170 P.3d 667 (Ariz.App. Div. 2 2007), 2 CA-CR 2006-0079, State v. Johnson

Docket Nº:2 CA-CR 2006-0079.
Citation:170 P.3d 667, 217 Ariz. 58
Opinion Judge:OPINION BRAMMER, Judge.
Party Name:The STATE of Arizona, Appellee, v. Lemon Montrea JOHNSON, Appellant.
Attorney:Terry Goddard, Arizona Attorney General By Randall M. Howe and Joseph L. Parkhurst, Tucson, Attorneys for Appellee., Robert J. Hooker, Pima County Public Defender By M. Edith Cunningham, Tucson, Attorneys for Appellant.
Case Date:September 10, 2007
Court:Court of Appeals of Arizona

Page 667

170 P.3d 667 (Ariz.App. Div. 2 2007)

217 Ariz. 58

The STATE of Arizona, Appellee,

v.

Lemon Montrea JOHNSON, Appellant.

No. 2 CA-CR 2006-0079.

Court of Appeals of Arizona, Second Division, Department B.

Sept. 10, 2007

Review Denied Nov. 29, 2007.

Page 668

Terry Goddard, Arizona Attorney General By Randall M. Howe and Joseph L. Parkhurst, Tucson, Attorneys for Appellee.

Robert J. Hooker, Pima County Public Defender By M. Edith Cunningham, Tucson, Attorneys for Appellant.

OPINION

BRAMMER, Judge.

¶ 1 After a jury trial, appellant Lemon Johnson was convicted of unlawful possession of a weapon as a prohibited possessor and possession of marijuana. After finding he had two prior felony convictions, the trial court sentenced him to concurrent, mitigated and presumptive terms of imprisonment of eight years and one year. Johnson contends the trial court erred in denying his motion to suppress, in giving a reasonable doubt instruction mandated by our supreme court in State v. Portillo, 182 Ariz. 592, 898 P.2d 970 (1995), and in finding he has prior convictions without a jury trial. We reverse.

Factual and Procedural Background

¶ 2 When reviewing the denial of a motion to suppress, "we consider only the evidence presented at the suppression hearing and view that evidence and reasonable inferences therefrom in the light most favorable to upholding the court's ruling." State v. May, 210 Ariz. 452, ¶ 4, 112 P.3d 39, 41 (App.2005). Oro Valley Police Officer Maria Trevizo, on assignment with the state gang task force, was on patrol in Tucson with two other officers at approximately 9 p.m. on April 19, 2002. The officers were in an area in which "[d]irectly to the west ... [is] a neighborhood known as Sugar Hill ... that is a gang-related area." Trevizo testified Sugar Hill is associated with the Crips gang, and members of that gang wear blue apparel. Trevizo also noted that "gang members will often, in general, possess firearms."

¶ 3 An officer in Trevizo's vehicle "r[a]n the license plate of a vehicle" and found it had a "mandatory insurance suspension." 1 Trevizo and the other officers in the vehicle "were not investigating gang activity as part of the traffic stop" and were not "targeting [the vehicle] for [their] gang task force function." They also "[did not] know where [the car had] been ... [and did not] know where

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it [was] going." The officers had seen no behavior in the vehicle "indicative of criminal activity."

¶ 4 Johnson was sitting in the rear of the vehicle, with the driver and another passenger in the front seats. Trevizo stated she had no "reason to believe that [Johnson] was engaged in criminal activity or about to engage in criminal activity when [she] made the traffic stop." Johnson "looked back [at the officers], said something to the people in the front, and then continued to look back at [the officers] while [they] initiated the stop." Trevizo testified this was unusual conduct for an occupant of a vehicle being stopped, and it made her nervous. One officer spoke to the driver and "at some point ... asked everybody to put their hands where he [could] see them." He asked whether any of the men in the car had weapons and all the occupants said no. The officer also had the driver exit the vehicle to get "his basic information: driver's license, registration, insurance."

¶ 5 Trevizo examined Johnson for seven indicia of gang affiliation. 2 Johnson was dressed entirely in blue, and had a blue bandanna. Trevizo testified that bandannas are often used "to show ... allegiance or ... affiliation with a certain gang" and that the only indicator she saw was Johnson's blue clothing. The driver of the car, however, was wearing red clothing.

¶ 6 Trevizo said she was "concern[ed]" because Johnson had "a scanner in his jacket pocket," which people normally do not have "unless they're going to be involved in some kind of criminal activity or going to try to evade police by listening to the scanner." It was the first time Trevizo had seen anyone "carry [a scanner] on their person." According to her, "[t]here's nothing illegal about [having a scanner]," but "it's out of the ordinary." Trevizo did not know whether the scanner was turned on or off.

