Opposition Brief — Arizona v. Mullen

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD Copy

AT THE TIME OF FILMING, IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILT BE ISSUED,

Eupreme Court, U.S,

FILED

ROY § 1991

No. 91-627 nea

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1991

STATE OF ARIZONA,

Petitioner,

VOATRESS MULLEN, JR.,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE ARIZONA COURT OF APPEALS, DIVISION ONE

.

RESPONDENT'S BRIEF IN OPPOSITION

*JAMES LAWRENCE EDGAR

DEPUTY PUBLIC DEFENDER

Maricopa County

Public Defender's Office

132 South Central, Suite 6

Phoenix, Arizona 85004

Telephone (602) 506-7923

Counsel for Respondent

*Counsel of Record

QUESTION PRESENTED

Where the trial court record demonstrates that the officer

approached the respondent at a bus stop without reasonable

suspicion of criminal activity and the prosecutor stipulates that

the officer demanded compliance with his request that

identification be produced, whether the trial court erred in its

judgment that the Fourth Amendment was violated.

TABLE OF CONTENTS

Page

QUESTION PRESENTED i

TABLE OF CONTENTS ii

TABLE OF CASES AND AUTHORITIES iii

STATEMENT 1

SUMMARY OF ARGUMENT 4

ARGUMENT

I. THE PROSECUTION STIPULATED THAT THE 3

OFFICER DEMANDED COMPLIANCE WITH HIS

REQUEST TO PRODUCE IDENTIFICATION.

Il. THE PROSECUTION FAILED TO MEET ITS

, BURDEN TO PROVE THAT THE RESPONDENT

CONSENTED TO THE PRODUCTION OF

IDENTIFICATION.

CONCLUSION “6

‘ APPENDICES

7 Appendix A App. 1

Appendix B App. 6

Appendix C App. 12

Appendix D App. 19

ii

TABLE OF CASES AND AUTHORITIES

Bumper v. North Carolina,

391 U.S. 543 (1968)

Florida v. Bostick,

501 U.S.-_

115 L.Ed.2d 389, 111 S.Ct. 2382 (1991)

Gangadean v. Flori Investment Company,

106 Ariz. 245, 248

474 P.2d 1006, 1009 (1970)

Pulliam v. Pulliam,

139 Ariz. 343

678 P.2d 528 (1984)

State v. Vandeveer,

22 A$is. App. 333

533 P.2d 91 (1975)

Wolf Corporation v. Louis,

11 Ariz. App. 52

464 P.2d 672 (1970)

Arizona Rules of Criminal Procedure

Rule 16.2(b)

iii

cea)

No. 91-627

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1991

STATE OF ARIZONA,

Petitioner,

-vs-

VOATRESS MULLEN, JR.,

- Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE ARIZONA COURT OF APPEALS, DIVISION ONE

RESPONDENT'S BRIEF IN OPPOSITION

The respondent, Voatress Mullen, Jr., through undersigned

counsel, respectfully requests that this Court deny the petition

for writ of certiorari, seeking review of the opinion of the

Arizona Court of Appeals in this case. That opinion is reported

at Ariz. , 812 P.2d 106.

STATEMENT

he Respondent, Voatress Mullen, Jr., was seated at a bus stop

awaiting the arrival of a bus in Phoenix, Arizona, in the afternoon

of May 16, 1988. App. 2. Phoenix police officer David Leeper

drove by in a marked patrol car. He concluded that respondent was

_watching the police car and decided to contact him. App. 7. He

approached on foot. Id.

The prosecutor stipulated that Officer Leeper then demanded

that respondent comply with his request to produce identification.

See infra section 2. Respondent then gave the officer his driver's

license. The officer recorded respondent's name and date of birth.

App. 8. He asked respondent what he had in his carrying bag. Id.

Respondent allowed the officer to examine the bag. Id. When the

bus arrived, the officer returned respondent's license and

permitted him to board the bus. App. 8. After the bus departed,

the officer ran a computer search and found an outstanding warrant

for respondent. App. 2. He followed the bus to the next stop.

