State v. Primous ( 2016 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA,
Appellee,
v.
ANTHONY BENARD PRIMOUS,
Appellant.
No. 1 CA-CR 15-0181
FILED 5-5-2016
Appeal from the Superior Court in Maricopa County
No. CR2012-005697-001
The Honorable Pamela S. Gates, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Robert A. Walsh
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant
STATE v. PRIMOUS
Opinion of the Court
OPINION
Presiding Judge Peter B. Swann delivered the opinion of the court, in
which Judge Lawrence F. Winthrop and Judge Donn Kessler joined.
S W A N N, Judge:
¶1 Defendant Anthony Benard Primous appeals the superior
court’s denial of his motion to suppress marijuana found when police
frisked him for weapons. Although we reject frisks of lawfully detained
individuals’ companions as a matter of course, we hold, based on the
totality of the circumstances here, that the frisk was justified and the
seizure of the marijuana was lawful. Accordingly, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On February 8, 2012, at approximately 10:15 a.m., five police
officers, including Officers Ohland and Casillas, arrived at a Phoenix
apartment complex in a neighborhood known for violent crimes. They
were looking for an individual who had an outstanding felony arrest
warrant, acting on information that the individual frequented the area,
carried weapons, and sold drugs and weapons.
¶3 Ohland and Casillas approached a group of four men
gathered outside one of the apartments. The officers noticed surveillance
cameras on the apartment. Two of the men were standing; two others
were seated, including Defendant, who held a young child on his lap. The
group appeared to be talking. Defendant did not match the description of
the subject of the arrest warrant.
¶4 Ohland and Casillas identified themselves as police officers
and Ohland, who was dressed in plainclothes with a badge on the outside
of his shirt, asked the men how they were doing. Both officers noticed
that one of the standing men appeared nervous. When that man noticed
the other three officers approaching from a different direction, he ran and
those officers gave chase. The remaining men did not move. Defendant
remained seated with the child. He did not exhibit any nervous behavior
or make any sudden moves, and he was not visibly armed.
¶5 Ohland immediately began patting down the remaining
men for weapons. One of the men (not Defendant) either volunteered or
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STATE v. PRIMOUS
Opinion of the Court
was found to be carrying a small plastic bag of marijuana in his shorts
pocket. Ohland then frisked Defendant and felt an object in his shorts
pocket that had the same size and consistency as the just-recovered drugs.
Ohland removed the object from Defendant’s pocket and confirmed that it
was a baggie of marijuana.
¶6 The state prosecuted Defendant for misdemeanor possession
of marijuana. Defendant moved to suppress the marijuana as the product
of an unlawful search. After holding an evidentiary hearing that
established the foregoing facts, the court denied Defendant’s motion. The
court held that “[b]ased on the totality of the circumstances, [the] officers
had a reasonable suspicion that criminal activity may be afoot,” and “[a]s
a result of the one individual who ran, coupled with the reason for [the
officers’] encounter with the group, the dangerousness of the area, the
number of individuals remaining compared to the number of officers, and
the cameras, [the] officers appropriately decided to perform a pat down
search for officer safety.”
¶7 The matter proceeded to a bench trial, at the conclusion of
which the court found Defendant guilty and placed him on one year of
unsupervised probation. Defendant appeals, challenging the denial of the
motion to suppress.
DISCUSSION
¶8 We review the superior court’s factual findings for abuse of
discretion, but review de novo its legal determination that the search was
lawful. State v. Gilstrap, 235 Ariz. 296, 297, ¶ 6 (2014).
¶9 The Fourth Amendment prohibits unreasonable searches
and seizures. U.S. Const. amend. IV; see also Ariz. Const. art. II, § 8. A
“stop and frisk” in an on-the-street encounter is permissible under the
Fourth Amendment when two conditions are met. Arizona v. Johnson, 555
U.S. 323, 326 (2009). First, to support the stop, law enforcement must
“reasonably suspect[ ] that the person apprehended is committing or has
committed a criminal offense.” Id. Second, to support the frisk, law
enforcement must “reasonably suspect that the person stopped is armed
and dangerous.” Id. at 326-27. “The officer need not be absolutely certain
that the individual is armed; the issue is whether a reasonably prudent
man in the circumstances would be warranted in the belief that his safety
or that of others was in danger.” Terry v. Ohio, 392 U.S. 1, 27 (1968). The
standard is an objective one. Id. at 21-22. “[D]ue weight must be given,
not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the
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specific reasonable inferences which he is entitled to draw from the facts
in light of his experience.” Id. at 27.
¶10 An individual’s presence in a dangerous neighborhood is
not, by itself, sufficient to establish a reasonable, particularized suspicion
that he is committing or has committed a crime. Brown v. Texas, 443 U.S.
47, 52 (1979). That was the situation when Ohland and Casillas first
approached Defendant. Defendant was seated with a child in front of a
residence, in daylight hours, engaged in conversation with a few others.
He exhibited no evasive or aggressive behavior, was not visibly armed,
and neither he nor, apparently, the others in the group matched the
description of the dangerous person the officers sought. His mere
presence outside of a camera-outfitted apartment in a high-crime
neighborhood was insufficient to create a reasonable suspicion that he
was committing or had committed a crime.
¶11 But then one of Defendant’s companions fled, and another
was discovered to have a small baggie of marijuana in his pocket.
