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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RICHARD LEE DENNIS, Appellant.

No. 1 CA-CR 17-0495

Appeal from the Superior Court in Maricopa County

No. CR2015-155388-001

The Honorable Bradley H. Astrowsky, Judge

AFFIRMED

COUNSEL

Wendy L. Mays, Attorney at Law, Phoenix

By Wendy L. Mays

Counsel for Appellant

Arizona Attorney General's Office, Phoenix

By Michelle L. Hogan

Counsel for Appellee

FILED 5-10-2018
STATE v. DENNIS

Decision of the Court

2

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which 

Presiding Judge Randall M. Howe and Judge Kenton D. Jones joined.

M O R S E, Judge:

¶1 Richard Lee Dennis ("Dennis") appeals his convictions and 

sentences for possession of narcotic drugs, possession of drug 

paraphernalia, and resisting arrest. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 The evidence at trial, viewed in the light most favorable to 

supporting the convictions,1 showed that at approximately 10:00 p.m. on 

December 5, 2015, police officers on patrol in Phoenix stopped a car because 

its insurance was suspended, and registration was expired. After the 

officers activated their lights and sirens to indicate a traffic stop, the car 

quickly pulled into the opposite lane against traffic and stopped in front of 

a residence. As the officers were exiting their vehicle, the passenger door 

of the stopped car opened, and Dennis attempted to get out. The officers 

instructed him to remain in the car, and Dennis replied that he lived at the 

residence and wanted to go inside. The officers told him to sit back down 

and he would be allowed to leave "in a minute if [everything was] good."

¶3 The officers ran the occupants' drivers licenses to check for

outstanding warrants. The search returned no warrants or other violations, 

and the officers handed the licenses back to the driver and Dennis. At that 

point, one officer noticed a green leafy substance, which he believed to be 

marijuana, in the center console cup holders. The officers then asked 

Dennis and the driver to get out of the car so that the officers could 

investigate the substance without risk of contamination or destruction.

¶4 When Dennis got out of the car, one officer asked if he had 

anything illegal on him. Dennis said he did not. When the officer asked if 

he could search, Dennis said "that's fine; I got nothing on me." The officer 

searched Dennis and, in Dennis’s pants pocket, found a glass pipe 

commonly used for smoking crack. Dennis said he had just put the pants 

 

1 State v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015).
STATE v. DENNIS

Decision of the Court

3

on and knew nothing about the pipe. The other officer continued the search 

and found black tar heroin in Dennis's wallet.

¶5 After searching Dennis, the officers turned their attention to 

the driver and searched the car. While the officers were distracted, Dennis 

grabbed the evidence bags containing the pipe and heroin and ran to the 

back of the house, shouting for help. After a pursuit and struggle, the 

officers managed to handcuff and arrest him. While the officers were 

chasing and struggling with Dennis, the driver got back in the car, drove

away, and was never arrested. Dennis was subsequently charged with two 

counts of possession or use of narcotic drugs, two counts of possession of 

drug paraphernalia, and one count of resisting arrest.

¶6 Before trial, Dennis moved to suppress the evidence 

recovered from the search on the basis that it was obtained in violation of 

the Fourth Amendment to the United States Constitution. Specifically, 

Dennis argued he was illegally seized when the officer told him to sit back 

in the car during the traffic stop, and that the subsequent search was illegal 

because he did not voluntarily consent.

¶7 Following an evidentiary hearing in which one of the 

investigating officers testified and Dennis introduced a stipulated 

statement denying that he consented to the search, the superior court 

denied Dennis's motion to suppress. The court found that Dennis was 

legally seized as a passenger in a lawfully stopped vehicle. The superior 

court further acknowledged Dennis's argument that he would not have 

consented to a search given his prior experiences with the police. However, 

the court was convinced by the credible testimony of the police officer and 

found that Dennis consented to the search and that the consent was 

voluntary.

¶8 Dennis timely appealed his resulting convictions and 

sentences. We have jurisdiction pursuant to Article 6, Section 9, of the 

Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-

120.21(A)(1), 13-4031, and -4033.

DISCUSSION

¶9 Dennis argues the superior court erred when it denied his 

motion to suppress the evidence. We review the superior court's ruling on 

a suppression motion for abuse of discretion, consider only the evidence 

presented at the suppression hearing, and view the evidence "in a light most 

favorable to sustaining the trial court's ruling." State v. Adair, 241 Ariz. 58, 
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4

60, ¶ 9 (2016). While we must defer to the superior court's factual findings, 

we conduct de novo review of its legal conclusions. Id.

I. Seizure.

¶10 Dennis contends that the police did not have reasonable 

suspicion to seize him during the traffic stop. However, Dennis does not 

dispute that the officers witnessed a traffic violation. Therefore, the stop of 

the car to investigate the suspected traffic violation was valid. Arizona v. 

Johnson, 555 U.S. 323, 327 (2009); see also State v. Starr, 222 Ariz. 65, 69, ¶ 12 

(App. 2009) (finding that reasonable suspicion is sufficient to justify a traffic 

stop); A.R.S. § 28-1594 (providing that officers "may stop and detain a 

person as is reasonably necessary to investigate an actual or suspected 

[traffic] violation").

¶11 Because Dennis does not challenge the basis for the traffic 

stop, he cannot complain of his detention. When officers stop a car for a 

traffic violation, they may seize "everyone in the vehicle, the driver and all 

passengers." Johnson, 555 U.S. at 327 (internal quotation marks omitted). 

