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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

Plaintiff, 

v. 

Ayannia S. Miller, 

Defendant. 

No. 17-07357WI-001 

ORDER 

 Pending before the Court are Defendant Ayannia S. Miller’s Motion to Dismiss 

Based on Lack of Probable Cause (Doc. 17) and Motion to Suppress (Doc. 16). The 

Government filed a Response to both motions on March 12, 2018 (Doc. 18). The defense 

did not file a reply. The matter was heard by the Court on April 4, 2018. Defendant was 

present and represented by counsel. The Government presented one witness, Sergeant 

Matthew J. Conte of the Fort Huachuca Police Department (Doc. 26 (Plaintiff’s Witness 

List)). Defendant presented one expert witness, David Rencken (Doc. 27 (Defendant’s 

Witness List)). The parties stipulated to the admission of the Government’s Exhibit 1 

and Defendant’s Exhibits 21 through 27 (Docs. 28 and 29 (Exhibit Lists)). The 

Government also filed a Motion for Judicial Notice (Doc. 24) to which Defendant did not 

object. Having considered the matter, the Court denies Defendant’s Motions and grants 

the Government’s Motion for Judicial Notice.1

 

 1

 Trial is scheduled for May 7, 2018, and the plea deadline is April 27, 2018 (Doc. 21). 
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I. Findings of Fact 

 A. Sergeant Conte’s testimony 

 On August 20, 2017, Sergeant Matthew Conte of the Fort Huachuca Police 

Department was patrolling the housing area on the Fort Huachuca military reservation. 

He was equipped with a body camera and a dash mounted camera, both of which were in 

operation. Def. Exs. 21 (body camera), 22 (dash camera). At about 1:30 a.m., Sergeant 

Conte observed a silver colored vehicle make a prohibited left turn. Conte followed the 

vehicle for three or four blocks and then initiated a traffic stop. The vehicle did not 

immediately pull to the curb, but instead stopped in the roadway. Sergeant Conte 

centered his vehicle to the driver’s tail light and approached the vehicle. As he did so, 

the driver, later identified as Defendant Miller, opened the door and told Conte that her 

windows had recently been tinted so she could not roll the window down. Sergeant 

Conte requested identification from the three occupants of the vehicle and also asked for 

the vehicle’s registration and insurance documents. From the vertical orientation of the 

occupants’ driver’s licenses, Conte concluded that all three were under 21 years-of-age. 

Because the registered owner of the vehicle was in the back seat and there was some 

trouble in getting the registration, Sergeant Conte requested that Miller move the vehicle 

from the center of the roadway. 

 As directed, Miller moved the vehicle to a nearby parking lot, where Sergeant 

Conte reinitiated contact. Based on a strong odor of alcohol, Conte believed that at least 

one of the vehicle’s three occupants was drinking. Due to that concern and because the 

two male occupants of the vehicle were trying to control the conversation, Sergeant 

Conte separated Miller from the vehicle and its occupants. After they had moved about 

20 feet from the vehicle, Sergeant Conte asked Miller where she was coming from and 

going to and she initially indicated that she was from Philadelphia, she said she was 

coming from somebody’s house. When asked if she had consumed any alcohol, she was 

initially not forthcoming but eventually admitted to drinking, stating that she had two 

drinks and “wasn’t behind the wheel that long.” 
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 Although Miller exhibited no outward signs of intoxication and was not slurring 

her speech, Sergeant Conte asked Miller to perform field sobriety tests (“FST”) based on 

his observation of the vehicle and behind-the-wheel screening of Miller.2

 For the first 

FST, a nine step walk and turn, Sergeant Conte told Miller to take nine steps and turn by 

“dancing” and walk nine steps back to the starting point. Miller started the test before 

Sergeant Conte had completed the instructions and she stepped off the line. For the 

second FST, a one leg stand, Sergeant Conte told Miller to raise one leg “as high as you 

can” while counting to 30. Conte did not tell Miller not to use her arms for balance and 

she did use them. Sergeant Conte also used a portable breath analyzer which indicated 

that Miller’s blood alcohol percentage was .08. 

 Miller was arrested and, at 2:42 a.m., Sergeant Conte administered an Intoxilyzer 

blood alcohol content test. Prior to the test, Conte gave Miller an administrative per se 

form that included several admonitions, including notice of the suspension of driving 

privileges, that are supposed to be read before the test is administered. Although he 

indicated by checking a box on the form that he had read the admonitions, Sergeant 

Conte did not in fact do so. He did discuss consent, but told her that if she refused to 

perform the test he would take blood. The Intoxilyzer reported her blood alcohol level as 

.08. 

B. David Rencken’s Testimony 

 Defense Expert David Rencken is a retired police officer who was employed by 

the Tucson Police Department for approximately 20 years and also was on the staff of the 

Southern Arizona Law Enforcement Training Center. He has received extensive training 

related to the enforcement of driving under the influence laws and was a member of the 

Southern Arizona DUI task force and the Governor’s Office of Highway Safety. He has 

been involved in approximately 7000 DUI investigations and 4000 DUI arrests. 

