation, a movement of the hand to the pocket,
particularly where . . . the one being investigated has been specifically
instructed to keep his hands away from his pockets, can be a meaningful
circumstance in determining the existence of probable cause.”). Therefore,
on this record, the circumstances were sufficient to establish probable
cause, and the superior court did not abuse its discretion by denying
Payan’s motion to suppress.

II. Batson 5 Challenge

¶24 Payan challenges the State’s peremptory strike of a racial
minority juror, and argues the superior court improperly denied his Batson
challenge.

5 Batson v. Kentucky, 476 U.S. 79 (1986).

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¶25 “[U]sing a peremptory strike to exclude a potential juror
solely on the basis of race violates the Equal Protection Clause of the
Fourteenth Amendment.” State v. Newell, 212 Ariz. 389, 400, ¶ 51 (2006)
(citing Batson v. Kentucky, 476 U.S. 79, 89 (1986)). We will uphold the denial
of a Batson challenge absent clear error. Newell, 212 Ariz. at 400, ¶ 52.
Because the trial court is in the best position to assess a prosecutor’s
credibility, which is a primary factor in evaluating the State’s motive for
exercising a peremptory strike, we extend “great deference” to the trial
court’s ruling. State v. Roque, 213 Ariz. 193, 203, ¶ 12 (2006) (internal
quotations omitted); Newell, 212 Ariz. at 401, ¶ 54.

¶26 A Batson challenge is comprised of three steps. Newell, 212
Ariz. at 401, ¶ 53. First, the defendant must make a prima facie showing of
racial discrimination. Id. If such a showing is made, the prosecutor must
then present a race-neutral reason for the strike. Id. Finally, if the
prosecutor provides a facially neutral basis, “the trial court must determine
whether the defendant has established purposeful discrimination.” Id.
(internal quotations omitted). “To pass step two, the explanation need not
be persuasive, or even plausible,” but “implausible or fantastic
justifications” may (and probably will) be found to be pretextual in
determining whether the defendant has proven purposeful discrimination.
Id. at 401, ¶ 54.

¶27 During jury selection, the superior court asked the
prospective jurors whether they had any legal education or training. Juror
5 answered that her “father used to be a police officer in Puerto Rico, like
almost ten years ago. And he’s in counseling for drug abuse.” The court
repeated, “[i]n counseling for drug abuse,” and the juror responded,
“[y]eah.” Later, the court asked the prospective jurors to provide
biographical information about themselves and juror 5 stated, “I’m a
cashier in Food City almost ten months. Single with child, seven years,
never been a juror.”

¶28 After the prosecutor exercised her peremptory strikes,
defense counsel challenged the State’s strike of juror 5. The court invited
the prosecutor to respond, implicitly finding Payan had made a prima facie
showing of discrimination, satisfying the first step. The prosecutor then
explained that she discussed her notes regarding juror 5 with co-counsel
and “realized that [they] had difficulty understanding her,” with the
prosecutor believing that juror 5’s father is a “counselor for drug abuse”
and co-counsel documenting that the juror’s “father was a drug addict.”
Because at least one of the attorneys necessarily misunderstood juror 5, the
prosecutor became concerned “that there may be an issue with language”

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and the prospective juror’s ability to communicate “with the other jurors[.]”
After defense counsel noted that the State failed to inquire whether juror 5
had difficulty understanding or otherwise felt uncomfortable
communicating with the other jurors, the court found the proffered race-
neutral reason for the strike was plausible and supported by the record.
Indeed, the court acknowledged “there was some difficulty in her speech”
and explained “[i]t was somewhat difficult to understand her[.]” At that
point, defense counsel offered nothing further to support her Batson
challenge.

