Petition for Writ of Certiorari — Futernick v. Caterino

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Fl iE Dp

¥61900 MAY 2 8 1997

UbRIGE OF LHE OLERK

SRR SEE ee eT NETL RIES SIT

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

a

No

STATE OF ARIZONA,

PETITIONER,

-VS-

TRAVIS S. WRIGHT,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI

TO THE ARIZONA COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

GRANT WOODS

ATTORNEY GENERAL

PAUL J. MCMURDIE

CHIEF COUNSEL

CRIMINAL APPEALS SECTION

COLLEEN L. FRENCH

(COUNSEL OF RECORD)

JACQUELYN B. ESKAY

ASSISTANT ATTORNEY GENERAL

1275 WEST WASHINGTON

PHOENIX, ARIZONA 85007-2997

TELEPHONE: (602) 542-4686

ATTORNEYS FOR PETITIONER

QUESTION PRESENTED FOR REVIEW

Did the Arizona Court of Appeals err, as a matter of federal

constitutional law, in holding that a lawfully detained criminal

defendant’s consent to search is only voluntary if it was “knowing,”

and therefore uniformed police officers, who do not inform

individuals of their right to refuse consent, who ask investigatory

questions that may be incriminating in nature, and request to search

an individual’s belongings, cannot obtain a voluntary consent?

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED FOR REVIEW ............. i

Cee Se BR oo ew ov ec 6 eee ill

ey ED 80 oe Sa es eee 1

SEAIEMENT OF JURISDICTION . .. 1... eee cee sc ee 2

Pesv eee EVI ek in oa ewe eee 3

SIATEMENT OF THE CASE . 2... ccc eae eee 4

REASON WHY THE WRIT SHOULD ISSUE .......... 9

APP sg ow NE RN ee 17

Ree A a a we ee ea ee eee A-1

Te OP ee we ew ee ee B-1

PUMPER on eke eee C-1

il

TABLE OF AUTHORITIES

CASES PAGE

Colorado v. Connelly, 479 U.S. 157 (1986) .......... 10, 11

Culombe v. Connecticut, 367 U.S. 568 (1961). ......... 11

Florida v. Bostick, 501 U.S. 429 (1991)... .. 4, 10, 11, 12, 16

Florida v. Royer, 460 U.S. 491 (1983) ............... 10

Ohio v. Robinette

__US.__, 117S. Ct. 417 (1996) .. 5,6, 10, 12, 13, 15

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) 10, 11, 12, 13-16

United States v. Brown, 102 F.3d 1390 (5th Cir. 1996)... .. 13

United States v. Hernandez, 93 F.3d 1493 (10th Cir. 1996) .. 14

United States v. Laboy, 979 F.2d 795 (10th Cir. 1992) ..... 13

United States v. Martinez-Fuerte, 428 U.S. 543 (1976)... .. 16

United States v. Mendenhall

446 U.S. 544 (1980) ............... 10, 12, 13, 16

United States v. One Lot of U.S. Currency

103 F.3d 1048 (1st Cir. 1997) ...........2..0... 14

United States v. Peterson, 100 F.3d 7 (2d Cir. 1996) ...... 14

United States v. Sanchez, 89 F.3d 715 (10th Cir. 1996) 11, 13, 16

United States v. Smith, 82 F.3d 241 (8th Cir. 1996) ... 14, 16

ili

United States v. Watson, 423 U.S. 411 (1976) ....... 10, 16

United States v. White, 81 F.3d 775 (8th Cir. 1996) ... 14, 16

United States v. Yusuff, 96 F.3d 982 (7th Cir. 1996) ... 11, 16

People v. Michael, 45 Cal. 2d 751, 290 P.2d 852 (1955) ... 14

Constitutional Provisions

ce. Se, A eg os ee wee eee eS eo 2

U.S. Const. amend. TV .... 20.005 ce ees 3, 12, 14, 15, 16

a Cee OE ew Cg. sob ek oe he A 3

STATUTES

ee Ue. ES ig nck ee ee 2

RULES

Rule 10.1, Rules of Supreme Court .........06 52220: 2

iV

OPINION BELOW

On September 26, 1996, the Arizona Court of Appeals issued its

memorandum decision reversing and remanding the trial court’s

ruling denying Respondent’s motion to suppress evidence. A copy

of the Arizona Court of Appeals’ memorandum decision is at

Appendix A. The Arizona Supreme Court denied review of

Petitioner’s petition for review. A copy of the order denying the

petition for review is at Appendix B. A copy of the Arizona Court

of Appeals’ order and mandate reversing and remanding is at

Appendix C.

STATEMENT OF JURISDICTION

Petitioner respectfully requests that a Writ of Certiorari issue to

review the decision of the Arizona Court of Appeals. (Appendix A.)

The Arizona Court of Appeals issued its decision on September 26,

1996. On February 28, 1997, the Arizona Supreme Court denied the

Petitioner’s petition for review. (Appendix B.) Petitioner timely filed

the petition for writ of certiorari within 90 days of that decision.

This Court has jurisdiction pursuant to United States Constitution

Article III, Section 2; 28 U.S.C. § 1254; and Supreme Court Rule

10.1.

PROVISIONS INVOLVED

Section 1 of the Fourteenth Amendment to the United States

Constitution provides, in pertinent part:

No State shall make or enforce any law which shall. . .

deprive any person of life, liberty, or property, without due

process of law .

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

STATEMENT OF THE CASE

Procedural History of the Case

On August 18, 1994, the State indicted Respondent on one count

of possession of dangerous drugs, a class 4 felony. Respondent filed

a motion to suppress the evidence, alleging that the evidence

produced was the result of an illegal stop, invalid consent, and an

illegal search in violation of his constitutional rights. The trial court

heard oral argument on the motion and made the following findings:

In Florida v. Bostick - US, 111 S. Ct. 2382, 115 L. Ed.

