State v. Serna , 232 Ariz. 515 ( 2013 )

OPINION

THOMPSON, Judge.

¶ 1 Appellant Johnathon Serna (Serna) appeals from his conviction for misconduct involving weapons, a class four felony. The dispositive issue on appeal is whether, in what the superior court found was a consensual encounter, the police officers were entitled to retrieve a weapon from Serna’s person. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 On October 25, 2010, at approximately 10:00 p.m., two police officers were in their patrol car driving on North 28th Avenue in Phoenix. Officers described the area as “high crime,” a “gang neighborhood” where “violence takes place,” and having “numerous drug complaints.” The officers saw Serna and a woman standing in the middle of an intersecting street, Garfield. The officers turned their ear onto Garfield and after they did so, Serna and the woman separated. The woman walked north; Serna walked south to a friend’s house. Officers described this as a common stratagem in the area, as persons disperse to avoid contact with law enforcement inquiries into potential criminality.

¶ 3 The officers stopped their car in front of the house and got out. One of the officers called to Serna to get his attention. Serna turned around and walked toward the officers. Serna was “very cooperative and polite.” The officer who called out to Serna asked him if he lived at the house. Serna responded the house belonged to a friend. The officer then observed a bulge on Serna’s waistband and asked him if he had any firearms or illegal drugs.¹ Serna said yes. The officer then ordered Serna to place his hands on top of his head and removed a gun from a holster on Serna’s waistband.²

¶ 4 After the officer removed the gun, the other officer asked Serna if he had ever been incarcerated or had any felony convictions. Serna said he had been convicted of a felony. The two officers then arrested him as a prohibited possessor. See Arizona Revised Statutes (A.R.S.) section 13-3102(A) (Supp. 2012).³ Serna was charged by direct complaint ⁴ with misconduct involving weapons, a class four felony.

¶ 5 Before trial, Serna moved to suppress the gun, asserting it was the “fruit” of an investigatory stop that violated his Fourth Amendment rights because the police did not have reasonable suspicion to believe he was involved in “anything illegal.” The state countered that the encounter between Serna and police, including their seizure of his gun, was consensual and the police were entitled to remove his gun for “officer safety” reasons. In additional briefing, Serna also argued that even if his encounter with police was consensual, the police were not entitled to order him to put his hands on his head and to remove his gun because they lacked reasonable suspicion he had been involved in any criminal activity.

¶ 6 The superior court denied Serna’s suppression motion. After finding the encounter as described above was consensual (“Given the totality of the circumstances, the encounter ... was not so intimidating that a reasonable person would feel he was not free to leave.”), and noting the characterization of the area in which the encounter took place (“a ‘violent’ and ‘gang¹ neighborhood”), the court concluded that after the officers became aware Serna “had a gun, they were allowed to remove the gun and conduct a pat down for safety purposes.”

DISCUSSION

¶ 7 Serna does not take issue with the factual findings made by the superior court, all of which are summarized above. Instead, he argues that even assuming the encounter was consensual, the Fourth Amendment did not allow the police to frisk him for “safety purposes absent reasonable grounds to believe he was involved in criminal activity.” The argument Serna raises presents an issue of law; thus our review is de novo. State v. Moody, 208 Ariz. 424, 445, ¶ 62, 94 P.3d 1119, 1140 (2004); State v. Valle, 196 Ariz. 324, 326, ¶ 6, 996 P.2d 125, 127 (App.2000). We disagree with Serna and hold the court correctly denied his motion to suppress.

¶ 8 The Fourth Amendment prohibits “unreasonable searches and seizures.” U.S. Const, amend. IV. Generally, there are three types of encounters between police and individuals, each with different degrees of government intrusion and implications under the Fourth Amendment.

¶ 9 The first is a consensual encounter in which an individual willingly agrees to speak to police officers. An encounter is consensual “[s]o long as a reasonable person would feel free to disregard the police and go about his business.” Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (internal quotes and citation omitted). Such contact may be initiated by the police without any objective level of suspicion. Without more, a consensual encounter does not amount to a seizure under the Fourth Amendment. Thus, officers may question citizens without implicating Fourth Amendment protections “so long as the officers do not convey a message that compliance with their requests is required.” Id. at 437, 111 S.Ct. 2382.

¶ 10 The second type of encounter, based on Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), allows police officers who suspect criminal activity to make limited intrusions into an individual’s personal security with less than probable cause. Under Terry, if an officer has reasonable suspicion a person has committed or is about to commit a crime, the officer may briefly detain the person for investigative purposes. Id. at 30, 88 S.Ct. 1868. This limited investigative stop is known as a Terry stop. While less demanding than probable cause, the reasonable suspicion required for a Terry stop is not a toothless standard: it must be more than an unparticularized suspicion and supported by “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” the government intrusion. Id. at 21, 88 S.Ct. 1868.

