State v. Rogers

• Citation: 924 P.2d 1027,186 Ariz. 508
• Decision Date: 17 September 1996
• Docket Number: No. CR-95-0555-PR,CR-95-0555-PR
• Parties: The STATE of Arizona, Appellant, v. Clive ROGERS, Appellee.
• Court: Supreme Court of Arizona

Page 1027

924 P.2d 1027

186 Ariz. 508

The STATE of Arizona, Appellant, v. Clive ROGERS, Appellee.

No. CR-95-0555-PR.

Supreme Court of Arizona,

In Banc.

Sept. 17, 1996.

As Amended Sept. 27, 1996.

[186 Ariz. 509] Stephen D. Neely, Pima County Attorney by David Ramage-White, Deputy County Attorney, Tucson, for Appellant.

Susan A. Kettlewell, Pima County Public Defender by William J. Kirchner, Deputy County Public Defender, Tucson, for Appellee.

OPINION

MOELLER, Justice.

STATEMENT OF THE CASE

In this narcotics case, the trial court granted defendant's motion to suppress because it found an investigatory stop violated the Fourth Amendment. Two police officers had stopped defendant because he emerged at night from behind some large bushes in a darkened residential area, walked down the middle of the road, and stared at two other police officers as they conducted a traffic stop. The court of appeals reversed in a memorandum decision. We granted defendant's petition for review and have jurisdiction pursuant to article VI, section 5(3) of the Arizona Constitution. We affirm the trial court.

FACTS AND PROCEDURAL HISTORY

While two uniformed police officers were conducting a traffic stop at about 10:20 p.m. one night, one of them saw defendant emerge with another individual from behind a couple of large bushes in a darkened residential area, walk down the middle of the street, and stare at the officers. The officers radioed two other officers they knew to be nearby in an unmarked car investigating a suspected drug house and asked those officers to stop the men and "find out who they were and what they were up to." The other officers then approached the defendant and his companion. One of them held his badge in his hand to identify himself and said, "police officers, we need to talk to you."

Defendant said something to the effect of "why are you cops always hassling us?," put his right hand in his pocket, started backing up, and then ran. One of the officers chased him, yelling at one point "not to dump it." Defendant continued to run and eventually entered a house. The court of appeals concluded that defendant lived in the house. The record is, to us, inconclusive on this point. In any event, the officer in pursuit approached the house and told the woman who answered the door that he was looking for a black male who had run inside. The officers called uniformed officers to the scene. Ultimately, defendant came out of the house voluntarily, whereupon he was patted down and handcuffed. A police search of the interior of the house and the back yard yielded nothing. Officers then retraced the route of the chase and found a baggy containing what appeared to be crack cocaine near a wall defendant had jumped over during the chase.

Defendant was charged with unlawful possession of a narcotic for sale. Prior to trial, defendant moved to suppress the baggy and its contents as fruit of an investigatory stop violative of the Fourth Amendment. ¹ The trial court found that during the initial stop a reasonable person would not have felt free to disregard the police and go about his business. Therefore, the court held the stop was an investigatory stop, requiring the police to have an articulable suspicion of criminal activity. The court found that the required articulable suspicion was absent under the facts leading up to the stop.

The court of appeals reversed, holding that "While we might agree with the trial court that 'a reasonable person under the circumstances would not have felt free to disregard the police and go about his business,' we do not agree that such a subjective perception is sufficient by itself to constitute a Fourth Amendment seizure." We agree with the trial court's determination and accordingly vacate the court of appeals' decision. ²

DISCUSSION

In order for a police investigatory stop to occur, a person must reasonably believe, in view of all the circumstances surrounding the incident, that he is not free to leave. See Ornelas v. United States, --- U.S. ----, ----, 116 S.Ct. 1657, 1660, 134 L.Ed.2d 911 (1996); Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988). "An investigatory stop is permissible under the Fourth Amendment if supported by reasonable suspicion" that criminal activity is afoot. Ornelas, --- U.S. at ----, 116 S.Ct. at 1660; see Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968). In reviewing investigatory stops we defer to the trial court's findings of fact absent abuse of discretion. See Ornelas, --- U.S. at ---- n. 3, ----, 116 S.Ct. at 1661 n. 3, 1663. However, whether the police had a reasonable suspicion of criminal activity that justified conducting an investigatory stop is a mixed question of law and fact which we review de novo. See Ornelas, --- U.S. at ----, 116 S.Ct. at 1663.