¶ 7 Trevizo began to talk with Johnson, who was still in the vehicle. He was cooperative and told her his name and date of birth but said he did not have any identification on him. He said he was from Eloy, and Trevizo testified there is a "predominant gang [there] called the Trekkle Park Crips." Trevizo asked Johnson if he had spent any time in prison, and Johnson responded that "he had done time for burglary and had been out for about a year."

¶ 8 Trevizo testified she "wanted to gather intelligence about the gang [Johnson] might be in" because "gather[ing] intelligence" was one of her "main missions in the task force." She hoped to learn about how big his possible gang was, where it was located, who its leaders were, and "what kind of crimes they're involved in." She sought to isolate him from the other occupants of the vehicle in the hope he would contribute more information. Her "intentions were only to gather gang intelligence and talk to him." The other passenger remained in the vehicle throughout the encounter, talking to the third police officer. According to Trevizo, Johnson "could have refused [to get out of the car], certainly."

¶ 9 Once Johnson left the vehicle in a normal manner, Trevizo "asked him to turn around," and she "patted him down for officer safety because [she] had a lot of information that would lead [her] to believe he might have a weapon on him." Trevizo did not tell Johnson she planned to pat him down before he got out of the vehicle but "made the decision" when he exited the vehicle. It was "the totality of what happened that evening that led [her] to pat him down." She had "not observe[d] anything that appeared to be criminal" at the time of the pat-down search. She stated he could have refused to turn around and put up his hands for the pat-down search. Trevizo felt the butt of a gun near Johnson's waist when she patted him down. Johnson then began to struggle, and she put handcuffs on him.

¶ 10 Johnson was charged with possession of a weapon by a prohibited possessor, possession of marijuana, and resisting arrest. The trial court denied his motion to suppress the evidence found in Trevizo's pat-down

Page 670

search. A jury found Johnson guilty of the first two charges but not guilty of resisting arrest. This appeal followed.

Discussion

¶ 11 Johnson asserts the trial court erred when it denied his motion to suppress. "We review a trial court's ruling on a motion to suppress evidence for an abuse of discretion if it involves a discretionary issue, but review constitutional issues and purely legal issues de novo." State v. Moody, 208 Ariz. 424, ¶ 62, 94 P.3d 1119, 1140 (2004) (citation omitted).

¶ 12 Johnson contends the frisk was unconstitutional because his encounter with Trevizo was consensual. Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), an officer may conduct an investigatory stop if the officer has " 'a reasonable suspicion supported by articulable facts' " that criminal activity may be occurring. In re Ilono H., 210 Ariz. 473, ¶ 4, 113 P.3d 696, 697 (App.2005), quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989). "Then, if the officer 'has reason to believe that the suspect is armed and dangerous,' the officer may conduct a limited search for weapons." Id., quoting Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). An officer may not, however, conduct a pat-down search during a consensual encounter if the officer lacks reasonable suspicion that criminal activity is occurring, even if the officer has reason to believe a suspect may be armed and dangerous. Ilono H., 210 Ariz. 473, ¶ 11, 113 P.3d at 699.

¶ 13 In Ilono H., two police officers approached a group of five individuals who were sitting under a ramada in a park that was known for drug and gang activity. 210 Ariz. 473, ¶ 2, 113 P.3d at 697. Ilono was wearing red, baggy clothing, and an officer testified such clothing is often worn by gang members who frequently carry weapons. Id. One officer conducted a pat-down search and found a bottle of beer hidden under Ilono's clothes. Id. Ilono was arrested for underage possession of alcohol, and officers later found cocaine in a further search conducted incident to his arrest. Id. This court found "[t]he 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." Id. ¶ 5.

¶ 14 However, this finding did not end the inquiry. The state also contended "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." Id. ¶ 7. This court rejected that argument, finding "[b]oth Arizona jurisprudence and other persuasive authority suggest that an officer's right to conduct a pat-down search should be predicated on the officer's right to initiate an investigatory stop in the first instance." Id. ¶ 12. We stated:

Terry and its Supreme Court progeny addressed the propriety of a pat-down search exclusively in the context of a lawful investigatory stop. We do not read those cases to authorize a pat-down search as part of a mere consensual encounter--even when an officer may have grounds to believe the targets of the encounter are potentially armed and dangerous.

Id. ¶ 11 (footnote omitted). We also quoted United States v. Burton, 228 F.3d 524, 528 (4th Cir.2000), for the following proposition:

[A]n officer may encounter citizens and attempt to question them without implicating the Fourth...

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