State v. Serna

• Decision Date: 07 August 2014
• Docket Number: No. CR–13–0306–PR.,CR–13–0306–PR.
• Citation: 692 Ariz. Adv. Rep. 14,235 Ariz. 270,331 P.3d 405
• Parties: STATE of Arizona, Appellee, v. Johnathon Bernard SERNA, Appellant.
• Court: Arizona Supreme Court

235 Ariz. 270

331 P.3d 405

692 Ariz. Adv. Rep. 14

STATE of Arizona, Appellee,

v.Johnathon Bernard SERNA, Appellant.

No. CR–13–0306–PR.

Supreme Court of Arizona.

Aug. 7, 2014.

Maricopa County Public Defender, Mikel Steinfeld (argued), Deputy Public Defender, Phoenix, for Johnathon Bernard Serna.

Thomas C. Horne, Arizona Attorney General; Robert L. Ellman, Solicitor General; Joseph T. Maziarz (argued), Chief Counsel, Criminal Appeals Section, Phoenix, for State of Arizona.

Justice BERCH authored the opinion of the Court, in which Chief Justice BALES, Vice Chief Justice PELANDER, Justice BRUTINEL, and Justice TIMMER joined.

Justice BERCH, opinion of the Court.

¶ 1 We granted review to determine whether, during an initially consensual encounter, an officer may frisk an armed individual absent reasonable suspicion that the person was engaged or was about to engage in criminal activity. We hold that an officer must have reasonable suspicion that criminal activity is afoot before frisking the individual.

I. BACKGROUND

¶ 2 At approximately 10:00 at night, two officers patrolling a “gang neighborhood” in Phoenix observed Johnathon Serna and a woman standing in the middle of the street. As they turned their patrol car toward the pair, Serna and the woman separated, walking in opposite directions.

¶ 3 The officers stopped the patrol car and Officer Richey called to Serna, who, in response, turned and walked toward them; the officers described Serna as “very cooperative and polite.” While speaking with Serna, Officer Richey observed a bulge on Serna's waistband and asked if he had any firearms. Serna replied that he had a gun. The officer then ordered Serna to put his hands on his head and removed the gun from Serna's waistband. When, in response to follow-up questions, Serna admitted that he had a felony conviction, the officers arrested him as a prohibited possessor of the firearm.

¶ 4 Before trial, Serna moved to suppress the gun as the fruit of a search that violated his Fourth Amendment rights. The trial court denied the motion, finding that the entire encounter was consensual and that “[o]nce the officers became aware [that Serna] had a gun, they were allowed to remove the gun and conduct a pat down for safety purposes.” A jury convicted Serna of misconduct involving weapons, and Serna appealed.

¶ 5 A divided panel of the court of appeals affirmed, finding the frisk justified for officer safety reasons. State v. Serna, 232 Ariz. 515, 519 ¶ 19, 521 ¶ 25, 307 P.3d 82, 86, 88 (App.2013). Rejecting the majority's assessment that the entire encounter was consensual, the dissenting opinion concluded that the officers were not entitled to frisk Serna absent reasonable suspicion that criminal activity was afoot. Id. at 522 ¶ 33, 307 P.3d at 89 (Norris, J., dissenting).

¶ 6 Serna petitioned this Court for review, which we granted to resolve a recurring issue of constitutional law. We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12–120.24.

II. DISCUSSION

¶ 7 Whether an officer must possess reasonable suspicion that criminal activity is afoot in order to frisk an individual is a question of law, which we review de novo. See State v. Moody, 208 Ariz. 424, 445 ¶ 62, 94 P.3d 1119, 1140 (2004).

¶ 8 The Fourth Amendment protects the right of people to be free from “unreasonable searches and seizures.” U.S. Const. amend. IV. Of course, not all encounters between law enforcement and citizens constitute seizures, Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), and not all seizures are constitutionally unreasonable, see Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). Encounters that are entirely consensual do not implicate the Fourth Amendment. Bostick, 501 U.S. at 434, 111 S.Ct. 2382; see also Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A police officer may approach an individual and ask questions without running afoul of the Fourth Amendment: “So long as a reasonable person would feel free ‘to disregard the police and go about his business,’ the encounter is consensual and no reasonable suspicion is required.” Bostick, 501 U.S. at 434, 111 S.Ct. 2382 (quoting California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)). “The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature.” Id. Police officers are thus free to ask questions of persons they encounter “as long as the police do not convey a message that compliance with their requests is required.” Id. at 435, 111 S.Ct. 2382.