2d 389 (1991), the United States Supreme Court held that so

long as [a] reasonable person would feel free to disregard the

police and go about his business, the encounter is consensual

and no reasonable suspicion is required. Therefore, when

Officer Murphy approached the defendant in the bar and

request[ed] that he “please step outside, I want to talk to

you”, [sic] the court finds that no reasonable suspicion was

required and the encounter was consensual. The defendant

was free to disregard the police and go about his business.

The defendant, after a second officer had arrived, was

asked if he had any weapons on him and he responded that

he had a pocket knife. He was asked to empty his pockets,

which he did and he was then asked [if] they could search his

possessions. The defendant voluntarily consented to a search

of his possessions and inside the wallet was a matchbook

which contained a bindle which reportedly held illegal

contraband. The defendant was then placed under arrest.

Based upon a totality of the circumstances, the court

concludes that the State has established by clear and positive

evidence that consent to the search was freely and intelligently

given. Therefore, defendant’s motion is denied.

After the trial court denied the motion to suppress, Respondent

knowingly, intelligently, and voluntarily waived his right to a jury

trial. The case proceeded to the bench, and the trial court found

Respondent guilty of possession of a dangerous drug. The trial court

suspended imposition of the sentence and placed Respondent on

probation for a period of 2 years. In addition, the trial court left the

matter as an undesignated felony, and upon Respondent’s successful

completion of probation, the matter was to be designated a class 1

misdemeanor.

On appeal, Respondent challenged the legality of the search of

his belongings, and the admissibility of the evidence acquired after

the search. On September 26, 1996, the Arizona Court of Appeals

held that the search of Respondent’s personal belongings had not

been consensual and reversed Respondent’s conviction.

Petitioner petitioned the Arizona Supreme Court for review.

Petitioner presented the following issue for review:

Did the court of appeals err in concluding that the trial

court erroneously denied Appellant’s motion to suppress

where the evidence viewed in a light most favorable to

5

sustaining the trial court’s ruling showed that Appellant

freely and intelligently consented to a search of his

belongings by officers of the Prescott Police Department?

Petitioner further argued that this case was similar in nature to the

recent case of Ohio v. Robinette, _§ U.S. __, 117 S. Ct. 417

(1996), where a police officer continued investigation of the

defendant following a routine traffic stop and searched the

automobile pursuant to his voluntary consent. Petitioner urged, in the

petition for review, that the Arizona Supreme Court adopt Robinette

and extend it to encounters other than traffic stops. On February 28,

1997, the supreme court denied review.

Facts of the Case

Officer John H. Murphy of the Arizona, Prescott Police

Department was on routine patrol in a known drug traffic area when

he noticed Respondent involved in a possible drug transaction.

Respondent was standing next to the driver’s side of a van. Officer

Murphy observed Respondent reach into his pocket and hand

something to the driver of the van. Respondent looked over his

shoulder and saw Officer Murphy. In an exaggerated and quick

movement, Respondent whipped his hand out of the driver’s side

window and put it back in his pocket. Respondent quickly headed

towards the Sheldon Street Bar. Because of the frequency of drug-

trafficking in that area, Respondent’s age, and Respondent’s anxious

movements, Officer Murphy decided to investigate. He parked his

car and followed Respondent into the bar. In the bar, Officer

Murphy lost sight of Respondent and asked the bartender if she knew

Respondent. The bartender told Officer Murphy that Respondent was

a cook for the bar. Officer Murphy asked the bartender if she could

have Respondent come out and talk to him. When Officer Murphy

noticed Respondent, he motioned to him to come over. To avoid

embarrassing Respondent in his place of work and to escape the

noisy bar, Officer Murphy asked Respondent if he would mind

stepping Outside to answer a few questions. Respondent willingly

agreed to step outside.

Once outside, Officer Murphy explained to Respondent that he

believed Respondent was involved in a drug transaction. Respondent

explained that he was only lighting the driver’s cigarette. Officer

Kabbel, who Officer Murphy had radioed for assistance, approached.

Officer Kabbel asked Respondent if he had any weapons. Respondent

said that he had a couple of pocketknives. Officer Kabbel did not

notice anything indicating that Respondent had a weapon posing

serious danger, and therefore simply asked Respondent if he would

mind emptying his pockets. Respondent, indicating that he did not

mind, reached into his pockets and pulled out a number of items,

including a pocketknife, a utility knife, and a wallet. Officer Kabbel

then asked Respondent if he minded if they searched his belongings.

Respondent said, “No, I don’t mind; go right ahead.” Officer

Murphy searched Respondent’s wallet and found a pack of matches

containing a “bindle,” a folded piece of wax paper containing drugs.

Respondent, looking surprised, responded that he did not know the

drugs were there. Officer Murphy then placed Respondent under

arrest.

During the course of the investigation, which lasted

approximately 5 minutes, neither Officer Murphy nor Officer Kabbel

drew their guns, made physical contact with Respondent, or told him

he was under arrest. At no time during this questioning did

Respondent tell the officers to leave him alone, that he did not want

to speak with them, or that he had already answered their questions.

REASON WHY THE WRIT SHOULD ISSUE

This Court should grant the petition for writ of certiorari because

the Arizona Court of Appeals has decided an important federal

question in a way that conflicts with the decisions of this Court, of

several federal circuit courts of appeals, and other states that

recognize that it is not unreasonable for officers to investigate

possible suspects and ask for consent to search their belongings as

long as they have not conveyed a message that compliance with their

requests is required.’ In particular, the Arizona Court of Appeals has

adopted the position that in order to have effective consent to search,

police officers must obtain “knowing” voluntary consent, which is

in direct contrast to the long established principle that consent to

search is effective if voluntarily and freely given.

This position that there must be a “knowing” voluntary right to

refuse consent, and therefore uniformed police officers that ask

investigatory questions and request to search a suspects belongings

cannot obtain voluntary consent to search because the investigatory

1. Because the search of Respondent’s person was not preceded by an

impermissible seizure of his person, Respondent’s consent to the subsequent search

was not infected by an unlawful detention.