The trial court's findings of fact are supported by the record. Given those facts, we hold that it was reasonable for defendant to feel that he was not free to leave. See United States v. Saperstein, 723 F.2d 1221, 1226 (6th Cir.1983) (presence of second officer relevant to reasonableness inquiry); United States v. Wood, 981 F.2d 536, 539 (D.C.Cir.1992) (time and place of encounter relevant). The fact that an officer pursued defendant when he did leave shows just how reasonable it was for defendant to believe his freedom was being restricted.

The state relies on Florida v. Bostick, which held that "no seizure occurs when police ask questions of an individual, ask to examine the individual's identification, and request consent to search his or her luggage--so long as the officers do not convey a message that compliance with their requests is required." 501 U.S. 429, 437, 111 S.Ct. 2382, 2388, 115 L.Ed.2d 389 (1991). The state argues that the officers who stopped defendant "did not convey a message of required compliance." In Bostick, the officers specifically advised the defendant that he could refuse consent to have his luggage searched. Id. Here, the officers who approached defendant and his companion said, "police officers, we need to talk to you." Under the facts of this case, we hold that the trial court appropriately concluded that a reasonable person under the circumstances would not have felt free to disregard the police and go about his business--a conclusion supported by defendant's attempt to leave resulting in his chase and arrest.

We now turn to a determination of whether the officers had a reasonable suspicion that criminal activity was afoot as required by Terry. "Articulating precisely what 'reasonable suspicion' ... mean[s] is not possible. [It is a] commonsense, nontechnical concept[ ] that deal[s] with 'the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' " Ornelas, --- U.S. at ----, 116 S.Ct. at 1661 (quoting Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949)). Terry requires articulable reasons for an investigatory stop. Terry, 392 U.S. at 21, 88 S.Ct. at 1880. Here, the police said only that it was dark, that defendant and his companion emerged from behind some large bushes in a darkened residential area, walked down the middle of the road, and stared at the officers while they were making a traffic stop. This is insufficient justification for an investigatory stop. Therefore, if there was a stop (seizure), it was illegal.

For purposes of the Fourth Amendment, a seizure of a person occurs only "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Terry 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16. In California v. Hodari D. the United States Supreme Court held that, absent physical force, an individual must yield to a show of authority for a seizure to occur. 499 U.S. 621, 625-26, 111 S.Ct. 1547, 1550-51, 113 L.Ed.2d 690 (1991). In Hodari D. the Court found that no seizure had occurred when a defendant ran after seeing a police car approaching him and his companions. 499 U.S. at 622-23, 629, 111 S.Ct. at 1549, 1552.

In the case before us defendant stopped, albeit briefly, and spoke to the officers before running. This case is therefore more akin to United States v. Morgan, decided by a federal circuit court two months after Hodari D. 936 F.2d 1561 (10th Cir.1991), cert. denied, 502 U.S. 1102, 112 S.Ct. 1190, 117 L.Ed.2d 431 (1992). In Morgan, the defendant was a passenger in a vehicle which police had followed for several blocks with red lights flashing. When the driver pulled into his driveway the defendant exited the car and was told by a police officer to "hold up." Defendant replied, "What do you want?" and began backing away. The officer told the defendant not to run, but he did anyway. On these facts the Morgan court found that, unlike the defendant in Hodari D., the defendant had "momentarily yielded" and that a seizure had, therefore, occurred. Morgan, 936 F.2d at 1565, 1567. In Morgan, the seizure was deemed valid because the officers had a reasonable, articulable suspicion justifying the stop. Morgan, 936 F.2d at 1567-68. Insofar as the stop is concerned, the instant case, like Morgan, is distinguishable from Hodari D. Unlike Morgan, however, the officers here had no reasonable articulable suspicion justifying a stop. Therefore, the seizure was invalid.

The only argument made by the state in opposition to suppressing the drugs was that the investigatory stop was legal. Because we hold that this investigatory stop violated the Fourth Amendment, we accordingly hold that the trial court properly suppressed evidence of the drugs.

ABANDONMENT

The court of appeals offered an alternative holding that, even if the investigatory stop was illegal, defendant abandoned the baggy after the stop and during the chase. Inasmuch as the issue of abandonment was not raised by the state in the trial court and no factual record was made on it, it...