IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,

Appellee,

v.

DALE LEE EVANS,

Appellant.

No. CR-14-0285-PR

Filed June 4, 2015

Appeal from the Superior Court in Cochise County

The Honorable Wallace R. Hoggatt, Judge

No. CR-200500455

AFFIRMED

Opinion of the Court of Appeals, Division Two

235 Ariz. 314, 332 P.3d 61 (2014)

AFFIRMED

COUNSEL:

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor 

General, Joseph T. Maziarz (argued), Chief Counsel, Criminal Appeals 

Section, Phoenix, Amy Pignatella Cain, Assistant Attorney General, 

Criminal Appeals Section, Tucson, Attorneys for State of Arizona

Joel A. Larson (argued), Legal Defender, Cochise County, Bisbee, Attorney 

for Dale Lee Evans

David J. Euchner, Tucson, Attorney for Amicus Curiae Arizona Attorneys 

for Criminal Justice

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

JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES
STATE v. EVANS

Opinion of the Court

BRUTINEL and TIMMER joined.

JUSTICE BERCH, opinion of the Court:

¶1 The Fourth Amendment guarantees “[t]he right of the people 

to be secure . . . against unreasonable searches and seizures.” U.S. Const. 

amend. IV. An officer’s investigatory stop of a vehicle is a seizure and 

therefore must be based on reasonable suspicion. United States v. Cortez, 

449 U.S. 411, 417, 421–22 (1981). We must decide whether, to establish that 

reasonable suspicion exists, the state must show that the circumstances 

giving rise to a vehicle stop “eliminate a substantial portion of the innocent 

motoring public,” as petitioner Dale Evans asserts. We conclude that the 

Fourth Amendment does not require such a showing.

I. BACKGROUND

¶2 Cochise County Deputy Sheriff Dana Anderson saw Evans, 

who was the driver of a truck stopped at a stop sign on an adjoining street, 

“[f]lailing his arms” with closed fists toward the truck’s front seat 

passenger. Anderson alerted his partner to a potential assault and 

instructed him to turn around. As the patrol car approached, Evans drove

away from the intersection. The deputies initiated a traffic stop that 

ultimately led to Evans’s arrest for possession of marijuana, possession of 

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Opinion of the Court

drug paraphernalia, and aggravated driving under the influence. Before 

trial, Evans moved to suppress the evidence on the ground that the deputies 

lacked reasonable suspicion to pull him over.

¶3 At the suppression hearing, Anderson testified that he could 

clearly see the truck’s driver direct three rapid, closed-fisted movements 

toward the passenger. He demonstrated the arm movements he witnessed. 

Defense counsel asked during cross-examination if Anderson had seen

“blows” actually being struck, and thus the motions Anderson

demonstrated apparently suggested punching or hitting. The deputy 

acknowledged that he did not see contact between Evans’s fists and the 

passenger. Nonetheless, he was concerned enough that he directed his 

partner to turn the patrol car around so they could investigate further.

¶4 The trial court denied Evans’s motion to suppress, finding

that “the arm movements, though they might not have been criminal 

activity, were articulable facts that justified the Officers in trying to find out 

more.” The court of appeals affirmed the trial court’s denial of Evans’s

suppression motion. State v. Evans, 235 Ariz. 314, 315 ¶ 1, 332 P.3d 61, 62 

(App. 2014). Deferring to the trial court’s ability to view Anderson’s

demonstration of the actions that aroused his suspicion, id. at 317 ¶ 8, 332 

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Opinion of the Court

P.3d at 64, the court of appeals declined to require that “every stop be 

supported by testimony regarding how the factors ‘serve to eliminate’ 

innocent conduct” before reasonable suspicion will be satisfied, id. at 320 

¶ 22, 332 P.3d at 67 (quoting United States v. Foreman, 369 F.3d 776, 781 (4th 

Cir. 2004)).

¶5 We granted review to clarify what constitutes reasonable 

suspicion sufficient to justify an investigatory stop, a recurring issue of 

statewide importance. We have jurisdiction pursuant to Article 6, Section 

5(3) of the Arizona Constitution and A.R.S. § 12–120.24.

