State v. Johnson

170 P.3d 667 Arizona, Appellee,

The STATE of JOHNSON, Appellant.

Lemon Montrea

2No. CA-CR 2006-0079. Arizona, Appeals

Court of 2, Department

Division B.

Sept. 2007.

Review Denied Nov.

OPINION BRAMMER, Judge. trial, jury appellant Lemon After possession was convicted of unlawful

Johnson weapon prohibited possessor as a marijuana. finding of After possession convictions, prior felony the trial had two concurrent, mitigated him to court sentenced presumptive imprisonment terms eight years year. and one Johnson contends denying the trial court erred in his motion to suppress, giving in doubt in- supreme struction mandated our court Portillo, P.2d 970 State v. (1995), finding prior he has convictions jury trial. without We reverse. Background Factual and Procedural reviewing When the denial of a suppress, motion to “we consider presented suppression evidence at the hear and view evidence and reasonable light inferences therefrom in the most favor upholding ruling.” able to the court’s 452, ¶ 4, May, P.3d (App.2005). Valley Maria Oro Police Officer Trevizo, assignment gang on with the state force, patrol in task was on Tucson with two approximately p.m. on other officers at April officers in an area 2002. The “[djirectly ... [is] west neighborhood Sugar Hill ... known as gang-related is a area.” Trevizo testified Sugar Crips gang, Hill is associated with the apparel. of that wear members blue “gang will Trevizo also noted that members often, general, possess firearms.” “r[a]n 3 An officer Trevizo’s vehicle plate found it the license vehicle” and “mandatory suspension.”1 had a insurance Goddard, Attorney Arizona General Trevizo and the other officers in the vehicle By Joseph M. Randall Howe and L. Park- investigating gang activity “were not Tucson, hurst, Attorneys Appellee. for stop” “targeting of the traffic and were not Hooker, County force func- vehicle] [their] Robert J. Pima Public task [the Tucson, By Cunningham, They M. Edith know where “[did not] [the Defender tion.” also Attorneys Appellant. car been ... did know where had] [and not] having mandatory suspen- pie differ- 1. Trevizo stated a insurance times for not insurance. There’s Trevizo, Depart- According ] sion occurs when "the Motor it "is a ent reasons.” Vehicle! suspended registration ment has ... for an but "[a] ticketable offense” and civil citation” people purpose____Sometimes insurance-related "bring regard not concern with to criminal does having] will a ticket for insurance and [not activity." it, pay they’ve or sometimes been cited multi- going.” Eloy, from and Trevizo it The officers had seen no him. He said he was [was] “predominant [there] behavior the vehicle “indicative of criminal testified there is a activity.” Crips.” called the Trekkle Park spent asked if he had time in Johnson sitting Johnson was the rear of the responded prison, and Johnson that “he had passen- with the driver and another burglary done time for and had been out for ger in front seats. stated she year.” about a had no “reason to believe that was [Johnson] activity in engaged criminal or about to en- gather 8 Trevizo testified she “wanted to gage activity in criminal [she] made intelligence gang might about the [Johnson] stop.” Johnson “looked back [at “gathering] intelligence” in” because was officers], something people said to the in the of “main in the force.” one missions task front, and then continued to look back at [the hoped big possi- learn She to about how [they] stop.” officers] while initiated the located, was, gang it was who its ble where Trevizo testified this was unusual conduct for were, and leaders “what kind crimes occupant being stopped, of a vehicle and it they’re sought involved in.” She to isolate spoke made her nervous. One officer to the occupants him from the other of the vehicle point every- and “at ... driver some asked hope in the he would contribute more infor- body put to their hands where he [could] gather mation. Her “intentions were to any them.” He asked whether of the men gang intelligence and talk to him.” The oth- weapons occupants the car had and all the er remained in the vehicle said no. The officer also had the driver exit encounter, throughout talking get to vehicle “his basic information: Trevizo, According third officer. to license, registration, driver’s insurance.” out of [to Johnson “could refused ear], certainly.” Trevizo examined Johnson for seven gang indicia of affiliation.2 Johnson was left the vehicle Once Johnson blue, entirely dressed and had a blue manner, normal Trevizo “asked him to turn bandanna. Trevizo testified that bandannas around,” “patted and she him down for offi- ... ... allegiance are often used “to show or cer because had a lot of informa- [she] gang” affiliation with a certain and that the might that lead to he [her] tion would believe only indicator she saw was Johnson’s blue weapon have a on him.” Trevizo did not tell car, however, clothing. The driver of the him before planned pat Johnson she to down wearing clothing. was red got “made the out vehicle but the vehicle. It was 6 Trevizo said she was be- decision” when he exited “concernfed]” evening jacket totality happened had “a “the of what that cause Johnson scanner pat him had pocket,” people normally do not have that led to down.” She [her] anything appeared that to they’re going “unless to be involved in some “not observe[d] going try criminal criminal” at the time of the search. kind of to turn listening evade to the scanner.” It She stated he could have refused pat- anyone put up for the was the first time Trevizo had seen around and his hands gun “carry person.” Trevizo felt the butt of a [a scanner] on their Accord- down search. her, nothing illegal about near Johnson’s waist when she “[t]here’s scanner],” began struggle, and [having a out of the ordi- down. Johnson then but “it’s nary.” put Trevizo did not know whether the handcuffs on him.

