State v. Ramsey

• Decision Date: 02 February 2010
• Docket Number: No. 1 CA-CR 08-0602.,1 CA-CR 08-0602.
• Citation: 224 P.3d 977
• Parties: STATE of Arizona, Appellant, v. Kendall Lee RAMSEY, Appellee.
• Court: Arizona Court of Appeals

224 P.3d 977

STATE of Arizona, Appellant, v. Kendall Lee RAMSEY, Appellee.

No. 1 CA-CR 08-0602.

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

February 2, 2010.

Terry Goddard, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Lisa Marie Martin, Deputy County Attorney, Maricopa County Attorney's Office, Phoenix, Attorneys for Appellant.

James J. Haas, Maricopa County Public Defender by Cory Engle, Deputy Public Defender, Phoenix, Attorneys for Appellee.

OPINION

GOULD, Judge.^*

¶ 1 The State of Arizona appeals from an order granting Kendall Lee Ramsey's motion to suppress evidence. For the reasons set forth below, we reverse and remand the case to the superior court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 On August 19, 2007,¹ Officers M. and D. performed an investigative stop of Ramsey and recovered what was later determined to be methamphetamine. The State charged Ramsey with one count of possession or use of a dangerous drug (methamphetamine) in violation of Arizona Revised Statutes ("A.R.S.") section 13-3407 (Supp.2009).² Ramsey filed a motion to suppress and requested an evidentiary hearing.

¶ 3 At the suppression hearing, Officer M. testified that on August 19, 2007, at approximately 1:00 a.m., he was patrolling the area of the Marcos De Niza housing projects ("projects") in Phoenix. Officer M. testified the area was a high crime area, "known for burglaries, sexual assaults . . . children being abducted from the housing projects . . . homicides, shootings, stabbings that occur right around that same exact area." As he was traveling westbound in his marked patrol car with Officer D., Officer M. observed Ramsey walking eastbound on a sidewalk, approached to about fifteen feet from Ramsey, and made eye contact with him. Ramsey hesitated and stopped "midstep" when he saw the officers. Ramsey then changed his direction and started walking southbound.

¶ 4 The officers made a U-turn and attempted to locate Ramsey. The officers drove through a nearby alley, around a building, and then observed Ramsey walking southbound. Although the officers did not see Ramsey run, they noted Ramsey had covered a great distance in the short time that had elapsed since they first saw him. When the officers drove around the building, Ramsey changed his direction again and started walking westbound. At this point, the officers concluded Ramsey was attempting to avoid them. The officers began to follow Ramsey and Ramsey again changed his direction.

¶ 5 Ramsey eventually left the sidewalk and walked into the projects. In order to follow Ramsey, the officers drove over the sidewalk and onto the grass. The officers did not activate their lights or sirens as they followed Ramsey. While the officers were following Ramsey, Ramsey put his hands in his pockets and continued to walk away from them.

¶ 6 When Ramsey put his hands in his pockets, the officers feared Ramsey was attempting to grab a weapon. As the officers stopped behind Ramsey and started to exit their patrol car, Officer M. commanded Ramsey to take his hands out of his pockets and place them on his head. Ramsey ignored the officer's instructions and continued walking away with his hands in his pockets. Officer M. repeated his command a second time, and Ramsey briefly "turned back" or looked over his shoulder while he continued to walk away from the officers. As he walked away, the officers were unable to see Ramsey's hands, which remained in front of his body and in his pockets.

¶ 7 Both officers ran towards Ramsey, and Officer M. repeated his command a third time. As the officers were "putting hands" on Ramsey, Ramsey put his right hand on his head and, with his left hand, he placed a piece of clear plastic in his mouth. Officer M. said he "believed" the plastic contained crack cocaine.

¶ 8 At the conclusion of the suppression hearing, the superior court ruled the officers did not have reasonable suspicion to stop Ramsey. In support of its decision, the superior court held the investigatory stop occurred when the officers pulled their car "up to Mr. Ramsey."

¶ 9 The State timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2001) and -4032(6) (Supp.2009).

DISCUSSION

¶ 10 We review de novo whether the police had reasonable suspicion to stop Ramsey. State v. Fornof, 218 Ariz. 74, 76, ¶ 5, 179 P.3d 954, 956 (App.2008); Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). However, "we defer to the trial court's findings of fact absent abuse of discretion." State v. Rogers, 186 Ariz. 508, 510, 924 P.2d 1027, 1029 (1996); Ornelas, 517 U.S. at 694 n. 3, 699, 116 S.Ct. at 1160-61 n. 3, 1663.

I. Seizure

¶ 11 We first determine when Ramsey was "seized" within the meaning of the Fourth Amendment. Because the facts developed quickly in this case, this issue must be resolved to determine the basis for the officers' investigative stop.

