Opinion
No. 1 CA-CR 14-0743
12-15-2015
STATE OF ARIZONA, Appellant, v. EDWARD SOTO, Appellee.
COUNSEL Maricopa County Attorney's Office, Phoenix By Amanda M. Parker Counsel for Appellant Maricopa County Public Defender's Office, Phoenix By Joel M. Glynn Counsel for Appellee
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2013-114767-001
The Honorable Bruce R. Cohen, Judge
AFFIRMED
COUNSEL Maricopa County Attorney's Office, Phoenix
By Amanda M. Parker
Counsel for Appellant Maricopa County Public Defender's Office, Phoenix
By Joel M. Glynn
Counsel for Appellee
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which Presiding Judge Donn Kessler and Judge Andrew W. Gould joined. NORRIS, Judge:
¶1 The State appeals from the superior court's order granting Edward Soto's motion to suppress a handgun found by a police officer during a Terry pat-down. Because, based on the totality of the circumstances, the officer did not have reasonable suspicion that criminal activity was "afoot" to conduct the pat-down, we affirm the superior court's suppression order.
FACTS AND PROCEDURAL BACKGROUND
¶2 At approximately 9:00 a.m. on Easter morning, March 31, 2013, a police officer responded to a 911 call from a neighbor reporting a "suspicious person" "looking for something in the bushes" across the street in a yard next to a house. The officer arrived on the scene and spotted Soto "kneeling down" on "all fours" on the outer edge of the yard, right next to the street, and near some bushes. The officer did not know what Soto was doing, so he asked him, "What are you doing?" Soto responded he was "looking for an Easter present that his girlfriend had buried in the grass." As we discuss in more detail below, the officer thought Soto was "just suspicious," and found his answer "pretty irrational," and although Soto was "not overly nervous," the officer thought "he was like jittery."
¶3 Soto then stood up, and the officer noticed "bulges in both his [front pants] pockets" caused by "several items in both pockets." According to the officer, he asked if Soto had a weapon. Soto said he did not. Because the officer did not "feel safe to communicate with [Soto] until [he] found out if [Soto] had weapons or not," he told Soto he was "going to pat [him] down [to] make sure [he didn't] have any weapons." Soto then "put his hands up in the air," and the officer patted him down and found a handgun in his right front pocket.
¶4 The State charged Soto with misconduct involving weapons, based on his status as a prohibited possessor. Before trial, Soto moved to suppress the handgun. Following an evidentiary hearing, the superior court granted the motion, finding the officer had seized Soto the moment he told him he was going to pat him down, and concluding, under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the officer lacked "sufficient articulable reasonable suspicion of criminal activity" for Soto to have been detained, or "seized." On the State's motion, the superior court dismissed the case without prejudice, and the State then filed this appeal.
The superior court also held the officer "may have had good reason to believe [Soto] was armed," but found "a complete vacuum of any indicia to suggest [Soto] was dangerous." Because the officer did not have reasonable suspicion that Soto was involved in criminal activity when he seized him, we do not need to address the superior court's dangerousness finding.
DISCUSSION
¶5 The parties agree—as the superior court found—the officer seized Soto after telling Soto he was "going to pat [him] down." Thus, the issue is whether the officer's seizure and pat-down of Soto was constitutionally reasonable. The State argues it was because the facts, summarized above, combined with the officer's experience and training, constituted reasonable suspicion that criminal activity was "afoot." See Terry, 392 U.S. at 30, 88 S. Ct. at 1884. We disagree.
¶6 Although we review de novo whether the police had reasonable suspicion to seize Soto, we defer to the superior court's "factual findings, including findings on credibility and the reasonableness of the inferences drawn by the officer." State v. Moreno, 236 Ariz. 347, 350, ¶ 5, 340 P.3d 426, 429 (App. 2014) (internal quotations and citations omitted); State v. Ramsey, 223 Ariz. 480, 483, ¶ 10, 224 P.3d 977, 980 (App. 2010). And, we "view the facts in the light most favorable to sustaining the [superior] court's ruling." State v. Gonzalez, 235 Ariz. 212, 213, ¶ 2, 330 P.3d 969, 970 (App. 2014); see also State v. Evans, 237 Ariz. 231, 233, ¶ 6, 349 P.3d 205, 207 (2015) (reiterating appellate court reviews factual findings of superior court on a motion to suppress for abuse of discretion, but its ultimate legal determination de novo).
¶7 The Fourth Amendment protects people from "unreasonable searches and seizures." U.S. Const. amend. IV. Of course, "not all seizures are constitutionally unreasonable." State v. Serna, 235 Ariz. 270, 272, ¶ 8, 331 P.3d 405, 407 (2014) (citing Elkins v. United States, 364 U.S. 206, 222, 80, S. Ct. 1437, 1446, 4 L. Ed. 2d 1669 (1960)). A police officer may make a seizure with "an articulable, reasonable suspicion that the suspect is involved in criminal activity." State v. Woods, 236 Ariz. 527, 530, ¶ 11, 342 P.3d 863, 866 (App. 2015) (internal quotations and citation omitted). Although "reasonable suspicion" requires police only articulate some "minimal, objective justification for" a seizure, it "must be more than an inchoate and unparticularized suspicion or hunch." State v. Sweeney, 224 Ariz. 107, 112, ¶ 21, 227 P.3d 868, 873 (App. 2010) (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1 (1989)) (internal quotations omitted). Thus, an "officer's 'reasonable suspicion' must be based on specific, articulable facts, along with rational inferences that arise from those facts." Ramsey, 223 Ariz. at 484, ¶ 17, 224 P.3d at 981 (citing Terry, 392 U.S. at 27, 88 S. Ct. at 1883). "In deciding whether the police have a particularized and objective basis for suspecting that a person is engaged in criminal activity, we look at the whole picture, or the totality of the circumstances." Woods, 236 Ariz. at 530, ¶ 11, 342 P.3d at 866 (internal quotations and citation omitted).
¶8 Applying these principles to the facts here, we cannot agree with the State—the rational inferences arising from the totality of circumstances amount to, at most, an inchoate and unparticularized suspicion or hunch. At the suppression hearing, the officer testified he found Soto "just suspicious":
Q: Okay. And in this situation what crime had he committed?
A: I didn't know. I didn't know why he was in the bushes. He was just suspicious at this time.
Q: Suspicious for looking for an Easter present on Easter morning?
A: Correct, in someone else's yard.
Q: In his neighbor's yard?
A: Correct.
Q: But you didn't talk to the neighbor?
A: No.
Q: So at that time he wasn't suspected of any crime?
A: He was just suspicious.
Q: Just suspicious?That a law enforcement officer believes a person is "just suspicious" does not equate to reasonable suspicion that the person is involved in criminal activity. Thus, we agree with the superior court that the officer lacked "sufficient articulable reasonable suspicion of criminal activity" to seize Soto.
A: Yes.
We recognize that at the suppression hearing, the officer also testified he "believed that [Soto] was possibly getting ready to burglarize a house." Yet, when questioned further about the circumstances, the officer testified, as quoted above, that he had found Soto "just suspicious." As we read its ruling on the suppression motion, the superior court implicitly rejected the officer's testimony that he believed Soto might be "getting ready to burglarize a house" because the officer also testified Soto would have been free to leave at any time before the pat-down. To quote the court: "[If the officer] had reasonable suspicion of criminal activity just prior to the search (as the State asserts), that position belies the claim that the officer would have let [Soto] depart at that time if [Soto] decided to leave rather than submit to the search." As discussed above, on a motion to suppress, we defer to the superior court's factual findings, including its findings on credibility and the reasonableness of the inferences drawn by the officer. See supra ¶ 6.
¶9 The superior court's conclusion is not affected by the fact that the officer described Soto as being "jittery" when he confronted him. "It is common knowledge that most citizens . . . whether innocent or guilty, when confronted by a law enforcement officer who asks them potentially incriminating questions are likely to exhibit some signs of nervousness." State v. Magner, 191 Ariz. 392, 397, ¶ 14, 956 P.2d 519, 524 (App. 1998) (quoting United States v. Fernandez, 18 F.3d 874, 879 (10th Cir. 1994)). This is particularly true when, as Soto explained, he was "in shock" and "surprised" by the "officer of the law" "just c[oming] up" on him when was looking for an Easter egg. Without more, this does not support the State's argument that there was an objective reasonable basis for the officer to think Soto was involved in some unarticulable criminal activity.
