Opinion
No. 1 CA-CR 12-0736
03-18-2014
STATE OF ARIZONA, Appellant, v. ASKIA MUHAMMAD SHAHEED, Appellee.
Maricopa County Attorney Office, Phoenix By Arthur G. Hazelton, Jr. Counsel for Appellant The Law Office of David Jameson Kephart, PLLC, Tempe By David J. Kephart Counsel for Appellee
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CR2011-163687-001
The Honorable Robert L. Gottsfield, Judge (Retired)
REVERSED
COUNSEL
Maricopa County Attorney Office, Phoenix
By Arthur G. Hazelton, Jr.
Counsel for Appellant
The Law Office of David Jameson Kephart, PLLC, Tempe
By David J. Kephart
Counsel for Appellee
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.
THOMPSON, Judge:
¶1 The state appeals from the trial court's order granting Askia Shaheed's motion to suppress the use of evidence. The issue on appeal is whether an investigative detention is permissible near the scene of a completed crime because the individual matched a detailed physical description given to police in-person by an unidentified witness at the scene of the crime. For the following reasons, we reverse.
FACTUAL AND PROCEDURAL HISTORY
¶2 The events that led to Shaheed's arrest began shortly after 1:00 a.m. on December 17, 2011. Sergeant Alan Phohl was dispatched to a call at the Alaska Bush Company for a physical altercation in the parking lot involving gunfire. The dispatch calls described the suspect group as six to ten African American males. When Sergeant Phohl arrived at the scene, he saw a pickup truck with gunshot damage to it and spent shotgun shell casings in the parking lot. Three or four other officers had already arrived at the scene and were speaking with witnesses.
¶3 Sergeant Phohl was present when a witness described a person involved in the shooting as a tall, thin, black male wearing a dark hat, white shirt and jeans, with his hair tied in two ponytails, one on each side of his head, and possessing a handgun. The witness stated that the suspect was on his way to Teasers, a strip club down the road. Sergeant Phohl conveyed this information to Officer Michael Raines and asked him to go to Teasers to see if the suspect was there. Sergeant Phohl did not take down the witness's name, but remembered that he was male, that they spoke face-to-face, and that he looked like a "bouncer type."
¶4 Officer Raines arrived at Teasers at approximately 1:30 a.m. and saw a man standing in the middle of the parking lot who was "a very strong match" to the description given by Sergeant Phohl. Officer Raines approached Shaheed and asked him to stop and if he had been at the Alaska Bush Company. Shaheed turned and walked away from Officer
Raines without responding. Officer Raines then asked Shaheed if he had any weapons in his possession, and Shaheed said "no." When Officer Raines asked if he could conduct a Terry pat-down because he was investigating a shooting, Shaheed said he "didn't do anything," and proceeded to walk away towards the entrance of Teasers. Officer Raines testified that he was concerned for his own safety and those at Teasers because of Shaheed's strong resemblance to the suspect description, and decided to detain Shaheed and perform a pat-down to make sure he did not have any weapons. Officer Raines found an Intratec Tec-9 handgun on Shaheed's right hip and then detained him for misconduct involving weapons.
¶5 The state charged Shaheed with one count of misconduct involving weapons (prohibited possessor), a class 4 felony. Shaheed filed a motion to suppress the evidence seized pursuant to the pat-down, challenging the reasonableness of his stop and frisk because of the unreliability of the face-to-face tip. Following the state's response and an evidentiary hearing, the trial court suppressed the evidence seized during the stop.
¶6 The state timely appealed. The trial court granted the state's motion to dismiss the matter without prejudice. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) (2003), 13-4031 and - 4032(6) (2010).
DISCUSSION
¶7 The state argues that the trial court erred by exclusively examining the witness's reliability rather than the totality of the circumstances because the crime was already confirmed by police and the central issue was the identity and whereabouts of the suspects. We agree, and hold that the stop and resulting seizure of evidence was reasonable. Whether the police have reasonable suspicion to make an investigative stop is a mixed question of law and fact which we review de novo. State v. Rogers, 186 Ariz. 508, 510, 924 P.2d 1027, 1029 (1996).
