In re Ilono H., 2 CA-JV 2004-0090.
Court | Court of Appeals of Arizona |
Citation | 210 Ariz. 473,113 P.3d 696 |
Docket Number | No. 2 CA-JV 2004-0090.,2 CA-JV 2004-0090. |
Parties | In re ILONO H. |
Decision Date | 17 June 2005 |
Barbara LaWall, Pima County Attorney, By Peter Hochuli, Tucson, for State.
Robert J. Hooker, Pima County Public Defender, By Paul Holbrook, Tucson, for Minor.
¶ 1 Ilono H., born April 28, 1988, appeals from the juvenile court's denial of his motion to suppress evidence; from his adjudication as a delinquent for possessing or consuming alcohol, a class one misdemeanor, and possession of a narcotic drug for sale, a class two felony; and from the disposition order placing him on probation for twelve months. Because we agree with Ilono that the juvenile court erred in denying his motion to suppress, we reverse his adjudication and remand this case for the reasons set forth below.
¶ 2 We review only the evidence presented at the suppression hearing, State v. Blackmore, 186 Ariz. 630, 631, 925 P.2d 1347, 1348 (1996), and we view it in the light most favorable to upholding the juvenile court's factual findings. State v. Hackman, 189 Ariz. 505, 508-09, 943 P.2d 865, 868-69 (App.1997). At 6:45 p.m. on June 23, 2004, Tucson Police Officers Pegnato and Garcia were patrolling in their vehicle near a park on the south side of Tucson in an area of known drug and gang activity when they saw a group of five individuals, including Ilono, sitting underneath a ramada that was marked with gang graffiti. Officer Pegnato testified that the [. Ilono was one of the individuals wearing red, baggy clothing. Pegnato testified that such clothing is often associated with gang members who frequently carry weapons. During the pat-down search, she discovered that Ilono had a forty-ounce bottle of beer under his clothes, and she arrested him for possessing alcohol. Officer Garcia then conducted a search incident to the arrest and found a small plastic bag in Ilono's pants pocket that was later determined to contain cocaine. Ilono told the officers that the cocaine belonged to him and that, although he did not use cocaine, he sold it.1
¶ 3 Ilono argued below that, because Officer Pegnato was unable to articulate a reason for believing that he had been involved in criminal activity or that he had been armed, the initial stop and pat-down search were unconstitutional under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The juvenile court denied Ilono's motion to suppress the cocaine, finding that "the officer [had] acted appropriately under the circumstances[,]... that she articulated well her concerns when approaching the group[,] ... [and that] they rise to the level of permitting a pat-down search." Ilono has timely appealed that ruling. Although we view the evidence presented at the suppression hearing in the light most favorable to upholding any factual findings, the question of whether the police had reasonable suspicion to conduct an investigatory stop is a mixed question of law and fact that we review de novo. See State v. Rogers, 186 Ariz. 508, 510, 924 P.2d 1027, 1029 (1996)
.
711 P.2d at 585; In re Steven O., 188 Ariz. 28, 31, 932 P.2d 293, 296 (App.1997).
¶ 5 The state presented no evidence that would support an officer's reasonable suspicion that any of the individuals under the ramada, including Ilono, was engaged in any criminal activity. In fact, Officer Pegnato acknowledged that she had initially approached the group simply because they were wearing clothing associated with gangs in a park frequented by gang members. Pegnato also noted in other testimony that one of the individuals in the group, E., was a known gang member with prior law enforcement contacts and that there had been several comparatively recent incidents of criminal activity in the park, including acts of violence directed at police officers. But she conceded that neither E. nor any other person under the ramada matched the description of anybody wanted by the police.
924 P.2d at 1030 ( ); State v. Stricklin, 191 Ariz. 245, 246, 955 P.2d 1, 2 (App.1996) ( ). And we cannot authorize officers to conduct investigatory detentions of individuals merely because they have worn the wrong color clothing in the wrong part of town. See Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357, 362-63 (1979) ( ).
¶ 7 However, the conclusion that the officers lacked a reasonable basis for an investigative stop does not end our inquiry. At the suppression hearing, Officer Pegnato implied, and the state maintained, that the officers' actions had not implicated the standards set forth in Terry and its progeny because the individuals under the ramada were never detained and were free to leave until the officers developed cause to arrest Ilono. And the record shows that the officers initially took no actions, and made no statements, that would have led Ilono to believe that he could not voluntarily depart.
115 L.Ed.2d at 400. Under such circumstances, we would find no constitutional infirmity in the officers approaching Ilono to make an inquiry to the extent Ilono consented to it.
¶ 9 However, the officers' actions that led to the discovery of the inculpatory evidence involved a far greater intrusion on Ilono's liberty than mere voluntary questioning. In fact, the record suggests that Pegnato conducted a pat-down frisk of Ilono even before she asked a single question of him. In Terry, the Supreme Court implied that a pat-down search of a defendant must be characterized as a search and seizure. 392 U.S. at 19,88 S.Ct. at 1879,20 L.Ed.2d at 904-05 (); see also Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 1903, 20 L.Ed.2d 917, 935 (1968)
(. ) Thus, "[a] pat down is unquestionably a search covered by the Fourth Amendment." Leveto v. Lapina, 258 F.3d 156, 163 (3d Cir.2001).
32 L.Ed.2d at 617 ( ). The facts here arguably would have supported...
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