 Relying on his experience, training and the DUI training resources and 

investigation manuals provided by the National Highway Traffic Safety Administration, 

 2

 The Government will not be using the FST evidence in its case-in-chief. Doc. 18, p. 9. 
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Mr. Rencken offered a number of criticisms of Sergeant Conte’s performance during his 

stop of Miller. Mr. Rencken explained that the first level of a DUI investigation involves 

looking for “personal contact queues” that might indicate a driver has been drinking. He 

noted here that none must have been present because Sergeant Conte allowed Miller to 

move her car after initial contact had been made. Mr. Rencken was also critical of 

Conte’s administration of the field sobriety tests. NHTSA recommends three tests for 

evaluating impaired drivers: (1) the nine step walk-and-turn; (2) the one-leg stand; and 

(3) the horizontal gaze nystagmus (“HGN”) test. In relation to the walk-and-turn test, 

Mr. Rencken noted that Conte’s actions were inconsistent with NHTSA’s guidelines in 

that he did not demonstrate the test and did not instruct Miller to wait until after the 

instructions were complete to begin the test. Also, instead of telling Miller to take 

several small steps to turn around, Sergeant Conte told her to “do a dance.” Mr. Rencken 

indicated that Conte could have used a solid line painted in the parking lot, but did not. 

These shortcomings, Mr. Rencken opined, affected the validity of any queues that might 

be found during the test. 

 In relation to the one-leg stand, Mr. Rencken explained that an officer should 

instruct the subject to stand with her feet together, arms to her side and then, without 

using arms to balance, lift one foot six inches off the ground. Here, Conte did not tell 

Miller to hold her hands to her sides and told her to hold her foot “as high as possible.” 

These errors, according to Mr. Rencken, resulted in an invalid test. 

 Mr. Rencken also explained that the HGN test, which was not conducted in this 

case, offers the highest percentage of accuracy because the muscle response is enhanced 

by alcohol and a positive test will result in an involuntary jerking of the eye. Finally, Mr. 

Rencken was critical of both the preliminary breath test apparatus, which is not as 

reliable as an Intoxilyzer, and in the way it was administered. Mr. Rencken explained 

that Conte’s instruction to “blow into it like a balloon” was wrong because the machine 

requires a steady breath. 
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II. Conclusions of Law 

 On December 6, 2017, Miller was charged by Information with two Class B 

misdemeanors: (1) Driving Under the Influence, Impaired to the Slightest Degree in 

violation of A.R.S. § 28-1381(A)(1); and (2) Driving Under the Influence with a Blood 

Alcohol Content of .08 or more in violation of A.R.S. § 28-1381(A)(2). Doc. 1 

(Information). In her motions, Miller seeks to have the charges dismissed or evidence 

suppressed based on a lack of reasonable suspicion to detain her for investigation and for 

the lack of probable cause for her arrest. 

The Fourth Amendment protects a person against unreasonable searches and 

seizures. United States v. Hensley, 469 U.S. 221, 226 (1985). Consistent with the Fourth 

Amendment, police may stop persons in the absence of probable cause under limited 

circumstances. Terry v. Ohio, 392 U.S. 1, 88 (1968). The police may briefly stop a 

moving automobile to investigate a reasonable suspicion that its occupants are involved 

in criminal activity. Hensley, 469 U.S. at 226. Reasonable suspicion exists when an 

officer is aware of specific articulable facts, that, together with rational inferences drawn 

from them, reasonably warrant a suspicion that the person to be detained has committed 

or is about to commit a crime. United States v. Cortez, 449 U.S. 411, 416-18 (1981). 

When assessing the reasonableness of the police officer’s actions, the court must consider 

the totality of the circumstances which confronted the officer at the time of the stop. 

United States v. Sokolow, 490 U.S. 1, 8 (1989). “A determination that reasonable 

suspicion exists . . . need not rule out the possibility of innocent conduct.” United States 

v. Valdes-Vega, 738 F.3d 1074, 1079 (9th Cir. 2013). 

Here, Miller argues that the alleged traffic violation (an illegal left turn) did not 

provide the reasonable suspicion necessary to support Sergeant Conte’s subsequent DUI 

investigation. In support of her argument, Miller cites a number of cases illustrating 

driving behaviors which are “sound indicia of drunk driving,” see People v. Wells, 136 

P.3d 810, 811 (2006) (report of driver “weaving all over the road”); State v. Pendergast, 

83 P.3d 714, 715-16 (2004) (report of driver “cross[ing] over the center line” on a 
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highway and “almost caus[ing] several head-on collisions”); State v. Golotta, 837 A.2d 

359, 361 (2003) (report of “driving all over the road” and “weaving back and forth”), and 

contends that an illegal left turn does not “give rise to reasonable suspicion for the crime 

of driving while impaired to the slightest degree.” Doc. 16, p. 6. Additionally, Miller 

contends that the odor of alcohol was attributable to Miller’s passengers and was not 

particularized to her. 