scanner was turned on or off. charged possession 10 Johnson was with Johnson, pos- weapon by prohibited possessor, began 7 Trevizo to talk with resisting marijuana, arrest. cooper- who was still in the vehicle. He was session of suppress trial denied his motion to ative and told her his name and date of birth The court any the evidence found Trevizo’s but said he did not have identification on 5) might particular jewelry be associated ... that 2. Trevizo testified the “seven basic criteria to 7) 6) somebody "correspon- gangs, photographs, determin[e] if is a member” are: with tattoos, 1) 2) 3) person wearing, colors dence between members.” 4) signs, membership, self-proclamation of jury guilty presented A no “[t]he search. found Johnson state evidence would charges guilty resisting two but not support first an officer’s reasonable appeal ramada, any arrest. This followed. of the individuals under Ilono, including engaged

Discussion activity.” Id. 5. ¶ 11 Johnson asserts the trial court ¶ However, finding not end the did suppress. erred when it denied his motion to inquiry. The state also contended “the offi- ruling review a trial on a motion “We court’s implicated cers’ actions had the stan- suppress evidence for an abuse of discre progeny dards set forth and its issue, discretionary tion if it involves but because the individuals under the ramada purely legal review constitutional issues and were never detained and were free to leave Moody, de issues novo.” State v. developed until the officers cause to arrest ¶ (citation 94 P.3d 1140 ¶ rejected Ilono.” Id. 7. This court that ar- omitted). gument, finding jurispru- “[b]oth Arizona ¶ persuasive authority suggest dence and other 12 Johnson contends the frisk was right that an pat-down officer’s to conduct a unconstitutional because his encounter with predicated search should be on the officer’s Terry Trevizo was consensual. Under v. Ohio, right investigatory stop to initiate an in the 392 U.S. 88 S.Ct. 20 L.Ed.2d ¶ (1968), first instance.” Id. 12. stated: may 889 an officer an We conduct investi “ gatory stop if the officer has ‘a reasonable Supreme progeny and its Court ad- suspicion supported by articulable facts’” propriety pat-down dressed the search activity may occurring. that criminal In exclusively in the context of a lawful inves- ¶ H., 473, 4, re Ilono tigatory stop. do not We read those cases (App.2005), 697 quoting United v. States Sok pat-down to authorize a search as olow, 1, 7, 1581, 1585, 490 U.S. mere consensual encounter —even an (1989). “Then, L.Ed.2d 1 if the officer ‘has may grounds officer to believe the suspect reason to believe that the is armed targets potentially of the encounter are dangerous,’ may the officer conduct dangerous. armed and Id., weapons.” limited search for quoting ¶ (footnote omitted). Id. 11 quoted We also Williams, Adams v. Burton, United States v. 228 F.3d (1972). S.Ct. 32 L.Ed.2d 612 An (4th Cir.2000), following proposition: for the not, may however, officer pat-down conduct a [A]n officer encounter citizens and search a consensual encounter if the attempt implicat- them without officer lacks reasonable that crimi the Fourth Amendment. But nal occurring, is if even the officer encounters, police-citizen such an officer is suspect may has reason to believe a entitled, justifica- without additional H., dangerous. armed and Ariz. tion, protective to conduct a search. To 473, 11, 113P.3d at 699. search, protective conduct such a an officer 13 In Ilono ap- two officers suspicion sup- must first have reasonable proached group of five individuals who ported by articulable facts that criminal sitting park under a ramada in a activity may be afoot. drug gang activity. was known for (alteration 473, 12, 113 P.3d at 700 473, ¶2, 113 P.3d at 697. Ilono was H.). in Ilono red, wearing baggy clothing, and an officer clothing testified by gang such is often worn 15 The decision Ilono H. was based on frequently carry members weapons. who Id. several different rationales. This court One officer conducted a search and found because both the United States found a Supreme bottle of beer hidden under Ilono’s and Arizona Courts have found a underage person clothes. Id. Ilono was disregard arrested for is allowed to or flee from a alcohol, possession of later officers found consensual encounter with law enforcement officers, cocaine in a further search conducted inci- it would be inconsistent with this dent arrest. possesse[d] authority Id. This court found idea if the “officer go. require target inqui- tell the driver he or she is free to of the consensual