II. DISCUSSION

¶6 Whether there is a sufficient legal basis to justify a stop of a 

vehicle is a mixed question of fact and law. State v. Gonzalez-Gutierrez, 187 

Ariz. 116, 118, 927 P.2d 776, 778 (1996). We review the trial court’s factual 

findings on the motion to suppress for an abuse of discretion, but we review 

its ultimate legal determination de novo. Id.; see also State v. Gilstrap, 235 

Ariz. 296, 297 ¶ 6, 332 P.3d 43, 44 (2014).

¶7 “[P]olice can stop and briefly detain a person for investigative 

purposes if the officer has a reasonable suspicion supported by articulable 

facts that criminal activity ‘may be afoot,’ even if the officer lacks probable 

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Opinion of the Court

cause.” United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v. Ohio,

392 U.S. 1, 30 (1968)). Although the reasonable suspicion standard affords 

flexibility, investigatory stops cannot be arbitrary. “The Fourth 

Amendment requires ‘some minimal level of objective justification’ for 

making the stop.” Id. (quoting INS v. Delgado, 466 U.S. 210, 217 (1984)).

¶8 Courts have struggled to articulate when evidence rises to a 

level that satisfies the reasonable suspicion standard. See Ornelas v. United 

States, 517 U.S. 690, 695 (1996) (noting that “[a]rticulating precisely what 

‘reasonable suspicion’ and ‘probable cause’ mean is not possible”). 

Reasonable suspicion has been called a “commonsense, nontechnical 

conception[] that deal[s] with ‘the factual and practical considerations of 

everyday life on which reasonable and prudent [people], not legal 

technicians, act.’” Id. (quoting Illinois v. Gates, 462 U.S. 213, 231 (1983)). In 

determining whether reasonable suspicion exists, officers and courts 

reviewing their actions take into account “the totality of the 

circumstances—the whole picture” of what occurred at the scene. Cortez, 

449 U.S. at 417. From “that whole picture” the officers must derive “a 

particularized and objective basis for suspecting the particular person 

stopped of criminal activity.” Id. at 417–18. Although a mere

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Opinion of the Court

“unparticularized suspicion or ‘hunch’” does not establish reasonable 

suspicion, consideration “must be given . . . to the specific reasonable 

inferences [that an officer] is entitled to draw from the facts in light of his 

experience.” Terry, 392 U.S. at 27.

¶9 Citing several cases, Evans argues that the state must show 

that the “factors together . . . serve to eliminate a substantial portion of 

innocent travelers before the requirement of reasonable suspicion will be 

satisfied.” See, e.g., United States v. Neff, 681 F.3d 1134, 1142 (10th Cir. 2012); 

Foreman, 369 F.3d at 781; Karnes v. Skrutski, 62 F.3d 485, 493 (3d Cir. 1995),

abrogated on other grounds by Curley v. Klem, 499 F.3d 199 (3d Cir. 2007). That 

is, his argument suggests that officers must affirmatively consider the 

number of people who might engage in the activity observed so that 

significant percentages of innocent travelers are not subject to seizures.

¶10 We view the constitutional requirements differently. To say 

that an officer must have “particularized” suspicion incorporates the notion 

that the facts supporting a stop must be specific, distinct, or “particular” to 

the suspect. That alone will eliminate most members of the public. See Reid 

v. Georgia, 448 U.S. 438, 441 (1980) (noting that particularized suspicion 

necessarily does not “describe a very large category of presumably innocent 

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Opinion of the Court

travelers”). And that most non-criminal activity does not give rise to 

“suspicion” also serves to prevent the reported facts from applying to too 

many people. Cf. Gonzalez-Gutierrez, 187 Ariz. at 121, 927 P.2d at 781

(holding that a Hispanic driver glancing, scratching his head, and gripping 

his steering wheel tightly was insufficiently particularized to provide a 

reasonable suspicion of illegal alienage). Thus, the requirement that an 

officer state facts that, when taken together, give rise to particularized 

suspicion already serves to eliminate a substantial number of innocent 

travelers.

¶11 Nor, as Evans concedes, need the officer expressly rule out the 

possibility of innocent explanations for the conduct. See United States v. 