1Í11 Terry also addressed when police may perform a protective search, a limited pat-down for weapons called a Terry frisk. Although a Terry stop and a Terry frisk are both seizures under the Fourth Amendment, these seizures have different justifications. A police officer may conduct a Terry stop if the officer has “a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ ” United States v. Soko-low, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting Terry, 392 U.S. at 30, 88 S.Ct. 1868), or if the officer reasonably suspects the person detained committed a crime. See United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). A Terry frisk, however, is allowed for personal safety reasons when an officer is dealing with a person the officer reasonably believes may be armed and dangerous. Terry, 392 U.S. at 24, 88 S.Ct. 1868. Although a Terry frisk more often than not occurs during a Terry stop, nevertheless, the “two types of seizures are analytically distinct.” United States v. Davis, 202 F.3d 1060, 1062 (8th Cir.2000); United States v. Orman, 486 F.3d 1170, 1174 (9th Cir.2007) (Terry stop- and-frisk “constitutes two independent actions, each requiring separate justifications”) (quoting United States v. Flippin, 924 F.2d 163, 165 n. 2 (9th Cir.1991)).

¶ 12 The third type of police-citizen encounter is an arrest — a classic seizure under the Fourth Amendment that must be based on probable cause.

¶ 13 We consider here whether, under the Fourth Amendment it was reasonable for the officers to retrieve the gun from Serna’s waistband for officer safety pursuant to Terry. Citing In re Ilono H., 210 Ariz. 473, 113 P.3d 696 (App.2005), Serna asserts the police violated his Fourth Amendment rights by retrieving the gun because the officers did not have reasonable suspicion he was involved in any criminal activity. The state counters, as it did in the superior court, with Orman, and essentially argues that we should reject Ilono.

¶ 14 In Ilono, a panel of this court held a police officer was not entitled to conduct a protective search as part of a consensual encounter even if the officer had reasonable grounds to believe the target of the encounter was armed and dangerous in the absence of any reason to believe the target had committed or was committing a crime. Id. at 476, ¶ 11, 113 P.3d at 699. The court thus imposed the same justification requirements on a Terry frisk as are imposed on a Terry stop. However, as discussed supra, while a stop and a frisk often occur in conjunction, they are in reality separate actions with distinct purposes that require distinct justifications. See Flippin, 924 F.2d at 165 n. 2 (“The stop must be based on a suspicion of criminal activity and the frisk on a reasonable suspicion that the person is armed.”).

¶ 15 In State v. Caraveo, 222 Ariz. 228, 213 P.3d 377 (App.2009), a different panel of this court suggested it had reservations about Ilono (“we need not decide whether we agree with the portion of Ilono ... that indicates that an officer who reasonably fears for his or her safety during a consensual encounter is necessarily prohibited from conducting a lawful patdown.”). Id. at 232, 213 P.3d 377, 213 P.3d at 381. We cited Orman, noting that the circuit court had upheld a patdown for officer safety purposes in a “consensual encounter, finding that the officer’s ‘reasonable suspicion that [the suspect] was carrying a gun ... is all that is required for a protective search under Terry.’ ” Id. at 233, 213 P.3d at 382 (quoting Orman, 486 F.3d at 1176-77).

¶ 16 That most Terry frisks are preceded by Terry stops does not make the former dependent on the latter. Consensual encounters can escalate; what begins as a benign conversation between a police officer and an individual can evolve and give rise to a reasonable suspicion that the individual is involved in criminal activity or, even if not involved in such activity, is armed and presently dangerous. We agree that the “danger to officer safety that justifies a protective search may arise after a consensual encounter or investigative stop” has begun. Davis, 202 F.3d at 1063. Thus, we also agree with the court’s observation in Orman that “Terry did not cabin the use of officer safety pat-downs to lawful investigatory detentions.” Orman, 486 F.3d at 1173. We therefore respectfully disagree with the conclusion reached by the panel in Ilono that in a consensual encounter, a police officer may not conduct a protective patdown of a person even if the officer has reasonable grounds to believe that person is armed and dangerous unless the officer also has reasonable suspicion the person is involved in criminal activity.⁵