ry Hernandez, Id. 13. to submit to a search.” v. 93 F.3d United States Also, (10th Cir.1996) (“A we examined Justice Harlan’s concur- stop may Terry, rence in which stated: if a consensual encounter the officer become Any policeman, person, including registration returns the license and and asks liberty person dan- to avoid he considers questions constraining without further gerous. policeman If and when a has a overbearing driver an show of authori right instead to disarm such a ty.”); Werking, v. 915 F.2d United States protection, his own he must first have a (10th Cir.1990) (same); 1408-09 right not to avoid him but to be in his Box, 492, ¶ 22, than presence. That must be more (traffic (App.2003) stop became consensual liberty possessed by every citi- (again, warning encounter after officer issued zen) persons, to address to other speeding). driver for ordinarily addressed has governing equal right ignore interrogator and 18 We have found no case law away; certainly need not submit passengers walk when the seizure of questioner’s protection. violation, to a frisk for the only to a driver’s traffic incident Wilson, Maryland terminates. See 32-33, Terry, 392 at 1885-86 3, 137 3, 117 415 n. 886 n. (Harlan, J., H., U.S. S.Ct. concurring), quoted in Ilono (1997) 473, 14, 113 (declining L.Ed.2d 41 to reach this P.3d at 700. issue). However, suggests common sense parties 16 Both here discuss wheth point during that at some the encounter the during stop. er Johnson had been seized the passengers in free to the vehicle must be correctly Johnson reasons that if he was not entirely that leave—their fate is not tied to resulting with seized and the conversation Obviously, the driver. if a driver is arrested consensual, Trevizo was had no station, police pas innocent and taken to the pat him down. See custody ¶ 4, sengers will not also be taken into or argument 113 at 697. After oral P.3d case, required accompany If the the driver. was held this the United States determined, Supreme although passengers they are free to leave Court are told here, presented so, factual than they longer context different no and do it is clear are passenger that a is seized when the vehicle seized; equally they clear if are it is lawfully riding stopped he or she is is which the being questioned about the reason for — by California, U.S. police. Brendlin v. It clear stop, they remain seized. is less -, 2400, 2410, 127 S.Ct. 168 L.Ed.2d 132 passengers’ seizures terminate under (2007). Therefore, was seized when Johnson the extremes factual situations that lie within stopped car. the officers the examples, guided of these but we must be Robinette, 519 reasonableness. See Ohio ¶ But, that, even 17 Johnson contends 33, 39, 417, 421, L.Ed.2d U.S. 117 S.Ct. 136 stopped the officers had he been seized when (“The of the Fourth 347 ‘touchstone into a that detention had evolved Amendment is reasonableness.’ Reasonable patted consensual encounter before ness, turn, objective terms measured in is that Typically, him down. courts have found totality of the circum by examining the into a stops seizures can evolve Jimeno, stances.”), 500 quoting Florida v. encounter when officers return consensual 1801, 1803, 248, 250, U.S. registration stopped to a driv the license (1991).3 er, warning, a citation or or L.Ed.2d issue the driver Iowa, any passengers upon a driver In Knowles v. (1998), may danger- they armed and that 142 L.Ed.2d 492 119 S.Ct. dicta, (Citations omitted.) complete Neither search of ous.” where the Court invalidated Brendlin, holding us when a given informs driver was a traffic nor a vehicle after its ends, citation, when it can present or if and passengers in the vehi- seizure with no new, cle, separate, encoun- and unrelated passing offi- become a ter, stated in that Court driver, may con- encounter “may or whether such an out of a vehicle both the cers order any perform 'patdown' sensual. passengers; [and] ¶ 19 “A consensual encounter is the 1981n. 7. None of Trevizo’s verbal or nonver- voluntary cooperation private citizen in bal communications with Johnson before response questioning by pat reasonably to non-coercive down can be construed to conveyed If to him law enforcement officer. the individual is that his encounter with anything free to leave at time the encoun other than consensual. ter, 10, ¶8, Wyman, he or she not seized under the Fourth is Hernandez, 1498; (finding Amendment.” 