As a threshold matter, there can be no dispute that the initial stop of Miller’s 

vehicle was legal. “An investigatory stop of a vehicle is reasonable under the Fourth 

Amendment if the officer reasonably suspects that a traffic violation has occurred.” 

United States v. Miranda-Guerena, 445 F.3d 1233, 1236 (9th Cir. 2006). Sergeant Conte 

observed Miller make an illegal left turn. The Court, therefore finds that the initial stop 

did not violate Miller’s Fourth Amendment rights. 

A founded reasonable suspicion stop “must be carefully tailored to its underlying 

justification . . . and [may] last no longer than is necessary to effectuate the purpose of the 

stop.” Florida v. Royer, 460 U.S. 491, 500 (1983). However, an officer “may conduct 

certain unrelated checks during an otherwise lawful traffic stop,” as long as he does not 

unreasonably prolong the stop. Rodriguez v. United States, 135 S.Ct. 1609, 1615 (2015). 

Here, the Court finds it reasonable that Sergeant Conte, after making initial contact with 

Miller, had her move her car into a nearby parking lot. The videotape of the stop 

establishes that Miller did indeed stop near the middle of the traffic lane. Additionally, 

the occupants of the vehicle were unable to immediately produce the registration 

documents for the car. These factors justified the continuation of the stop. 

Sergeant Conte then noticed a strong odor of alcohol emanating from the vehicle. 

In order to discern if it was emanating from Miller, and to separate her from her 

passengers, Sergeant Conte had her walk about 20 feet from her vehicle. At that point, 

Sergeant Conte knew from the orientation of Miller’s driver’s license that she was under 

21. He asked her if she had anything to drink that night and, after initially equivocating, 

she admitted that she had. As the Government notes, A.R.S. § 4-244(34) provides that it 
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is unlawful “[f]or a person under twenty-one years of age to drive or be in physical 

control of a motor vehicle which there is any spirituous liquor in the person’s body.” 

Based on this statute, Miller’s age and her admission that she had been drinking, further 

investigation was warranted at that point. 

Sergeant Conte continued the investigation by performing field sobriety tests and 

administering a preliminary breath test. The Court agrees with Miller and her expert that 

the way in which Sergeant Conte conducted the field sobriety tests rendered them 

unreliable. The directions he provided for the walk and turn around test were incomplete 

(he did not tell Miller to wait for him to finish the instructions) and inconsistent with 

NHTSA guidelines (telling her to “dance” to turn around). Similarly, his directions for 

the one-leg balance test were inaccurate (telling her to raise her foot as high as she could) 

and incomplete (not telling her that she could not use her arms to balance). The 

Government has represented that the results of the field sobriety tests will not be used in 

its case-in-chief. Given the errors committed made in administering the tests, the Court 

likewise will not give the results of the tests any weight in determining probable cause. 

Nevertheless, the Court finds that probable cause to arrest existed. “Probable 

cause exists when, under the totality of the circumstances known to the arresting officers, 

a prudent person would have concluded that there was a fair probability that [the suspect] 

had committed a crime.” United States v. Buckner, 179 F.3d 834, 837 (9th Cir. 1999) 

(citation omitted). Here, based on the facts that Miller was driving, was under the age of 

21 and had a breath test that returned positive results for the presence of alcohol in her 

system, a prudent person would have concluded that she had violated A.R.S. § 4-244(34). 

It is irrelevant that she was not charged under that statute, but was instead charged with 

driving under the influence in violation of A.R.S. §§ 28-1381(A)(1) and (A)(2). This is 

because, when probable cause to arrest for any crime exists, an arrest does not violate the 

Fourth Amendment whether or not that crime is actually charged. See Devenpeck v. 

Alford, 543 U.S. 146, 153–54 (2004). “As long as the officers had some reasonable basis 

to believe [Miller] had committed a crime, the arrest is justified as being [ ] based on 
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probable cause. Probable cause need only exist as to any offense that could be charged 

under the circumstances.” Bingham v. City of Manhattan Beach, 341 F.3d 939, 952 (9th 

Cir. 2003) (quoting Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir.1994)). As 

such, Miller’s arrest did not violate the Fourth Amendment. 

III. Order 

Accordingly, 

IT IS ORDERED that Defendant Ayannia S. Miller’s Motion to Dismiss Based 

on Lack of Probable Cause (Doc. 17) and Motion to Suppress (Doc. 16) are denied. 

IT IS FURTHER ORDERED that the Government’s Motion for Judicial Notice 

(Doc. 24) is granted. 

 Dated this 12th day of April, 2018.