¶ 17 The Supreme Court stated in Terry that “[t]he sole justification of the search in the present situation is the protection of the police officer and others nearby.... ” Terry, 392 U.S. at 29, 88 S.Ct. 1868. Thus, a frisk is allowed because it serves to prevent injury. Requiring an officer to reasonably suspect criminal activity before he may protect himself would hinder the officer’s ability to investigate suspicious behavior or even to assist a citizen in apparent need. Without the authority to perform a protective search, an officer in such a situation would be forced to avoid those he reasonably believes are dangerous but not necessarily engaged in criminal conduct. Of course, often an officer does not know that a person may be armed until after he has already initiated the consensual encounter. Without the authority to search a person he reasonably has come to believe is dangerous, the officer in such a situation is in a dilemma. He must then either end the encounter and walk away, requiring him to abandon his legitimate duties and expose himself to potential danger during his retreat, or he may continue the encounter in hopes of acquiring suspicion of criminal activity to justify a frisk, which places him in a dangerous situation without the ability to protect himself. The Supreme Court has cautioned that we should not “require that police officers take unnecessary risks in the performance of their duties.” Id. at 23, 88 S.Ct. 1868.

¶ 18 In Orman, in what was clearly a consensual encounter, a police officer working off-duty for a shopping mall approached the defendant and asked to speak to him. After the defendant said “sure,” the officer told the defendant he had information the defendant was carrying a gun and asked if that was true. 486 F.3d at 1172, 1175. The defendant admitted he had a gun and apologized. Id. at 1172. The officer noticed a small bulge under the defendant’s shirt and asked Orman where the gun was located. Id. Orman pointed to his waist band and the officer then retrieved the gun from the defendant. Id. The entire encounter was calm and the defendant was cooperative. The court stated that “reasonable suspicion that Orman was carrying a gun, which is all that is required for a protective search under Terry, quickly rose to a certainty when Or-man confirmed that he was carrying a gun.” Id. at 1176. Although the officer testified that Orman was perfectly cordial, the court held that a reasonably prudent man in the officer’s circumstances would be warranted in retrieving the gun for his safety. Id. The court considered the accessibility of the gun to Orman and the fact that he was standing only inches from the officer. Id.

¶ 19 We agree with Orman’s holding that a protective Terry frisk is justified where “a reasonably prudent [officer] in the circumstances would be warranted in the belief that his safety or that of others was in danger,” whether arising from a consensual encounter or a Terry stop. Id. (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868). Orman had easy access to the gun and was standing only inches from the officer. Orman, 486 F.3d at 1176. In addition, the encounter took place in a busy mall where stray bullets could have serious consequences. Id. at 1177. Similarly, Serna was standing very close to the officers and had easy access to his gun. The encounter took place at night in a notoriously dangerous area of Phoenix where officers take great care to ensure their safety.

¶ 20 The Supreme Court’s decision in Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), is also helpful to our analysis. In Mimms, an officer stopped a car for an expired license plate. Id. at 107, 98 S.Ct. 330. The officer ordered the driver out of the ear. Id. After the driver got out of the car, the officer noticed a large bulge under his jacket. Id. Because the officer believed the bulge might be a weapon, the officer frisked the driver and found a gun. Id. The state conceded “the officer had no reason to suspect foul play from the particular driver at the time of the stop, there having been nothing unusual or suspicious about his behavior.” Id. at 109, 98 5. Ct. 330. Nonetheless, the Supreme Court said the bulge “permitted the officer to conclude that Mimms was armed and thus posed a serious and present danger to the safety of the officer.”⁶ Id. at 111, 98 S.Ct. 330. The officers here also observed a bulge by Ser-na’s waistband. Rather than simply frisking Serna, as the officers in Mimms did, they first asked Serna if he was carrying a gun. When Serna stated he was, their suspicion was now a certainty that Serna was armed with a gun. Seeing the gun in Serna’s waistband, under the circumstances, the officers reasonably retrieved it.

¶ 21 “[T]he purpose of a limited protective search for weapons is to allow a police officer to pursue his work without fear of violence.” Orman, 486 F.3d at 1176 (citing Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)); see Terry, 392 U.S. at 23, 88 S.Ct. 1868 (a frisk is based on the “immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him.”). As discussed under Terry, a search for weapons must be objectively reasonable. The determination of reasonable suspicion is “based on commonsense judgments and inferences about human behavior,” Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), and “a reasonable belief based on specific and articulable facts.” Maryland v. Buie, 494 U.S. 325, 337, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). Thus, a frisk is appropriate where a reasonably prudent officer was aware of facts which would warrant him to believe his safety or that of others was in danger. Terry, 392 U.S. at 23, 27, 88 S.Ct. 1868; United States v. Garcia, 909 F.2d 389, 391 (9th Cir.1990).