93 F.3d at encounter consensual when “officer Manjarrez, gun physically see also United States v. 348 did not draw his or otherwise (10th Cir.2003) (“A compel response F.3d consensual ... did not demand [and] instead, voluntary him; exchange appellant speak encounter is a between ... with manner”) asked, loud, the officer and the citizen in officer he albeit forceful (citation omitted). questions.”). ask non-eoereive An en The interaction between consensual, however, counter is not if “in cooperative them had been from the time the light all con stopped got until vehicle was Johnson out of duct would ‘have communicated to a down, reason the ear and Trevizo liberty able that he was not at Johnson answered Trevizo’s about ignore police presence go about his from, identity, where he was and his ” business.’ State v. background. This conclusion con- (App.2000),quoting Michigan testimony sistent traf- with Trevizo’s that the Chesternut, fic was routine and no one (1988). 1977, 100 L.Ed.2d 565 “Wheth suspected vehicle had been of criminal activi- by police er a has been seized is a ty when she and the other officers made mixed of law and fact.” Id. stop. ¶20 When we examine whether Trevizo’s ¶ And, importantly, most neither Trevi- encounter with Johnson evolved into a con- zo nor the other officers ordered all the encounter, sensual we note that Trevizo’s occupants get to out of the vehicle the interaction with Johnson and her traffic for officer reasons. In- wholly to him purpose unrelated to the deed, the front seat in remained stop. of the traffic Trevizo testified that she throughout the car fact encounter. This investigating and her team “were not support lends further to the conclusion that activity part stop,” stating of the traffic questioning wholly Trevizo’s of Johnson was spoke solely she with Johnson because she sepa- unrelated to the and constituted a gather intelligence “wanted to about rate, consensual, and encounter. in,” gang might “a choice made to [she] supports propo 24 Arizona case law further [the] mission of [her] task force.” Terry stop sition that a valid can evolve into ¶ 21 Had Trevizo wanted to order Johnson In consensual encounter. State v. Navar out stopped, of the car after it had been ro, (App.2001), 201 Ariz. 34 P.3d 971 Wilson, could have done so. See at U.S. suspect shooting was detained (“[A]n making S.Ct. at 886 officer a placed part Terry handcuffs as of valid stop may traffic order passengers get to out ¶¶ 4, 17, stop, id. but this court found the pending completion of the car stop.”). encounter became consensual because the However, Trevizo did not do so. As we defendant had not “confronted] been already noted, Trevizo conceded as far detention, at the initial surround[ed]” concerned, as she “certainly” was Johnson removed, agreed handcuffs were and he to request “could have refused” her out accompany police an officer to the station to of the car. shooting talk about the and traveled with so, unfrisked, him to do in the front seat of ¶22 subjective “[T]he intent of the police the officer’s car. Id. 17. officers is to an relevant assessment of the implications police Fourth Amendment 25 We find the situation and outcome only here, particularly conduct to the extent that that intent Navarro instructive be- conveyed has been arguably confronted.” cause Navarro more coercive Chesternut, present. 486 U.S. at 576 n. at Both involve factors were cases position would have felt free to

