NOT FOR PUBLICATION

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.

MEMORANDUM DECISION

HOWARD, Judge.

¶1 Following a jury trial, appellant Brady Whitman Jr. was convicted of aggravated driving under the influence of an intoxicant (DUI) with two or more prior DUI violations, aggravated DUI with an alcohol concentration (AC) of .08 or more with two or more prior DUI violations, aggravated DUI while his license was suspended or revoked, and aggravated DUI with an AC of .08 or more while his license was suspended or revoked. On appeal, Whitman argues the trial court erred by denying his motion to suppress, in which he claimed his traffic stop was unconstitutional. Because the stop was not unconstitutional, we affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to upholding the jury's verdicts. State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App. 2006). In January 2011, a Tucson police officer stopped Whitman's car. Whitman subsequently failed field sobriety tests and breathalyzer tests produced results of .160, .181, and .176 AC.

¶3 Whitman was charged and convicted as noted above. Although Whitman's notice of appeal was untimely filed, the trial court granted him a delayed appeal pursuant to Rule 32.1(f), Ariz. R. Crim. P., and we therefore have jurisdiction. See State v. Whitman, 234 Ariz. 565, ¶ 1 & n.2, 324 P.3d 851, 851-52 & 854 n.2 (2014).

Discussion

¶4 Whitman argues the trial court erred by denying his motion to suppress because the stop was unconstitutional under the Fourth Amendment. Whitman made the same argument in his previous appeal to this court, and we concluded the stop was constitutional. State v. Whitman, 232 Ariz. 60, ¶¶ 31, 37, 301 P.3d 226, 234, 236 (App. 2013), vacated, 234 Ariz. 565, 324 P.3d 851. That opinion, however, was vacated by our supreme court which determined that Whitman's original notice of appeal was untimely filed. Whitman, 234 Ariz. 565, ¶¶ 1, 20, 324 P.3d at 851-52, 854. Thus, despite the state's claim that Whitman's argument is now precluded by the law of the case doctrine, we address Whitman's argument on its merits because a vacated opinion has no effect or authority. See Stroud v. Dorr-Oliver, Inc., 112 Ariz. 403, 411 n.2, 542 P.2d 1102, 1110 n.2 (1975); Nat'l Indem. Co. v. St. Paul Ins. Cos., 150 Ariz. 492, 493, 724 P.2d 578, 579 (App. 1985), vacated in part on other grounds, 150 Ariz. 458, 724 P.2d 544 (1986); see also State v. King, 180 Ariz. 268, 279, 883 P.2d 1024, 1035 (1994) (law of the case doctrine is procedural, not substantive, and does not prevent court from reconsidering previous non-final rulings).

¶5 "In reviewing a motion to suppress, we consider only the evidence presented at the suppression hearing and view the facts in the light most favorable to sustaining the trial court's ruling." State v. Gonzalez, 235 Ariz. 212, ¶ 2, 330 P.3d 969, 970 (App. 2014). "[W]e accept the court's factual findings absent an abuse of discretion," State v. Fikes, 228 Ariz. 389, ¶ 3, 267 P.3d 1181, 1182 (App. 2011), but we review a court's legal determination of the propriety of a stop de novo, State v. Livingston, 206 Ariz. 145, ¶ 3, 75 P.3d 1103, 1104 (App. 2003).

¶6 "[A]n officer needs only reasonable suspicion that a traffic violation has occurred to initiate a stop" under the Fourth Amendment. State v. Sweeney, 224 Ariz. 107, ¶ 16, 227 P.3d 868, 872-73 (App. 2010). Reasonableness under the Fourth Amendment "`is predominantly an objective inquiry.'" Ashcroft v. al-Kidd, ___ U.S. ___, ___, 131 S.Ct. 2074, 2080 (2011), quoting City of Indianapolis v. Edmond, 531 U.S. 32, 47 (2000). A court must "ask whether `the circumstances, viewed objectively, justify [the challenged] action.'" Id., quoting Scott v. United States, 436 U.S. 128, 138 (1978) (alteration in al-Kidd). This analysis "ordinarily involves `an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time.'" State v. Jeney, 163 Ariz. 293, 295, 787 P.2d 1089, 1091 (App. 1989), quoting Maryland v. Macon, 472 U.S. 463, 471 (1985).

¶7 The subjective intent of the officer is not a factor in determining whether reasonable suspicion supported the traffic stop. Whren v. United States, 517 U.S. 806, 813 (1996). In other words, "`the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.'" Devenpeck v. Alford, 543 U.S. 146, 153 (2004), quoting Whren, 517 U.S. at 813.