¶ 22 To make this determination, a court is obligated to consider all of the circumstances. See Terry, 392 U.S. at 27, 88 S.Ct. 1868. Officers make split-second determinations regarding their safety. The Supreme Court recently reminded us that “judges should be cautious about second-guessing a police officer’s assessment, made on the scene of the danger presented by a particular situation.” Ryburn v. Huff, — U.S.-, 132 S.Ct. 987, 991-92, 181 L.Ed.2d 966 (2012). We are not to judge the dangers “[wjith the benefit of hindsight and calm deliberation,” but from the “perspective of a reasonable officer on the scene.” Id. at 992, 132 S.Ct. 987 (quoting Graham v. Connor, 490 U.S. 386, 396-97,109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)).

¶ 23 Here, the officers approached Serna at night in a gang-ridden, dangerous, and violent area of Phoenix. After the officers noticed the “bulge” on Serna’s right side, they asked Serna if he was armed and, when he admitted he was, had him place his hands on his head⁷ and removed a gun from a holster that was secured to Serna’s waistband. The officers testified that in dangerous neighborhoods like this one, officers typically do not talk with individuals “when they have a gun on them because it could be hazardous for you.”

¶ 24 Considering these circumstances in light of all the ease law, especially Orman and Mimms, we hold that the superior court correctly denied Serna’s motion to suppress the gun.⁸ This conclusion is consistent with the public policy of the legislature as to how officers should handle interactions with armed persons. The legislature in 2010 amended the misconduct involving weapons statute to state that “[i]f a law enforcement officer contacts a person who is in possession of a firearm, the law enforcement officer may take temporary custody of the firearm for the duration of that contact.” A.R.S. § 13-3102(E).⁹

¶ 25 Our holding gives police enough flexibility to react reasonably to whatever situation confronts them while still safeguarding the Fourth Amendment protections of lawfully armed individuals. ¶25 We therefore affirm Serna’s conviction and sentence.

CONCURRING: DIANE M. JOHNSEN, Judge.

1 . A neighbor testified that Serna was also asked whether he had thrown something away.

2 . See Arizona Revised Statutes (A.R.S.) section 13-3102(K) (Supp.2012) (officer may take temporary custody of firearm during encounter with citizen).

3 . Because the statutes are the same in relevant part as when Serna committed his offense, we cite the current versions.

4 . "A complaint is a written statement of the essential facts constituting a public offense____" Ariz. R.Crim. P. 2.3(a). The officer's description of the neighborhood as "high crime" with "numerous drug complaints” appears in the factual statement of the complaint. Thus, this information is part of the case record; indeed, it forms part of the charging document. Cf. infra ¶ 57 note 14.

5 . But even if we did agree with the conclusion of the Ilono panel, this case is very different from Ilono. There is an obvious distinction between the officer’s retrieval of the gun volunteered by Serna to be on his person, and the search of Ilono, a minor, which resulted in the discovery and seizure of a beer bottle concealed on his person. While Serna volunteered the information that he had a gun and acceded to its retrieval, Ilono concealed evidence of crime on his person which had to be actively seized from him by officers. There is no evidence in this record that officers even touched Serna's person in the course of retrieving the weapon.

6 . The dissent argues that Mimms is limited to a traffic stop, which, the dissent posits, is a particularly dangerous type of encounter. The Mimms discussion on this point was in the context of an assertion that a traffic stop is less dangerous than other street encounters. We reject the idea that a routine traffic stop is inherently more dangerous than police investigations in other contexts, such as the high-crime neighborhood where this encounter took place.

7 . The dissent says this transformed the encounter into a detention. We do not agree that effectuating the statutorily authorized retrieval of the gun meant that the officers were at that point exercising physical restraint over Serna. In any event, the officer's direction that Serna move his hands so they could temporarily take custody of his gun was reasonable under the circumstances.

8 . We do not hold, as the dissent posits, that police may frisk a citizen simply because he is armed. We consider the totality of the circumstances in determining the objective reasonableness of police conduct. Nor, contrary to the dissent's assertion, do we mean to suggest that, absent other circumstances, officers may conduct a Terry stop or a Terry frisk of any individual they happen to encounter in a high-crime area.

9 . The dissent asserts, citing A.R.S. § 13-3102(M)(1), that the applicability of § 13-3102(K) requires an "investigatory stop” based on reasonable suspicion. However, § 13— 3102(M)(1) authorizes an officer to temporarily retrieve a firearm from a subject in any “lawful ... criminal investigation.” In fact, the statutory definition of "contacted by a law enforcement officer” covers the gamut of police activity, from civil traffic matters, to criminal investigations, to detentions and arrests. This investigation conducted by officers working the dangerous streets in a criminal milieu, characterized by gang activity and illicit drug trafficking, is clearly a criminal investigation. This is so, even though the contact with Serna was consensual, the dissent’s assertion to the contrary notwithstanding. It is especially so if credit is given to the third-party witness’s testimony that officers believed Serna had thrown something away in this "high crime residential area with numerous drug complaints.”