In re Roy L.

• Decision Date: 13 January 2000
• Docket Number: No. 1 CA-JV 99-0097.,1 CA-JV 99-0097.
• Parties: In re ROY L.
• Court: Arizona Court of Appeals

4 P.3d 984

197 Ariz. 441

In re ROY L.

No. -0097.

Court of Appeals of Arizona, Division 1, Department D.

January 13, 2000.

As Amended February 3, 2000.

Law Office of A. Douglas LaSota, P.C. by A. Douglas LaSota, Phoenix, Attorney for Appellant.

Richard M. Romley, Maricopa County Attorney by Rene Williams, Deputy County Attorney, Phoenix, Attorneys for Appellee.

OPINION

GERBER, Judge.

¶ 1 The juvenile, Roy L., appeals from denials of his motions to suppress and for judgment of acquittal and from his adjudication as a delinquent. For the reasons set forth, we affirm. We publish this decision for guidance in dealing with guns on or near school property.

FACTS AND PROCEDURAL HISTORY

¶ 2 At approximately 9:00 A.M. on April 16, 1999, Phoenix Police Officer Randall Goins, a resource officer at Alhambra High School, received a radio transmission from a school security guard that an Alhambra student, then at a market across the street from the school, had been showing a gun to several students. The security guard had obtained this information from another student earlier that morning. Goins met with the security guard on the east side of the campus, where the guard pointed out this juvenile as the suspect with the firearm. The juvenile was then standing on a corner in front of the market. Goins retrieved binoculars from his car and identified the juvenile as an Alhambra High School student.

¶ 3 Goins then got in his patrol car and drove to the market, keeping the juvenile in sight. As he approached the market, the juvenile began to walk around the north side of the market. The officer then drove around to the north side of the market, and the juvenile started going back towards its west side at a hurried pace. The officer noticed that the juvenile was a Hispanic male teenager wearing baggy white pants and an untucked blue shirt. He could not see a firearm.

¶ 4 Goins got out of his patrol car, pointed at the juvenile and yelled, "Hey you." He drew his gun and, standing sideways from the juvenile, held it at his side behind his leg where the juvenile could not see it. The officer asked the juvenile to come over to his patrol car and talk to him. The juvenile walked towards Goins with his hands on his head. The officer asked, "Do you have a gun?" to which the juvenile responded, "Yeah."

¶ 5 Goins then brought his gun to "low-ready" position, approached the juvenile, and asked him to place his hands on the patrol car, which he did. The officer patted down the juvenile's exterior clothing with his left hand and felt what he recognized to be the handle of a revolver-type weapon in the right front pants pocket. He asked, "Is this the gun?" to which the juvenile responded, "Yes, it is." Goins then lifted up the juvenile's shirt and saw a stainless steel six shot revolver protruding from his pocket. He removed the weapon, ensured that the juvenile had no other weapons, and placed him under arrest for carrying a concealed weapon. He asked the juvenile's age, and the juvenile responded that he was sixteen. After the arrest, Goins handcuffed him, put him into the patrol car, and drove him to his office at the school, where he read him the juvenile Miranda rights, which the juvenile indicated he understood. He declined to have his parents present during questioning.

¶ 6 The juvenile told the officer that he had taken the gun from his father's truck that morning because he had been threatened at gunpoint by a rival gang member the day before. The juvenile admitted that he knew it was against the law to carry the gun and that he had not seen the gang member who had threatened him. He was charged with being a minor in possession of a firearm in violation of Arizona Revised Statutes Annotated ("A.R.S.") section 13-3111 (Supp.1998), a class 6 felony, and misconduct involving weapons in violation of A.R.S. section 13-3102 (Supp.1998), a class 1 misdemeanor. The second count was dismissed at the adjudication hearing. He filed a motion to suppress all direct and indirect evidence resulting from his stop, search and arrest, and all statements obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The court denied the motion to suppress and later denied the juvenile's motion for judgment of acquittal and found him delinquent with regard to the possession of a firearm count, for which he was committed to the Arizona Department of Juvenile Corrections. He filed a timely appeal.