Id. He boarded the bus and placed respondent under arrest based

on the warrant. Id. The officer searched respondent incident to

the arrest and found various items of drug paraphernalia and a

small quantity of illegal drugs. App. 2.

y Respondent filed a Motion to Suppress and a supporting

Memorandum of Points and Authorities in the trial court.

App. 1-5. A partial transcript of Officer Leeper's preliminary

hearing testimony was attached to the motion. App. 6-11. The

Motion to Suppress requested an evidentiary hearing. App. 1. The

section of the Motion to Suppress labeled "Statement of Facts"

alleged that the officer had demanded identification from the

respondent. App. 2.

The State filed a Response to Motion to Suppress, which

stipulated that the facts set forth in respondent's Memorandum of

Points and Authorities were accurate. App. 12. The State

contended that no evidentiary hearing was required. Id. The

State's Response to Motion to Suppress states:

COMES NOW the County Attorney, by and through

counsel undersigned, and responds to defendant's Motion

to Suppress as follows:

I. FACTS:

For purposes of the determination of this motion,

the State stipulates that the facts as set forth in

defendant's Memorandum of Points and Authorities and as

illustrated by the portions of the Preliminary Hearing

transcript attached thereto are accurate. The Suite does

not believe that this matter requires an evidentiary

hearing, for the reasons that the facts as stated in

defendant's Memorandum, or as elaborated upon herein,

should be sufficient for the Court to apply the law and

determine the appropriate resolution of the issue at bar.

During the — on the Motion to Suppress the trial court

confirmed that the State and respondent were stipulating to the

accuracy of the facts set forth in the Motion to Suppress. (See

Petition for Writ of Certiorari to Arizona Court of Appeal,

Division One, App. 19). The officer testified during the Motion

to Suppress hearing that he had asked respondent for

identification. Id. at 26-27, 30. His preliminary hearing

testimony also was that he had asked for identification. App. 8.

During the Motion to Suppress hearing, respondent's counsel

contended that the officer had demanded identification. Id. at

App. 37.

3. The trial court granted respondent's Motion to Suppress. See

Petition for Writ of Certiorari to the Arizona Court of Appeals,

Division One, App. 44. Although the trial court wrote no opinion

and made no express findings of fact, the court did state: "Police

do not have the right to stop someone and say, 'Let me see your

identification!'" Id. at 43. The trial judge asked the prosecutor:

"What is the officer's articulable reason for demanding

identification from somebody waiting for a bus?" d., at App. 41.

The trial court was also of the opinion that the police could

not "stop at every bus stop and request any person to display

identification," at least not when the stop was racially motivated.

Id. at 42. The court suggested that respondent's race might have

prompted the encounter. Id. at 42-43.

4. The Arizona Court of Appeals affirmed the suppression order.

The Court of Appeals stated that officers could not ask for

identification with no founded suspicion of criminal activity.

The court concluded that respondent was detained and that the

investigatory detention violated the Fourth Amendment.

5. The Arizona Supreme Court denied the State's petition for

review without opinion on July 11, 1991.

SUMMARY OF ARGUMENT

Law enforcement officers do not violate the Fourth Amendment

by merely approaching an individual and asking a few questions.

Florida v. Bostick, 501 U.S. ___, 115 L.Ed.2d 389, 111 S.Ct. 2382

(1991). Such an encounter is consensual and may occur even without

the police having reasonable suspicion of criminal activity. See

id. However, if the officer without reasonable suspicion demands

that identification be produced, the encounter loses its consensual

nature and the Fourth Amendment is violated. See id. This Court

has made it clear that without reasonable suspicion the police may

not demand cooperation and that "consent" that is the product of

official intimidation or harassment is not consent. See id.

The State stipulated that the officer demanded identification

from respondent. This demand was an unreasonable seizure and

violated the Fourth Amendment. ¢€ee id.

The burden was on the State to prove that the evidence was

lawfully obtained. See 17 A.R.S. Rules of Crim.Proc. Rule 16.2(b);

Bumper v. North Carolina, 391 U.S. 543 (1968). The prosecution did

not meet its burden. The stipulation entered by the State could

have influenced the trial judge's decision to find a Fourth

Amendment violation. The trial court was correct in stating that

the: "Police do not have the right to stop someone and say, ‘Let

me see your identification!'"