9

stop creates a show of authority that is both necessary and essential,

conflicts with the principles set out in Ohio v. Robinette, __ US.

__, 117 S. Ct. 417 (1996); Florida v. Bostick, 501 U.S. 429

(1991); Colorado v. Connelly, 479 U.S. 157, 167 (1986); Florida v.

Royer, 460 U.S. 491 (1983); United States v. Mendenhall, 446 U.S.

544 (1980); United States v. Watson, 423 U.S. 411, 424 (1976); and

Schneckloth v. Bustamonte, 412 U.S. 218 (1973).

The Arizona Court of Appeals misapplies the crucial test set out

in Schneckloth and its progeny that “the question whether a consent

to a search was in fact ‘voluntary’ or was the product of duress or

coercion, express or implied, is a question of fact to be determined

from the totality of all the circumstances.” 412 U.S. at 227;

Robinette, _ U.S. at_, 117 S. Ct. at 421. The court of appeals

fails to apply the “objective reasonableness” test it carefully

articulates in its decision, and instead finds that in order to have

voluntary consent to search, free of duress or coercion, there must

be a “knowing” voluntary right to refuse consent. In coming to this

conclusion, the court of appeals explains that uniformed police

officers asking questions regarding suspicious activity and requesting

10

to search a person’s belongings cannot obtain voluntary consent

because the “show of authority that is both necessary and essential”

can only invite cooperation.

However, in Schneckloth, this Court relied on confession cases

as a framework for determining whether or not a suspect had

voluntarily consented to a search. 412 U.S. at 223-27. This Court

noted that none of those cases turned on the presence or absence of

a single controlling criterion, but rather given all the surrounding

circumstances, the question was did the police coerce the consent.

Id. at 226, 229. Thus,

“The ultimate test remains that which has been the only

Clearly established test in Anglo-American courts for two

hundred years: the test of voluntariness. Is the confession the

product of an essentially free and unconstrained choice by its

maker? If it is, if he has willed to confess, it may be used

against him. If it is not, if his will has been overborne and

his capacity for self-determination critically impaired, the use

of his confession offends due process.” Culombe v.

Connecticut, 367 U.S. 568, 602.

Schneckloth, 412 U.S. 218, 225-26 (emphasis added) (citations

omitted); Connelly, 479 U.S. at 167 (critical inquiry in determining

voluntariness is whether police conduct constituted overreaching that

resulted in the suspect’s will being overborne); United States v.

1]

Yusuff, 96 F.3d 982, 985 (7th Cir. 1996), (in determining whether

consent to search was voluntary, the court should determine whether

the suspect’s will was overborne by police action), cert. denied, __

U.S. __, 117 S. Ct. 999 (1997). This crucial test is based on a

standard of a reasonable person, innocent of any crime, who would

reasonably believe that he was not free to leave. Bostick, 501 U.S.

at 437-38; United States v. Sanchez, 89 F.3d 715, 717-18 (10th Cir.

1996). The rule is universal and applies to all encounters that take

place on a city street, in an airport lobby, on a bus, or in an

automobile. It is well established that the vitality of the Fourth

Amendment is “reasonableness.” Robinette, U.S. at__, 117S.

Ct. at 421.

In Bostick, this Court found that officers, who boarded a bus to

ask questions, examine identification, and request consent to search

luggage, did not coerce consent as long as they did not convey a

message that compliance with their requests was required. 501 US.

at 437-40. In Mendenhall, this Court found that the defendant

voluntarily consented to accompany DEA agents from an airport

terminal to an office for questioning regarding possession of

12

a

narcotics. 446 U.S. at 588. In Schneckloth, the defendant argued that

such a consent could not be valid unless the defendant knew that he

had a right to refuse consent. 412 U.S. at 227. This Court rejected

that argument, concluding that “[w]hile knowledge of the right to

refuse consent is one factor to be taken into account, the government

need not establish such knowledge as the sine qua non of an

effective consent.” Jd. This Court reiterated this holding in

Robinette, explaining that it would be unrealistic to require police

officers to always inform detainees that they are “free to go” before

a consent to search may be deemed voluntary. Robinette, U.S.

at , 117 S. Ct. at 421. Factors that would lead a reasonable,

innocent person, as opposed to a person knowingly carrying

contraband, to believe he was free to disregard the police officer

would include:

the threatening presence of several officers; the brandishing

of a weapon by an officer; some physical touching by an

officer; use of aggressive language or tone of voice indicating

that compliance with an officer’s request is compulsory;

prolonged retention of a person’s personal effects such as

identification and plane or bus tickets; a request to

accompany the officer to the station; interaction in a

nonpublic place or a small, enclosed space; and absence of

other members of the public.

Sanchez, 89 F.3d at 718 (citing United States v. Laboy, 979 F.2d

795, 798-99 (10th Cir. 1992)). None of these factors were present

in this case.

Therefore, it is clear that the fact that Respondent was not

informed of his right to refuse consent does not make the consent

involuntary. Robinette, US. at __, 117 S. Ct. at 421;

Mendenhall, 446 U.S. at 555; Schneckioth, 412 U.S. at 227; United

States v. Brown, 102 F.3d 1390, 1397 (Sth Cir. 1996), cert. denied,

No. 96-8197, 1197 WL 121074 (1997): United States v. Peterson,

100 F.3d 7, 10 (2d Cir. 1996). In essence, if this Court were to

adopt the holding of the Arizona Court of Appeals, any defendant

who was the subject of a search pursuant to his consent “could

effectively frustrate the introduction into evidence of the fruits of

that search by simply failing to testify that he in fact knew he could

refuse to consent.” Schneckloth, 412 U.S. at 230. This Court should

grant the petition for writ of certiorari so that it can preserve its

longstanding philosophy that:

“[i]t is not unreasonable for officers to seek interviews with

Suspects Or witnesses or to call upon them at their homes for

such purposes. Such inquires, although courteously made and

not accompanied with any assertion of a right to enter or

14

TO

search or secure answers, would permit the criminal to defeat

his prosecution by voluntarily revealing all of the evidence

against him and then contending that he acted only in

response to an implied assertion of unlawful authority.”