¶8 Here, the officer testified that he had observed that Whitman failed to come to a complete stop at a stop sign, was driving in the middle of the road, and had a malfunctioning taillight. The officer stated he had believed the broken taillight and the failure to stop at the stop sign constituted traffic violations, which prompted him to initiate the traffic stop. In rebuttal, the passenger in Whitman's car testified that Whitman had, in fact, come to a complete stop at the stop sign. And Whitman testified that all his taillights had worked when he inspected the vehicle earlier in the day. Whitman did not offer any evidence rebutting the testimony that he had improperly driven in the middle of the road.

¶9 The state points out, as it did below, that two of the officer's observations constitute traffic violations1—the failure to come to a complete stop at a stop sign, see A.R.S. §§ 28-644(A)(1), 28-855(B), and driving in the middle of a roadway, see A.R.S. § 28-721. The trial court found that "[a]ny one of the . . . violations observed and testified to by [the officer] would constitute reasonable suspicion to initiate a traffic stop." As to the stop sign violation, the court found the testimony of the officer more credible than the passenger, a factual finding to which we defer. See Fikes, 228 Ariz. 389, ¶ 3, 267 P.3d at 390. Consequently, because the failure to come to a complete stop at a stop sign constitutes a traffic violation, the officer had reasonable suspicion to stop Whitman. See Sweeney, 224 Ariz. 107, ¶ 16, 227 P.3d at 872-73.

¶10 Whitman argues the trial court's statement was not a factual finding as to whether Whitman did, in fact, fail to come to a complete stop at the stop sign, discounting the court's first statement as "a preliminary statement of what the law is." However, any confusion over the court's meaning is removed by the court's second statement at the end of the decision: "Again, because any of the . . . observed violations provided [the officer] with a legitimate basis to stop the vehicle, the Defendant's Motion to Suppress fails." This is not a preliminary statement of the law but a clear statement by the court that it accepted the officer's testimony. This conclusion is not changed by the court's statement that "[e]ven if the Court were to disregard [the officer's] testimony about [Whitman] failing to come to a complete stop at the stop sign, the Officer's testimony is uncontroverted on the issue of" Whitman driving in the middle of the road. We therefore reject Whitman's contention that we cannot rely on the court's factual finding as to the stop sign violation.

¶11 In addition to the stop sign violation, Whitman did not offer any evidence rebutting the officer's testimony that he had driven in the middle of the roadway. And although the officer may not have understood that action was a traffic violation at the time, or simply failed to list it, his actions in stopping Whitman are not invalidated because "`the circumstances, viewed objectively, justif[ied] that action.'" See Devenpeck, 543 U.S. at 153, quoting Whren, 517 U.S. at 813. Consequently, this traffic violation also provided reasonable suspicion for the traffic stop. See Sweeney, 224 Ariz. 107, ¶ 16, 227 P.3d at 872-73.

¶12 Whitman argues, however, that we may rely only on the individual officer's articulated reasons for making the initial stop in determining whether reasonable suspicion existed, and cannot "find post-hoc legal justifications for a stop." In other words, he contends that when considering the validity of a stop, courts are limited to determining whether the circumstances objectively support the offenses identified by the individual officer as the basis for making the traffic stop.

¶13 Whitman cites Devenpeck, a case dealing with probable cause to arrest under the Fourth Amendment, for the proposition that the objective circumstances may be considered only insofar as they support the "`offense identified by the . . . officer at the time" of the stop. 543 U.S. at 153. Under Whitman's paradigm, the constitutionality of a stop thus turns upon an individual officer's knowledge of the law, not the objective circumstances surrounding the stop. That proposition, however, was expressly rejected in Devenpeck:

Id. at 153-54 (citations omitted). Devenpeck therefore reiterates the proposition that courts may not consider the subjective intent of the officer when determining whether a stop was justified under the Fourth Amendment.2 Id.

¶14 Accordingly, the fact that the officer in this case did not enumerate driving down the middle of the road as a traffic violation is inconsequential to our analysis. Because the officer observed Whitman driving down the middle of the roadway, and that action constituted a traffic violation, the traffic stop was supported by reasonable suspicion and was therefore constitutional. See Sweeney, 224 Ariz. 107, ¶ 16, 227 P.3d at 872-73.

¶15 Whitman's claim that allowing post-hoc justifications for potentially unconstitutional stops would undercut the exclusionary rule is similarly unavailing. The United States Supreme Court has explained that "[t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system." Herring v. United States, 555 U.S. 135, 144 (2009). No such conduct occurred here. Excluding evidence simply because an officer failed to articulate a valid reason for a traffic stop at the time, despite observing the actions that do, in fact, constitute a traffic violation would not serve to deter unconstitutional police conduct. Rather, it would only place an unnecessary burden on law enforcement while having a minimally deterrent effect. See Stone v. Powell, 428 U.S. 465, 490-95 (1976). We therefore reject this argument.

Disposition

¶16 For the foregoing reasons, we affirm Whitman's convictions and sentences.