State v. Baltier

• Decision Date: 28 June 1972
• Docket Number: CA-CR,Nos. 2,s. 2
• Citation: 17 Ariz.App. 441,498 P.2d 515
• Parties: STATE of Arizona, Appellee, v. Rudolph Brito BALTIER, Appellant. 278, 2 281--2.
• Court: Arizona Court of Appeals

Page 515

498 P.2d 515

17 Ariz.App. 441

STATE of Arizona, Appellee, v. Rudolph Brito BALTIER, Appellant.

Nos. 2 CA-CR 278, 2 CA-CR 281--2.

Court of Appeals of Arizona, Division 2.

June 28, 1972.

Gary K. Nelson, Atty. Gen., by John S. O'Dowd, Asst. Atty. Gen., Tucson, for appellee.

Edward P. Bolding, Pima County Public Defender, by Albert G. Freeman, Jr., Deputy Public Defender, Tucson, for appellant.

HOWARD, Judge.

Defendant, Rudolph Brito Baltier, was convicted of unlawful possession of dangerous drugs (LSD) in Pima County Cause No. A--18872 and unlawful possession of marijuana in Pima County Cause No. A--18694 and was sentenced to not less than one (1) nor more than three (3) years in the Arizona State Prison on each conviction; these sentences to run concurrently. The only question before this court on appeal is whether the trial court properly denied defendant's pretrial motion to suppress.

On October 15, 1970, at approximately 10:00 a.m., the defendant was observed by Officers Bright and Crum of the Tucson Police Department at Himmel Park in Tucson. The officers, who were traveling through the park in a marked patrol car, saw the defendant get out of a blue Chevrolet and begin walking through the park. He then suddenly turned, ran back to the car, and entered on the passenger side whereupon the car hurriedly left the park. Because it appeared to the officers that the defendant had turned and run upon sighting their patrol car they tried to follow the blue Chevrolet but were unable to locate it after it left the park. At approximately 2:00 p.m. that afternoon, Officers Bright and Crum, still in their patrol car, again observed the defendant in Himmel Park sitting on the side of a small hill with four other individuals. With the idea of questioning the defendant as to why he had run from them earlier in the day the officers drove in the defendant's direction whereupon he got up and started hurriedly walking away as if to leave the park. The officers then pulled alongside the defendant and asked him to 'wait a minute' but the defendant ignored the request and continued walking. At that point the officers commanded him to stop and they both alighted from their vehicle and approached the defendant for the purpose of conducting a field interrogation. At this time defendant's fatigue jacket, which he had been wearing in the morning, was draped over his left shoulder in a manner which concealed his left arm.

Upon being asked for identification by Officer Crum the defendant replied, 'Leave me alone, I haven't done anything wrong.' The officers again asked for identification at which time the defendant became abusive and belligerent in his language even though the officers were able to get his name and date of birth. The officers then asked the defendant to remove his left arm from under his jacket so that they could be sure that he didn't have a weapon and upon his refusal to do so Officer Crum reached for the jacket but the defendant stepped backward so that the officer's initial attempt fell short. Both officers then grabbed the jacket whereupon a fight ensued which culminated in the arrest of defendant for assaulting a police officer. Following the arrest the jacket was searched and found to contain a bottle of pills which proved to contain LSD. A search of defendant's person resulted in a finding of marijuana.

At the hearing on the motion to suppress the introduction into evidence of the LSD and marijuana both Officers Crum and Bright testified that they had asked defendant to either remove the jacket or let them see his hand because they feared he might have had a gun. They further testified that this belief was based upon the fact that an undercover police officer had been shot in Himmel Park two or three days before this incident and also defendant's belligerent attitude towards the officers upon being interrogated.

Defendant maintains that the facts of the instant case, even when viewed in a light most favorable to the State's position, do not satisfy the test set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which must be met before a police officer may conduct a 'frisk.' Thus, defendant contends that he had every right to resist the officers' attempt to seize his jacket and that the arrest and subsequent search were therefore both illegal.

