IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

IN RE ILONO H. )

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DEPARTMENT A

O P I N I O N

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. 16988001

Honorable Stephen M. Rubin, Judge Pro Tempore

REVERSED AND REMANDED

Barbara LaWall, Pima County Attorney

By Peter Hochuli

Robert J. Hooker, Pima County Public Defender

By Paul Holbrook Tucson

Attorneys for State

Tucson

Attorneys for Minor

E C K E R S T R O M, Judge. JUN 17 2005 

### FILED BY CLERK

COURT OF APPEALS

DIVISION TWO2

¶1 Ilono H., born April 28, 1988, appeals from the juvenile court’s denial of his

motion to suppress evidence; from his adjudication as a delinquent for possessing or

consuming alcohol, a class one misdemeanor, and possession of a narcotic drug for sale, a

class two felony; and from the disposition order placing him on probation for twelve months.

Because we agree with Ilono that the juvenile court erred in denying his motion to suppress,

we reverse his adjudication and remand this case for the reasons set forth below.

¶2 We review only the evidence presented at the s uppression hearing, S tate v.

Blackmore

, 186 Ariz. 630, 631, 925 P.2d 1347, 1348 (1996), and we view it in the light

most favorable to upholding the juvenile court’s factual findings. State v. Hackman

, 189

Ariz. 505, 508-09, 943 P.2d 865, 868-69 (App. 1997). At 6:45 p.m. on June 23, 2004,

Tucson Police Officers Pegnato and Garcia were patrolling in their vehicle near a park on

the south side of Tucson in an area of known drug and gang activity when they saw a group

of five individuals, including Ilono, sitting underneath a ramada that was marked with gang

graffiti. Officer Pegnato testified that the “[m]ajority of [the individuals] were all dressed in

red[. W]e made contact with them, approached them on foot, saw the baggy clothing and

at that time conducted a frisk.” Ilono was one of the individuals wearing red, baggy clothing.

Pegnato testified that such clothing is often associated with gang members who frequently

carry weapons. During the pat-down search, she discovered that Ilono had a forty-ounce

bottle of beer under his clothes, and she arrested him for possessing alcohol. Officer Garcia

then conducted a search incident to the arrest and found a small plastic bag in Ilono’s pants1 Ilono made this statement after he was advised of his rights in accordance with

Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 pocket that was later determined to contain cocaine. Ilono told the officers that the cocaine

belonged to him and that, although he did not use cocaine, he sold it. 1

¶3 Ilono argued below that, because Officer Pegnato was unable to articulate a

reason for believing that he had been involved in criminal activity or that he had been armed,

the initial stop and pat-down search were unconstitutional under Terry v. Ohio

, 392 U.S.

1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The juvenile court denied Ilono’s motion to

suppress the cocaine, finding that “the officer [had] acted appropriately under the

circumstances[,] . . . that she articulated well her concerns when approaching the group[,]

. . . [and that] they rise to the level of permitting a pat-down search.” Ilono has timely

appealed that ruling. Although we view the evidence presented at the suppression hearing

in the light most favorable to upholding any factual findings, the question of whether the

police had reasonable suspicion to conduct an investigatory stop is a mixed question of law

and fact that we review de novo

. See State v. Rogers , 186 Ariz. 508, 510, 924 P.2d 1027,

1029 (1996).

¶4 Under Terry and its progeny, an officer may conduct an investigatory stop or

detention only if the officer has “a reasonable suspicion supported by articulable facts that

criminal activity ‘may be afoot,’” United States v. Sokolow

, 490 U.S. 1, 7, 109 S. Ct. 1581,

1585, 104 L. Ed. 2d 1, 10 (1989), quoting Terry , 392 U.S. at 30, 88 S. Ct. at 1884, 204

L. Ed. 2d at 911, or if the person stopped is reasonably suspected of having committed a

crime. S ee United States v. Hensley

, 469 U.S. 221, 229, 105 S. Ct. 675, 680, 83 L. Ed. 2d

604, 612 (1985); State v. Winegar

, 147 Ariz. 440, 446, 711 P.2d 579, 585 (1985). Then,

if the officer “has reason to believe that the suspect is armed and dangerous,” the officer may

conduct a limited search for weapons. A dams v. Williams

, 407 U.S. 143, 146, 92 S. Ct.