People v. Michael, 45 Cal.2d at 754, 290 P.2d at 854.

Schneckloth, 412 U.S. at 230-31; United States v. One Lot of U.S.

Currency, 103 F.3d 1048, 1053 (1st Cir. 1997) (there is no Fourth

Amendment claim when an officer simply asks a few questions to a

civilian who voluntarily allows the encounter to continue); Peterson,

100 F.3d at 10 (in a consensual encounter, officer may permissibly

ask questions, such as why the suspect is at that location, and may

make requests for identification and permission to _ inspect

belongings); United States v. Hernandez, 93 F.3d 1493, 1499 (10th

Cir. 1996) (an officer’s asking questions that might elicit

incriminating answers is irrelevant to whether an encounter is

consensual); United States v. Smith, 82 F.3d 241, 243 (8th Cir.) (a

consensual encounter did not end when the officer asked the

defendant to search his jacket and the defendant handed the jacket to

the officer), cert. denied, _U.S. ___, 117 S. Ct. 154 (1996); United

States v. White, 81 F.3d 775, 779 (8th Cir.) (the Fourth Amendment

is not implicated simply because a police officer approached an

15

a

eee

individual and asked a few questions or requested permission to

search an area, even if the officer had no reason to suspect criminal

activity), cert. denied, U.S. , 117 S. Ct. 518 (1996).

Consent searches are part of the standard investigatory techniques of

law enforcement agencies. Schneckloth, 412 U.S. at 232-33. As this

Court has recognized, “[t]here is a vast distinction between those

rights that protect a fair criminal trial and the rights guaranteed

under the Fourth Amendment.” /d. at 241. This Court has

announced that the Fourth Amendment should be interpreted to

encourage individuals to consent to a search:

[I]t is no part of the policy underlying the Fourth and

Fourteenth Amendments to discourage citizens from aiding

to the utmost of their ability in the apprehension of criminals.

Rather, the community has a real interest in encouraging

consent, for the resulting search may yield necessary

evidence for the solution and prosecution of crime, evidence

that may insure that a wholly innocent person is not wrongly

charged with a criminal offense.

Id. at 244 (citations and quotations omitted). The circumstances that

prompted the initial request to search Respondent’s possessions were

simply a logical extension of investigative police questioning.

The Arizona Court of Appeals decision, which adopts the

position that there must be a “knowing” voluntary consent, rather

16

a ##é§ ri iniiiidiaimdiainiarinccieniiieniun

than consent which is freely and intelligently given, is contrary to

the decisions of this Court, federal circuit courts of appeals, and

other states. See Robinette, _ US. at __, 117 S. Ct. at 421;

Bostick, 501 U.S. at 439; Mendenhall, 446 U.S. at 558; Watson,

423 U.S. at 424: Schneckloth, 412 U.S. at 248; Yusuff, 96 F.3d at

985: Sanchez, 89 F.3d at 718-19; Smith, 82 F.3d at 243; White, 81

F.3d at 780. “The purpose of the Fourth Amendment is not to

eliminate all contact between the police and the citizenry, but ‘to

prevent arbitrary and oppressive interference by enforcement

officials with the privacy and personal security of individuals.’”

Mendenhall, 446 U.S. at 554 (quoting United States v. Martinez-

Fuerte, 428 U.S. 543, 554 (1976)). If this Court permits the rule

adopted by the Arizona Court of Appeals to stand, then police

officers will not be able to obtain voluntary consent to search a

suspect’s belonging unless the suspect, without request, empties his

pockets spontaneously.

17

Based on the foregoing authorities and arguments, Petitioner

respectfully request this Court to grant the petition for writ of

certiorari.

CRM95-1593

13168 1

CONCLUSION

Respectfully submitted,

GRANT WOODS

Attorney General

PAUL J. MCMURDIE

Chief Counsel

Criminal Appeals Section

COLLEEN L. FRENCH

Assistant Attorney General

(Counsel of Record)

JACQUELYN B. ESKAY

Assistant Attorney General

Attorneys for PETITIONERS

18

“7

APPENDICES

APPENDIX A

IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

FILED: SEP 26, 1996

STATE OF ARIZONA )_ 1 CA-CR-95-0826

)

Appellee, ) DEPARTMENT D

)

V. ) MEMORANDUM DECISION

) (Not for Publication - Rule 111,

TRAVIS S. WRIGHT, ) _ Rules of the Arizona Supreme

) Court)

Appellant, )

)

Appeal from the Superior Court of Yavapai County

Cause No. CR 94-0440

The Honorable Raymond W. Weaver, Jr., Judge

The Honorable William T. Kiger, Judge Pro Tempore

REVERSED AND REMANDED

Grant Woods, Attorney General

by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section

Jacquelyn B. Eskay, Assistant Attorney General

Attorneys for Appellee Phoenix

John C. Williams

Attorney for Appellant

Prescott

GRANT, Judge

Travis S. Wright (“Defendant”) appeals from his judgment and

sentence for Possession of Dangerous Drugs, a class 4 felony. For

the reasons that follow we reverse the denial of Motion to Suppress

evidence and remand for action consistent with this decision.

