IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,

Appellee,

v.

ANTHONY BENARD PRIMOUS,

Appellant.

No. CR-16-0205-PR

Filed May 23, 2017

Appeal from the Superior Court in Maricopa County

The Honorable Pamela S. Gates, Judge

No. CR2012-005697

REMANDED

Opinion of the Court of Appeals, Division One

239 Ariz. 394, 372 P.3d 338 (App. 2015)

VACATED

COUNSEL:

Mark Brnovich, Arizona Attorney General, Dominic Draye, Solicitor 

General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section, 

Robert A. Walsh (argued), Assistant Attorney General, Phoenix, Attorneys 

for State of Arizona

Maricopa County Public Defender’s Office, Carlos Daniel Carrion (argued),

Deputy Public Defender, Phoenix, Attorneys for Anthony Benard Primous

David J. Euchner, Pima County Public Defender’s Office, Tucson, Josephine 

Bidwill, The Bidwell Law Firm, PLLC, Phoenix, Kathleen E. Brody (argued), 

American Civil Liberties Union Foundation of Arizona, Phoenix, Attorneys 

for Amici Curiae Arizona Attorneys for Criminal Justice and American 

Civil Liberties Union Foundation of Arizona 
STATE V. PRIMOUS

Opinion of the Court

2

JUSTICE BOLICK authored the opinion of the Court, in which CHIEF 

JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES 

BRUTINEL and BERCH (RETIRED), and JUDGES MILLER and MACKEY 

joined.*

JUSTICE BOLICK, opinion of the Court:

¶1 We consider whether police can form a reasonable suspicion 

that an individual is engaged in criminal activity and is armed and 

dangerous, thus justifying a pat-down search, based merely on where they 

encounter the individual (e.g., a “high-crime neighborhood”) and a 

companion’s flight. Viewing the totality of the circumstances, we hold that 

the police here did not have an individualized reasonable suspicion 

sufficient to justify the pat-down search of Anthony Benard Primous; 

therefore, the trial court erred in denying his motion to suppress evidence 

found in the search.

I. BACKGROUND

¶2 One February morning, five Phoenix police officers went to 

an apartment complex in a high-crime neighborhood. They were looking 

for a suspect with an outstanding warrant who they believed carried and 

sold weapons.

¶3 Officers Ohland and Casillas approached four men who were 

talking outside the apartment complex, which had external surveillance 

cameras. Two were standing and two were seated, including Primous, who 

held an infant on his lap. None of the men were the suspect.

 

* Justices Ann A. Scott Timmer, Andrew W. Gould, and John R. Lopez IV

recused themselves. Pursuant to article 6, section 3 of the Arizona 

Constitution, the Honorable Rebecca White Berch, Justice of the Arizona 

Supreme Court (Retired), the Honorable Michael O. Miller, Judge of the 

Arizona Court of Appeals, Division Two, and the Honorable David L. 

Mackey, Presiding Judge of the Yavapai County Superior Court, are 

designated to sit in this matter.
STATE V. PRIMOUS

Opinion of the Court

3

¶4 Ohland and Casillas identified themselves as police officers 

and asked the men how they were doing. Both officers thought one of the 

men appeared nervous. When that person noticed three other officers 

approaching, he ran and was chased by those officers. The other men 

remained and made no sudden moves. Primous remained seated with the 

infant on his lap. He did not appear nervous or to have a weapon.

¶5 Ohland and Casillas announced they were going to pat down 

the men for weapons. Before the frisk commenced, one of the men handed 

Ohland a baggie of marijuana. Ohland then patted down all three men. 

The search revealed no weapons, but Ohland felt an object in Primous’s

pocket, which turned out to also be a baggie of marijuana.

