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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

FILED 9-19-2017
STATE v. PAYAN

Decision of the Court

2 

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 HISTORY1

¶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). 
STATE v. PAYAN

Decision of the Court

3 

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).
STATE v. PAYAN

Decision of the Court

4 

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.
STATE v. PAYAN

Decision of the Court

5 

¶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 
STATE v. PAYAN

Decision of the Court

6 

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.
STATE v. PAYAN

Decision of the Court

7 

¶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.
STATE v. PAYAN

Decision of the Court

8 

¶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. Batson5 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). 
STATE v. PAYAN

Decision of the Court

9 

¶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” 
STATE v. PAYAN

Decision of the Court

10 

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 raceneutral 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.
STATE v. PAYAN

Decision of the Court

11 

¶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.
STATE v. PAYAN

Decision of the Court

12 

CONCLUSION

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