¶10 The State argues, however, the officer's suspicion, combined with the bulges he saw in Soto's front pants pockets—which led the officer to ask Soto if he had a weapon and then to pat him down when he denied having one—constituted reasonable suspicion that Soto was involved in criminal activity. But, as our supreme court explained in Serna, "when officers consensually engage citizens on the street without having any evidence of wrongdoing, the mere presence of a weapon does not afford officers constitutional permission to search weapons-carrying individuals." Serna, 235 Ariz. at 275, ¶ 23, 331 P.3d at 410.
¶11 Although, as noted, we review the ultimate legal determination of reasonable suspicion de novo, see supra ¶ 6, the State nevertheless argues the superior court's ruling was "erroneous" for four reasons. First, the State argues the superior court's ruling was "internally inconsistent" because it "utilized the presence of reasonable suspicion as the basis for determining the moment of seizure, while subsequently finding there was no reasonable suspicion to justify the stop." This argument, however, misconstrues the superior court's findings. The superior court found the officer seized Soto when he told Soto he was going to do a pat-down. The superior court stated: "[I]t is noted that [the officer] did not ask [Soto] if he could frisk him; rather, the officer told [Soto] that he was going to do a pat-down." As the superior court correctly recognized, when the officer told Soto he was going to pat him down, he seized Soto. A reasonable person would not have felt free to walk away. Id. at 273, ¶¶ 11-12, 331 P.3d at 408 (reasonable person would not have felt free to disregard law enforcement officer's command to put your hands on your head; whenever a police officer restrains a person's freedom to walk away, he has seized that person); State v. Rogers, 186 Ariz. 508, 510, 924 P.2d 1027, 1029 (1996) ("for a police investigatory stop to occur, a person must reasonably believe, in view of all of the circumstances . . . that he is not free to leave"). We see no inconsistency in the superior court's findings or conclusions.
¶12 Second, the State asserts the superior court failed to consider "the nature of the 911 call" in its reasonable suspicion analysis. We disagree.
¶13 The superior court referenced the 911 call numerous times during the evidentiary hearing, and expressly acknowledged the State's argument "that the existence of the bulges, combined with the mannerisms of the defendant, combined with the 911 call, gave" rise to reasonable suspicion. In addition, the first item the superior court noted during the evidentiary hearing, and the first finding the superior court made in ruling on the suppression motion was the fact that "a 911 suspicious person call" initiated the officer's investigation in this case. Far from ignoring or downplaying the significance of the 911 call, the superior court engaged in a well-reasoned analysis of the reasonable inferences the officer could have drawn from the totality of the circumstances starting with the 911 call.
¶14 Third, the State argues the superior court "conflated its analyses of reasonable suspicion and probable cause, thereby applying an incorrect legal standard to the facts of this case." Contrary to the State's argument, the superior court's ruling correctly explained the legal standard applicable here: under Terry, an officer must have reasonable suspicion "that the person has committed, is committing, or is about to commit a crime." And, as explained, the superior court correctly applied this standard in concluding the officer did not have "sufficient articulable reasonable suspicion of criminal activity" to justify the seizure and subsequent pat-down of Soto.
¶15 Finally, the State argues the officer had reasonable suspicion to detain Soto because he had reasonable suspicion to believe Soto had lied to him about having a gun. The record does not support this argument. The officer testified that after seeing the bulges in Soto's pockets, and based on the nature of the 911 call and Soto's jitteriness, he suspected Soto might be armed. Because, at that point, the officer did not feel "safe to communicate with" Soto without determining whether he was in fact armed, the officer told Soto he was going to pat him down. The officer did not decide to pat Soto down because he suspected Soto had lied to him about having a weapon.
See generally Ariz. Rev. Stat. ("A.R.S.") § 13-3102(A)(1)(b) (Supp. 2015). Although this statute was modified after the date of Soto's alleged offense, the modification did not affect criminalizing the act of lying to a police officer about the presence of a concealed deadly weapon. --------
CONCLUSION
¶16 Because the circumstances here did not form a particularized objective basis rising to the level of reasonable suspicion to justify a seizure and pat-down, we affirm the superior court's suppression ruling.