SUMMARY OF THE FACTS AND PROCEDURE

Defendant was indicted by a Grand Jury and convicted at a bench

trial for Possession of a Dangerous Drug, a class 4 felony. He was

placed on probation for two years. The arresting officer

(“Murphy”), as he was driving by in his police vehicle, witnessed

what he believed to be a suspicious interaction between Defendant

and the driver of a parked van. Defendant, standing outside and

adjacent to the van, placed his hand in his pocket, then placed the

same hand in the passenger cabin of the van, then withdrew his

hand. At trial, Murphy testified he was unable to see what, if

anything, was transferred. He further testified he was acting on a

“hunch.” Murphy testified that Defendant fit the right criteria of a

“probable person” that might be using drugs. He further testified

that if it had been two old ladies his suspicions would not have been

aroused and he would not have stopped.

A-2

Murphy then followed Defendant into the Sheldon Street Saloon

where Defendant was employed. He asked Defendant to step outside

the bar so they could talk for a moment. Once outside, Murphy told

Defendant that he thought Defendant had been involved in a drug

transaction. In response to Murphy’s questions concerning the

insertion of his hand into the passenger compartment of the van,

Defendant stated he was lighting a cigarette for the driver, who was

a regular customer of the bar.

Murphy radioed for assistance and was joined by fellow police

officer Kabbel (“Kabbel”). Kabbel asked if Defendant had any

weapons on his person. Defendant produced a pocket knife and a

utility knife. The officers did not do a customary “pat down” of

Defendant. Kabbel then asked Defendant to empty the contents of

his pockets. Defendant complied. Kabbel and Murphy after

searching the contents of Defendant’s pockets, asked Defendant if he

minded if they looked through his belonging and Defendant assented.

Kabbel and Murphy discovered a small amount of methamphetamine

in a matchbook located within Defendant’s large “Harley-Davidson”

wallet.

At trial, Defendant argued the search was illegal and moved to

suppress the evidence of the methamphetamine. The prosecution

argued that the search was consensual. The trial court ruled that the

initial encounter between Defendant and Murphy was consensual

under Florida v. Bostick, 501 U.S. 429 (1991). The trial court

stated that Murphy had acted primarily on a “hunch,” but held

nonetheless that Defendant had “voluntarily consented” to the search

of his possessions. In addition, the court held that the state had

established by “clear and positive evidence that consent to the search

was freely and intelligently given.” Finally, the trial court found

Defendant had been free to disregard Murphy’s request to step

outside the bar. The trial court then denied Defendant’s Motion to

Suppress and admitted the methamphetamine into evidence.

DISCUSSION

The issue presented in this appeal is:

1. Whether Defendant consented to a search of his person by

officers of the Prescott Police Department.

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ee

1. Standard of review.

We will not reverse the trial court’s ruling on a motion to

suppress on appeal absent clear and manifest error. State v. Oliver,

169 Ariz. 589, 593, 821 P.2d 250, 254 (App. 1991) (citing Stare v.

Clevidence, 153 Ariz. 295, 736 P.2d 379 (App. 1987) ). However,

whether a person has been seized by police is a mixed question of

fact and law. The “clear and manifest error” standard applies only

to questions of fact, the applicable standard of -review for questions

of law is “de novo.” In the Matter of the Appeal in Maricopa

County, Juvenile Action No. JT30243, 220 Ariz. Adv. Rep. 52

(App. 1996) (citing United States v. Mendenhall, 446 U.S. 544, 551

n.5 (1980); State v. Winegar, 147 Ariz. 440, 445, 711 P.2d 579,

584 (1985) ). Therefore we accept the facts found by the trial court

and our review of the legal conclusion to be drawn from those facts

is de novo. In reviewing the correctness of the ruling on the Motion

to Suppress, we look only at the evidence presented at the

suppression hearing. State v. Fimbres, 152 Ariz. 440, 441-42, 733

P.2d 637, 638-39 (App. 1986). We view the facts in the light most

A-5

favorable to the trial court’s ruling. State v. King, 140 Ariz. 602,

603. 684 P.2d 174, 175 (App. 1984).

2. Encounters and stops.

The Bostick rule provides that “a seizure does not occur simply

because police officer approaches an individual and asks a few

questions. ” Florida v. Bostick, 501 U.S. 429, 434 (1991). Police

do not need a reasonable suspicion to initiate a consensual encounter

with a person. Jd. at 439. An encounter is consensual, and Fourth

Amendment scrutiny is not implicated, if a reasonable person would

know that he may disregard the police and simply walk way. Id. at

434 (citing California v. Hodari, 499 U.S. 621, 628 (1991)). Fourth

Amendment scrutiny is only triggered if the encounter loses its

consensual nature. Jd. at 434.

In Bostick, two police officers boarded a public bus at random

and without an articulable suspicion, questioned Bostick, 501 U.S.

at 431. The police requested Bostick’s consent to search his luggage

for drugs, and advised him of his right to refuse. Id. at 432.

Bostick gave his permission, and the officers arrested him after

discovering cocaine in his luggage. Id. The trial court denied a

A-6

motion to suppress the evidence as a violation of the Fourth

Amendment. /d. The Florida Court of Appeal affirmed, but

certified a question to the state supreme court as to whether police,

without articulable suspicion, could board a bus and ask at random

for and receive consent to search passengers’ luggage when they

advised the passenger that he had a right to refuse consent to search.

Id. That court adopted a per se rule that routine bus boarding for

the purpose of questioning and searching the belonging of passengers

was unconstitutional. /d. at 433. The U.S. Supreme Court held that

the Florida Supreme Court erred by adopting a per se rule that every

encounter on a bus is a seizure. /d. at 440. Thus, in striking down

the Florida per se rule, the Court stated that the appropriate test for

determining whether an encounter with police is a seizure under the

Fourth Amendment is whether, taking into account all of the

circumstances surrounding the encounter, a reasonable passenger

would feel free to decline the officers’ requests or otherwise

terminate the encounter. /d. at 436.