Arvizu, 534 U.S. 266, 277 (2002). “Although there could, of course, be 

circumstances in which wholly lawful conduct might justify the suspicion 

that criminal activity was afoot,” that would be an unusual case, and the 

combination of actions and circumstances would have to be such that a “fair 

inference” justified the observing officer’s reasonable suspicion. Reid, 448 

U.S. at 441; cf. Sokolow, 490 U.S. at 10 (“[T]he relevant inquiry is not whether 

particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that 

attaches to particular types of noncriminal acts.” (quoting Gates, 462 U.S. at 

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Opinion of the Court

243 n.13)).

¶12 Particularized suspicion is a common sense assessment that

officers make every time they conduct an investigatory stop. If all the 

circumstances taken together, along with the reasonable inferences derived 

from them, describe behavior that is entirely ordinary, then that behavior 

cannot reasonably give rise to particularized suspicion. In deciding that 

behavior is, in the totality of the circumstances, suspicious, a reasonable 

officer recognizes that the circumstances are atypical in a way that suggests 

possible criminal conduct.

¶13 Thus, the reasonableness standard does not demand that an 

officer affirmatively “consider the number of innocent travelers who might 

engage in similar behaviors,” Evans, 235 Ariz. at 320 ¶ 20, 332 P.3d at 67, 

nor does it require that the officer rule out possible alternative, innocent 

explanations for the actions observed, Navarette v. California, 134 S. Ct. 1683, 

1691 (2014). It requires only that an officer exercise common sense to

determine whether the facts justify an objectively reasonable suspicion. 

Ornelas, 517 U.S. at 695–96.

¶14 We agree with the court of appeals that there is no “additional 

requirement” that every stop be supported by testimony regarding how the 

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Opinion of the Court

factors “serve to eliminate” innocent conduct. Evans, 235 Ariz. at 320 ¶ 22, 

332 P.3d at 67 (quoting Foreman, 369 F.3d at 781). Officers need not provide

such testimony at suppression hearings, and trial courts need not make 

separate findings on that point. Instead, the trial court must exercise its 

judgment to determine whether an officer’s suspicion was reasonable 

under the totality of the circumstances. This is what occurred when the 

superior court concluded that Anderson’s observation of Evans appearing 

to punch his passenger justified an investigatory stop. Although there 

might have been an innocent explanation for Evans’s actions, the court did 

not abuse its discretion in concluding that Anderson had reason to suspect 

that an assault or domestic violence event was occurring that warranted 

further investigation.

¶15 Evans observes that two Arizona cases―State v. Sweeney, 224 

Ariz. 107, 113 ¶ 22, 227 P.3d 868, 874 (App. 2010), and State v. Teagle, 217 

Ariz. 17, 24 ¶ 25, 170 P.3d 266, 273 (App. 2007)―have cited with approval 

Foreman’s “serve to eliminate” language, 369 F.3d at 781. He asserts that the 

court of appeals’ disavowal of that language in this case has created a split 

of authority on the court of appeals.

¶16 We do not read either Teagle or Sweeney, which merely quote 

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the cited language from Foreman, as creating a rule requiring a separate 

showing. The court of appeals in this case read them similarly, disavowing 

the “serve to eliminate” language in Foreman only insofar as it “articulates

a standard not present in Sokolow[].” Evans, 235 Ariz. at 319 ¶ 16, 332 P.3d 

at 66. It correctly held that “[w]hen determining whether reasonable 

suspicion exists, the police are not required to rule out the possibility of 

innocent explanations for a defendant’s conduct.” Id. at 320 ¶ 19, 332 P.3d 

at 67 (quoting State v. Ramsey, 223 Ariz. 480, 485 ¶ 23, 224 P.3d 977, 982 (App. 

2010)).

¶17 We hold that reasonable suspicion under the Fourth 

Amendment does not require officers to testify about how their 

observations reduce or eliminate the possibility that innocent travelers will 

be subject to seizures or trial courts to make specific findings on that issue. 

Objectively reasonable, particularized suspicion of criminal activity 

necessarily will reduce the risk of sweeping in a substantial number of 

innocent travelers.

III. CONCLUSION

¶18 We affirm the opinion of the court of appeals and the trial 

court’s denial of Evans’s motion to suppress.

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