¶8 The Fourth Amendment prohibits "unreasonable searches and seizures." U.S. Const. amend. IV. An investigatory stop does not violate the Fourth Amendment and is permissible where police have "reasonable suspicion, grounded in specific and articulable facts" that the person was involved in or is wanted in connection with a completed felony. United States v. Hensley, 469 U.S. 221, 229 (1985). The
reasonableness of the search involves "all the circumstances of the particular governmental invasion of a citizen's personal security," balanced alongside legitimate government interest. Terry v. Ohio, 392 U.S. 1, 19 (1968); Wyoming v. Houghton, 526 U.S. 295, 300 (1999). The totality of the circumstances takes into account "the whole picture." United States v. Cortez, 449 U.S. 411, 417 (1981).
¶9 Face-to-face encounters with informants, even where they are unidentified, are considered to be some of the more reliable tips. United States v. Palos-Marquez, 591 F.3d 1272, 1275 (9th Cir. 2010); see State v. Anderson, 281 N.W.2d 743, 746 (Neb. 1979) (victims or witnesses of a crime are not to be viewed in the same way as the usual police informant). In United States v. Sierra-Hernandez, 581 F.2d 760, 762 (9th Cir. 1978), the Ninth Circuit upheld a stop by a border patrol agent based on an unidentified man pointing to a nearby pickup truck and saying, "[t]he black pickup truck just loaded with weed at the canebreak." Id. Factors considered by the court were that the tip was not vague as to the time of the criminal activity, it was not imprecise as to the kind of crime being committed, and the suspect was clearly indicated and his criminal actions were described with some particularity. Id. at 763; see also W. LaFave, Search & Seizure: A Treatise on the Fourth Amendment, § 9.5(h) (5th ed.) (2012) (factors appropriately taken into account to determine whether reasonable suspicion exists to justify an investigatory stop for a completed offense based on a physical description given by a witness at the scene include: (1) the particularity of the description of the offender; (2) the size of the area in which the offender might be found; (3) the number of persons about in that area; (4) the known or probable direction of the offender's flight; (5) observed activity by the particular person stopped; and (6) knowledge or suspicion that the person stopped has been involved in other criminality of the type presently under investigation.). The court was not concerned that the agent failed to converse further with the informant and get his name or note the license of his car, because the suspect was in a vehicle moving away from the agent when the tip came and the agent needed to take quick action or risk losing the suspect. Sierra-Hernandez, 581 F.2d at 763.
¶10 Other courts have made similar holdings. In a Terry stop and frisk case dealing with an anonymous tip of a man with a gun, the police were dispatched to a luncheonette to investigate "a black individual wearing a black hat, black leather coat and checkered pants . . . with a gun in his possession." State in Interest of H.B., 75 N.J. 243, 248, 381 A.2d 759 (1977). The court upheld the patdown after balancing the constitutional imperatives enunciated in Terry, despite the tip coming from an
anonymous source and that that the defendant was not acting suspiciously. Id. at 252; see also State v. Satter, 766 N.W.2d 153, 154, 156-58 (2009) (where a "concerned citizen" approached an officer face-to-face, making "no effort to hide or conceal his identity," and informed him that he had seen two men drinking beer in a van, the officer had a reasonable suspicion to pull the van over even though he did not witness any erratic driving); Mitchell v. State, 187 S.W.3d 113, 117-18 (Tex. App. 2006) (unidentified citizen-informant's report of an intoxicated driver could support a reasonable suspicion because it contained "sufficient indicia of reliability," including, "most importantly," the fact that his face-to-face encounter with the officer "placed him [] in a position to be easily identified by [the officer] and held accountable for his report"); People v. Lucero, 182 Colo. 39, 42, 511 P.2d 468, 470 (1973) (police officers reasonably relied on unidentified citizen informants at the scene of the crime to pull over a robbery suspect based on their description of the getaway vehicle); cf. People v. Tooks, 271 N.W.2d 503, 504, 508 (1978) (holding that information about a suspect with a concealed weapon, received from a citizen who approached police face-to-face but refused to identify himself for fear of "gangs in the area," supported a reasonable suspicion for a weapons frisk); but see State v. Tibbet, 96 Or.App. 116, 771 P.2d 654, 654-55 (1989) (in banc) (holding that an unidentified driver who pulled off the road to inform a police officer of "a vehicle [that] had been 'driving all over the road' in front of him" was "just as anonymous" as an unidentified telephone informant).
