IN THE 

## S UPREME 

## C OURT OF THE 

## S TATE OF 

## A RIZONA
S TATE OF A RIZONA , Appellee ,

v.
D ALE L EE E VANS , Appellant

. No. C R

- 14

- 0285

- PR

Filed June 4 , 2015 Appeal from the Su perior Court in Cochise County The Honorable Wallace R. Hoggatt , Judge No. CR

- 20 0500455 AFFIRMED Opinion of the Court of Appeals, Division Two 235 Ariz. 3 14 , 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, Tuc son, 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 JUSTICE SSTATE v . EVANS Opinion of the Court
BRUTINEL and TIMMER joined. JUSTICE BERCH, opinion of the Co urt: ¶1 The Fourth Amendment guarantees “[t]he right of the people
to be secure

. . . against unreasonable searches and seizures .” U.S. Const.
amend. IV. A n 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 s tate must show that the circumstances giving rise to a vehicle stop “ eliminate a substantial portion of the innocent motoring public , ” a s 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 dr ove away from the intersection . T he deputies initiated a traffic stop that ultimately led to Evans’s arrest for possession of marijuana, possession of

2STATE v . EVANS Opinion of the Court drug paraphernalia, and aggravated driving under the influence . Before trial, Evans moved to suppress t he 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

. D efense 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
supp ression 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

3STATE v . EVANS 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 , i d. 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 is sue 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. Gonzale z - Gutierrez , 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996). We review the tr ial court’s factual findings on the motion to suppress for an abuse of discretion, but we review
its ultimate legal determination de novo. Id. ; s ee 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

4STATE v . EVANS 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 stop s cannot be arbitrary

. “ T he Fourth Amendment requires ‘some minimal level of objective justification’ for making the stop

. ” I d. (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 ‘proba ble 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, office rs and courts reviewing their actions take into account “ t he 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

5STATE v . EVANS 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 trav e lers are not subject to seizures

. ¶10 We view th e 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

6STATE v . EVANS 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 Ari z. at 121, 927 P.2d at 781 (holding that a Hispanic driver glancing, scratching his head, and gripping his steering wheel tightly was in sufficiently particularized to provide a reasonable suspicion of illegal al ienage). Th us, th e 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 o f 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 ; c f. 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

7STATE v . EVANS Opinion of the Court 243 n.13) ). ¶12 P articularized 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 suspicio n
. In deciding that behavior is, in the totality of the circumstances , suspicious, a reasonable
officer recognizes that the circumstances are a typical in a way that suggests possible criminal conduct. ¶13 Thus, t he 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
deter mine 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

8STATE v . EVANS 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 ). O fficers need not provide
such testimony at suppression hearings , and trial court s need not make separate findings on that point. Instead, t he trial court must exercise its judgment to determine whether a n 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 investiga tion

. ¶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

9STATE v . EVANS Opinion of the Court 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 “ articulate s 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 Stat e 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 r easonable, particularized suspicion of criminal activity necessarily will reduce the risk of swe eping in a substantial number of
innocent travelers.
III. C ONCLUSION ¶18 W e affirm the opinion of the court of appeals and the trial
court’s denial of Evans’s motion to suppress.

10