                                IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                          STATE OF ARIZONA,
                              Appellee,

                                   v.

                     JOHNATHON BERNARD SERNA,
                             Appellant.

                          No. CR-13-0306-PR
                          Filed August 7, 2014

          Appeal from the Superior Court in Maricopa County
              The Honorable Karen L. O’Connor, Judge
              The Honorable Edward W. Bassett, Judge
                       No. CR2010-157188-001
                            REVERSED

             Opinion of the Court of Appeals, Division One
                 232 Ariz. 515, 307 P.3d 82 (App. 2013)
                              VACATED

COUNSEL:

Maricopa County Public Defender, Mikel Steinfeld (argued), Deputy Public
Defender, Phoenix, for Johnathon Bernard Serna

Thomas C. Horne, Arizona Attorney General; Robert L. Ellman, Solicitor
General; Joseph T. Maziarz (argued), Chief Counsel, Criminal Appeals
Section, Phoenix, for State of Arizona


JUSTICE BERCH authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, JUSTICE BRUTINEL,
and JUSTICE TIMMER joined.
                             STATE V. SERNA
                            Opinion of the Court

JUSTICE BERCH, opinion of the Court:

¶1            We granted review to determine whether, during an initially
consensual encounter, an officer may frisk an armed individual absent
reasonable suspicion that the person was engaged or was about to engage
in criminal activity. We hold that an officer must have reasonable suspicion
that criminal activity is afoot before frisking the individual.

                           II. BACKGROUND

¶2            At approximately 10:00 at night, two officers patrolling a
“gang neighborhood” in Phoenix observed Johnathon Serna and a woman
standing in the middle of the street. As they turned their patrol car toward
the pair, Serna and the woman separated, walking in opposite directions.

¶3            The officers stopped the patrol car and Officer Richey called
to Serna, who, in response, turned and walked toward them; the officers
described Serna as “very cooperative and polite.” While speaking with
Serna, Officer Richey observed a bulge on Serna’s waistband and asked if
he had any firearms. Serna replied that he had a gun. The officer then
ordered Serna to put his hands on his head and removed the gun from
Serna’s waistband. When, in response to follow-up questions, Serna
admitted that he had a felony conviction, the officers arrested him as a
prohibited possessor of the firearm.

¶4            Before trial, Serna moved to suppress the gun as the fruit of a
search that violated his Fourth Amendment rights. The trial court denied
the motion, finding that the entire encounter was consensual and that
“[o]nce the officers became aware [that Serna] had a gun, they were allowed
to remove the gun and conduct a pat down for safety purposes.” A jury
convicted Serna of misconduct involving weapons, and Serna appealed.

¶5             A divided panel of the court of appeals affirmed, finding the
frisk justified for officer safety reasons. State v. Serna, 232 Ariz. 515, 519
¶ 19, 521 ¶ 25, 307 P.3d 82, 86, 88 (App. 2013). Rejecting the majority’s
assessment that the entire encounter was consensual, the dissenting
opinion concluded that the officers were not entitled to frisk Serna absent
reasonable suspicion that criminal activity was afoot. Id. at 522 ¶ 33, 307




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P.3d at 89 (Norris, J., dissenting).

¶6           Serna petitioned this Court for review, which we granted to
resolve a recurring issue of constitutional law. We have jurisdiction
pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S.
§ 12-120.24.

                              III. DISCUSSION

¶7            Whether an officer must possess reasonable suspicion that
criminal activity is afoot in order to frisk an individual is a question of law,
which we review de novo. See State v. Moody, 208 Ariz. 424, 445 ¶ 62, 94
P.3d 1119, 1140 (2004).

