State v. Blackmore , 186 Ariz. 630 ( 1996 )

ZLAKET, Vice Chief Justice,

dissenting.

I agree with the majority that the police officer was justified in stopping defendant to conduct an “investigative detention,” but that is where we part company. If being ordered at gunpoint to lie face-down in the dirt, placed in handcuffs, picked up and moved, searched while sprawled over the hood of a police car, and then escorted to the back seat of that vehicle is not enough to cause “a reasonable person, innocent of any crime, [to] reasonably believe that he was being arrested,” State v. Winegar, 147 Ariz. 440, 448, 711 P.2d 579, 587 (1985), I cannot imagine what would be. Thus, I concur in the court of appeals’ opinion and believe it should not be vacated.

The majority is correct that whether defendant was illegally arrested involves a mixed question of law and fact. An appellate court must give deference to the trial court on factual issues because the “trial judge has a more immediate grasp of all the facts of the case, an opportunity to see the parties, lawyers and witnesses, and ... can better assess the impact of what occurs before him.” Id. at 445, 711 P.2d at 584, citing State v. Chapple, 135 Ariz. 281, 297 n. 18, 660 P.2d 1208, 1224 n. 18 (1983); see, e.g., U.S. v. Mitchell, 812 F.2d 1250, 1253 (9th Cir.1987) (court’s findings of fact in suppression hearing reviewed for clear error). Conclusions of law, however, are not accorded such weight. See Ornelas v. United States, — U.S.-, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); see, e.g., U.S. v. Ricardo D., 912 F.2d 337, 339 (9th Cir.1990) (whether seizure of a defendant prior to formal arrest exceeded the bounds of a Terry stop is reviewed de novo). Thus, after considering the factual findings and inferences to be drawn from them, we must “look over the trial court’s shoulder in determining whether the arrest issue was correctly decided.” Winegar, 147 Ariz. at 445, 711 P.2d at 584.

Defendant does not disagree that Officer Wetzel was justified in detaining him for investigative purposes under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), but complains that the officer exceeded the reasonableness of the initial stop and illegally arrested him. He correctly argues that whether a valid Terry stop becomes a de facto arrest depends on all of the surrounding circumstances. See Florida v. Royer, 460 U.S. 491, 506, 103 S.Ct. 1319, 1329, 75 L.Ed.2d 229 (1983); U.S. v. Baron, 860 F.2d 911, 914 (9th Cir.1988); Winegar, 147 Ariz. at 448, 711 P.2d at 587. “The scope [of the detention] must be strictly tied to and justified by the circumstances which rendered its initiation permissible.” Terry, 392 U.S. at 19, 88 S.Ct. at 1878 (internal quote omitted). The purpose of this detention should have been to determine defendant’s identity and reason for being in the alley. See U.S. v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) (reasonable suspicion of criminal activity warrants temporary seizure for questioning limited to purpose of stop). Officer Wetzel’s conduct, however, far exceeded this narrow objective.

The factual recitation of the court of appeals is extremely thorough and needs no repetition. State v. Blackmore, 183 Ariz. 473, 475-76, 904 P.2d 1297, 1299-1300 (App. 1995). Several points, however, deserve special emphasis. When the burglary victims returned home, they heard someone leaving through an open window. A VCR was missing. The victims got into their ear and drove around the block. All they saw was an orange vehicle in an alley connected to the one in which the burglar presumably fled. They subsequently called the police. Officer Wetzel, who had less than one year’s experience, was the first to respond. He entered the alley with his gun drawn, aimed the weapon at defendant, and ordered him to the ground. The officer would later testify that nothing linked defendant or the orange car to the burglary other than proximity to the crime scene.

Having first ensured his “own safety” by positioning defendant so he could “see his hands” at all times, and having received total cooperation in return, Officer Wetzel did nothing to ascertain defendant’s identity or purpose for being in the alley. The “suspect” was not asked his name, what he was doing, whether he saw anyone else, or if the orange car was his. The officer also failed to perform a routine computer check of the vehicle’s license plates. See Royer, 460 U.S. at 500, 103 S.Ct. at 1325-26 (“[T]he investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.”). Instead, defendant was handcuffed, taken from the place of his seizure to the patrol car, searched over the hood of that vehicle, led to the back, and placed inside.