valid seizures that evolved into consen- Johnson’s sual encounters between the and the remain the vehicle. The state has admit- Therefore, examining all defendant. after ted the officers had no reason to believe facets of the encounter between Trevizo and Johnson was involved Johnson, leaving we conclude that Johnson’s when Trevizo searched him.4 Trevizo’s re- speak the ear to with Trevizo was consensual quest step out of the car to Johnson part separate investigation of Trevizo’s activity, discuss and not for officer safe- affiliation, possible gang a mat- of Johnson’s ty purposes, was of a consensual en- wholly purpose ter unrelated Accordingly, counter. she had no stop. A John- weapons, if pat him down for even she had position son’s and under these circumstances suspect danger- reason to he was armed and have felt have remained in would he could H., ous. Ilono 210 Ariz. See the vehicle. See Accordingly, trial erred P.3d at 699. court P.3d at 395. denying suppress Johnson’s motion ¶26 Moody, evidence found. See argues The state that Trevizo had a ¶ 62, specific suspicion and articulable 94 P.3d at 1140. John- dangerous son was armed and before she points him down. It blue Johnson’s holding, agree In so we with clothing, pocket, scanner in his dissenting many of the observations our col identification,

lack of and his status as a agree that en league has made. We law convicted felon. The state also notes John- officers, to conduct a forcement to be entitled son looked backward when the vehicle was sug pat-down search under circumstances stopped, place neighbor- took near gesting suspect may danger armed and Eloy populated Crips, hood he was from ous, need reasonable cause to believe dominant, Crips gang where the suspect may committed a crime. knew often carried members 1884; Terry, 88 S.Ct. at weapons. Assuming, deciding, that without H., 113 P.3d at 697. Trevizo had reasonable that John- initially agree also that Johnson was We dangerous, son was armed and this fact alone stop of the detained incident to the officers’ does not “authorize a search as — Brendlin, driver. See vehicle’s part of a mere consensual encounter.” Ilono not, however, -, 127 S.Ct. at 2410. We do 699; 113 P.3d at broader contained within reach the LaFave, Wayne R. also Search and Sei- case, officers, in whether the facts of this 2004) (“[I]f (4th 9.6(a), § zure at 617 ed. safety, own and based sole- interests of their officer, lacking quantum suspicion re- initial ly resulting from the on the seizure quired by Terry stop, to make a forcible may routinely pat passen- stop, traffic down interro- instead conducts a non-seizure field gers they suspect of no crime but whom may gation, not frisk the interro- they reasonably suspect might be dan- whom armed.”) (foot- gated upon suspicion he is Iowa, 113, gerous. See Knowles v. U.S. omitted). unnecessarily unintended effect of increasing safety. ticulable reason to fear for their See ¶ already high H., by 473, 10, 113 the level of risk faced law Ilono 210 Ariz. P.3d at 699. legal 5. ably theory To the extent we draw some different state's was that the [the! essentially undisputed conclusions from the facts necessary officer-safety purposes was search related to dissenting colleague, than does our we note that simply the driver. We con Retaining it remains the state’s burden to demonstrate that lunderlying clude the the facts of case demon provided legal pat- those facts basis the pat- strate instead that Trevizo conducted the search, they down not Johnson’s burden to show part wholly separate down search as consen Sauve, did not. See State v. 112 Ariz. investigation sual encounter based on an unrelat 1091, (1976) (where 544 P.2d 1092 officers con purposes stop. ed to the of the exception require duct search under to warrant ment, quali it is state’s burden to show situation H., juvenile 6. In Ilono the encounter between the exception fies under before evidence admissible and law enforcement officers was a consensual trial); Arellano, 211, Rodriguez at ¶ v. 194 Ariz. encounter, 473, 2, ¶¶ stop. not a traffic 12, 539, (same); (App.1999) 543 11, 697, 113 P.3d at 699. 16.2(b), also Ariz. R.Crim. P. 16A A.R.S. Presum 66 support police