1921, 1923, 32 L. Ed. 2d 612, 617 (1972); s ee also Terry , 392 U.S. at 30, 88 S. Ct. at

1884-85, 20 L. Ed. 2d at 911; Winegar

, 147 Ariz. at 446, 771 P.2d at 585; In re Steven O

.,

188 Ariz. 28, 31, 932 P.2d 293, 296 (App. 1997).

¶5 The state presented no evidence that would support an officer’s reasonable

suspicion that any of the individuals under the ramada, including Ilono, was engaged in any

criminal activity. In fact, Officer Pegnato acknowledged that she had initially approached

the group simply because they were wearing clothing associated with gangs in a park

frequented by gang members. Pegnato also noted in other testimony that one of the

individuals in the group, E., was a known gang member with prior law enforcement contacts

and that there had been several comparatively recent incidents of criminal activity in the

park, including acts of violence directed at police officers. But she conceded that neither

E. nor any other person under the ramada matched the description of anybody wanted by

the police.

¶6 “[R]easonable suspicion” is a “commonsen se, non-technical concept[] that

deal[s] with the ‘“factual and practical considerations of everyday life on which reasonable5

and prudent men, not legal technicians, act.”’” O rnelas v. United States, 517 U.S. 690,

695, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911, 918 (1996), quoting Illinois v. Gates

, 462

U.S. 213, 231, 103 S. Ct. 2317, 2328, 76 L. Ed. 2d 527, 544 (1983), quoting Brinegar v.

United States

, 338 U.S. 160, 175, 69 S. Ct. 1302, 1311, 93 L. Ed. 1879, 1890 (1949). But

Pegnato simply provided no “particularized or objective basis” for believing that Ilono, or

any other person in the group, had committed, or was about to commit, a crime. S ee United

States v. Cortez

, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 629 (1981)

(requiring officers to possess a “particulari zed and objective basis” for suspecting person

stopped of criminal activity). Indeed, Arizona courts have found that officers lacked

reasonable cause for an investigative stop under far more suspicious circumstances. S ee,

e.g., Rogers

, 186 A riz. at 511, 924 P.2d at 1030 (officers lacked sufficient basis for

investigatory stop of defendant who had emerged from bushes in darkened residential area,

stared at officers conducting a traffic stop while walking down middle of road, and began

running when officers asked to speak with him); State v. Stricklin

, 191 Ariz. 245, 246, 955

P.2d 1, 2 (App. 1996) (no reasonable suspicion for investigatory stop of defendant who had

displayed furtive behavior near closed business at 1:00 a.m.). And we cannot authorize

officers to conduct investigatory detentions of individuals merely because they have worn

the wrong color clothing in the wrong part of town. S ee Brown v. Texas

, 443 U.S. 47, 52,

99 S. Ct. 2637, 2641, 61 L. Ed. 2d 357, 362-63 (1979) (person’s mere presence in alley in

neighborhood frequented by drug users not reasonable cause for investigative stop).6

¶7 However, the conclusion that t he officers lacked a reasonable basis for an

investigative stop does not end our inquiry. At the suppression hearing, Officer Pegnato

implied, and the state maintained, that the officers’ actions had not implicated the standards

set forth in T

erry and its progeny because the individuals under the ramada were never

detained and were free to leave until the officers developed cause to arrest Ilono. And the

record shows that the officers initially took no actions, and made no statements, that would

have led Ilono to believe that he could not voluntarily depart.

¶8 “‘[L]aw enforcement officers do not violate the Fourth Amendment by merely

approaching an individual on the street or another public place.’” F lorida v. Bostick , 501

U.S. 429, 434, 111 S. Ct. 2382, 2386, 115 L. Ed. 2d 389, 398 (1991), quoting Florida v.

Royer

, 460 U.S. 491, 497, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983). Further,

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.”

Bostick

, 501 U.S. at 437, 111 S. Ct. at 2388, 115 L. Ed . 2d at 400. Under such

circumstances, we would find no constitutional infirmity in the officers approaching Ilono

to make an inquiry to the extent Ilono consented to it.

¶9 Howe ver, the officers’ actions that led to the discovery of the inculpatory

evidence involved a far greater intrusion on Ilono’s liberty than mere voluntary questioning.