The majority relies on State v. Aguirre, 130 Ariz. 54, 633 P.2d 1047 (App.1981), in holding the officer’s actions reasonable. In that case, however, the suspect was seen “sliding under a truck” near the scene of the crime, and the “officer had to coax [the suspect] out from under the truck which showed his lack of cooperation.” Id. at 56, 633 P.2d at 1049. The officer knew nothing of the crime that had occurred, other than that it was believed to be a burglary. He was aware, however, that the suspect was a convicted felon. The court found a pat down for weapons proper under Terry. It also held that handcuffing and placing the suspect in a patrol car was reasonable “until the officer could get more information about the reported crime.” One policeman had to stay with the suspect “who had acted evasively and hidden earlier. The officers had reason to believe appellant might try to escape.” Id.

Here, in contrast, Officer Wetzel knew everything there was to know about the reported crime. Before approaching defendant, he was advised that the victims heard someone exit their home into an adjacent alley and that a VCR was missing. Wetzel admitted he did not take defendant back to the house because he knew the “victims didn’t see ... the suspect.” Defendant never attempted to hide or escape. He was fully cooperative and immediately immobilized. Furthermore, additional officers arrived on the scene within minutes of the initial encounter. Thus, after a very short time, there was no objectively reasonable basis upon which to fear that Blackmore might be armed, dangerous, or a flight risk. Police action must be justified by specific and articulable facts. Except as enhanced by generous amounts of supposition, the majority points to none. Cf. Allen v. City of Los Angeles, 66 F.3d 1052 (9th Cir. 1995) (forcing occupant at gunpoint to exit car and lie on ground, handcuffing, frisking, placing him in patrol car, and questioning him was reasonable and justified where stop occurred in high-crime area, at night, after lengthy high-speed chase, another occupant was non-eompliant and combative, and officers could not rule out possibility car was stolen).

Officer Wetzel apparently never intended a limited inquiry into defendant’s identity and purpose in the alley; otherwise, he would have immediately pursued it. He admitted defendant was never free to leave — that is why he was placed in handcuffs and led to the police car. This was not a limited intrusion; it was, quite plainly, an arrest.

In reviewing the facts and circumstances of each case, we must be mindful of the narrow scope of the Terry exception — an exception based on a brief, street encounter between police and a suspect. To do otherwise would be to risk allowing the ‘exception ... to swallow the general rule that Fourth Amendment seizures are reasonable only if based on probable cause.’

Ricardo D., 912 F.2d at 340, citing Dunaway v. New York, 442 U.S. 200, 213, 99 S.Ct. 2248, 2257, 60 L.Ed.2d 824 (1979).

I also agree with the court of appeals that defendant’s “consent,” given under such circumstances, was likely the product of his illegal arrest. I simply cannot find any evidence in the record purging the impermissible taint. See State v. Monge, 173 Ariz. 279, 842 P.2d 1292 (1992). The majority admits that 2 of the 4 factors enumerated in Broten v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62, 45 L.Ed.2d 416 (1975), temporal proximity and lack of intervening circumstances, weigh “in favor of exclusion.” Ante at 635, 925 P.2d at 1352. As to the third, it merely announces the sweeping conclusion that consent was “voluntarily” given, ignoring completely the frightening, demeaning, and oppressive circumstances in which defendant found himself through no fault or misconduct of 'his own. He was a captive, together with all that that implies. For the majority, however, the one “dispositive” fact that makes everything right is the officer’s purely subjective claim that he was acting “out of concern for his own safety.” Ante at 635, 925 P.2d at 1352. As previously shown, I find little evidentiary support for this assertion, nor do I believe it alone would be legally sufficient to render this incident harmless. The officer had at best a generalized, non-specific concern about his well-being. While I share the majority’s regard for the safety of law enforcement personnel, I cannot agree that defendant’s treatment was proper in the context of this Terry stop.

Therefore, I respectfully dissent.

FELDMAN, C.J., concurs.