In the aftermath of Bostick, the Ninth Circuit identified three

categories of encounters or stops. Morgan v. Woessner, 997 F.2d

A-7

1244, 1252 (9th Cir. 1993). First, in a “consensual exchange,”

police may stop a person for questioning at any time, so long as a

reasonable person would recognize he is free to decline the officers’

requests or otherwise terminate the encounter. Jd. (citing Bostick,

501 U.S. at 436). Consensual exchanges need not be supported by

any suspicion that the individual was engaged in criminal activity,

nor are they considered seizures for purposes of the fourth

Amendment. Jd. Second, police may stop or “seize” a person for

brief, investigatory stops. Jd. This class of stops is not consensual

and must be based on “‘reasonable suspicion.’” Jd. (citing Terry v.

Ohio, 392 U.S. 1, 20-22 (1968) ); United States v. Holzman, 871

F.2d 1496, 1502 (9th Cir. 1989) ). Third, police may stop or seize

a person for the purpose of a full-scale arrest. /d. An arrest stop

constitutes a seizure under the Fourth Amendment and must be

supported by probable cause. /d. (citing Adams v. Williams, 407

U.S. 143, 148-49 (1972) ). Here, only the first and second

categories above are relevant to our analysis of Murphy’s initial

contact with Defendant.

A-8

3. Investigatory Stop.

An investigatory stop must be supported by reasonable suspicion

based on rational inferences from specific and articulable facts that

the individual to be questioned has committed or is about to commit

acrime. Jerry v. Ohio, 392 U.S. 1, 21 (1968). When the police,

“by means of physical force or show of authority, [have] in some

way restrained the liberty” of a person, we may conclude that a

seizure has occurred. /d. at 19 n. 16. Investigatory stops have been

held to be non-consensual encounters and thus are governed by the

protections offered by the Fourth Amendment. State v. Master, 127

Ariz. 210, 211, 619 P.2d 482, 483 (1980) (citing Jerry v. Ohio, 392

U.S. 1 (1968) (when police stop a person on the street, and that

person is no longer free to walk away, Fourth Amendment

protections arise).

Investigatory stops are distinguished from consensual encounters

by factors such as an ostentatious show of force or the assertion of

authority, and the detention of the individual. Unlike the encounter

in Bostick, which the Court characterized as permitting an objective

belief by the individual that he could terminate the questioning, an

A-9

investigatory stop is a forcible detention by the officer placing the

individual under his control. In determining whether a police officer

acted reasonably in making an investigative stop, weight must be

given not to the officer’s inchoate hunch, but to particular,

reasonable inferences which he is entitled to draw from the facts in

light of his experience. Terry, 392 U.S. at 27; State v. Fortier, 113

Ariz. 332, 334, 553 P.2d 1206, 1208 (1976) overruled on other

grounds by State v. Jarzab, 123 Ariz. 308, 312, 599 P.2d 761, 765

(1979): State v. Jarzab, 123 Ariz. 308, 310, 599 P.2d 761, 763

(1979).

A show of authority exists when a police officer’s words and

actions would cause a reasonable person to believe he or she is being

ordered to restrict his or her movements; it is a necessary condition

for seizure. Hodari, 499 U.S. at 628 (1991) (citing United States v.

Mendenhall, 446 U.S. 544, 554 (1980) ). Hodari fled after police

approached to question him regarding suspicious conduct. Id. at

621. During the chase, Hodari discarded what turned out to be

crack cocaine just prior to being apprehended. Jd. at 621, 623. At

the juvenile proceeding, Hodari moved to suppress the crack cocaine

A-10

evidence as fruit of an illegal seizure. /d. at 621. The Supreme

Court further held that although the police officers’ pursuit

constituted a show of authority, since Hodari did not comply with

the injunction to halt, seizure did not occur until Hodari had been

tackled. Jd. at 629.

Here, Hodari is inapplicable to the instant case because the show

of authority in this case was both necessary and sufficient condition

to achieve the stop. Once outside the bar, Defendant was under the

control of the police.

Murphy’s questioning of Defendant was an investigatory stop

rather than a consensual encounter. Despite the fact that Murphy

testified the stop was based on a “hunch,” Murphy observed a

furtive hand gesture by Defendant with the driver of a parked van in

the proximity of a reputed high drug transaction locality. Murphy

also testified that Defendant’s age and appearance matched the

general description provided to him by drug enforcement officer.

Thus, Murphy was able to articulate specific facts which support the

assertion of reasonable suspicion.

Pasa Shae:

A uniformed Murphy followed Defendant into the Sheldon Street

Saloon. Once inside Murphy became aware that Defendant was an

employee and motioned him to approach the officer. As Defendant

approached, Murphy requested Defendant step outside to the parking

lot for questioning. The trial judge found this to be consensual

encounter and that the “Defendant was free to disregard the police

and go about his business.” We disagree. A reasonable person in

Defendant’s position would believe that these officers had an

authoritative purpose in mind. Maricopa County Juvenile Action No.

JT30243, 220 Ariz. Adv. Rep. at 54.

However, even if the initial contact between Murphy and

Defendant “to step outside” was a consensual encounter and thus

governed by the Bostick rule, the nature of the encounter

subsequently changed thereafter during the course of the

investigation. Murphy testified that he was acting under reasonable

suspicion of a narcotics transaction and that Defendant was the target

of the investigation. After Murphy and Defendant stepped outside,

Murphy made allegations of a drug transaction and began

questioning Defendant regarding Defendant’s interaction with the

A-12

driver of the van. During the course of this questioning, Kabbel,

also in uniform, appeared on the scene and participated in the

investigation. Kabbel testified that he asked Defendant if he had any

weapons on him. Defendant responded that he had a pocket knife.

Kabbel asked Defendant to produce his pocket knife and that “if it

was not produced after the request, I would have taken action.”

Defendant was then asked to empty his pockets, which he did. The

officers then asked if they could search his possessions. A

reasonable person in Defendant’s place could not interpret this

situation as one in which he would have had the right to unilaterally

terminate the questioning and walk away.

