NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

JAMES ALLEN POSEY, Appellant.

No. 1 CA-CR 13-0910

Appeal from the Superior Court in Maricopa County

No. CR2012-164559-001

The Honorable William L. Brotherton, Jr., Judge

The Honorable Rosa Mroz, Judge

AFFIRMED

COUNSEL

The Attorney General’s Office, Phoenix

By Linley Wilson

Counsel for Appellee

The Maricopa County Public Defender’s Office, Phoenix

By Mikel Steinfeld

Counsel for Appellant
STATE v. POSEY

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in 

which Judge Maurice Portley and Judge Jon W. Thompson joined.

G O U L D, Judge:

¶1 Defendant, James Allen Posey, timely appeals from his 

conviction on one count of possession of a dangerous drug, a Class 4 felony. 

He argues that the trial court erred in denying his motion to suppress and 

in denying his request for an instruction based on his theory of the case. 

For reasons set forth below, we affirm.

FACTS1 AND PROCEDURAL HISTORY

¶2 Police contacted Defendant as part of a burglary 

investigation. Officer Edmundo Saldivar testified that he conducted a pat 

down of Defendant and, as a result, “located a glass pipe that [he] believed 

to be a pipe used to smoke methamphetamine” in Defendant’s left jacket 

pocket. The pipe looked like it had been used; it had “white residue”

“consistent with smoking, being used.” The officer arrested Defendant for 

possession of drug paraphernalia. 

¶3 During a search incident to arrest, the officer located a baggie 

with a white crystal-like substance in Defendant’s “front shirt pocket” that, 

based on training and experience, he believed to be methamphetamine. 

Officer Saldivar testified that, after he found the pipe, he asked Defendant 

“what it was,” to which Defendant replied, “It’s just a pipe. I’ll go to prison 

for a long time.” When he asked Defendant what was inside the baggie, 

Defendant replied something to the effect, “I would assume it’s drugs but I 

don’t know.” An analysis revealed that the baggie contained 1.0 gram of 

methamphetamine in a usable condition. 

¶4 The State charged Defendant with possession of a dangerous 

drug (methamphetamine), a Class 4 felony and possession of drug 

 

1 We view the facts in the light most favorable to sustaining the jury’s 

verdict and resolve all reasonable inferences against defendant. State v. 

Vandever, 211 Ariz. 206, 207 n.2 (App. 2005).
STATE v. POSEY

Decision of the Court

3

paraphernalia (pipe), a Class 6 felony. Defendant represented himself at 

trial and testified on his behalf. The jury found Defendant guilty of the drug 

possession charge but was “unable to agree” on the possession of drug 

paraphernalia charge. The jury also found Defendant was on probation at 

the time of the offense. The trial court further found Defendant had two 

prior felony convictions and sentenced Defendant to a presumptive 10-year 

term of imprisonment.2 

DISCUSSION

I. Motion to Suppress

¶5 Prior to trial, Defendant moved to suppress the pipe and the 

methamphetamine, arguing the search violated his Fourth Amendment 

rights. Defendant argued the officers had no reasonable suspicion to stop 

him and that, even if they did, the search was neither consensual nor 

supported by officer safety reasons. 

¶6 The court held a suppression hearing at which both Officer 

Saldivar and Defendant testified. The evidence established that around 

2:30 p.m. Officer Saldivar and his partner, Officer Smith, received an

emergency radio call of a residential burglary in progress that described 

“three males” who had stolen three bicycles from the victim’s residence and 

were last seen “walking with the bikes southbound on 16th Street.” The 

radio call indicated that the subjects were “white males” wearing “a brown 

shirt, a white shirt, and a green shirt and they all had bicycles with them.”

Approximately 6 minutes later, the officers made contact with Defendant 

and his two companions who matched the descriptions of the white males 

and were seen walking southbound on 16th Street with bicycles. 

¶7 The officers stopped the men and asked them for 

identification. While Officer Smith returned to the patrol car to run the 

three subjects’ information on the computer, Officer Saldivar stood by with 

the men. At some point during the investigation, Officer Saldivar was 

informed that the caller who had initially called 911 “drove by and told the 

911 operator that the individuals that we were out with were, in fact the 

same ones that were at the residential burglary.” Meanwhile, other officers 

at the scene of the residential burglary were in communication with Officer 

Saldivar relaying information back and forth with him through dispatch. 

 

22 At sentencing, the trial court dismissed the drug paraphernalia charge 

without prejudice. 
STATE v. POSEY

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4

When Officer Smith returned from the patrol car, the officers “proceeded to 

pat down” the three men for officer safety reasons. 

¶8 On appeal, Defendant concedes that the officers had 

reasonable suspicion to initially stop him, but maintains that the frisk was 

deficient because, by the time it occurred, the officers no longer had reason 

to detain him and because there was no reason to believe he was armed or 

dangerous. Defendant also maintains the officers exceeded the permissible 

scope of the frisk itself. 