Unprovoked flight “is not necessarily indicative of wrongdoing, but it is
certainly suggestive of such,” and it may be considered in connection with
the character of the neighborhood. Illinois v. Wardlow, 528 U.S. 119, 124
(2000). And knowing possession of marijuana is often a crime. A.R.S.
§ 13-3405(A)(1). The question is whether the suggestion of wrongdoing
created by Defendant’s companions justified a frisk of Defendant, who
remained seated and gave no indication of complicity in either the flight
or the drug possession.
¶12 In similar circumstances, some jurisdictions have permitted
officers to frisk a lawfully detained person’s companions as a matter of
course. See Perry v. State, 927 P.2d 1158, 1163-64 (Wyo. 1996) (collecting
cases). We previously expressed approval for such a rule in dictum in
State v. Clevidence, 153 Ariz. 295, 298 (App. 1987).1 But we reject it now.
Like the Sixth Circuit, “we do not believe that the Terry requirement of
reasonable suspicion under the circumstances . . . has been eroded to the
1 In Clevidence, we cited United States v. Berryhill, 445 F.2d 1189 (9th
Cir. 1971), for the proposition that “[t]he right to a limited search extends
to a suspected criminal’s companions at the time of arrest.” 153 Ariz. at
298. In United States v. Bell, 762 F.2d 495, 499 (6th Cir. 1985), the Sixth
Circuit specifically rejected Berryhill. Recently, the Ninth Circuit clarified
that Berryhill does not extend to Terry stops, but rather is limited to
searches incident to arrest. United States v. I.E.V., 705 F.3d 430, 437 n.4 (9th
Cir. 2012).
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Opinion of the Court
point that an individual may be frisked based upon nothing more than an
unfortunate choice of associates.” United States v. Bell, 762 F.2d 495, 499
(6th Cir. 1985) (citation omitted). This approach is consistent with Ybarra
v. Illinois, in which the Supreme Court invalidated the frisk of an
apparently innocuous bar patron during the execution of a search warrant
on the bartender and bar, holding that “a person’s mere propinquity to
others independently suspected of criminal activity does not, without
more, give rise to probable cause to search that person.” 444 U.S. 85, 88,
91 (1979).
¶13 The absence of a per se rule authorizing frisks of a suspect’s
companions does not, however, end the inquiry. We cannot say that the
character or conduct of a person’s companions has no bearing on the
question whether officers may frisk the person. Bell, 762 F.2d at 500
(“[T]he fact of companionship . . . is not irrelevant to the mix that should
be considered in determining whether the agent’s actions were justified.”).
Companionship with a suspected criminal may, in view of the totality of
the circumstances, justify a protective stop and frisk even absent a
particularized reasonable suspicion that the person to be searched is
committing or has committed a crime. See, e.g., Trice v. United States, 849
A.2d 1002, 1004, 1008-09 (D.C. App. 2004) (upholding stop and frisk of
person seen walking with stabbing suspect minutes after the crime);
United States v. Flett, 806 F.2d 823, 827-28 (8th Cir. 1986) (upholding stop
and frisk of person wearing gang attire in home of known gang member
charged with narcotic violation); see also 4 Search & Seizure § 9.6(a),
Westlaw (database updated Oct. 2015) (“This raises the question of
whether the frisk-of-companion rule should be viewed as only permitting
a frisk when the companion himself could have been legitimately stopped
for investigation. Most likely not, for this would not reach all cases in
which the arresting officers would be under a reasonable apprehension.
Even if the companion is not sufficiently suspected so that he could
legitimately be seized for investigation, the circumstances may
nonetheless indicate that the officer should take appropriate
precautions.”). The focus of the inquiry becomes officer and public safety.
See 4 Search & Seizure § 9.6(a). In Arizona v. Johnson, for example, the
Supreme Court held that the driver and all passengers of a vehicle may be
detained during a traffic stop, even absent cause to suspect their
involvement in criminal activity, if the police “harbor reasonable
suspicion that the person subjected to [a] frisk is armed and dangerous.”
555 U.S. at 327. In assessing potential dangerousness, the police may
consider factors such as the nature of the person’s companionship with a
suspected criminal, the environment, and the number of officers present.
4 Search & Seizure § 9.6(a).
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Opinion of the Court
¶14 Despite Defendant’s passivity and the absence of any
objective evidence of criminal collusion with his companions, we cannot
say that Ohland unreasonably suspected that Defendant might be armed
and dangerous. Ohland knew that he was in a dangerous neighborhood
looking for a dangerous individual who dealt drugs and weapons. He
knew that Defendant had just been talking with several men, one of
whom had fled without provocation and another of whom possessed
marijuana. He also knew that he was in view of cameras and that he and
Casillas were outnumbered by Defendant and his group. On these facts,
Ohland justifiably frisked Defendant for weapons. And under the “plain
feel” doctrine, he lawfully removed the baggie of marijuana from
Defendant’s pocket. See Minnesota v. Dickerson, 508 U.S. 366, 375 (1993)
(“If a police officer lawfully pats down a suspect’s outer clothing and feels
an object whose contour or mass makes its identity immediately apparent,
there has been no invasion of the suspect’s privacy beyond that already
authorized by the officer’s search for weapons; if the object is contraband,
its warrantless seizure would be justified by the same practical
considerations that inhere in the plain-view context.”). The superior court
did not err by denying Defendant’s motion to suppress the marijuana.
CONCLUSION
¶15 For the reasons set forth above, we affirm.
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