¶ 12 A seizure occurs when police either use physical force on a suspect, or a suspect yields to "a show of authority." California v. Hodari D., 499 U.S. 621, 625-26, 111 S.Ct. 1547, 1550, 113 L.Ed.2d 690 (1991); Rogers, 186 Ariz. at 511, 924 P.2d at 1030. An investigatory pursuit does not necessarily translate into a seizure. See Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988). When police pursue a suspect after a show of authority (e.g., a command to stop), a seizure does not occur until the suspect yields to this authority. Hodari D., 499 U.S. at 625-26, 111 S.Ct. at 1550; Rogers, 186 Ariz. at 511, 924 P.2d at 1030; see Brower v. Inyo County, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989) (no seizure occurred while police pursued a suspect for 20 miles with lights and sirens; despite an adequate show of authority, suspect was not seized until he crashed into a police blockade). However, if a defendant briefly stops after a show of authority and then subsequently flees, a seizure occurs at the time the defendant first stopped, and not when he is ultimately apprehended. Rogers, 186 Ariz. at 511, 924 P.2d at 1030; United States v. Morgan, 936 F.2d 1561, 1567 (10th Cir.1991).

¶ 13 In Hodari D., youths in a high crime area congregated around a car and fled when they spotted a police car. 499 U.S. at 622-23, 111 S.Ct. at 1549. One officer pursued defendant Hodari on foot. Id. at 623, 111 S.Ct. at 1549. Hodari tossed a packet of drugs on the ground a moment before the officer tackled him. Id. Based on these facts, the United States Supreme Court held Hodari was not seized until he was tackled by the officer. Id.; see also Brendlin v. California, 551 U.S. 249, 254, 262, 127 S.Ct. 2400, 2405, 2409, 168 L.Ed.2d 132 (2007) ("there is no seizure without actual submission; otherwise, there is at most an attempted seizure, so far as the Fourth Amendment is concerned" (citing Hodari D., 499 U.S. at 626 n. 2, 111 S.Ct. at 1550 n. 2)).

¶ 14 Here, the superior court concluded the seizure occurred when police officers pulled up onto the grass behind Ramsey. Although this event marked a show of authority, we disagree a seizure occurred at this point as nothing in the record supports the conclusion Ramsey yielded to the officers when they pulled up behind him. After police pulled up behind Ramsey, he continued to walk away, put his hands in his pockets, and was unresponsive to Officer M.'s commands.

¶ 15 Ramsey's reliance on Rogers to support the superior court's finding is misplaced. Rogers is distinguishable from this case because in that case the "defendant stopped, albeit briefly, and spoke to the officers before running." 186 Ariz. at 511, 924 P.2d at 1030. Ramsey did not stop or speak to the officers when they pulled up onto the grass behind him.

¶ 16 The seizure occurred in this case when Ramsey, in response to the officer's commands, took one of his hands out of his pockets and placed it on his head. This was the first occurrence where Ramsey yielded to the officers' authority. Prior to this point, Ramsey ignored the officer's commands and continued to walk away. As a result, all of Ramsey's conduct prior to this point is properly considered in determining whether the officers had reasonable suspicion to stop Ramsey.³

II. Reasonable Suspicion

¶ 17 Officers may briefly stop an individual if, based on the totality of the circumstances, they have reasonable suspicion the individual is involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968); Fornof, 218 Ariz. at 76, ¶ 5, 179 P.3d at 956. An officer's "reasonable suspicion" must be based on specific, articulable facts, along with rational inferences that arise from those facts. Terry, 392 U.S. at 21, 27, 88 S.Ct. at 1880, 1883; In re Roy L., 197 Ariz. 441, 444-45, ¶ 8, 4 P.3d 984, 987-88 (App.2000). Similarly, an officer may conduct a weapons frisk if, based on specific, articulable facts, the officer has any reasonable fear for his safety. Terry, 392 U.S. at 27, 30, 88 S.Ct. at 1883, 1884-85; State v. Garcia Garcia, 169 Ariz. 530, 531-32, 821 P.2d 191, 192-93 (App.1991).

¶ 18 The reasonable suspicion standard is a lower standard than that required for probable cause to make an arrest and it requires a showing considerably less than a preponderance of the evidence. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989); Fornof, 218 Ariz. at 76, ¶ 5, 179 P.3d at 956; see In re Roy L., 197 Ariz. at 444-45, ¶ 8, 4 P.3d at 987-88. The United States Supreme Court explained the reasons for permitting investigative stops:

In allowing such detentions, Terry accepts the risk that officers may stop innocent people. Indeed, the Fourth Amendment accepts that risk in connection with more drastic police action; persons arrested and detained on probable cause to believe ...