¶6 Primous was charged with misdemeanor marijuana 

possession. He moved to suppress the marijuana as the product of an 

unlawful search. After an evidentiary hearing, the trial court concluded the 

“officers had a reasonable suspicion that criminal activity may be afoot” 

and “appropriately decided to perform a pat-down search for officer 

safety.” Assessing the “totality of the circumstances,” the court noted “the 

conduct of the one individual who ran, coupled with the reason for [the 

officers’] encounter with the group, the dangerousness of the area, the 

number of individuals remaining compared to the number of officers, and 

the cameras.” Based on those factors, the trial court denied the motion. 

Primous was convicted following a bench trial and placed on one year of 

unsupervised probation.

¶7 The court of appeals affirmed. The court applied a two-step 

analysis to assess the propriety of the frisk: whether officers reasonably 

suspected that the person who was searched (1) was committing or had 

committed an offense and (2) was armed and dangerous. State v. Primous, 

239 Ariz. 394, 396 ¶ 9, 372 P.3d 338, 340 (App. 2016) (citing Arizona v. 

Johnson, 555 U.S. 323, 326–27 (2009)). As to the second prong, the court 

considered “whether a reasonably prudent [officer] in the circumstances 

would be warranted in the belief that his safety or that of others was in 

danger.” Id. (citing Terry v. Ohio, 392 U.S. 1, 27 (1968)).

¶8 The court of appeals framed the issue as “whether the 

suggestion of wrongdoing created by Defendant’s companions justified a 
STATE V. PRIMOUS

Opinion of the Court

4

frisk of Defendant, who remained seated and gave no indication of 

complicity in either the flight or the drug possession.” Id. ¶ 11. The court 

concluded that “[c]ompanionship with a suspected criminal may, in view 

of the totality of the circumstances, justify a protective stop and frisk even 

absent a particularized reasonable suspicion that the person to be searched 

is committing or has committed a crime.” Id. at 397 ¶ 13, 372 P.3d at 341. 

Based on the facts identified by the trial court, the court of appeals 

determined that the frisk was justified and affirmed the trial court’s ruling. 

Id. at 397–98 ¶¶ 14–15, 372 P.3d at 341–42.

¶9 We granted review because identifying the circumstances 

that may justify a pat-down search involves recurring legal issues of 

statewide importance. We have jurisdiction under article 6, section 5(3) of 

the Arizona Constitution and A.R.S. § 12-120.24.

II. DISCUSSION

¶10 We review rulings on motions to suppress for abuse of 

discretion, considering only the evidence presented at the suppression 

hearing and viewing it in the light most favorable to sustaining the trial 

court’s ruling. State v. Butler, 232 Ariz. 84, 87 ¶ 8, 302 P.3d 609, 612 (2013). 

“An error of law constitutes an abuse of discretion.” State v. Bernstein, 237 

Ariz. 226, 228 ¶ 9, 349 P.3d 200, 202 (2015). We review the constitutionality 

of the frisk de novo. See State v. Havatone, 241 Ariz. 506, 509 ¶ 11, 389 P.3d 

1251, 1254 (2017). 

A. The Frisk

¶11 Although a frisk is less intrusive than a full-body search, the 

Fourth Amendment prohibits any search of an individual unless the police 

have a reasonable belief that crime is afoot and the individual is armed and 

dangerous. The controlling Arizona case is State v. Serna, 235 Ariz. 270, 331 

P.3d 405 (2014), which neither the State nor the court of appeals cited. There 

this Court held that in the context of a consensual encounter, “an officer 

may frisk an individual only when the officer possesses both a reasonable 

suspicion that the person to be searched has engaged or is about to engage in 

criminal activity and a reasonable belief that the person is armed and 

dangerous.” Id. at 276 ¶ 28, 331 P.3d at 411 (emphasis added). Reasonable 
STATE V. PRIMOUS

Opinion of the Court

5

suspicion in turn requires “a particularized and objective basis” for the 

suspicion. Ornelas v. United States, 517 U.S. 690, 696 (1996).