The parties stipulated before the trial court to facts which

support the judgment below.

ARGUMENT

I. THE PROSECUTION STIPULATED THAT THE OFFICER DEMANDED

COMPLIANCE WITH HIS REQUEST TO PRODUCE IDENTIFICATION.

This Court has made it clear that the Fourth Amendment is not

violated whenever a police officer approaches a person and merely

asks a few questions. If a reasonable person would feel free to

disregard the officer and go about his business, the encounter is

not considered an unreasonable seizure. Florida v. Bostick, 501

U.S. _—_—_, 115 L~Ed.2d 389, 111 S.Ct. 2382 (1991). The encounter

is constitutionally permitted even if the police are without

reasonable suspicion of criminal activity. See id. However, the

police may not demand "voluntary" cooperation. This Court stated

that "consent" that is the product of official intimidation or

‘harassment is not consent at all. See id.

Respondent submits that a police demand for identification

communicates to a reasonable person that he is not free to ignore

the police presence and go about his business. A reasonable person

would not decline a police demand for identification. Law

enforcement officers when they have no articulable reason to

suspect criminal activity are not justified in demanding that an

individual produce identification or submit to a se#rch or respond

to their questions.

The facts of this case clearly indicate that the police had

no articulable suspicion of criminal activity when respondent was

approached. The facts of this case as evidenced by the stipulation

entered by the prosecutor indicate that Officer Leeper demanded

identification from respondent.

In Arizona, one who stipulates to certain facts is foreclosed

from repudiating them on appeal. W ati Vv. is, 11

Ariz. App. 352, 464 P.2d 672 (1970). A party may not complain on

appeal that his choice of words in a stipulation did not state what

he contends on appeal he really meant to say. See id., at 355, 464

P.2d at 675. Parties are bound by their stipulations. lam v.

Pulliam, 139 Ariz. 343, 678 P.2d 528 (1984). Stipulations made by

previous counsel do not evaporate upon the retention of a new

attorney. See id., at 346, 678 P.2d at 531. In Gangadean v. Flori

Investment Company, 106 Ariz. 245, 248, 474 P.2d 1006, 1009 (1970),

the ‘Arizona Supreme Court stated: "Facts stipulated to by counsel

are conclusive throughout the litigation and binding on the parties

unless, upon appropriate and timely motion and for good cause

shown, the parties are relieved therefrom."

II. THE PROSECUTION FAILED TO MEET ITS BURDEN TO PROVE THAT

THE RESPONDENT CONSENTED TO THE PRODUCTION OF

IDENTIFICATION.

In Bumper v. North Carolina, 391 U.S. 543 (1968), this Court

stated that when the prosecution wishes to rely upon consent to

justify the lawfulness of a search, it has the burden to prove that

the consent was freely given. This Court stated that the

prosecution's burden of proof: "cannot be discharged by showing

no more than acquiescence to a claim of lawful authority." See

id., at 548-549.

Under the Arizona Rules of Criminal Procedure the prosecutor

had the burden of proving by a preponderance of the evidence to the

trial judge that the evidence was lawfully obtained. 17 A.R.S.

Rules of Crim.Proc. Rule 16.2(b) states:

b. Burden of Proof on Pretrial Motions to

Suppress Evidence. The prosecutor shall have

the burden of proving, by a preponderance of

the evidence, the lawfulness in all respects

of the acquisition of all evidence which he

will use at trial. However, whenever the

defense is entitled under Rule 15 to discover

the circumstances surrounding the taking of any

evidence by confession, or search and seizure,

or defense counsel was present at the taking,

or the evidence was obtained pursuant to a

valid search warrant, the prosecutor's burden

of proof shall arise only after the defendant

has come forward with evidence of specific

circumstances which establish a prima facie

case that the evidence taken should be

suppressed.

The trial judge observed the officer's testimony. The trial

idge was entitled to discount the officer's testimony in its

entirety or to rely on it heavily. The trial judge's comments

made before granting the Motion to Suppress strongly suggest that

oncluded that Officer Leeper had demanded identification. The

tipulation entered by the State might have been a factor in the

idge's decision.

Absent a clear abuse of discretion, Arizona appellate courts

not overrule a trial court's ruling on a Motion to Suppress.

> Vv. Vandeveer, 23 Ariz. App. 331, 533 P.2d 91 (1975). Given

the stipulation entered by the prosecutor, it is not clear that

the trial court abused its discretion. It is respectfully

T

j

ct

ted that the prosecution failed to meet its burden to prove

that Officer Leeper did not demand identification from the

respondent.

CONCLUSION

Since only questions of evidence and factual findings

regarding whether the officer demanded identification from the

respondent are involved, and the parties stipulated before the

trial court to facts which clearly support the judgment below,

respondent submits that the petition for a writ of certiorari

should be denied.

Respectfully submitted,

PUTY PUBLIC DEFENDER

ricopa County

Public Defender's Office

132 South Central, Suite 6

Phoenix, Arizona 85004

Telephone (602) 506-7923

Counsel for Respondent

APPENDICES

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Appendix A Pt. Ais bani ed

a riLED

DEBORAH L. COLE-WILLIAMS

State Bar No. 010537 8938 JUL 13 FR 2: 22

Deputy Public Defender >

132 South Central Avenue, Suite 6

Phoenix, Arizona 85004

Telephone: (602) 495-8276

Attorney for Defendant

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

STATE OF ARIZONA, )

) No. CR 88-05777

Plaintiff, )

) MOTION TO SUPPRESS

v. ) ’

) (Oral Argument Requested)

VOATRESS MULLEN, JR. )

) (Evidentiary Hearing Requested) &

Defendant. )

)

(Assigned to the Honorable

I. Sylvan Brown)

DEFENDANT, VOATRESS MULLEN, JR., by and through counsel undersigned,

and pursuant to Rule 16.5, Arizona Rules of Criminal Procedure, hereby moves

this Court to suppress all evidence seized pursuant to the unlawful search of

his person and property which was conducted by a Phoenix police officer on

May 16, 1988. The basis for this motion is that the initial contact of the

defendant was illegal; therefore, the subsequent search of Mr. Mullen was

illegal. This motion is based on the attached Memorandum of Points and

Authorities, and the attached excerpts of the preliminary hearing transcript

in this case, herein incorporated by reference.

Respectfully submitted this |S day of July, 1988.

DEAN W. TREBESCH

MARICOPA COUNTY PUBLIC DEFENDER

oy St Oreo (‘be \iWGame

DEBORAH L. COLE-WILLIAMS

Deputy Public Defender

Attorney for Defendant

@

a ?®P jaded A B

MEMORANDUM OF POINTS AND AUTHORITIES

Statement of Facts

On May 16, 1988, VOATRESS MULLEN was sitting at a bus stop on Seventh

Avenue, north of Thomas Road, waiting for a bus. [Tranmecript, page 4.) He was

periodically looking up and down the street for his bus. A police officer

drove by, in a marked patrol car, and decided that MR. MULLEN was watching

him. [Transcript, page 5.] For some reason he found this quite suspicious,

so the officer turned his car around and returned to MR. MULLEN’S bus stop.

{Transcript, page 5.] The officer “was curious," so he demanded identifi-

cation and wanted to know what MR. MULLEN was doing and what he had inside his

backpack. [Transcript, pages S-6.] MR. MULLEN complied, and said that he was

waiting for a bus. (Transcript, page 6.]

MR. MULLEN’s bus arrived and he got on board. [Transcript, page 6.]

After MR. MULLEN left the officer ran a computer warrant search and found an

outstanding warrant for MR. MULLEN. {Transcript, pages 6-7.] He then followed

the bus to the next stop and pulled MR. MULLEN off the bus. [Transcript, pages

7-8.] MR. MULLEN was placed under arrest and searched. [Transcript, page 8.]

During a search of the backpack — the one which had so piqued the officer's

curiosity during their initial contact — various items of "drug parapher-

nalia" and a minute quantity of white powder were found. (Transcript, page 8.]