DISCUSSION

A. Denial of the Motion to Suppress

¶ 7 A trial court's ruling on a motion to suppress will be reversed only for clear and manifest error. See Maricopa County Juvenile Action No. JT30243, 186 Ariz. 213, 216, 920 P.2d 779, 782 (App.1996). We view the facts in a light most favorable to sustaining the trial court's ruling. See State v. Smith, 136 Ariz. 273, 275, 665 P.2d 995, 997 (1983)

. We review de novo the court's ultimate legal determinations such as whether police had a reasonable suspicion of criminal activity that justified an investigatory stop and whether the stop constituted a de facto arrest. See, e.g., State v. Rogers, 186 Ariz. 508, 510, 924 P.2d 1027, 1029 (1996).

¶ 8 A police officer with a reasonable and articulable suspicion that a person is involved in criminal activity may make a limited investigative stop. See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)

. "[T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion."

Id. The United States Supreme Court explained in Adams v. Williams:

A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.

407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

¶ 9 The juvenile argues that the investigatory stop here was an unreasonable seizure under the Fourth Amendment because Goins lacked reasonable suspicion of any criminal activity. He claims that hearsay from an unidentified student is insufficient to justify a Terry stop. No precise definition exists for "reasonable suspicion." Rather, the standard requires the "totality of the circumstances—the whole picture—[to] be taken into account." United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Our supreme court has stated:

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."

State v. Rogers, 186 Ariz. at 511, 924 P.2d at 1030 (quoting Ornelas v. United States, 517 U.S. 690, 695, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)).

¶ 10 Here, Goins received information from the school security guard that the juvenile had a gun in his possession. The security guard had been told that the juvenile had been showing the gun to others, and the guard was able to point the juvenile out to the officer. A tip from an informant can provide an adequate basis for a stop. See Adams v. Williams, 407 U.S. at 146, 92 S.Ct. 1921

. Here, the tipster was not simply an anonymous telephone informant but a fellow student who had personally given the information about the juvenile to the guard.

¶ 11 Because the juvenile was wearing baggy clothes and an untucked shirt, Goins was unable to discern by looking at him whether he had a gun. When the officer drove to the market, the juvenile seemed to be trying to avoid him. These facts, together with the unidentified student's statement to the security guard, gave Goins reasonable suspicion to stop the juvenile and inquire. The juvenile court properly concluded that the stop was justified under Terry. "The standard for determining the validity of a Terry stop is whether `a reasonably prudent [person] in the circumstances would be warranted in the belief that his safety or that of others was in danger.' " State v. Blackmore, 186 Ariz. 630, 633, 925 P.2d 1347, 1350 (1996) (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868).

¶ 12 We disagree with the juvenile's argument that the stop exceeded the scope of a permissible Terry stop and became an illegal de facto arrest because Goins drew his weapon. "Police are permitted to draw their weapons when they have reasonable basis to fear for their safety; by doing so, they do not convert an investigative stop into an arrest." State v. Saez, 173 Ariz. 624, 627, 845 P.2d 1119, 1122 (App.1992). Here, the officer had information that the juvenile possessed a firearm. Nevertheless, he never pointed his weapon at the juvenile before the juvenile admitted having a gun. After that point, the officer moved his gun into a "low-ready" position. After the juvenile's admission, Goins had probable cause to arrest him for possession of a firearm.

¶ 13 The juvenile also contends that the trial court erred in failing to suppress his statement that he had a gun on his person, which was made in response to Goins' questioning prior to the Miranda warnings. Police officers are required to administer Miranda warnings prior to conducting "custodial interrogation." Miranda, 384 U.S. at 444, 86 S.Ct. 1602. "Custodial interrogation" in Arizona occurs "when police have both reasonable grounds to believe that a crime has been committed and reasonable grounds to believe that the person they are questioning is the one who committed it." State v. Pettit, 194 Ariz. 192, 195 ¶ 15, 979 P.2d 5, 8 ¶ 15 (App.1998).

¶ 14 Although Goins had the requisite reasonable suspicion to stop the juvenile, he did not know that the juvenile was committing the crime of possession of a firearm until after he admitted that he was carrying a gun. The officer's question as to whether he had a gun was therefore part of the investigation or...