A of cases to this view. not consensual if “the conduct number lend ter is Kincade, e.g., United States v. 379 F.3d would ‘have communicated to a reasonable See (9th Cir.2004) (“[E]ven 813, liberty ignore 822 outside the that he was at to not by prob presence a lawful supported go context of arrest the and about his busi ” ¶ cause, 10, 395, 7, quoting officers are authorized to Ariz. at able likewise ness.’ 197 esternut, 569, protective pat-down conduct a warrantless 108 S.Ct. at Ch Here, they long it con highly individuals encounter the field so 1977. unrealistic to justified by merely concerns are was as their clude that because the officer possible ongo suspicion danger.”); cooperative, United courteous and Johnson the Hernandez-Rivas, 595, virtually F.3d and chain of States simultaneous (7th Cir.2003) (protective events somehow “evolved into consensual during valid traffic is constitu in the moments in search encounter” few short tional when officer believes individual volved. threat). present constitute

armed or ¶ fact, physically 36 In Johnson had been majority heavily stopped temporarily by po The on Ilono relies and “seized” H., lice, ap through against a case which officers on foot no own and choice of his will, group juveniles wearing baggy proached by police stop virtue of of the clothing gangs; riding. in colors he associated with vehicle had been See — U.S. -, -, juveniles simply California, sitting were under a ramada Brendlin v. 2400, 2406-07, gang graffiti park where marked with 168 L.Ed.2d Gomez, activity (2007); drug known to occur. Ariz. ¶¶ 2, (App.2000). offi 113 P.3d at 697-98. P.3d After three approached these this court found all of the occu Under cers pants display that the officers had no reasonable were directed to their hands by “Ilono, any other of criminal or and the driver exit the vehicle. Johnson group,” justify protective position “‘ignore in the in no was ” business,’ juveniles. go And we not presence searches of Id. 6. about his not, withstanding subjective held the officers could a consen Trevizo’s notion to encounter, lawfully protective contrary upon majority relies. sual conduct which the ¶ 7, safety on concerns alone. Id. 3 P.3d at search based Chesternut, here, however, quoting 11. The trial court correct case, addressing ly distinguished Ilono H. from this at 1977. While Trevizo was Machado, Johnson, noting partner, that unlike the was random encounter Officer arbitrary pat-down investigating see id. the car. The search driver of ¶ 2, frisk a lawful terminated was still preceded Trevizo’s was had not and Johnson suspicion. stop. on And traffic based founded seized as valid Gomez, 766; 6 P.3d at Trevizo articulated her concerns group general Riley, John 992 P.2d at about the but about Moreover, although particular. Trevizo stated Johnson son the car or be could have refused out of majority acknowledges that John- 35 The down, never told testified she lawfully son was “seized” when the vehicle he did not have answer her stopped, that “at in was but reasons her, cooperate with otherwise point during passen- some encounter disagree did not cross examination to leave.” gers the vehicle must be free