The State, on the other hand, contends that defendant's suspicious activities warranted a field interrogation and that defendant's belligerent attitude coupled with the previous shooting of an officer in the park supported the officers' conclusion that defendant might have been carrying a weapon under the jacket. Thus, the State contends that once the defendant refused to remove his hand from under the jacket the officers had a right to do whatever was necessary to determine whether defendant was in fact armed.

The Fourth Amendment to the United States Constitution provides that 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . ..' Here, as in Terry, defendant was entitled to the protection of the Fourth Amendment as he walked through Himmel Park in Tucson. The question is whether in light of all the circumstances of this on-the-street encounter, his right to personal security was violated by an unreasonable search and seizure.

The Court in Terry set forth the following test which must be met before the fruits of a search resulting from a 'stop and frisk' may be admitted as evidence against the person from whom they were taken:

'Each case of this sort will, of course, have to be decided on its own facts. We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.' 392 U.S. at 30, 88 S.Ct. at 1885. ¹

However, as in Terry, it must first be established at what point in this encounter the Fourth Amendment becomes relevant. That is, we must decide whether and when Officers Bright and Crum 'seized' the defendant and whether and when they conducted a 'search' of his person. As was stated by the Court in Terry, 'It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person.' 392 U.S. at 16, 88 S.Ct. at 1877. The officers here involved testified at the hearing on the motion to suppress that defendant was not required to stop for them, was not required to answer their questions and was not being held against his will until such time as they actually grabbed his jacket and the fight ensued. We find this contention to be wholly without merit. When two uniformed police officers in a marked patrol car pull alongside an individual walking on a sidewalk and upon their request for that person to 'wait a minute' having been ignored, order him to stop, alight from their car and confront him on the sidewalk, that person has been 'seized.' And no citizen, when confronted with such circumstances, would logically believe that he was 'free to go on his way.'

There can be no question that Officers Bright and Crum 'seized' the defendant when they ordered him to stop and initiated their interrogation and, upon his failure to cooperate, subjected him to a 'search' when the officers grabbed the fatigue jacket from his shoulder to see if he was armed. Thus, in determining whether the seizure and search were 'unreasonable' our inquiry is a dual one-- firstly, whether the officers' act of 'seizing' the defendant for interrogation was justifiable, and secondly, if so, whether the officers were justified in conducting a 'search' by forcing the removal of defendant's jacket. It must be noted that the primary question here, the propriety of the 'seizure' of defendant's person, was not addressed by the Court in Terry. ²

We will first consider the facts leading to the 'seizure' of defendant. From Officer Crum's testimony at the hearing the officers first observed defendant between 9:00 and 10:00 a.m. on the morning of October 15 at Himmel Park in the following manner:

'Q What was it that drew your attention to Mr. Baltier at the early morning time you first saw him?

A I don't know of any special reason that I happened to see him.

Q And how was he dressed at that hour?

A He had a green fatigue army jacket and a green fatigue shirt. I don't remember what pants he had on.

Q What was he doing?

A He was getting out of the car in the north parking lot.

Q Do you know the color of the car or anything about it?

A It was a blue '65 or '66 Chevy.

Q And did you observe how many people were in the car other than Mr. Baltier?

A Several. I don't remember how many.

Q What was it that Mr. Baltier did after he got out of the car?

A Started walking southward into the park.

Q And where were you relative to Mr. Baltier when he began walking southward?

A Almost directly south in the park. We was driving on the grass, driving down the center of the park.

Q Would it be fair to say that you were--or did it come into the line of vision of Mr. Baltier?

A Yes.

Q At this point in time what occurred? In other words, when you came within the line of vision of Mr. Baltier?

A Well, he appeared to see us and he turned around and ran back to the blue car that he had gotten out of, and the car started up and existed--excuse me--to the north side of the parking...