¶ 9 At the outset, the encounter between Serna and the officers was consensual. When addressed, Serna walked toward the officers and voluntarily answered their questions. He was “very cooperative” and demonstrated no ambivalence about conversing with them.

¶ 10 But police interactions with members of the public are inherently fluid, and what begins as a consensual encounter can evolve into a seizure that prompts Fourth Amendment scrutiny. See id.; see also State v. Wyman, 197 Ariz. 10, 14 ¶ 12, 3 P.3d 392, 396 (App.2000) (consensual encounter became seizure when juvenile complied with several requests from officer to return); Commonwealth v. Narcisse, 457 Mass. 1, 927 N.E.2d 439, 443 (2010) (consensual stop became a Fourth Amendment seizure “once the officers told the defendant that they intended to pat frisk him”). Thus, the relevant question is not simply whether the encounter was consensual at the start, but whether at some point it became non-consensual, thus triggering Fourth Amendment protections. See Terry, 392 U.S. at 16, 88 S.Ct. 1868.

¶ 11 The State argues that when an encounter begins consensually, an officer's order, given for safety reasons, does not alter the consensual nature of the interaction. At the suppression hearing, the State's counsel maintained that if Serna, after putting his hands up, had simply said, “I don't want to talk to you ..., [he] could have walked away.” But the record belies this assertion. Earlier at that hearing, Officer Richey had testified that his direction to Serna to put his hands on his head was an order, not a request.

¶ 12 A reasonable person would not have felt free to disregard such a command from a law enforcement officer. See State v. Rogers, 186 Ariz. 508, 509–10, 924 P.2d 1027, 1028–29 (1996) (finding that a reasonable person would not feel free to leave when the officer held out his badge and stated, “police officers, we need to talk to you”); see also Gentry v. Sevier, 597 F.3d 838, 844–45 (7th Cir.2010) (concluding that a Terry stop occurred when the “officer exited the [patrol] car and told Gentry to ‘keep [his] hands up’ ” (second alteration in original)). The Supreme Court has said that “whenever a police officer ... restrains [a person's] freedom to walk away, he has ‘seized’ that person,” and such a seizure implicates the Fourth Amendment. Terry, 392 U.S. at 16, 88 S.Ct. 1868. Officers may not involuntarily detain individuals “even momentarily without reasonable, objective grounds for doing so.” Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).

¶ 13 The order and frisk at issue here “restrain[ed Serna's] freedom to walk away” and thus constituted a seizure for Fourth Amendment purposes. See Terry, 392 U.S. at 16, 88 S.Ct. 1868; see also id. at 19, 88 S.Ct. 1868 (finding it beyond question that the officer seized Terry when he “took hold of him and patted down the outer surfaces of his clothing”). Such a seizure requires constitutional justification. See Royer, 460 U.S. at 498, 103 S.Ct. 1319.

¶ 14 In Terry, the Court stated that an officer is justified in frisking individuals for weapons if the officer can reasonably conclude “[1] that criminal activity may be afoot and [2] that the persons with whom he is dealing may be armed and presently dangerous.” 392 U.S. at 30, 88 S.Ct. 1868 (emphasis added). The question before us now is whether a frisk must be supported by both of these conditions, or whether satisfying just one will suffice.

¶ 15 The Supreme Court's opinions are instructive. Just three years after Terry, the Court suggested that both conditions must be met, stating that officers may conduct weapons searches if the “officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dangerous.” Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (internal footnote omitted). In 2009, the Supreme Court again reiterated this two-part analysis, explaining that in Terry, it

upheld “stop and frisk” as constitutionally permissible if two conditions are met. First, the investigatory stop must be lawful. That requirement is met in an on-the-street encounter, Terry determined, when the police officer reasonably suspects that the person apprehended is committing or has committed a criminal offense. Second, to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous.

Arizona v. Johnson, 555 U.S. 323, 326–27, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (emphasis added).

¶ 16 Justice Harlan's concurrence in Terry provides the clearest explanation of the rationale for requiring that both conditions be met:

[I]f the frisk is justified in order to protect the officer during an encounter with a citizen, the officer must first have constitutional grounds to insist on an encounter, to make a forcible stop. Any person, including a policeman, is at liberty to avoid a person he considers dangerous. If and when a policeman has a right instead to disarm such a person for his own protection, he must first have a right not to avoid him but to be in his presence. That right must be more than the liberty (again, possessed by every citizen) to address questions to other persons, for ordinarily the person addressed has an equal right to ignore his interrogator and...