fact, seeking “in you weren’t counsel asked undoubtedly true, “point” This is but permission?” [Johnson’s] yet occurred The record es- had not here. ¶37 circumstances, took Johnson’s tablishes the encounter with Johnson Under much as stop, and the was not consensual as place cooperation within minutes of the not vol- “acquiescence signified request [which] that he out of the vehicle mere officer’s consent, acceptance of an untary but rather patting place down took within and her majori- State v. course of conduct.” moments of each other. As unavoidable mere 579, 447, 440, correctly quotes Winegar, an encoun- ty from (1985). Moreover, wearing neighborhood, this court has relied Johnson’s a blue ban- affiliation, danna, Supreme Crip an indicator of his on the United States Court’s state “ area, ‘passengers being Eloy, Crips ment that in automobiles have a from known and status, possible gang no Fourth Amendment not to be or felon all indicia of asso- proper stop a dered from their once ciation. The trial court cited all of these Webster, 372, is made.’” lack of as well as Johnson’s 374, 768, identification, (App.1991), quoting determining a “there was Illinois, Rakas v. 439 U.S. 155 n. to believe there was a dan- reasonable basis (1978) ger, stop go 436 n. 58 L.Ed.2d 387 allowed them to ahead [the] (Powell, J., Indeed, concurring). pat the Su do the down.” preme police “may Court has stated order ¶ Viewing totality the evidence of driver, any out aof vehicle both the realistically light the circumstances and in a passengers; perform ‘patdown’ a [and] of upholding favorable to the trial court’s deter any passengers upon driver and reasonable mination, 452, ¶ 4, May, they that be armed and dan lawfully in P.3d at Trevizo was Johnson’s Iowa, gerous.” Knowles v. nonconsensual, presence, the encounter was 142 L.Ed.2d 492 and the officer had a reasonable basis to (citations omitted).7 Because Trevizo had him dangerous consider and therefore con car, authority to order Johnson from the person. duct a brief of his Accord did not inform indicate to Johnson he was ingly, the trial court did not abuse its discre disregard request, free to and the en denying suppress tion Johnson’s motion to developed quickly counter far too the evidence discovered as a result of that one, “evolution” into a consensual Johnson’s encounter. cooperation reasonably cannot be considered consensual.8 multiple Trevizo also testified about circumstances that had led her to believe 170 P.3d 676 appropriate, search of Johnson was Marriage Kathy PALMER, In re the of I. including atypical Johnson’s behavior at the Petitioner/Appellee, stop, initiation of the possession scanner, being his admission to a convicted

felon, potentially being gang and his mem- Sydney PALMER, N. majority ber. incorrectly The states Respondent/Appellant. only one indicator of involvement was No. 1 CA-CV 06-0674. present. Trevizo, contrary, On the who had received basic and training advanced Arizona, Appeals Court of of assigned and been task force for 1, Department Division E. years occurred, two when this encounter tes- Nov. factors, tified she considered several including age, Johnson’s of the car