Statement of Law

Police officers can not stop citizens on the street unless they have

a reasonable and articulable suspicion that criminal activity is afoot. Terry

vy. Ohio, 88 S.Ct. 1868, 392 U.S. 1, 20 L. Ed. 2d 899 (1968); State v. Hein,

138 Ariz. 360, 674 P.2d 1358 (1983). To justify a stop the police must point

to specific and articulable facts of which they were aware before the stop was

made. State v. Valenzuela, 121 Ariz. 274, 589 P.2d 1306 (1979). There must,

=< s

[32

ict. “S a

be more than mere suspicion. State v. Petersen, 124 Ariz. 336, 604 P.2d 267

(App. 1979).

Even a mere investigatory stop must be based on articulable facts

which demonstrate a reasonable suspicion that the individual was involved in

criminal activity, United States v. Cortez, 101 S.Ct. 690, 449 U.S. 411, 66

L. Ed. 2d 621 (1981), cert. den. 455 U.S. 923 102 S.Ct. 1281, 71 L. Ed. 2d

464, reh. den. 102 s.ct. 1648, 455 U.S. 1000, 871 L. Ed. 2d 877; State v.

Master, 127 Ariz. 610, 619 P.2d 482 (1980). In Cortez, the United States

Supreme Court held that the legality of an investigatory stop must be examined

through a two prong test of the totality of the circumstances. The first

prong assesses all of the circumstances of the stop, and allows for some

subjectivity on the part of the police officer together with object**e factors

such as information from police reports, statistics, and the nature of the

crime being investigated. Secondly, once this assessment is made, there must

be a particularized and articulable suspicion that the particular individual

being stopped is engaged in criminal activity or wrongdoing.

That test was applied in Arizona by State v. Graciano, 134 Ariz. 35,

653 P.2d 683 (1982), which involved the stop of an Hispanic-looking male who

was lawfully driving a vehicle on the highway. There was nothing improper

about his driving. No traffic violation or other criminal activity had been

observed, The officer admitted that his sole purpose for making the stop was

to determine whether the vehicle was stoleng That stop was held to be illegal

because it could not be justified by the State under the Cortez standard, even

though subsequent to the stop the officer learned that the vehicle was stolen.

Therefore, the Arizona Supreme Court held that the first prong of the test —

the assessment of all the circumstances — does not include a weighing of the

officer's “unparticularized suspicion" or hunches about a suspect Or

situation. fw

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Brown v. Texas, 99 S.Ct. 2637, 443 U.S. 47, 61 L. Ed. 2d 357 (1979),

also supports MR. MULLEN’s position. There, police oficers saw Brown and

another unidentified male walk toward each other in an alleyway, known as an

area of high drug activity, and then immediately separate. The officers

approached Brown to investigate. However, the officers had no articulable

suspicion of any criminal activity beyond what they had observed. The

officers requested identification from Brown, but he refused. Brown was then

arrested for violation of a local Texas ordinance requiring that

identification be given on‘demand. His conviction was reversed by the United

States Supreme Court because the stop was improper. The arresting officer

testified that Brown "looked suspicious" and the only reason for stopping

Brown was to ascertain his identity. The officer did not have an articulable

suspicion, based on objective facts, that Brown was involved in any criminal

activity. The Court held that the Fourth Amendment does not allow a police

officer, without a specific basis for believing that the individual is

involved in criminal activity, to stop that individual and demand identifica-

tion.

The stop at issue here cannot be justified under Cortez or Graciano.

MR. MULLEN was sitting at a bus stop waiting for a bus. That activity is

neither suspicious nor criminal. Indeed, the use of the transit facilities is

in fact invited and encouraged by the Phoenix city government and the transit

authorities. The officer stated in his report that he believed MR. MULLEN was

watching him. However, the officer conceded that Mr. Mullen was not engaged

in any criminal activity. The stop was improper; therefore, the police

officer had no legal ivustificatio to request identification from MR. MULLEN

and no legal justification to inquire into the contents of MR. MULLEN’s

backpack. Accordingly, it follows that the subsequent conduct of the officer,

and his search of MR. MULLLEN which revealed the illegal paraphernalia and

drugs, is void under Wong Sun v. U.S., 83 S.Ct. 407, 371 U.S. 471, 9 L. Ed. 2d

441 (1963).