¶29 Citing Miller-El v. Dretke, 545 U.S. 231, 246 (2005), Payan
argues the prosecutor’s failure to voir dire juror 5 regarding possible
communication difficulty is evidence “that the explanation is a sham and a
pretext for discrimination.” Miller-El, however, is inapposite. In that case,
the prosecutor’s proffered race-neutral reason clearly “mischaracterized”
the prospective juror’s testimony, and the prosecutor expressed no similar
concern for similarly situated “white panel members[.]” Id. at 244-48. In
this case, Payan does not identify, and the record does not reflect, any
similarly situated jurors, and the prosecutor explained she did not realize
the language issue until she compared notes with co-counsel, following the
conclusion of voir dire, and discovered their respective understandings of
juror 5’s statements were irreconcilable.

¶30 Because Payan failed to present any evidence that the
peremptory strike was the result of purposeful racial discrimination, and
given the prosecutor’s race-neutral reason for the peremptory strike, the
superior court did not clearly err by rejecting Payan’s Batson challenge. See
State v. Bustamante, 229 Ariz. 256, 261, ¶ 16 (App. 2012) (concluding a
prosecutor’s strike of a juror because of “language issues” was a plausible,
race-neutral reason for striking a juror).

III. Designation of Patrol Officer as a Victim

¶31 Payan contends the superior court improperly found the
patrol officer qualified as a victim entitled to the protections afforded by
Arizona’s Victims’ Bill of Rights.

¶32 Before trial, Payan moved to determine victim status, seeking
a pretrial interview with the patrol officer. After a hearing on the motion,
the court found the patrol officer qualified as a victim and had the right to
refuse a pretrial interview.

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¶33 We interpret the Victims’ Bill of Rights de novo. State ex rel.
Montgomery, 238 Ariz. 560, 564, ¶ 12 (App. 2015). Pursuant to the Victims’
Bill of Rights, a “victim” is a person “against whom the criminal offense has
been committed[.]” Ariz. Const., art. 2, § 2.1(C). A qualifying victim has the
right to “refuse an interview, deposition, or other discovery request by the
defendant[.]” Ariz. Const., art. 2, § 2.1(A)(5).

¶34 As charged in this case and set forth by statute, “[a] person
commits resisting arrest by intentionally preventing or attempting to
prevent a person reasonably known to him to be a peace officer, acting
under color of such peace officer’s official authority, from effecting an arrest
by [u]sing or threatening to use physical force against the peace officer or
another.” A.R.S. § 13-2508(A)(1). In State v. Sorkhabi, 202 Ariz. 450 (App.
2002), we squarely addressed the question before us, namely, whether
resisting arrest is a victimless crime. We held the plain language of A.R.S.
§ 13-2508 “demonstrates that resisting arrest is a crime committed against a
person.” Id. at 452, ¶ 9. In other words, a “defendant must demonstrate
criminal conduct toward an individual, peace officer or another, to commit
the crime of resisting arrest.” Id.

¶35 Relying on State v. Jurden, 239 Ariz. 526 (2016), Payan argues
a police officer cannot qualify as a victim of a resisting arrest charge because
the offense is “event-directed,” not “victim-directed.” In Jurden, our
supreme court analyzed whether a defendant could be convicted of
“multiple counts of resisting arrest resulting from a single, continuous act
of resistance involving multiple officers.” Id. at 528, ¶ 8. Noting there was
“no question” that the resisting arrest statute was enacted “to protect peace
officers,” the supreme court explained that “the statute also seeks to protect
the authority of the state.” Id. at 531, ¶ 19. Concluding an “event-directed
unit of prosecution satisfie[d] both purposes of the statute,” the supreme
court held the “Double Jeopardy Clause does not allow multiple
convictions and punishments . . . for a single, continuous act of resisting
arrest.” Id. at 531-32, ¶¶ 21, 26.

¶36 Contrary to Payan’s argument, Jurden does not call into
question Sorkhabi’s continuing validity. Rather, in Jurden, our supreme
court distinguished Sorkhabi, explaining it was “not helpful in determining
the unit of prosecution” because the case did not implicate double jeopardy.
Jurden, 239 Ariz. at 530, ¶ 14. Therefore, applying Sorkhabi here, the superior
court did not err by designating the patrol officer as a victim entitled to
refuse pretrial interviews.

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CONCLUSION

¶37 We affirm Payan’s convictions and his sentences as modified.

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

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