Appeal in Pima County Juvenile Delinquency Action No. J-103621-01, Matter of

• Decision Date: 23 February 1995
• Docket Number: No. 2,J-103621-01,CA-JV,2
• Citation: 181 Ariz. 375,891 P.2d 243
• Parties: In the Matter of the APPEAL IN PIMA COUNTY JUVENILE DELINQUENCY ACTION NO.94-0045.
• Court: Arizona Court of Appeals

Page 243

891 P.2d 243

181 Ariz. 375

In the Matter of the APPEAL IN PIMA COUNTY JUVENILE DELINQUENCY ACTION NO. J-103621-01.

No. 2 CA-JV 94-0045.

Court of Appeals of Arizona Division 2, Department B.

Feb. 23, 1995.

[181 Ariz. 376] Susan A. Kettlewell, Pima County Public Defender by Christie C. Sharp, Tucson, for minor.

OPINION

DRUKE, Chief Judge.

The minor appeals from the denial of his motion to suppress evidence, his adjudication as a delinquent, and the dispositional order of probation, arguing that the search of his person was unconstitutional. The state has not responded. That fact alone would permit us to reverse. Navajo County Juvenile Action No. J-3206, 121 Ariz. 407, 590 P.2d 946 (App.1979). We nevertheless exercise our discretion to address the issues raised on their merits.

At the hearing on the motion to suppress, Officer Figueroa testified that he was working as a plainclothes officer riding a bicycle in the parking lot of El Con Mall on November 30, 1993. About 9:00 p.m., he received a report over the radio that some juveniles in a car were looking around, getting in and out of the car, and walking around. Figueroa responded to the location but did not see anyone get in or out of the two-door car in which two people were sitting, one in the front passenger seat and one in the back seat. He rode past the car, looked in the window, and saw numerous unopened cans of beer on the floorboard of the back seat.

Because the passengers appeared to be juveniles, the officer asked the sixteen-year-old minor, who was sitting in the front seat, to step out of the car. The minor complied, and the officer patted him down for weapons, finding none. The officer stated that he felt something soft, as well as a square object, in the minor's left front pants pocket and asked the minor what he had there because he was "just curious to see what [the square object] was." The minor responded that it was a pager, reached inside his pocket, and pulled it out, bringing with it a plastic baggie containing a small amount of marijuana. Figueroa then arrested the minor for possession of marijuana; he did not cite him for possessing the beer.

The juvenile court ruled that the search was not unreasonable, concluding that Officer Figueroa was entitled to ask the minor to step out of the car after he spotted alcohol in the vehicle and that "[h]e does what he's supposed to do; he pats them [sic] down for weapons." The court then noted that, during the pat-down, Figueroa discovered a hard object and a soft object and that the soft object came with the hard object as it was being pulled out.

The minor argues that Figueroa's detention and search exceeded that permitted by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), because the officer observed no conduct by the minor and had no reason to suspect that any criminal activity might be afoot. Under Terry, a police officer is permitted to conduct a limited search for weapons of a person whom the officer reasonably believes is armed and dangerous and whom the officer reasonably suspects is, or is about to be, engaged in criminal activity. United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); State v. Lawson, 144 Ariz. 547, 698 P.2d 1266 (1985). "[I]n determining whether the officer acted reasonably in such circumstances, due 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." Terry, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909.

In this case, when Figueroa was asked on cross-examination why he had asked the minor to get out of the car, he stated: "The suspicious circumstances that were reported to me, and what I observed the juveniles doing at that time." The officer was unable to specify anything he had observed the minor doing. Although Figueroa had received a report that people were getting in and out of a vehicle, that activity, without more, does not create a reasonable suspicion sufficient to justify a Terry stop. See Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). It is undisputed that Figueroa had no report that a specific crime had recently been committed in the area.

On redirect examination, Figueroa acknowledged that in an earlier interview, he had said that he had asked the minor to get out because of the beer. Because it is illegal for a minor to possess alcohol, A.R.S. § 4-244(9), the officer was clearly entitled to investigate that matter further. There is nothing in the record, however, that shows the officer conducted any investigation on possession of the beer. Figueroa did not claim he questioned the juveniles about the beer, and the minor testified that the only question the officer asked was the minor's name. In addition, Figueroa testified on cross-examination that he did not smell any alcohol on the minor's breath.

Even assuming that the officer's initial detention of the minor was lawfully related to investigating the possession of alcohol,...