¶12 In Serna, police were patrolling a known gang neighborhood 

at night and encountered a man and woman standing in the middle of the 

street. 235 Ariz. at 271 ¶ 2, 331 P.3d at 406. As the patrol car approached, 

the duo walked in opposite directions, and the officers engaged defendant 

Serna in a consensual encounter. Id. He was polite and cooperative. Id. at 

272 ¶ 3, 331 P.3d at 407. The officers noticed a bulge in his waistband, which 

Serna disclosed was a gun. Id. The officers removed the gun and patted 

him down. Id. In response to the officers’ subsequent questioning, Serna 

admitted that he had a felony conviction. Id. This Court reversed the trial 

court’s denial of Serna’s motion to suppress the gun in a prosecution for 

prohibited possession of a firearm by a convicted felon. Id. at ¶ 4, 277 ¶ 30,

331 P.3d at 407, 412. Because there was no reasonable suspicion that Serna 

was engaged in criminal activity, we concluded that “the mere presence of 

a weapon does not afford officers constitutional permission to search 

weapons-carrying individuals. To conclude otherwise would potentially 

subject countless law-abiding citizens to pat-downs solely for exercising 

their right to carry a firearm.” Id. at 275 ¶ 23, 331 P.3d at 410.

¶13 The State seemingly agrees that nothing Primous did or said

gave rise to a reasonable suspicion that he was engaged in criminal activity

or was armed or dangerous. He was not the suspect police were seeking. 

When police approached, he was seated with an infant on his lap, talking 

with three other men. He did not react in a suspicious manner to the police 

encounter or when one of the other men ran away. He was cooperative. In 

sum, Primous gave the police no justification to search him. Any other 

justification could only have arisen from the surrounding circumstances.

¶14 In approving the frisk, the trial court relied on five 

circumstances, the “totality” of which it considered to give rise to 

reasonable suspicion that “crime was afoot”: (1) the individual who ran, (2) 

the reason for the police encounter with the group, (3) the dangerousness 

of the area, (4) the number of individuals remaining at the scene compared 

to the number of officers, and (5) the surveillance cameras. From these same 

circumstances, the court of appeals concluded “we cannot say that [the 

officer] unreasonably suspected that Defendant might be armed and 

dangerous.” Primous, 239 Ariz. at 397 ¶ 14, 372 P.3d at 341. We disagree.
STATE V. PRIMOUS

Opinion of the Court

6

¶15 What is striking about the five factors relied upon by the 

courts below is that Primous had control over none of them. Although 

“[t]he 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 others was in danger.” Terry, 392 

U.S. at 27. The ultimate inquiry is whether police have reasonable suspicion 

that the person searched was either engaged in criminal activity or armed and 

dangerous. Serna, 235 Ariz. at 276 ¶ 28, 331 P.3d at 411. The surrounding 

circumstances here do not sufficiently suggest that Primous was engaged 

in crime or that he was armed and dangerous to justify a pat-down for 

weapons.

¶16 The court of appeals justified the frisk largely on Primous’s

fleeing companion, holding that “[c]ompanionship with a suspected 

criminal may, in view of the totality of the circumstances, justify a 

protective stop and frisk even absent a particularized reasonable suspicion 

that the person to be searched is committing or has committed a crime.” 

Primous, 239 Ariz. at 397 ¶ 13, 372 P.3d at 341 (citing Trice v. United States, 

849 A.2d 1002, 1004, 1008–09 (D.C. App. 2004); United States v. Flett, 806 F.2d 

823, 827–28 (8th Cir. 1986)). Thus, “[d]espite Defendant’s passivity and the 

absence of any objective evidence of criminal collusion with his 

companions,” the court of appeals could not “say that [Officer] Ohland 

unreasonably suspected that Defendant might be armed and dangerous.” 

Id. ¶ 14.

