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State v. Robles5/7/1992
The state appeals from the trial court's order dismissing two charges of driving under the influence (DUI) against Arthur G. Robles. Because we conclude that the trial court abused its discretion in misapplying the applicable law to the facts of this case, we reverse.
On December 9, 1990, at 3:24 a.m., Casa Grande Police Officer Tena received a call from the police dispatcher alerting him to a blue Toyota pickup truck with gray primer spots which had been driving erratically in the area of Brown and Second streets in Casa Grande. The dispatcher gave no description of the driver or the license number of the vehicle. At 3:51 a.m., Officer Tena and the officer riding with him observed a truck matching the description driving in the parking lot of a convenience store approximately 20 blocks or five minutes' distance from where it was first observed. By the time the officers turned the corner and arrived at the convenience store, Robles had parked the truck and turned off the ignition.
Both Officer Tena and the officer riding with him stated in interviews that they did not observe any erratic driving prior to approaching Robles. When Officer Tena approached Robles, he noticed the smell of alcohol and observed that Robles' eyes were bloodshot and watery. Officer Tena then asked Robles if he had drunk any alcohol that evening, and Robles responded that he had drunk about a 12-pack of beer. After unsuccessfully performing certain field sobriety tests, Robles was arrested. He was subsequently indicted on felony and misdemeanor counts of DUI.
In his motion to the trial court, Robles raised three grounds for dismissal: 1) lack of probable cause, 2) a " Zavala " defense, and 3) interference by the state with Robles' ability to gather exculpatory evidence. Agreeing with the first two contentions, the trial court granted the motion.
Robles first argued that the police lacked probable cause to approach him. However, probable cause was not required for an investigatory stop; the state was required to show only that the officers could point to specific and articulable facts which, taken together with the rational inferences from those facts, provided an objective basis for the officers to suspect that Robles was engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Pharo v. Tucson City Court, 167 Ariz. 571, 810 P.2d 569 (App.1990). Moreover, even this showing was not required if the conduct of the officers did not amount to a "seizure" of Robles. Florida v. Bostick, 501 U.S. , 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Although not argued by the state, there is no basis on this record for finding that Robles was the subject of an investigatory stop at the time of the officers' initial contact.
In his motion to dismiss, Robles stated that, after pulling into the convenience store parking lot, the officers approached him as he was getting out of his car and questioned him "regarding his whereabouts earlier that evening." In his answering brief before this court, Robles stated that Officer Tena asked him whether he had drunk any alcohol that evening. Given the fact that Robles had parked his car voluntarily and not in response to any action on the part of the police, we are unable to discern from the officers' actions as described by Robles anything which would lead a reasonable person to conclude that he was not free to leave or to terminate the encounter or, in other words, that he had been "seized" within the meaning of the fourth amendment. Florida v. Bostick, supra; United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d
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