¶9 In reviewing a trial court’s denial of a motion to suppress, we 

review only the evidence presented at the hearing on the motion and view 

it in the light most favorable to sustaining the trial court’s ruling. State v. 

Gay, 214 Ariz. 214, 217, ¶ 4 (App. 2007). We defer to the trial court’s factual 

findings absent an abuse of discretion. State v. Valle, 196 Ariz. 324, 327, ¶ 6 

(App. 2000). The trial court is also responsible for resolving conflicts of 

testimony, and this court will defer to those findings absent an abuse of 

discretion. State v. Lacy, 187 Ariz. 340, 347 (1996). “We review de novo, 

however, the trial court’s ultimate legal determination that the search 

complied with the dictates of the Fourth Amendment.” Valle, 196 Ariz. at 

327, ¶ 6.

A. The Initial Stop

¶10 Defendant first maintains that, by the time Officer Saldivar 

frisked him, the initial reason for the stop had “dissipated” because the 

officers had investigated the original offense and the officers “had not 

developed new suspicion of a separate crime.” 

¶11 The officers clearly had reasonable suspicion based on 

specific facts to stop Defendant. State v. Romero, 178 Ariz. 45, 49 (App. 1993)

(citing Terry v. Ohio, 392 U.S. 1, 21-24 (1968)). The men were located just 

minutes after the reported burglary; they matched the description of the 

suspects, and were walking southbound with three bicycles on 16th Street 

as the 911 caller had indicated. 

¶12 It is also clear that the initial investigation was still on-going 

at the time the frisk occurred. The officers made initial contact with 

Defendant at 2:36 p.m. and the record at the hearing established that 

Defendant was arrested at 2:46 p.m. During those ten minutes, Officer 

Smith was confirming their identifications, Officer Saldivar was talking 

with the men, conducting his investigation, and receiving information from 

police at the burglary investigation via dispatch. There is simply no 

indication that the initial investigation was completed, or that the initial 
STATE v. POSEY

Decision of the Court

5

suspicions of the police regarding the burglary had “dissipated,” by the 

time the frisk occurred. 

¶13 The fact that Defendant was not arrested for residential 

burglary as a result of the encounter is immaterial. The frisk occurred for 

officer safety reasons as part of the initial stop, for which the officers had 

reasonable cause. State v. Navarez, 235 Ariz. 129 (App. 2014), on which 

Defendant relies, is inapplicable to these facts.

B. Terry Frisk

¶14 Defendant next argues there was no reason for Officer 

Saldivar to frisk him because there was no indication that he was armed or 

dangerous or made any threatening gestures. A police officer may lawfully 

conduct a pat-down of an individual when the officer is “justified in 

believing that the individual whose suspicious behavior he is investigating 

at close range is armed and presently dangerous to the officer or to others.” 

Terry, 392 U.S. at 24. “The purpose of this limited search is not to discover 

evidence of crime, but to allow the officer to pursue his investigation 

without fear of violence.” Valle, 196 Ariz. at 327, ¶ 9 (quoting Adams v. 

Williams, 407 U.S. 143, 146 (1972)).

¶15 According to Terry, an officer “need not be absolutely certain 

that the individual is armed; the issue is whether a reasonably prudent man 

in the circumstances would be warranted in the belief that his safety or that 

of others was in danger.” 392 U.S. at 27. In determining whether an officer 

acted reasonably under the circumstances, “due weight must be given, not 

to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific 

reasonable inferences which he is entitled to draw from the facts in light of 

his experience.” Id. 

¶16 Here, the two officers were confronted with three men whom

they suspected of having been involved in a residential burglary minutes 

earlier. Officer Saldivar testified that he executed the pat down for officer 

safety reasons because it was he and his partner and “three individuals,”

and “a potentially dangerous situation.” Under these circumstances, it was 

not unreasonable for the officer to expect that any one of the three men

might possess weapons or burglary tools that could prove dangerous to 

him and his partner. See, e.g., United States v. Barnett, 505 F.3d 637, 640 (7th

Cir. 2007) (reasoning burglary is a crime “normally and reasonably 

expected to involve a weapon”). Furthermore, Officer Saldivar and his 

partner were outnumbered; they were justifiably concerned for their safety. 
STATE v. POSEY

Decision of the Court

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C. Scope of the Frisk

¶17 Finally, Defendant contends the frisk exceeded the 

permissible scope. Defendant argues the officer knew the item in his pocket 

was not a weapon and it was also not “immediately identifiable” as 

contraband. The State argues we should not consider this issue because 

defendant failed to raise it below and deprived the state of developing the 

record or addressing it. See State v. Estrella, 230 Ariz. 401, 404 n.1, ¶ 9 (App. 

2012) (declining to consider argument raised for the first time on appeal in 

the context of a motion to suppress because reviewing court is limited to 

record presented at the hearing which is inadequate). Because we find that 

Defendant raised the issue, however unartfully, in his reply as well as 

during the suppression hearing, we will address it on review. 