Murphy's observation of suspicious conduct, the removal of

Defendant from his place of employment, the authoritative effect of

two uniformed officers, the nature of the allegations, the repetition

of the questioning, and the objective impression that Defendant was

not free to leave are sufficient to demonstrate that even if the

exchange began as a Bostick consensual encounter, it subsequently

evolved into an investigatory stop and is therefore governed by the

law established by Jerry and its progeny. While Officer Kabbel was

A-13

entitled to require Defendant to produce his pocket knife under Terry

as necessary for officer safety, the search of the contents of a

matchbook in Defendant’s wallet exceeded the scope of Terry or a

weapons search. Such a search can only be permitted ‘by an

alternative theory.

4. Consent Search.

Absent a warrant, a lawful arrest, or exigent circumstances, law

enforcement may conduct a search of the person only if the person

to be search voluntarily consents. Schneckloth v. Bustamonte, 412

U.S. 218, 219 (1973). Whether a defendant’s consent to a search

is “voluntary” is a question of fact to be determined by examining

the totality of the circumstances. Id. at 227. The standard for

determining the scope of the suspect’s consent to search is one of

objective reasonableness, the court must ask “what would the typical

reasonable person have understood by the exchange between the

officer and the suspect?” State v. Swanson, 172 Ariz. 579, 584 n.5,

838 P.2d 1340, 1345 n.5 (App. 1992), cert. denied, 507 U.S. 1006

(1993) (quoting Florida v. Jimeno, 500 U.S. 248, 251, (1991) ).

A-14

The prosecution has the burden of proof to demonstrate that consent

was voluntary. Bustamonte, 412 U.S. at 222.

In Bustamonte, the Court listed a variety of factors which have

been considered in determining whether a defendant's consent was

voluntary: the youth of the accused; the lack of education or low

intelligence; the lack of advice to the accused of his constitutional

rights; the length of detention and the repeated and prolonged nature

of the questioning; and the use of physical punishment such as the

deprivation of food or sleep. /d. at 226 (citations omitted).

Bustamonte is most noted for its holding that the defendant’s

knowledge of his right to refuse consent to search is not

determinative in and of itself; it is merely one factor of many to be

considered in determining whether defendant’s consent was

voluntary. Jd. at 227; State v. Smith, 123 Ariz. 231, 241, 599 P.2d

187, 197 (1979).

In this case, we note that Defendant testified he did not know he

had the right to refuse police interrogatories to produce the items on

his person. During his testimony at the Hearing on the Motion to

Suppress, the defendant made the following responses:

A-15

is

Q: If you had known that you had the right to refuse even to

talk to the officers, would you have done it when he was

accusing you of a drug transaction?

A: Yeah. 1 probably still would have talked with him.

Q: Would you have still let him search if you had known you

had the right to refuse?

A: No, ..

On these facts, we distinguish cooperation from consent in that

consent implies the existence of choice, whereas cooperation was

merely the only reasonable avenue available to Defendant.

Defendant was cooperating rather than consenting when he emptied

his pockets in the presence of police officers because he reasonably

viewed he had no alternative. See Maricopa County Juvenile Action

No. JT30243, 220 Ariz. Adv. Rep. at 52 (where a juvenile felt she

had no alternative but to open her purse and hand the officer her

cigarettes). At the officers’ request, Defendant consented to the

search of his possessions. Inside his wallet was a matchbook with

a bindle which contained the illegal drug. However, consistent with

Butamonte, Defendant’s lack of knowledge concerning his right to

refuse consent to the search is probative but not dispositive.

We dispose of the proposition that because the search of

Defendant’s person was made on an affirmative response to police

A-16

interrogatories, it implies consent. “Consent is ordinarily given as

an acquiescence in an implicit claim of authority to search.”

Bustamonte, 412 U.S. at 289 (Marshall, J., dissenting). Justice

Douglas noted that under many circumstances a reasonable person

might read an officer’s “May I” as the “courteous expression of a

demand backed by the force of the law.” Bustamonte, 412 U.S. at

275-76 (Douglas J., dissenting); See Winegar, 147 Ariz. at 445, 711

P.2d at 584.

The circumstances of this case clearly point to an escalating

investigation. Inside the bar, Murphy motioned Defendant to

approach and asked him to step outside. Assuming arguendo that

Defendant freely consented to this request, Defendant was then

subjected to repeated allegations and questioned regarding his

interaction with the driver of the van. A second uniformed officer

then interjected by asking if Defendant had any weapons on him.

The subsequent production of Defendant’s pocket knives as weapons

and the request for Defendant to empty his pockets are indicia of an

intensifying investigation. The mere fact that the officers’ may have

prefaced their request with the phrase “Do you mind” is not

A-17

sufficient under these circumstances to make the subsequent

production consensual. See Winegar, 147 Ariz. at 447, 711 P.2d at

586 (1985), (mere fact police “ask” citizen to accompany them does

not mean citizen can reasonably believe he or she is free to refuse).

The trial court in denying suppression of the evidence failed to

apply the objective standard required by Bostick and Swanson.

Bostick, 501 U.S. at 436-37; Swanson, 172 Ariz. at 584 n.5, 838

P2d at 1345 n.5 (citation omitted). Instead, the court relied

exclusively on the subjective response of Defendant to the police

“request” to produce the contents of his pocket. An affirmative

response to a police statement that 1s presented as a request in form,

but is actually a directive in substance does not constitute objective

consent. Winegar, 147 Ariz. at 447, 711 P.2d at 586. The court

should have considered whether a reasonable person, having been

removed from his place of work, confronted with allegations of

illegal narcotics activity, and questioned repeatedly regarding those

allegations and his possession of any weapons would “feel free to

disregard police and go about his business.” Hodari, 499 U.S. at

628 (citation omitted). We think not. The trial court displayed clear

and manifest error by failing to apply the objective standard to the

request to search the effects on Defendant's person.