occurring Crip on the border of a known Navarro, majority language

7. The discounts 8. State v. 34 P.3d 971 dicta, however, (App.2001), majority, cited bears no re- Knowles as mere it is well estab semblance the situation here. The initial con- Supreme lished that dicta of the United States tact with Navarro was not a traffic but his great weight generally Court carries and is au shooting during arrival at scene thoritative. See United States v. Montero-Camar investigation. willingly Id. 5. Navarro accom- (9th Cir.2000); go, 208 F.3d 1132 n. 17 In panied investigate officers to the station to McDonald, (3d Cir.2000); re 205 F.3d shooting; during trip, he was unhand- Tops, see also Town Sound & Custom Inc. v. patrol cuffed in the front seat of the car and had Chrysler Corp., Motors 959 F.2d 495 n. 41 visually weapons; been searched and at (3d Cir.1992) (Supreme Court dicta should be ¶¶ station he was left unattended. Id. 5-7. the Moreover, respected relatively because that court hears few place the events in Navarro took over provide guidance time, dicta cases and uses to lower lengthy period rather than the first few courts). ongoing in this case. minutes notes 484, 488, 142 L.Ed.2d 492 119 S.Ct. ¶27 (suggesting unexplained dicta that find that Trevizo’s initial lawful We so). the officers imme- stop may officers do Had seizure of Johnson incident to the out of the vehicle diately ordered Johnson separate, of the driver evolved into a consen- a search for the pat-down and conducted stemming sual encounter from an unrelated safety during the assuring their by possible purpose of investigation Trevizo of Johnson’s driver, that, would be stop circum- of the gang affiliation and under the case, presented. stances of this a reasonable scope permitted expand the investi question presented by him to this case is different 4. The beyond Riley, gation the traffic violation and continue from the one we answered in State already ¶¶ 14, 16, passenger’s we have (App. detention. As 992 P.2d noted, 1999), had no upheld pat-down has admitted the officers search of a the state where we was involved in crimi passenger during reason to believe Johnson a traffic because the offi activity. reasonably suspected activity that nal cer ¶29 Rather, merely we hold enforcement officers some vehicle investigative stops. when an officer initiates an en passenger counter with a that was consensu 473, 12, 32 In 210 Ariz. Ilono wholly al and original unconnected to the P.3d at this court stated “an officer’s purposes of the routine traffic right pat-down to conduct a search should be driver, that officer not conduct a predicated on the officer’s to initiate an passenger frisk of the without reasonable investigatory stop in the first instance.”6 activity may cause to believe “criminal majority The concedes the ease Terry, afoot.” was lawful. And this court has found the 1884. Under such the en passenger lawfully search of a meaningfully indistinguish counter becomes stopped vehicle constitutional an offi where able from the scenario we addressed and safety.” cer had a “reasonable concern for his found to be consensual in H.5 Riley, State v. 992 P.2d 1135, 1140 justi (App.1999) (pat-down search Disposition fied after reached for waistband ¶ 30 reverse We Johnson’s convictions and weapon); when asked if had see also State v. sentences and remand the case for further Valle, 324, 9, proceedings consistent with this decision. (App.2000) (police may lawfully officer con Accordingly, we do not address the other justified duct search when officer issues Johnson appeal. raises on believing investigat individual he or she is range may pres at close be armed and CONCURRING: PETER J. others). ently dangerous to the officer or ECKERSTROM, Presiding Judge. “ purpose ‘The of this limited search not to is crime, discover evidence of but to allow the ESPINOSA, Judge, dissenting. pursue investigation officer to without respectfully 31 I dissent ma- because the ” Valle, 324, 9, fear of violence.’ jority interpreted has the facts of this case in Williams, quoting 996 P.2d at Adams essentially less than realistic fashion to conclude that an reasonably fearing officer (1972). L.Ed.2d 612 safety during for her a lawful roadside vehi- stop may safety cle not ensure her own An probable officer need not have present by patting that of others down a Terry pat-down cause order to conduct a suspicious passenger weapons. Although Terry, search. 392 U.S. at 88 S.Ct. at majority attempts responsibil- to disclaim develops 1880. If an officer concern ity by stating such result it legitimate stop, does “not vehicle further rea question, precisely reach” that sonable of criminal is not issue necessary. raised the facts of I Riley, this case. majority’s believe conclusion Accordingly, protective is not at 1140. search is contrary law, to settled justified but could have the simply possess when officers an ar

Case Details

Case Name: State v. Johnson

Court Name: Court of Appeals of Arizona

Date Published: Sep 10, 2007

Citation: 170 P.3d 667

Docket Number: 2 CA-CR 2006-0079

Court Abbreviation: Ariz. Ct. App.