# Opposition Brief — Arizona v. Mullen > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1051%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1991 - **Citation:** 502 U.S. 977 ## Text 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 . a dl . -- ° o Fisees" - i > $ a) . ‘ ra mine Ga eite ts : + EY ; tce | App. “hes a . ae ea ea WS FS. .F arr 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, = 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 l3ck SL BAT Or Q W4 os b + D) J} = O 0) . O J ‘- - c O A r Sy et +/ 48) i) SH +) 4 f {5 4J 43) (‘+ SC ( fs “4 N rie} y > 6! J G ) £ ~ rs 4 y . ] ee , oe v G v + ony ™ ) My J 4 z ] Q, SG +? = we a rE ; ~ a4 hy UO 1 U + $7 qQ Po = p hy J J j $J 43 J ; > O mM J 0) G4 8) {J ‘a wT = j ut, “A 5 hy > O wo >y 6} 4 @: ) 4 = ed) ‘3 © O « om Q, +H \J J a ‘4 O ao Z ) G v O > > 3 J zs - Ww i. ac &S 4J a) V et } hy Q E ) hy ‘4 cs g oO J fs} O f ra c ) 4) O 43 4 , e) ™ rw) O a ae jJ j ) J ) e S O B 0 WY) 4? > "J 4 4 ; rd he + ° O q oa) N S 3 } re) {J rf . e ole ue) ° J o O o by QQ Q | I > TS GH ’ hy ie} ’ > hy J }J . 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QR ” Tv V9) ive) ™ co ren) OQ qo N om +s Va) Xe) ™ foe) 0) O a4 N - Tv 9) Co | om | om | (on (om co | a ct N N N NN —N N a % wi cae <> thn =o Me 8 ¢ y 5 { ics A 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 - |? 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 -- 12 BY MR. WINTEI i r he eo Please continue, Officer You saw the y | NI 1 Subject lean back in his seat? 15 A At that time his activity gave me -- I felt ‘ 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 | i 18 up to Valley National Bank and approached him on foot. +H : AE | 19 Q Did you in fact speak to the defendant? nA | ih 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 af , : he Ty 23 @s I drove northbound he stated he Was curious if I was if CHRISTINE - JOHNSON Brush & Terrell Court Reporters (602) 246-2132 o . . ao tecent — a . ~———0e aie co ee - on ee ee ee SS = ae —s be s 35 FOO hen all PA cee et nr emer EPS Sey — ou ae } @ b4 GS , fe ) = Tan | sé 4@) | A ° ry My J Y | Q, 40) S 9 oY 4) 8) 7 - fom 46) v G Ay Sf 4) U ' . 43 O ue) dv At E 4 4J O ) J ue) 4J v C- po O ri} O O 43 eo. ) f v) ) O 7 a O r4 4 “4 hi P 6) O hy iJ WV) a +4 OQ, i) J Qa b+4 4) O = v hy U t O G4 CG 4 @) YH V) fh] re tH 1 J GC jJ O U) O Oo ~ 18) "= is ; O : f by J . uv by re) 3 +7 @ L 5 UV) “rf AQ SH :9 | ~ } Ly Y) 9) > , cS l } f wo O jJ Q tt ~ hy 4 ) ( j 4@. > ( x c v Vv Ke + t > pay d * y ¢ e e m + L na asked him W rou? over W “ i ' c - - vy rt > > = ( , cs 1. ie q is} 4 UO ue) © ie) = WV fo VY) J O j hy }J a ) Li rH oY) | ’ 4 ; J ° j 3 iJ y hy O N ; . + 4 a ) 1 we App. Appendix B as Tt HT y ~ C » I JOHNSO Ta 4 8) Vv) hy 4 b4 ‘ - . ‘ 4 ° rd rod “@! D Fm O | oy 2 C J ( , J Ow L , ) 4 ‘ laa af { a + O o . 4 4 'e) qQ 10) m4 fx) J — a a re fe j ) J { = ¥ 4 @| O +4 hin C > ea > a + L - L “w én aT? * ii HRI oF as re rT @) Cc ( O at px. 8} U ° > r ; o Y wt ae SE , ( . - ‘ } } l ot o ) a) ~ h ae « 4 ay WY) b- 40) J O f J a } O ne) hy 4 t c r j . rt T J hy (Q % © 5 es { J $ f t Q J Wy) = ~ ns : l J f - f 48) = o + J Co = a C . - 1, ~ wo 7 ie ) j : 2 ow 6 ' ; Q o 4p : tan | hy VY) Pr 1 } @) na p J | oO J re ws a - f ) ~ Ly & 2 ‘ a 9 (Q ) ) } U ole i +/ 2 i Q an oOo tr HO OO FF DO HR OO HN Om 4 cea A AH A A A A aA eA 4 6 z 8 9 20 1 2 3 4 25 —N N N N th tN + Ww OD ~ tw UJ > UI {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 - .) 5 - — 5 > mr) ; a ; 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. ct ae } 9) @) O rf “@) Cc ct (D | '@) = 19) Q a J 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 Brush & T 6 [3h ~ UJ A 4 > NICK € / a \ . . vw Kk ¢ v Ww srvey We 4 4 > + U 8 c aii « Se ree + ~ . ~ + WL & -} > 4s ice m ~ Jat ~~ ee oa , i Fn 5 ~ Saal ‘ = - nninsc o ~ =* the beg is O Ay Appendix B ™ was id there '\ Ss vT => Yr) Ti ,™ > t ® CG ba O iJ \o ® «G iJ ) eo] Mm i Yo Cc oe oO, Oo Vv) YW «* rs ‘? mm ta . 4 () 4a aDTren MARI COPA = - - NTY O cou! Qa | ) wu ha O Cc O il = Cc G sd = O O ba 4 0g Cc a w cP Oiret on ee | yu) Ud u) et . ~~ it | . | e) | 13 | | Uv) Ws ‘ 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 ul Wo 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 =) Po) ay aM he Deputy County Attorney l4e -—, S 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 [4 ¢ WES y 7 - . a 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 ape * il | 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 _