Consent which is either expressly or implicitly coerced or given

under duress is not voluntary and the search 1s unconstitutional State

v. Ballesteros, 23 Ariz. App. 211, 214, 531 P.2d 1149, 1152

(1975). In Ballesteros we outlined certain factors which tended to

show that the consent was coerced

Consent was made by an individual already arrested.

Consent was obtained despite a denial of guilt.

Consent was obtained only after the accused had refused

initial requests for consent to search.

4. Consent was given where the subsequent search resulted in

a seizure of contraband which the accused must have known

would be discovered.

Consent was given while the defendant was handcuffed.

wh —

ws

23 Ariz. App. at 214, 531 P.2d at 1152 (citations omitted).

In this case, we note that Defendant meets at least two of the

factors described above. Defendant denied the allegations made by

Murphy. Defendant denied participating in a drug transaction, not

once, but several times during the course of the interrogation. He

offered an alternative explanation for why he inserted his hand into

the passenger compartment of the parked van. Murphy was driving

by in a patrol car and could not have seen the details of this

A-19

encounter. The potentially coercive impact of uniformed officers

accusing One of a crime is yet another factor of duress. State \

Laughter, 128 Ariz. 264, 266, 625 P.2d 327. 329 (App. 1980)

Here, both Murphy and Kabbel were in uniform at the time of the

investigatory stop.

We conclude by noting that Defendant testified, “If a police

officer tells you to do something, you do it; or if he asks you to do

something you just do whatever --.” Thus, Defendant acted as any

reasonable citizen was taught: cooperate with rather than confront

law enforcement officers. This testimony and the testimony above

is in direct conflict with the trial court’s determination that consent

was or could be “freely and intelligently given.”

CONCLUSION

Based on the reasons above, we hold that the search of

Defendant’s personal items was not consensual, we reverse the

denial for Motion to Suppress based on a consent search and remand

for proceedings not inconsistent with this decision.

s SARAH D. GRANT, Judge

CONCURRING:

s NOEL FIDEL, Presiding Judge

/s WILLIAM F. GARBARINO, Judge

Appendix A

IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

FILED: SEP 26, 1996

STATE OF ARIZONA ) 1 CA-CR-95-0826

Appellee, . DEPARTMENT D

vV. : ORDER

TRAVIS S. WRIGHT, .

Appellant, 7

)

The above-entitled matter was duly submitted to the Court. The

Court has this day rendered its memorandum decision.

IT IS ORDERED that the memorandum decision be filed by the

Clerk.

IT IS FURTHER ORDERED that a copy of this order together

with a copy of the memorandum decision be sent to each party

appearing herein or the attorney for such party and to The Honorable

Raymond W. Weaver, Jr., and The Honorable William T. Kiger,

Judge Pro Tempore.

DATED this 26th day of _ September , 1996.

/s SARAH _D. GRANT, Judge

Appendix B

Supreme Court

Noel K. Dessaint State of Arizona Kathleen E. Kempley

Clerk of Court Chief Deputy Clerk

402 Arizona State Courts Building

1501 West Washington

Phoenix, Arizona 85007-3329

Telephone (602) 542-9396

February 28, 1997

RE: STATE OF ARIZONA vs. TRAVIS S. WRIGHT

Supreme Court No. CR-96-0645-PR

Court of Appeals No. 1 CA-CR 95-0826

Yavapai County No. CR 94-0440

GREETINGS:

The following action was taken by the Supreme Court of the State

of Arizona on February 26, 1997, in regard to the above-referenced

cause:

ORDERED: State of Arizona’s Petition for Review = DENIED.

Record returned to Court of Appeals, Division One, Phoenix, this

28th day of February, 1997.

NOEL K. DESSAINT, Clerk

B-1

TO:

Hon. Grant Woods, Arizona Attorney General

Attn: Paul J. McMurdie, Esq. and Jacquelyn B. Eskay, Esq.

John C. Williams, Esq.

Glen D. Clark, Clerk of Appeals, Division One, Phoenix

Lexis-NEXIS

West Publishing Company

Appendix C

IN THE

COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

FILED: MAR 19, 1997

STATE OF ARIZONA,

1 CA-CR 95-0826

Appellee,

DEPARTMENT D

Yavapai County

Superior Court

No. CR 94-0440

)

)

)

)

V. )

)

TRAVIS S. WRIGHT, )

)

Appellant, )

)

ORDER AND MANDATE

Grant Woods, The Attorney General

By: Paul J. McMurdie, Chief Counsel, Criminal Appeals Section

And Jacquelyn B. Eskay, Assistant Attorney General

Attorneys for Appellee Phoenix

John C. Williams

Attorney for Appellant Prescott

The memorandum decision of this Court in the above matter was

filed on September 16, 1996.

A petition for review was filed. The record was forwarded to

the Arizona Supreme Court. By order, dated February 26, 1997, the

Arizona Supreme Court denied the petition for review, Supreme

Court No. CR-96-0645-PR.

C-1

IT IS ORDERED in conformity with the memorandum decision

attached hereto.

IT IS FURTHER ORDERED that a certified copy of the

foregoing ORDER and MANDATE and a copy of the memorandum

decision of the Court were mailed to the Clerk of the Superior Court

for Yavapai County, Arizona, on March 19, 1997. A copy of the

ORDER and MANDATE and a copy of the memorandum decision

were mailed to the Honorable William T. Kiger, Judge, and a copy

of the ORDER and MANDATE was mailed on said day to each

party appearing or the attorneys of record; as well as the Yavapai

County Attorney.

IT IS FURTHER ORDERED pursuant to this Court’s order of

the 11th day of March, 1995, that the Clerk of this Court return to

the Clerk of Superior Court, all records, exhibits, and other matters

received from said Clerk by this Court in aid of the consideration of

this matter.

DATED March 19, 1997.

s/

VICE CHIEF JUDGE

All of the foregoing directives were

complied with March 19, 1997.

GLEN D. CLARK, Clerk

by:

Karen Scott

Deputy Clerk

C-3