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State v. Carranza12/23/2003
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
Appellant Victor Manuel Carranza was found guilty by a jury of aggravated driving under the influence of an intoxicant while his license was suspended or revoked and aggravated driving with an alcohol concentration of.08 or more while his license was suspended or revoked. He was sentenced to presumptive, concurrent prison terms of 2.5 years. On appeal, Carranza challenges the trial court's denial of his motion to suppress the evidence and to dismiss the charges.
We review a trial court's denial of a motion to dismiss charges based on an alleged Fourth Amendment violation for an abuse of discretion. State v. Stuart, 168 Ariz. 83, 85, 811 P.2d 335, 337 (App. 1990). Similarly, we will not disturb a trial court's ruling on a motion to suppress evidence absent a clear abuse of discretion. State v. Spears, 184 Ariz. 277, 284, 908 P.2d 1062, 1069 (1996). We defer to the trial court's factual findings but review de novo mixed questions of law and fact and the trial court's ultimate conclusion. State v. Rogers, 186 Ariz. 508, 510, 924 P.2d 1027, 1029 (1996); State v. Wyman, 197 Ariz. 10, , 3 P.3d 392, (App. 2000). We consider only the evidence presented at the hearing on the motion to suppress. Spears, 184 Ariz. at 284, 908 P.2d at 1069.
On the evening of February 27, 2002, Tucson Police Officer Ben Winegrad was informed that a person had been seen in Winegrad's patrol area on his hands and knees beside an older-model sports utility vehicle. Shortly thereafter, Winegrad saw Carranza drive his oldermodel Chevy Blazer off the road onto a dirt shoulder and stop. Winegrad followed Carranza's vehicle and stopped behind it. He then turned on his overhead emergency lights to prevent his car from being hit by oncoming vehicles. Winegrad approached the driver's side of Carranza's vehicle and asked Carranza if he was all right. Carranza's response did not make sense. Winegrad noted that Carranza's speech was slurred, his eyes were watery and red, and he or the vehicle smelled of alcohol. Winegrad also saw several bottles of alcoholic beverages in the vehicle. When he got out of the vehicle, Carranza had difficulty balancing himself and used the vehicle for support. He also appeared to have urinated on himself. Carranza refused to perform field sobriety tests. Winegrad arrested Carranza and obtained samples of his blood.
Carranza contends that a seizure occurred when Winegrad turned on his emergency lights and, because Winegrad did not have reasonable suspicion to detain him, that he was, therefore, illegally seized. The test for determining whether a seizure has occurred for Fourth Amendment purposes is whether, in light of all the facts, the police conduct would have communicated to a reasonable person that he or she was not at liberty to ignore the police presence and go about the person's business. Wyman, 197 Ariz. 10, , 3 P.3d 392, . A seizure under the Fourth Amendment does not occur when a police officer merely approaches a parked motorist or other individual to check on the person's welfare or possible impairment. State v. Robles, 171 Ariz. 441, 443, 831 P.2d 440, 442 (App. 1992) (defendant was not subject of investigatory stop at time of officer's initial contact and, thus, was not seized within meaning of Fourth Amendment when, after defendant parked his car, officers approached him and asked whether he had drunk any alcohol that evening).
Officer Winegrad did not stop Carranza's vehicle; it was already stopped. Winegrad turned on his emergency lights because it was dark and he did not want his vehicle to be hit by oncoming traffic. The first thing Winegrad
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