State v. Johnson

• Decision Date: 21 May 2009
• Docket Number: No. 2 CA-CR 2006-0079.,2 CA-CR 2006-0079.
• Citation: 207 P.3d 804,220 Ariz. 551
• Parties: The STATE of Arizona, Appellee, v. Lemon Montrea JOHNSON, Appellant.
• Court: Arizona Court of Appeals

207 P.3d 804

220 Ariz. 551

The STATE of Arizona, Appellee, v. Lemon Montrea JOHNSON, Appellant.

No. 2 CA-CR 2006-0079.

Court of Appeals of Arizona, Division 2, Department B.

May 21, 2009.

Terry Goddard, Arizona Attorney General By Kent E. Cattani and Joseph L. Parkhurst, Tucson, Attorneys for Appellee.

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

OPINION

BRAMMER, Judge.

¶ 1 In State v. Johnson, 217 Ariz. 58, ¶ 27, 170 P.3d 667, 673 (App.2007) (Johnson I), we determined a police officer's pat-down search of appellee Lemon Johnson violated the Fourth Amendment. We reasoned the search was improper because the initially lawful seizure of passenger Johnson "incident to a traffic stop of the driver [had] evolved into a separate, consensual encounter." We so reasoned because Johnson would have felt free to remain in the vehicle rather than get out to continue his conversation with the officer, and her questioning of him was unrelated to the reason for the traffic stop. Id. Our supreme court denied the state's petition for review of our decision.

¶ 2 The United States Supreme Court reversed, determining the encounter was not consensual because the initial seizure had not ended. Arizona v. Johnson, ___ U.S. ___, 129 S.Ct. 781, 788, 172 L.Ed.2d 694 (2009) (Johnson II). The Court also determined that, because passengers in a stopped vehicle are lawfully seized, officers may, consistent with the Fourth Amendment, perform a pat-down search of such a passenger absent a suspicion of criminal activity if the officer had a reasonable suspicion the passenger was armed and dangerous. Id. at 787. The Court remanded the case to this court for further proceedings, including determining if the officer reasonably suspected Johnson was armed and dangerous. Id. at 788, 788 n. 2.

¶ 3 Because we conclude the officer's pat-down search was constitutional, the trial court did not err in denying Johnson's motion to suppress evidence discovered in that search. We also reject Johnson's arguments that the reasonable doubt instruction the court gave was structural error and that the court's finding of prior convictions violated his right to a jury trial. We therefore affirm Johnson's convictions and sentences.

Factual and Procedural Background

¶ 4 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). We set forth the factual background in our previous opinion as follows:

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."

An officer in Trevizo's vehicle "r[a]n the license plate of a vehicle" and found it had a "mandatory insurance suspension."^FN1 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 it [was] going." The officers had seen no behavior in the vehicle "indicative of criminal activity."

^{FN 1}. Trevizo stated a mandatory insurance suspension occurs when "the Motor Vehicle[] Department has suspended the registration ... for an insurance-related purpose.... Sometimes people will get a ticket for [not having] insurance and not pay it, or sometimes they've been cited multiple times for not having insurance. There's different reasons." According to Trevizo, it "is a ticketable offense" and "[a] civil citation" but does not "bring concern with regard to criminal activity."

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."

Trevizo examined Johnson for seven indicia of gang affiliation.^FN2 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.

^FN2. Trevizo testified the "seven basic ... criteria to determin[e] if somebody is a gang member" are: 1) the colors the person is wearing, 2) tattoos, 3) gang signs, 4) self-proclamation of membership, 5) particular jewelry that might be associated with gangs, 6) photographs, and 7) "correspondence between gang members."

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.

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."

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."

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.

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

Johnson I, 217 Ariz. 58, ¶¶ 2-10, 170 P.3d at 668-70.

¶ 5 After finding Johnson had two prior felony convictions, the trial court sentenced him to a mitigated, eight-year prison term for prohibited possession of a deadly weapon and to a concurrent, presumptive, one-year prison term for marijuana possession. Johnson appealed and, as we noted above, we reversed the court's denial of Johnson's motion to suppress. Id. ¶ 30. Because we found the encounter had been consensual, however, we expressly declined to reach the question whether Trevizo had a reasonable suspicion Johnson was armed and dangerous. Id. ¶ 27. Nor did we reach the other issues raised in Johnson's appeal. Id. ¶ 30. Pursuant to the Supreme Court's mandate, we now address these questions.

Discussion

Armed and Dangerous

¶ 6 "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). As stated above, a police officer may frisk a passenger of a lawfully stopped vehicle for weapons if the officer has reason to believe the person is armed and dangerous. Johnson II, 129 S.Ct. at 787. "The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety...