State v. Watkins, 1 CA-CR 03-0197.

• Decision Date: 04 May 2004
• Docket Number: No. 1 CA-CR 03-0197.,1 CA-CR 03-0197.
• Citation: 88 P.3d 1174,207 Ariz. 562
• Parties: STATE of Arizona, Appellee, v. Marcus Larue WATKINS, Appellant.
• Court: Arizona Court of Appeals

88 P.3d 1174

207 Ariz. 562

STATE of Arizona, Appellee, v. Marcus Larue WATKINS, Appellant.

No. -0197.

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

May 4, 2004.

As Amended May 5, 2004.

Terry Goddard, Attorney General By Randall M. Howe, Chief Counsel, Criminal Appeals Section, and David Wood, Assistant Attorney General, Phoenix, Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender By Louise Stark, Deputy Public Defender, Phoenix, Attorneys for Appellant.

OPINION

LANKFORD, Judge.

¶ 1 Defendant Marcus Watkins appeals from the superior court's denial of his motion to suppress evidence seized after a stop and pat-down for weapons. The court denied the motion and admitted evidence obtained in the stop and frisk. Defendant contends that the stop and frisk were unlawful and therefore that the court should not have admitted the contraband as evidence.

¶ 2 This appeal requires us to decide first whether stopping Defendant violated the Fourth Amendment of the United States Constitution. To answer that question, we consider whether stopping a person who appears to have firsthand, material information about a recently committed felony is constitutional. If we decide that the initial stop was lawful, we must then determine whether the subsequent frisk and seizure of evidence violated the Fourth Amendment. We hold that the Constitution permits the stop, the frisk and the seizure.

¶ 3 The events that led to Defendant's arrest are as follows. Late at night, the victim entered her apartment and saw two men leaving through the back door with her property. She observed them enter a vehicle and drive away. The victim recognized the men as acquaintances of Defendant. The victim went to Defendant's apartment¹ to inquire about the suspects and call police. When she arrived, the suspects were in the apartment along with Defendant. She confronted the suspects and one of them choked her after she had told them to either return the property or she would call police. After the altercation, Defendant suggested that they proceed to another apartment to call police. The victim and Defendant did so, and then the victim returned home to wait for the police.

¶ 4 Shortly thereafter, at around 11:00 p.m., Officers Neese and Boulter arrived and spoke to the victim. She described the burglary suspects as two Hispanic males. She also told the officers that she had confronted the suspects in Defendant's apartment. After she and the officers began walking to Defendant's apartment, the officers noticed Defendant walking about fifty to seventy feet away. Officer Neese considered Defendant an investigative lead. Officer Boulter thought that Defendant may have been involved in the burglary and, at a minimum, was an investigative lead.

¶ 5 Officer Boulter asked Defendant to stop. Defendant stopped, but then immediately started to make furtive movements with his hands toward his waist. It appeared to the officers that he was arranging his clothes as if to hide or retrieve something. The officers were concerned that Defendant might have a weapon.

¶ 6 The officers approached Defendant and asked for his consent to conduct a pat-down search for weapons. Defendant said nothing, but opened up his jacket. Officer Boulter patted Defendant's waist and felt stems of marijuana protruding above his waistline. Officer Boulter then asked Defendant to hand the drugs to the officer.

¶ 7 Defendant refused, moved the officer's hand away, and attempted to flee. Both officers pursued Defendant and overtook him. Defendant was within Officer Boulter's view during the brief chase. Officer Boulter removed the marijuana from Defendant's waistband. Officer Neese then conducted a search incident to an arrest and discovered cocaine. The officers placed Defendant in the patrol vehicle before completing their search. The transporting officer later found a loaded gun wedged under the seat of the vehicle.

¶ 8 The State charged Defendant with one count of possession of narcotic drugs, a class 4 felony, and one count of possession of marijuana, a class 6 felony.

¶ 9 Defendant moved to suppress the State's evidence, arguing that the marijuana was inadmissible as the product of the officer's illegal frisk. Defendant contended that the officer lacked reasonable suspicion both to detain him and to conduct a pat-down. Following a suppression hearing at which the officers testified, the court denied Defendant's motion to suppress.

¶ 10 Defendant testified at trial. He admitted carrying the loaded gun but denied that he had possessed cocaine or marijuana. The jury convicted him of possession of marijuana and acquitted him of possession of cocaine. The court sentenced Defendant to probation under Proposition 200 under Arizona Revised Statutes ("A.R.S.") section 13-901.01 (Supp.2003). Defendant timely appealed.²

¶ 11 We have jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and A.R.S. § 13-4032(6) (2001). We review the grant or denial of a motion to suppress for abuse of discretion. State v. Sanchez, 200 Ariz. 163, 165, ¶ 5, 24 P.3d 610, 612 (App.2001). While we view the evidence in the light most favorable to upholding any factual findings, we review de novo the legal conclusions on which the ruling rests. Id.

¶ 12 Defendant challenges the admission of evidence as the forbidden fruit of an unlawful, warrantless search. Evidence found during an unlawful search is generally excluded. State v. Cañez, 202 Ariz. 133, 151, ¶ 52, 42 P.3d 564, 582 (2002). Defendant's attack on the court's admission of evidence places three events at issue: the stop of Defendant, the search of Defendant, and the seizure of the evidence. We address each of these events and their legality in turn.

¶ 13 If a police officer conducts a warrantless stop of a citizen, the Fourth Amendment requires that the stop be reasonable. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). "The touchstone of the Fourth Amendment is reasonableness. The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable." Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). In determining whether a stop is reasonable under the Fourth Amendment, we must look to the balancing test set forth in Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). "Consideration of the constitutionality of [seizures less intrusive than arrest] involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty." Id. at 50-51, 99 S.Ct. 2637; State v. Tykwinski, 170 Ariz. 365, 367, 824 P.2d 761, 763 (App.1991).

¶ 14 The investigative stop³ of Defendant as a material witness passes the Brown test of reasonableness. The first factor, the public's concern for the apprehension of known violent criminals, is present here. "Important in the balancing of interests is society's compelling interest to keep a community safe from those who would act against it." Tykwinski, 170 Ariz. at 370, 824 P.2d at 766. The rationale for the stop of Defendant to obtain information is at least as powerful as that which justified the roadblock in Illinois v. Lidster, ___ U.S. ___, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004). There, police set up a highway checkpoint in the same area where a person was killed a week earlier. Id. at 888. Police asked motorists stopped at the checkpoint for information about the incident. In determining that the public concern was sufficiently grave, the court stated that "the stop's objective was to help find the perpetrator of a specific and known crime, not of unknown crimes of a general sort." Id. at 891. Here as well "[t]he relevant public concern was grave." See id. These police officers were investigating the serious crime of burglary and the violent crime of assault, both of which had occurred very recently. Moreover, the officers knew the victim had encountered the suspects at Defendant's apartment, and that Defendant was present when one of the suspects choked the victim. Defendant could have provided both an identification of the suspects and perhaps their current location, along with such critical information as whether they were armed. The stop was therefore not only to investigate "a specific and known crime," but was a stop of an identified eyewitness to at least one specific and violent crime.⁴

¶ 15 The second factor of the Brown test is also satisfied. Stopping Defendant to ask him about the suspects and assault greatly furthers the public interest implicated here. The victim found the suspects at Defendant's apartment immediately after the burglary and Defendant witnessed one of the suspects choke the victim. The offenses had been committed so recently that the suspects might still be in the vicinity. The information available to the officers was that Defendant was likely able to assist them in identifying, locating and safely apprehending violent criminals. To permit Defendant to leave without attempting to obtain this information, when he could in all likelihood identify the suspects and was an eyewitness to the assault, would frustrate the officers' duty to investigate a known crime. See State v. Miller, 112 Ariz. 95, 97, 537 P.2d 965, 967 (1975)

("A policeman has the duty to be alert to suspicious circumstances and to investigate if necessary, provided that he is acting within constitutional limitations.") (citation omitted). Under these circumstances, the ability to detain Defendant to ask him for information increases the officers' ability to apprehend the perpetrators of serious crime.

¶ 16 These were exigent circumstances justifying the stop. See Pierce, 787 A.2d at 1288

; Hawkins v. United States, 663 A.2d 1221, 1226 (D.C.1995). Exigent circumstances permitting temporary detention of a witness...