¶11 Here, it was imperative that police officers move quickly in order to apprehend any suspects after the shooting at the Alaska Bush Company. Although the police knew the kind of crime and the criminal actions involved, they needed to quickly ascertain the identity and direction of travel of any suspects before a substantial amount of time passed. The witness here provided a detailed physical description shortly after the incident, and not only gave the direction of travel, but the exact location the suspect was headed. See United States v. Valentine, 232 F.3d 350, 354 (3d Cir. 2000) (the fact that "the officers in our case knew that the informant was reporting what he had observed moments ago, not what he learned from stale or second-hand sources" weighed in favor of a tip's reliability). When Officer Raines arrived at Teasers, he encountered Shaheed who very closely matched the detailed description. Although the witness in Sierra-Hernandez may have been more identifiable because he was in a car, the court stated that the point was not that the police could necessarily track him down, but rather that the informant himself may believe he could be tracked down and held accountable by the police if the information proved false. 581 F.2d at 763. We have no reason to think
that the witness here was not also under the impression that he could be tracked down and held accountable for his story after giving the information in the presence of more than one officer.
¶12 Shaheed asserts that the state "totally fails to appreciate" that at the completion of the investigation Shaheed was not listed nor described as a suspect by the investigating officers. However, police officers are not required "to be all-knowing, only to be prudent and reasonable." State v. Vasquez, 167 Ariz. 352, 355, 807 P.2d 520, 523 (1991). They "must make immediate decisions on how to protect themselves and others from possible danger." State v. Sinclair, 159 Ariz. 493, 496, 768 P.2d 655, 661 (App. 1988). As with all Terry stops, the police officer's conduct must be reasonable under the circumstances known to the officer at the time he initiated the stop. Terry, 392 U.S. at 21-22. We cannot judge the reasonability of the stop based on facts found out later. The United States Supreme Court permits investigative stops because:
In allowing such detentions, Terry accepts the risk that officers may stop innocent people. Indeed, the Fourth Amendment accepts that risk in connection with more drastic police action; persons arrested and detained on probable cause to believe they have committed a crime may turn out to be innocent. The Terry stop is a far more minimal intrusion, simply allowing the officer to briefly investigate further. If the officer does not learn facts rising to the level of probable cause, the individual must be allowed to go on his way.
Illinois v. Wardlow, 528 U.S. 119, 126 (2000).
¶13 Shaheed's strong resemblance to the suspect description, and the officers knowledge that the suspect possessed a firearm, could justify a reasonably prudent police officer in believing that Shaheed could be the suspect and that the officer's safety and the safety of others was in danger. See State v. Nichols, 26 Ariz. App. 455, 458, 549 P.2d 235, 238 (1976), citing Terry, 392 U.S. 1 (police need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances, would be warranted in the belief that his safety or that of others was in danger). "[A]ny reasonable fear for safety is enough to warrant a search under Terry . . . ." State v. Garcia Garcia, 169 Ariz. 530, 532, 821 P.2d 191, 193 (App. 1991). "The Fourth Amendment does not
require that a police officer 'simply shrug his shoulders and allow a crime to occur or a criminal to escape' even in the absence of sufficient information to establish probable cause." State v. Romero, 178 Ariz. 45, 48, 870 P.2d 1141, 1144 (App. 1993), citing Adams v. Williams, 407 U.S. 143, 145 (1972). "If an officer has a reasonable suspicion, based upon specific and articulable facts, that a suspect is involved or wanted in connection with a crime, then a brief stop to investigate that suspicion in fact may be the best and most sensible response." Romero, 178 Ariz. at 49, 870 P.2d at 1145, citing Terry, 392 U.S. at 21-24.
¶14 We conclude that the information provided by the face-to-face witness, considered in the light of the surrounding circumstances we have mentioned, was sufficient to justify the stop.
CONCLUSION
¶15 Based on the foregoing, we reverse.