3c.

: > ee

Appendix A

The initial contact with MR. MULLEN was illegal.

Therefore,

the

subsequent arrest and search of MR. MULLEN was improper. For that reason, all

evidence seized pursuant to the search of MR. MULLEN must be suppressed, and

the charges should be dismissed as the result of the officer's illegal

detention of MR. MULLEN.

Respectfully submitted this | A day of July, 1988. —

DEAN W.

MARICOPA COUNTY PUBLIC DEFENDER

; By Coral Cab - lima

DEBORAH L. COLE-WILLIAMS

Deputy Public Defender

Attorney for Defendant

Copy of the foregoing motion

mailed/delivered this \>,

day of July, 1988 to:

HON. I. SYLVAN BROWN

Judge of the Superior Court

MR. CHARLES PYEATTE

me VO Attorney

sli YL \

DEBORAH’L. COLE-WILLIAMS

Deputy Public Defender

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1 By He was staring at me as I approached him

2 from the south of his location, and as I got parallel with

3 him, he was watching me, and as I passed him, he leaned

4 forward passed the bus stop getting actually out of his seat |

5 watching me travel northbound. i

6 Q I see. What did you do next, Officer?

7 4 Well, I watched him out of my rear view

8 mirror until I approached Osborn, which is approximately

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9 half a mile north, and he sat back. In other words, he sat |

1 back up against the seat.

11 MR. MCGILLICUDDY: Excuse me, Judge --

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1 Subject lean back in his seat?

15 A At that time his activity gave me -- I felt

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16 Was suspicious enough for me-to at least come back and talk

a? to him. So I went eastbound up to Third Avenue and I came |

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18 up to Valley National Bank and approached him on foot. +H

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19 Q Did you in fact speak to the defendant? nA |

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20 A Yes, I did.

21 Q And could you tell me what the subject of

22 that conversation was or what you did? ot |

23 A Basic conversation. I identified myself,

24 and I was curious -- first of all while he was watching me 1 ae

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23 @s I drove northbound he stated he Was curious if I was if

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{R. WINTER: Your Honor, I don't understand

necessarily what defendant's objection is. We're asking

what this officer did. He clearly is commenting on what

he's doing. If the hearsay objection has to do with whoever

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tered the information into the computer in the first

place, hearsay is allowable in this stage under Rule Five of

*

the criminal procedure ,

THE COURT: Well, for the purpose of preliminary

hearing, I'll allow it

MR. MCGILLICUDDY: May I complete my objection,

Judae? There has been no foundation as to o the declarant

was and whether that declarant would be available for

testimony in Superior Court, and until the State can

ait +. ch *+hatr hearsa\ 'c No anmicacihie

-mlawiawii a», a4 as me y - ative Gkha wrod i me

THE COURT: Very well, the objection is still

overruled.

MR. WINTER: Thank you, Your Honor.

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PS When I ran the computer check, it came back

Mul , Voatress. It was a warrant. &$») I entered my

patrol car, went northbound, the bus was stopped at 7th

Avenue and Osborn just north picking up subjects entering

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‘ ate App. 13 ees ; “4

& \ Appendix C € of

According to the police report prepared by Phoenix Police

Officer, David Leeper, and the testimony he gave at the preliminary

hearing (Transcript, page 5), Officer Leeper's attention was drawn

to Mr. Mullen because, while sitting on a bus bench as the officer ;

drove by in his police car, Mr. Mullen was intently staring at

the officer. Officer Leeper turned around and returned to the

bus stop, identified himself as a police officer when making contact

with the defendant, and begin to ask defendant some questions

about why the defendant was paying attention to his passing patrol

car. The rest of the conversation is as indicated in the statement

of facts in defendant's Memorandum in support of the motion and

the attached portions of the Transcript. During this contact

between Officer Leeper and the defendant, at no time did the officer

draw his weapon, issue any commands to Mr. Mullen, or prevent

him from boarding a city bus and leaving the location of the initial

contact.