In fact, the record suggests that Pegnato conducted a pat-down frisk of Ilono even before she

asked a single question of him. In T erry

, the Supreme Court implied that a pat-down search7

of a defendant must be characterized as a search and seizure. 392 U.S. at 19, 88 S. Ct. at

1879, 20 L. Ed. 2d at 904-05 (“Officer McFadden ‘seized’ petitioner and subjected him to

‘search’ when he took hold of him and patted down the outer surfaces of his clothing.”); see

also Sibron v. New York

, 392 U.S. 40, 64, 88 S. Ct. 1889, 1903, 20 L. Ed. 2d 917, 935

(1968) (police officers may not place their hands on citizens “in search of anything” without

“constitutionally adequate, reasonable grou nds for doing so”). Thus, “[a] pat down is

unquestionably a search covered by the Fourth Amendment.” L eveto v. Lapina

, 258 F.3d

156, 163 (3d Cir. 2001).

¶10 Relying on Terry, the state argues the frisk was nonetheless proper because

the officers had possessed “an articulable reason to fear for their safety.” S ee Terry , 392

U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909 (officer may frisk person during brief

detention only if “a reasonably prudent man in the circumstances would be warranted in the

belief that his safety or that of others was in danger”); see also Adams

, 407 U.S. at 146, 92

S. Ct. at 1923, 32 L. Ed. 2d at 617 (officer may frisk person during Terry stop only if he or

she “has reason to believe that t he suspect is armed and dangerous”). The facts here

arguably would have supported a reasonable belief that one or more of the individuals under

the ramada might be armed and dangerous. The officers were aware that (1) E. was a gang

member who had been known to carry a weapon; (2) gang members in general are known

to carry weapons; and (3) unknown persons had recently shot at police officers in the

neighborhood and had physically assaulted a polic e officer at a Boys and Girls Club2 See Terry

, 392 U.S. at 22-23, 88 S. Ct. at 1880-81, 20 L. Ed. 2d at 906-07; see also

Adams , 407 U.S. at 147-48, 92 S. Ct. at 1924, 32 L. Ed. 2d at 617-18.

8 adjoining the park several days earlier. Moreover, Ilono was not only wearing gang colors

and loose-fitting clothes within which a gun could be easily hidden from view, he was also

associating with E.

¶11 Assuming, without deciding, that those circumstances gave the officers

re a sonable grounds to believe Ilono was then armed and dangerous, but see Ybarra v.

Illinois

, 444 U.S. 85, 94, 100 S. Ct. 338, 343, 62 L. Ed. 2d 238, 247 (1979) (“The ‘narrow

scope’ of the Terry exception does not permit a frisk for weapons on less than reasonable

belief or suspicion directed at the person to be frisked . . . .”) (emphasis added), quoting

Dunaway v. New York

, 442 U.S. 200, 210, 99 S. Ct. 2248, 2255, 60 L. Ed. 2d 824, 834

(1979), we nonetheless conclude that the officers were not entitled to conduct a protective

search of him in the absence of any reason to believe that he had committed, or was

committing, a crime. Notably, T erry and its Supreme Court progeny addressed the propriety

of a pat-down search exclusively in the context of a lawful investigatory stop. 2 We do not

read those cases to authorize a pat-down search as part of a mere consensual

encounter—even when an officer may have grounds to believe the targets of the encounter

are potentially armed and dangerous. In his concurring opinion in T erry

, Justice Harlan

bluntly rejected the theory that officers may conduct a pat-down search as part of a

consensual encounter, noting:9 [ P ]olicemen have no more right to “pat down” the outer

clothing of passers-by, or persons to whom they address casual

questions, than does any other citizen. . . .

. . . .

. . . [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.

392 U.S. at 32, 88 S. Ct. at 1885, 20 L. Ed. 2d at 912 (Harlan, J., concurring); s ee also

Adams , 407 U.S. at 146, 92 S. Ct. at 1923, 32 L. Ed. 2d at 617 (“So long as the officer is

enti tled to make a forcible stop, and has reason to believe that the suspect is armed and

dangerous, he may conduct a weapons search limited in scope to this protective purpose.”)

(emphasis added).

