5/9/16 In State v. Anthony Benard Primous, Ct. Apps., No. 1 CA-CR 15-0181 (5/5/16) the defendant was charged with possession of marijuana which was found on his person after he was searched by a Phoenix Police Officer. In the trial court the defendant filed a motion to suppress the use of the marijuana by alleging that the police lacked reasonable suspicion to search him. Had the defendant been successful with his motion the case would have been dismissed. A hearing was held on the motion at which the following evidence was produced:
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. 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. 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. Ohland immediately began patting down the remaining men for weapons. One of the men (not Defendant) either volunteered or 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.
The trial court denied the defendant’s motion to suppress and in doing so said:
“[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.”
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.
Upon appeal the court of appeals held the trial court was correct to deny the defendant’s motion to suppress. In doing so the court of appeals said the standard is:
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.. First, to support the stop, law enforcement must “reasonably suspect[ ] that the person apprehended is committing or has committed a criminal offense.” Second, to support the frisk, law enforcement must “reasonably suspect that the person stopped is armed and dangerous.” “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. “[D]ue weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.”
The court of appeals said the defendant’s presence in a dangerous neighborhood with individuals who fled the scene and of whom on had marijuana on him was enough to justify a search of the defendant for officer’s safety and therefore the motion to suppress had been properly denied.
The case may be found at:
http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2016/1CA-CR15-0181.pdf
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