NOTICE: NOT FOR PUBLICATION.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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA, Appell ee ,

v.

JAMES ALLEN POSEY

, Appell ant

.

No. 1 CA

- CR 13

- 0 910

Appeal from the Superior Court in Maricopa County

No. C R2012

- 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 Appel lee

The Maricopa County Public Defender’s Office

, Phoenix By Mikel Steinfeld
C ounsel for Appell antSTATE v. POSEY
Decision of the Court

2 MEMORANDUM DECISION

Presiding Judge Andrew W. Gould d elivered the decision of the Court, in which Judge Maurice Portley and Judge Jon W. Thompson joined.

G O U L D

, Judge:

¶1 De fendant, James Allen Pose y, timely appeals from his
conviction on one count of possession of a dangerous drug, a Class 4 felon y. 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 reaso ns set forth below, we affirm.

FACTS 1 AND PROCEDURAL HISTORY

¶2 Police contacted D efendant as part of a burglary
investi gation. Officer Edmundo Saldivar testified that he conducted a pat down of D efendant and , as a result, “ located a glass pipe that [he] believed to be a pip e used to smoke methamphetamine ” in D efendant’s left jacket pocket. The pipe looked like it had been used ; it had “white residue ”

“ consistent with smoking, being used.” The officer arrested D efendant for possession of drug parap hernalia.

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

- like substance in D efendant’s “front shirt pocket” that, based on training and experience, he believed to be methamphetamine. Officer Sal divar testified that , aft er he found the pipe, he asked D efendant “what it was,” to which D efendant replied, “It’s just a pipe. I’ll go to prison fo r a long time.” When he asked D efendant what was inside the baggie,
D efendant replied s omething 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 D efendant with poss ession 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.
V a ndever , 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 D efendant guilty of the drug possession charge but was “unable to agree” on the possession of drug paraphernalia charge. The jury also found D efendant was on probation at the time of the offense. The trial court further found D efendant had two prior fe lony convictions and sentenced D efendant to a presumptive 10

- year term of imprisonment. 2

DISCUSSION

I. Motion to Suppress

¶5 Prior to trial, D efendant moved to suppress the pipe and the methamphetamine , ar guing the search violated his Fourth Amendment rights. D e fendant argued the officers had no reasonable suspicion to stop him and that, eve n if they did, the search was neither consensual nor supported by officer safety reasons.

¶6 The c ourt held a suppression hearing at which both Officer Saldivar and D efendant 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 16 th Street.” The radio call indicated that the sub jects 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 D efendant and his two companions who matched the descriptions of the whit e males and were seen walking southbound on 16 th 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 Saldiva r 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 wer e 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.

2 2 At sentencing, the trial court dismissed the drug parapher nalia charge without prejudice.STATE v. POSEY
Decision of the Court

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, D efendant concedes that the officers had reasonable suspicion to initially stop him, but maintains that the frisk was deficient because, by the time it occurred, t he 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 (A pp. 2007) . We defer to the trial court’s factual find ings absent an abuse of discretion. State v. Valle , 196 Ariz. 324, 327, ¶ 6 (App. 2000)

. T he 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. Lac y , 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 T he officers clearly had reasonable suspicion based on specific facts to stop D efendant. 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 m atched the description of the suspects, and were walking southbound with three bicycles on 16 th 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 offi cers made i nitial contact with
D efendant at 2:36 p.m. and the record a t the hearing established that
D efendant was arrested at 2:46 p.m. During those ten minutes, Officer Smith was confirming the ir identifications, Officer Saldivar was talking with the men, conducti ng 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 initialSTATE v. POSEY
Decision of the Court

5 suspicions of the police regarding the burglary had “ di ssipated, ” by the
time the frisk occurred.

¶13 The fact that D efendant 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
D efendant relies, is inapplicable to these facts.

B. Terry Frisk

¶14 Defendant next argues there was no reason for Officer Saldivar to frisk him becaus e there was no indication that he w as 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 3 27, ¶ 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 who m they suspected of having been involved in a reside ntial burglary m inutes earlier

. Officer Saldivar te stified 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 poss ess 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 (7 th Cir. 2007) (reasoning burglary is a crime “normally and reasonably expected to involve a w eapo n ” )

. Furthermore, O fficer Saldivar and his partner were outnumbered; they were justifiably concerned for their safety.STATE v. POSEY
Decision of the Court

6 C. Scope of the Frisk

¶17 Finally, D efendant contends the frisk exceeded the permi ssible scope

. Defendant argues the officer knew the item in his pocket

was not a weapon a nd it was also not “immediately identifiable” as contraband. The S tate argues we should not consider this issue because defendant failed to raise it below and depriv ed 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
D efen dant raised the issue, howeve r 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 t he 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 D efendant claimed the offi cer 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, t he
tria l court ultimately found the officer’s version of events credible over
D efendant’s. Inherent in its ruling, is the fact that the court credited Officer Saldivar’s “plain feel” avowal over D efendant’s allegations of manipulation. Absent an abuse of discre tion, we defer to the trial court’s resolution of conflicts in the evidence. Lacy , 187 Ariz. at 347

.
¶20 Also inherent in t he ruling is the l egal 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 h e felt it

, that it was a pip e 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 ruli ng, 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, D efendant argues the trial court incorrectly instructed the jury regarding possession of dangerous drugs because its instructions di d not inform the jury the S tate 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 reasonab ly 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 t rial 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 ref lect the law. ” Id . at 61

- 2, ¶ 16

. Furthermore, the “[c]losing argument s 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 Th e trial court did not abuse its disc retion when it refused to give D efendant’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 fort h applicable law). The court’s
instructions adequately and properly instructed the jury on the applicable law. The instructions s pecifically info rmed the jury the S tate was required to prove “each element of each charge beyond a reasonable doubt” and tha t
, to prove possession of a dangerous drug, the S tate 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 th e foregoing reasons, we affirm D efendant’s conviction and sentence.