¶12 Both Arizona jurisprudence and other persuasive a u thority suggest that an

officer’s right to conduct a pat-down search should be predicated on the officer’s right to

initiate an investigatory stop in the first instance. In S tricklin

, a case in which we found

inadequate grounds for an investigatory stop, we tersely concluded that, “[b]ecause the stop

was not justified, neither was the pat-down search.” 191 Ariz. at 246, 955 P.2d at 2. Other

courts addressing the questio n more exhaustively have come to the same conclusion. In

United States v. Burton

, 228 F.3d 524, 528 (4th Cir. 2000), the Fourth Circuit articulated

the test as follows:

[A]n officer may encounter citizens and attempt to question

them without implicating the Fourth Amendment. But during

such police-ci tizen encounters, an officer is not entitled,10 without additional justification, to conduct a protective search.

To conduct such a protective search, an officer must first have

reasonable suspicion supported by a rticulable facts that

criminal activity may be afoot.

See also United States v. Gray

, 213 F.3d 998, 1000 (8th Cir. 2000) (requiring that a frisk

be based upon reasonable suspicion that criminal activity is afoot because “a protective frisk

is both a search and a seizure for Fourth Amendment purposes”); Gomez v. United States,

597 A.2d 884, 890-91 (D.C. App. 1991) (officer’s safety concerns should not be considered

in determining articulable suspicion); State v. Giltner

, 537 P.2d 14, 17 (Haw. 1975) (officer

lacking cause for an investigatory stop not authorized to frisk defendant des pite officer’s

knowledge that defendant had been armed on previous occasio n); 4 Wayne R. LaFave,

Search and Seizure § 9.6(a), at 617 (4th ed. 2004) (“[I]f an officer, lacking the quantum of

suspicion required by Terry to make a forcible stop, instead conducts a non-seizure field

interrogation, he may not frisk the person interrogated upon suspicion he is armed . . . .”).

¶13 Moreover, the United States Supreme Court, our own supreme court, and this

court have indicated that a person is authorized to disregard, or even flee from, an officer

who merely seeks to initiate a consensual encounter. B ostick

, 501 U.S. at 437, 111 S. Ct.

at 2387, 115 L. Ed. 2d at 400; Rogers

, 186 Ariz. at 510-11, 924 P.2d at 1029-30; State v.

Wyman , 197 Ariz. 10, ¶ 12, 3 P.3d 392, 396 (App. 2000). We would contradict the logic

of those cases if we concluded that, under the same circumstances, an officer possesses the

authority to require the target of the consensual inquiry to submit to a pat-down search.11

¶14 We are cognizant of the need for officers to protect themselves as they engage

in the vitally important and dangerous task of enforcing our laws, and we agree they must

be given substantial leeway in determining whether a suspect may be armed and dangerous.

See State v. Vasquez

, 167 Ariz. 352, 354-55, 807 P.2d 520, 522-23 (1991) (in the context

of an arrest or detention, officers should be given leeway in handling dangerous situations

and “should not be compelled to act at their peril”). But, in the context of a consensual

encounter initiated by an officer, those persons targeted by the officer, when not reasonably

suspected of any cr iminal activity, also possess the right to be free of unwarranted

government intrusion. As Justice Harlan observed in Terry :

Any person, includ ing 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 mor e than the liberty (again, possessed by

every citizen) t o address questions to other persons, for

ordinarily the person addressed has an equal right to ignore his

interrogator and walk away; he certainly need not submit to a

frisk for the questioner’s protection.

392 U.S. at 32-33, 88 S. Ct. at 1885-86, 20 L. Ed. 2d at 912 (Harlan, J., concurring); see

also LaFave, supra

, § 9.6(a), at 617 (when an officer lacks grounds to temporarily detain

a person he or she believes may be armed and dangerous, “the officer may protect himself

by not engaging in a [consensual] confrontation”). “No matter how appealing the cart may

be, the horse must precede it.” Gomez , 597 A.2d at 891.12

¶15 Because the encounter between Ilono and the officers ceased to be consensual

when Officer Pegnato conducted the pat-down search, and because the officers lacked any

reasonable basis to suspect that Ilono had committed a crime so as to justify such an

intrusion, the juvenile court erred in denying Ilono’s motion to suppress the fruits of the patdown search. Accordingly, we reverse the adjudication of delinquency and remand the case

for further proceedings consistent with this decision.

_______________ _____________________ PETER J. ECKERSTROM, Judge

CONCURRING:

____________________________________ JOSEPH W. HOWARD, Presiding Judge

____________________________________ J. WILLIAM BRAMMER, JR., Judge