¶18 In Minnesota v. Dickerson, the Supreme Court held that, if in 

the course of conducting a legitimate Terry search, a police officer lawfully 

pats down a suspect’s outer clothing and feels an object whose contour or 

mass makes its identity “immediately apparent” as contraband, the officer 

may lawfully seize the item. 508 U.S. 366, 375-76 (1993); see also Valle, 196 

Ariz. at 327, ¶ 10 (quoting Dickerson 508 U.S. at 375-76). This is known as 

the “plain feel” exception to the warrant requirement, and is viewed as the 

equivalent of the “plain view” exception. State v. Ahumada, 225 Ariz. 544, 

548-49, ¶ 15 (App. 2010). The Fourth Amendment’s requirement that the 

officer have probable cause to believe that the item is contraband before 

seizing it ensures against excessively speculative seizures. Dickerson, 508 

U.S. at 377 (requiring the contraband be “plainly detected through the sense 

of touch”). To be valid under the plain feel exception, the incriminating 

character of the object must be immediately apparent to the officer and not 

obtained through “squeezing, sliding and otherwise manipulating the 

contents.” Id. at 378.

¶19 Defendant claimed the officer improperly manipulated the 

object to ascertain that it was contraband. The officer testified he “felt a 

cylindrical object with a bulbous tip, which is from my training and 

experience it is a pipe.” In denying Defendant’s motion to suppress, the 

trial court ultimately found the officer’s version of events credible over

Defendant’s. Inherent in its ruling, is the fact that the court credited Officer 

Saldivar’s “plain feel” avowal over Defendant’s allegations of 

manipulation. Absent an abuse of discretion, we defer to the trial court’s 

resolution of conflicts in the evidence. Lacy, 187 Ariz. at 347.

¶20 Also inherent in the ruling is the legal determination that the 

officer’s testimony supports the conclusion the object was “immediately”
STATE v. POSEY

Decision of the Court

7

recognized as contraband and not, for example, a generic pipe. This legal 

determination, we review de novo. Valle, 196 Ariz. at 326, ¶ 6. We will infer 

the necessary findings to affirm the trial court, but will do so only if the 

implied findings do not conflict with the trial court’s express findings. State 

v. Zamora, 220 Ariz. 63, 67, ¶ 7 (App. 2009). 

¶21 Officer Saldivar was a patrol officer for five years, had 

performed numerous investigations, and had taken courses in reference to 

drug investigations. His description of the “cylindrical object with a

bulbous tip” coupled with his explicit reference to the fact that it was his 

“training and experience” that told him that “it is a pipe,” support the 

inference that the officer immediately knew, at the moment he felt it, that it 

was a pipe used for drugs and therefore contraband. We conclude that the 

evidence at the suppression hearing, including reasonable inferences to be 

drawn therefrom, viewed in the light most favorable to supporting the trial 

court’s ruling, supports the court’s determination. Gay, 214 Ariz. at 217, 

¶ 4. The trial court did not err in denying the motion to suppress. 

II. Theory of the Case Instruction 

¶22 On appeal, Defendant argues the trial court incorrectly 

instructed the jury regarding possession of dangerous drugs because its 

instructions did not inform the jury the State had to prove he knew the 

substance he possessed was a dangerous drug, specifically, 

methamphetamine. 

¶23 “A party is entitled to an instruction on any theory reasonably 

supported by the evidence.” State v. Rodriquez, 192 Ariz. 58, 61, ¶ 16 (1998). 

“Nevertheless, a trial court generally is not required to give a proposed 

instruction when its substance is adequately covered by other instructions.” 

Id. “Nor must the trial court give every specific instruction requested by 

the defense; [t]he test is whether the instructions adequately set forth the 

law applicable to the case.” Id.

¶24 “We view jury instructions in their entirety when 

determining whether they adequately reflect the law.” Id. at 61-2, ¶ 16. 

Furthermore, the “[c]losing arguments of counsel may be taken into 

account when assessing the adequacy of jury instructions.” State v. 

Bruggeman, 161 Ariz. 508, 510 (1989). This court will reverse only if the 

instructions taken together would have misled the jurors. State v. Doerr, 193 

Ariz. 56, 65, ¶ 35 (1998). “Where the law is adequately covered by 

instructions as a whole, no reversible error has occurred.” Id. 
STATE v. POSEY

Decision of the Court

8

¶25 The trial court did not abuse its discretion when it refused to 

give Defendant’s requested instruction. See State v. Axley, 132 Ariz. 383, 392 

(1982) (not error to refuse specifically requested instruction when 

instructions given to jury adequately set forth applicable law). The court’s 

instructions adequately and properly instructed the jury on the applicable 

law. The instructions specifically informed the jury the State was required 

to prove “each element of each charge beyond a reasonable doubt” and that, 

to prove possession of a dangerous drug, the State had to prove that 

defendant “knowingly possessed a dangerous drug, to wit, 

methamphetamine.” Defendant was permitted to argue to the jury that 

there was no proof that he knew that the substance he had was 

methamphetamine. There is no probability the jury was misled. 

CONCLUSION

¶26 For the foregoing reasons, we affirm Defendant’s conviction 

and sentence.