"[A] traffic stop of a car communicates to a reasonable passenger that he or 

she is not free to terminate the encounter with the police and move about 

at will." Id. at 333. Thus, the officers legally seized Dennis when they told 

him to remain in the car.

¶12 Dennis argues the officers did not have the right to prolong 

their investigation after witnessing marijuana in the vehicle because 

Arizona allows medical marijuana. While a traffic stop must last "no longer 

than is necessary to effectuate the purpose of the stop," officers may prolong 

such stops if, "during the encounter, the officer develops a reasonable and 

articulable suspicion that criminal activity is afoot." State v. Sweeney, 224 

Ariz. 107, 112, ¶ 17 (App. 2010). The plain view of marijuana in the vehicle 

established reasonable suspicion to extend the traffic stop. See State v. 

Cheatham, 240 Ariz. 1, 3, ¶¶ 8-10 (2016) (despite the passage of the Arizona 

Medical Marijuana Act, the smell of marijuana established probable cause 

that a vehicle contained evidence of criminal activity); see also Maryland v. 

Pringle, 540 U.S. 366, 371-72 (2003) (finding probable cause to arrest all three 

occupants of a car when officers found $763 in the glove box and five 

baggies of cocaine "behind the back seat armrest and accessible to all three 

men"); State v. Sisco, 239 Ariz. 532, 553-54, ¶¶ 16-17 (2016) (sight of 

marijuana is indicative of criminal activity).
STATE v. DENNIS

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5

¶13 Here, Dennis was properly seized as part of a legal traffic stop

and the officers had reasonable suspicion to prolong the traffic stop after 

they saw marijuana in the car.

II. Search. 

¶14 Dennis argues that the superior court erred in denying his 

motion to suppress because he did not give the officers permission to search 

his pockets. Dennis also contends that any consent he gave the officers was 

neither informed nor voluntary. Contrary to Dennis's arguments, the 

record supports the superior court's decision to deny suppression of the 

evidence obtained from the search of Dennis's person.

¶15 Pursuant to the Fourth Amendment of the United States 

Constitution and Article 2, Section 8, of the Arizona Constitution, persons 

are protected from unreasonable searches and seizures. State v. Allen, 216 

Ariz. 320, 323, ¶ 9 (App. 2007). When a violation of the Fourth Amendment 

or its state counterpart is determined to have occurred, the exclusionary 

rule generally requires the suppression at trial of any evidence directly or 

indirectly gained as a result of the violation. State v. Schinzel, 202 Ariz. 375,

382, ¶ 28 (App. 2002). "Although the Fourth Amendment generally 

prohibits warrantless searches, they are permitted if there is free and 

voluntary consent to search." State v. Valenzuela, 239 Ariz. 299, 301, ¶ 1 

(2016).

¶16 Relying on United States v. Crapser, Dennis contends that the 

factors to be considered in determining the voluntariness of consent are: 

"(1) whether the defendant was in custody; (2) whether the arresting officers 

had their guns drawn; (3) whether Miranda warnings were given; (4) 

whether the defendant was notified that [he] had a right not to consent; and 

(5) whether the defendant has been told a search warrant could be 

obtained." 472 F.3d 1141, 1149 (9th Cir. 2007). However, this Court is not 

bound by Ninth Circuit precedent, State v. Montano, 206 Ariz. 296, 297 n.1, 

¶ 1 (2003), and the U.S. Supreme Court and the Arizona Supreme Court 

have repeatedly held that "voluntariness of consent to a search must be 

'determined from the totality of all the circumstances,'" Birchfield v. North 

Dakota, 136 S. Ct. 2160, 2186 (2016) (quoting Schneckloth v. Bustamonte, 412 

U.S. 218, 227 (1973)). See also State v. Butler, 232 Ariz. 84, 87, ¶ 13 (2013)

(same).

¶17 Under the consent exception to the warrant requirement, the 

State must show a person's consent to search by a preponderance of the 

evidence. Valenzuela, 239 Ariz. at 302-03, ¶ 11. Moreover, the consent must 
STATE v. DENNIS

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be intelligently and voluntarily given. Schnecklotch, 412 U.S. at 227, 235-36. 

Consent must "not be coerced, by explicit or implicit means, by implied 

threat or covert force." Id. at 228. The question is whether a reasonable 

person in that specific circumstance would have felt free to refuse a search. 

United States v. Drayton, 536 U.S. 194, 202 (2002).

¶18 Here, the court weighed the stipulated statement, in which 

Dennis denied consenting to the search, against the officer's testimony that 

Dennis agreed to his request to search. The superior court found that the 

officer's testimony was more credible and nothing in the record provides 

any reason to second guess that factual finding.

¶19 The record similarly supports the court's finding that Dennis's 

consent was voluntary. The court considered evidence that Dennis was 

cooperative with the officers and his demeanor was calm and confident. 

Additionally, when Dennis consented to the search, he was not under arrest 

or in handcuffs, and the officers had not drawn their guns. Deferring to the 

court's factual findings and viewing the evidence in the light most favorable 

to upholding the court's decision, we find that the court did not err in 

finding Dennis voluntarily consented to the search. Adair, 241 Ariz. at 60, 

¶ 9.

¶20 Therefore, the court did not abuse its discretion in denying 

Dennis's motion to suppress.

CONCLUSION

¶21 For the foregoing reasons, we affirm Dennis's convictions and 

sentences.