II. LAW:

Insofar as the defendant has cited in his Memorandum, the

applicable law related to a "stop" or “investigatory stop" of a

citizen, that law is correctly cited. However, insofar as the

defendant asserts that the contact between Officer Leeper and Mr.

Mullen fell within the definition of "stop"--in other words, a

Getention triggering the Fourth Amendment protections--the law is

incorrectly applied in this case. Specifically, the claim in

the last paragraph on page four of defencant's Memorandum that

the officer had to have "legal justification" to request

: App. 14

on

& * Appendix C E Ti

identification from the defendant or to inquire into the contents

of his backpack is not an accurate statement of the law.

Essentially, the defendant would have this Court believe and

rule that any contact between a uniformed peace officer and a

citizen constitutes a "detention" for Fourth Amendment purposes.

The Supreme Court of the United States, in a line of cases, has

clearly stated that this is not so. In Terry v. Ohio, 392 U.S. 1]

~

Obviously, not all personal intercourse between

policemen and citizens involves “seizures” of

persons. Only when the officer, by means of

physical force or snow of authority, has in

Some way restrained the liberty of a citizen

m je t "sel C

- 8 ne App. 15 ;

eS Appendix C & a

him to accompanying them to an interrogation room that he was

effectively detained for Fourth Amendment purposes. This point

was emphasized “in a case shortly after Royer in which the Court

said: ". . . our recent decision in Royer, supra, plainly implies

that interrogation relating to one's identity or a request for

identification by the police does not, by itself, constitute a

Fourth Amendment seizure." INS v. Delaado, 466 U.S. 210, 80

L.Ed.2d 247, 255, 104 Sup.Ct. 1758 (1984).

In Delgado, agents” of the United States Immigration and

Naturalization Service were conducting what was termed a “factory

survey." That means that the agents would enter a factory where

they believe illegal aliens were employed, some agents positioning

themselves near the exits, while other agents moved systematically

through the factory, approaching employees and, after identifying

themselves, asking the employees from one to three questions

relating to their citizenship. During this time, although the

INS agents displayed badges, carried walkie talkies, and were

armed, the employees were free to continue their work and walk

around within the factory, and the agents did not, at any point,

point their weapons at any of the people they contacted.

The critical difference between this kind of police contact

and that which occurred in Brown Vv. Texas, 443 U.S. 47 (1979),

relied upon by defendant in his Memorandum, is that when Brown

refused to give his identity to the officers, he was detained for

the purpose of determining his identity.

[Ye

App. 16

ee” Appendix C e

In an effort to draw the distinction between Brown and the

— ee

other comments made in its other cases, the Supreme Court gave

the following explanation:

Unless the circumstances of the encounter are,

so intimidating as to demonstrate that a-

reasonable person would have believed he was

not free to leave if he had not responded,

one cannot say that the questioning resulted

in a detention under the Fourth Amendment.

But if the person refuses to answer and the

police take additional steps--such as those

taken in Brown--to obtain an answer, then the

Fourth Amendment imposes some minimal level

of objective justification to validate the

detention or seizure. 80 L.Ed.2d at 255.

Mendenhall and Delaado have both been relied upon as recently

as last month. Michigan v. Chesternut, 43 Crim. L. Rptr. 3077

(June 13, 1988).

Tne essence of defendant's argument in his Motion to Suppress

is contained in tne first sentence on page 5 of his motion: “The

initial contact with Mr. Mullen was illegal." Seen from the

viewpoint of a person who knows he is a fugitive from justice, any

contact with a police officer may seem fearful or intimiGating,

but that viewpoint is not the legal test of such encounters.

Throughout the cases cited from the United States Supreme as well

the

he Arizona Supreme Court in Winegar, the theme has remained

same: The essential question is whether, based on an objective

view of the totality of the circumstances, the person questioned

was

case

"free to leave.” That question is easily resolved in this

because, in fact, Officer Leeper did allow Mr. Mullen to

board a city bus and proceed down the road. Mr. Mullen was not

agal

outstanding warrants for his arrest.

n contacted until the officer had determined that there were

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III. CONCLUSION:

Until such time as a citizen's liberty is interfered with by

peace officer,” the Fourth Amendment does not come into play.