¶17 The court of appeals’ analysis understates the personalized 

and particularized showing required by the Fourth Amendment. Analysis 

of the United States Supreme Court’s jurisprudence shows that more is 

required than appears here. In Ybarra v. Illinois, 444 U.S. 85 (1979), for 

example, a search warrant was executed for a bar and bartender suspected 

of selling heroin. The police frisked all of the bar’s patrons for weapons, 

finding heroin in defendant Ybarra’s pocket. Id. at 88–89.

Upon entering the tavern, the police did not 

recognize Ybarra and had no reason to believe 

that he had committed, was committing, or was 

about to commit any offense under state or 

federal law. Ybarra made no gestures indicative 
STATE V. PRIMOUS

Opinion of the Court

7

of criminal conduct, made no movements that 

might suggest an attempt to conceal 

contraband, and said nothing of a suspicious 

nature to the police officers. In short, the agents 

knew nothing in particular about Ybarra, except 

that he was present, along with several other 

customers, in a public tavern at a time when the 

police had reason to believe that the bartender 

would have heroin for sale.

Id. at 90–91. The Court concluded that “a person’s mere propinquity to 

others independently suspected of criminal activity does not, without more, 

give rise to probable cause to search that person.” Id. at 91.

¶18 Moreover, the police “neither recognized [Ybarra] as a person 

with criminal history nor had any particular reason to believe that he might 

be inclined to assault them.” Id. at 93. His “hands were empty” and he 

“gave no indication of possessing a weapon, made no gestures or other 

actions indicative of an intent to commit an assault, and acted generally in 

a manner that was not threatening.” Id. The Court thus concluded that the 

frisk “was simply not supported by a reasonable belief that he was armed 

and presently dangerous, a belief which this Court has invariably held must 

form the predicate for a pat-down of a person for weapons.” Id. at 92–93.

¶19 As in Ybarra, the facts surrounding the police encounter with 

Primous did not generate the requisite personalized and particularized 

reasonable suspicion that he was engaged in crime or was presently armed 

and dangerous. The encounter took place in broad daylight. None of the 

men were the suspect who occasioned the police presence. Once one of the 

men fled, the remaining men, including Primous who was seated with an 

infant on his lap, exhibited no hostile, furtive, or even uncooperative 

behavior. Primous had been talking with the man who ran, but that mere 

proximity or companionship did not suggest Primous was engaged in 

criminal activity or dangerous. The surveillance cameras could have been 

intended to protect apartment dwellers against crime rather than the police, 

and in any event did not suggest Primous was dangerous. In sum, nothing 

about the environment gave rise to a reasonable suspicion that Primous was 

involved in a crime, much less that he was armed and dangerous to police 

officers.
STATE V. PRIMOUS

Opinion of the Court

8

¶20 Nor were Primous and his companions acting in concert in 

such a way as to give rise to a reasonable suspicion that they all were 

engaged in a criminal activity and might be armed and dangerous. See Flett, 

806 F.2d at 828 (holding that frisk was appropriate where subject of arrest 

was an “enforcer” for a violent gang and companion was dressed in gang 

attire and identified as a member); cf. Bernini v. City of St. Paul, 665 F.3d 997, 

1003–04 (8th Cir. 2012) (arrest appropriate where the “group was acting as 

a unit” and “the group, as a whole, was committing one or more offenses”). 

Here, Primous and his companions were engaged in no apparent concerted 

action other than conversation.

¶21 Cases relied upon by the court of appeals or the State are 

either distinguishable or overtaken by Ybarra. See, e.g., United States v. 

Berryhill, 445 F.2d 1189, 1193 (9th Cir. 1971) (pre-Ybarra case allowing frisk 

of a criminal’s companion at time of arrest); United States v. Bell, 762 F.2d 

495, 500–02 (6th Cir. 1985) (holding search was permissible where car 

containing defendant was driven by a person suspected of being armed and 

dangerous, defendant generally matched description of criminal 

accomplice, defendant was uncooperative, and there was risk to bystanders 

in the crowded parking lot); Flett, 806 F.2d at 828 (focusing “not [on]

whether the officer had an indication that the person armed was dangerous, 

but rather, whether the officer reasonably perceived the subject of the frisk 

as potentially dangerous”); Trice, 849 A.2d at 1008 (noting that defendant 

“appeared to be the companion of a potentially violent, fleeing criminal and 

not a mere bystander”). Reaffirming and applying the clear two-part test 

set forth in Serna, we conclude that the facts here were insufficient to 

support a reasonable suspicion that Primous was involved in a crime and 

was armed and dangerous. Thus, unsupported by reasonable suspicion, 

the frisk of Primous violated the Fourth Amendment.