Viewing the circumstances of the initial contact between Officer

Leeper and Mr. Mullen, there are no indications that the officer

was employing any coercive methods to secure the information.

Therefore, that contact was consensual, regardless of what emotions

the defendant may have been experiencing. The simple fact that

officer Leeper permitted Mr. Mullen to board a bus and continue

on his way discredits any argument that he was "detained."

Therefore, all the cases cited by the defendant which _— based

upon a stop” are inapplicable in this case. No use of police

power or detention occurred until Office Leeper, aware that there

were outstanding warrants for Mr. Mullen's arrest, boarded the

bus and took him off it and into custody.

Respectfully submitted this [ ye day of July, 1988.

THOMAS E. COLLINS

MARICOPA COUNTY LO

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Po)

ay aM he

Deputy County Attorney

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Copy of the foregoing mailed/

delivered this |G day of

July, 1988, to:

The Honorable I- Sylvan Brown

Judge of the Superior Court

Deborah L. Cole-Williams

Deputy Public Defender

132 South Central, Seeead Floor

Phoenix, Arizona =)

BY & Y ph bab pa

lon reneeeay PA =a

Charles Pyeattfe

Deputy County Attorne

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IN THE on Saal _ CBBet of: wane cYs

Appendix D

STATE OF ARIZONA, COUNTY OF MARICOPA =) DL eG

PRETRIAL SERVICES AGENCY Ege

BACKGROUND INFORMATION u The? o 05 yew

tions if ne feels the answers might be harmtul to himself inthis

Detencant is advised he is not required to answer any ques

or future

proceedings. —

Book, Ne. O2-S7E/

Age 9 F

ME. ara

DENT Nine Lad ao oe Lo — Age _ DOB

/)p4. aioe Phone:

=P

2d Name:

Present address: Lod } win £ J City: How long: oe Lb.

‘erified ann weet = ey ¢ * Relation: ——

— Alternate address: 2 sos al Le Lseres A Al pty; NK How long:

set Phonez = With wom ZL [Me rcs Relation

=nces Previous address: (/ y: How lon@ e .

Cont. time in AZ: Total time in AZ: Last time left AZ “KS

ocal Where did yo How long: — stew :

ences Birth State: ZZ Citizenry: oe re my OF

ocal MARITAL STATUS: Le M Sep. Div. CCom-Law__Wid. How long: L . SH mo =

ences Child support (no.) ————> Ages: 7 i fae 7 ra a = vs —_

— re: yr: y in MEA area SS have contact with: , 2 ack

erences

>le to verify om -Employed Unemployed Disabled Retired How long:

Present emolo pee ee —— Zs! L full p/t How long:

used to Address: A! ca WALLA 2 Pe Type of work:

>» references eae seipioper ele a oe hoe DOT We Aiton: ie How long:

SUTER CHECK - Present stucent statu a7. o\ | Aste fe Grade completed: / wrt LZ

CRIMINAL RECORD: (Convictions in AZ anc anil tales and countries) /

> priors Charge Date Sentence State

| Lr >

|=

-s :

| anne <a

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| Presently on probatior/ parole: . Officer: —

| Expires: Past Juventie: - —_ Terminated: =

RECORD OF APPEARANCE: Prior FTA: Date: 2 Lek Cour: ail

crane Ge — oil

Prior release On OWN recognizance OF bail: Fas

Date Charge Amount Sentence

_ <b EphESENTLY OUT ON SOND/OR: Charge:

_ Ps - -

[4 Ham R: s LZSO Release cate: pening da

Cl

y ”

enn oF Drug, aiconol, physical or mental treatment last 6 months: - S

| Residence upon reieese: Q? 2m Zz 7

dt a ie lial a — ‘

With wnom: —_

| prone:

| OTHER INFORMATION:

| Za EES

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