¶22 The amici who support Primous ask us to categorically 

exclude the dangerousness of the surroundings from an officer’s calculus 

“unless officers can point to a specific attribute of the neighborhood 

relevant to the particular person and criminal activity under investigation,” 

on the grounds that such factors are a proxy for race. We decline to do so.

 

¶23 Although the fact that the encounter occurred in a dangerous 

neighborhood does not by itself authorize police to pat down people they 

encounter during an investigation, it is not irrelevant in determining 
STATE V. PRIMOUS

Opinion of the Court

9

whether an individual suspect is involved in criminal activity and armed 

and dangerous. In Illinois v. Wardlow, 528 U.S. 119 (2000), the United States 

Supreme Court sustained a frisk by police officers who were patrolling an 

area known for heavy narcotics trafficking where the defendant fled upon 

seeing the officers. The Court held that “the fact that the stop occurred in a 

‘high crime area’ [is] among the relevant contextual considerations in a 

Terry analysis,” but observed that “[a]n individual’s presence in an area of 

expected criminal activity, standing alone, is not enough to support a 

reasonable, particularized suspicion that the person is committing a crime.” 

Id. at 124.

¶24 In Wardlow, ample suspicion that the defendant was engaged 

in criminal activity and was armed and dangerous arose not only from his 

presence in a high-crime area, but also “his unprovoked flight upon 

noticing the police.” Id. By contrast, here the question is whether 

reasonable suspicion justified frisking Primous not because of anything he 

did or said but because someone else with whom he was conversing fled 

when police approached, while Primous remained seated and cooperative. 

The fact that the encounter occurred in a high-crime neighborhood was 

insufficient to justify the search of an individual who gave no indication 

that he was involved in a crime or posed an imminent threat to the officers. 

The Fourth Amendment shields such individuals from pat-downs

regardless of their neighborhood. This rule amply protects law-abiding 

residents of high-crime neighborhoods from being searched solely because 

of their surroundings.

 B. Motion to Suppress

¶25 The State also argues that the marijuana baggie illegally 

seized from Primous should not be suppressed as evidence because there 

would be no deterrent value given that police officers will take whatever 

steps they deem necessary to protect their safety. See, e.g., Ybarra, 444 U.S. 

at 108 (Rehnquist, J., dissenting) (observing that excluding evidence will 

have little deterrent effect where frisk is based “on an officer’s well-honed 

sense of self-preservation”). We find the argument unpersuasive. 

Suppressing the illegally seized evidence here helps ensure that frisks are 

based upon the legitimate factors outlined above and do not devolve into a 

de facto policy of frisking all individuals with whom police have

investigative encounters in high-crime neighborhoods. Cf. Herring v. United 
STATE V. PRIMOUS

Opinion of the Court

10

States, 555 U.S. 135, 144 (2009) (exclusionary law serves to deter “recurring 

or systemic” negligence). “While we understand the need for police officers 

to protect themselves in the course of their duties, we must balance that 

weighty interest against the ‘inestimable right’ of citizens to be free from 

unreasonable governmental searches and seizures.” Serna, 235 Ariz. at 276

¶ 29, 331 P.3d at 411 (citing Terry, 392 U.S. at 8–9).

III. CONCLUSION

¶26 Because the sole evidence supporting Primous’s conviction 

was the product of an illegal search, we vacate the court of appeals’ opinion

and reverse Primous’s conviction and probationary term.