¶8             The Fourth Amendment protects the right of people to be free
from “unreasonable searches and seizures.” U.S. Const. amend. IV. Of
course, not all encounters between law enforcement and citizens constitute
seizures, Florida v. Bostick, 501 U.S. 429, 434 (1991), and not all seizures are
constitutionally unreasonable, see Elkins v. United States, 364 U.S. 206, 222
(1960). Encounters that are entirely consensual do not implicate the Fourth
Amendment. Bostick, 501 U.S. at 434; see also Terry v. Ohio, 392 U.S. 1, 19
n.16 (1968). A police officer may approach an individual and ask questions
without running afoul of the Fourth Amendment: “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.”
Bostick, 501 U.S. at 434 (quoting California v. Hodari D., 499 U.S. 621, 628
(1991)). “The encounter will not trigger Fourth Amendment scrutiny unless
it loses its consensual nature.” Id. Police officers are thus free to ask
questions of persons they encounter “as long as the police do not convey a
message that compliance with their requests is required.” Id. at 435.

¶9           At the outset, the encounter between Serna and the officers
was consensual. When addressed, Serna walked toward the officers and
voluntarily answered their questions. He was “very cooperative” and
demonstrated no ambivalence about conversing with them.

¶10           But police interactions with members of the public are
inherently fluid, and what begins as a consensual encounter can evolve into




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                             Opinion of the Court

a seizure that prompts Fourth Amendment scrutiny. See id.; see also State v.
Wyman, 197 Ariz. 10, 14 ¶ 12, 3 P.3d 392, 396 (App. 2000) (consensual
encounter became seizure when juvenile complied with several requests
from officer to return); Commonwealth v. Narcisse, 927 N.E.2d 439, 443 (Mass.
2010) (consensual stop became a Fourth Amendment seizure “once the
officers told the defendant that they intended to pat frisk him”). Thus, the
relevant question is not simply whether the encounter was consensual at
the start, but whether at some point it became non-consensual, thus
triggering Fourth Amendment protections. See Terry, 392 U.S. at 16.

¶11            The State argues that when an encounter begins consensually,
an officer’s order, given for safety reasons, does not alter the consensual
nature of the interaction. At the suppression hearing, the State’s counsel
maintained that if Serna, after putting his hands up, had simply said, “I
don’t want to talk to you . . . , [he] could have walked away.” But the record
belies this assertion. Earlier at that hearing, Officer Richey had testified that
his direction to Serna to put his hands on his head was an order, not a
request.

¶12            A reasonable person would not have felt free to disregard
such a command from a law enforcement officer. See State v. Rogers, 186
Ariz. 508, 509–10, 924 P.2d 1027, 1028–29 (1996) (finding that a reasonable
person would not feel free to leave when the officer held out his badge and
stated, “police officers, we need to talk to you”); see also Gentry v. Sevier, 597
F.3d 838, 844–45 (7th Cir. 2010) (concluding that a Terry stop occurred when
the “officer exited the [patrol] car and told Gentry to ‘keep [his] hands up’”
(second alteration in original)). The Supreme Court has said that
“whenever a police officer . . . restrains [a person’s] freedom to walk away,
he has ‘seized’ that person,” and such a seizure implicates the Fourth
Amendment. Terry, 392 U.S. at 16. Officers may not involuntarily detain
individuals “even momentarily without reasonable, objective grounds for
doing so.” Florida v. Royer, 460 U.S. 491, 498 (1983).

¶13         The order and frisk at issue here “restrain[ed Serna’s]
freedom to walk away” and thus constituted a seizure for Fourth
Amendment purposes. See Terry, 392 U.S. at 16; see also id. at 19 (finding it
beyond question that the officer seized Terry when he “took hold of him
and patted down the outer surfaces of his clothing”). Such a seizure




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requires constitutional justification. See Royer, 460 U.S. at 498.

¶14           In Terry, the Court stated that an officer is justified in frisking
individuals for weapons if the officer can reasonably conclude “[1] that
criminal activity may be afoot and [2] that the persons with whom he is
dealing may be armed and presently dangerous.” 392 U.S. at 30 (emphasis
added). The question before us now is whether a frisk must be supported
by both of these conditions, or whether satisfying just one will suffice.

¶15            The Supreme Court’s opinions are instructive. Just three
years after Terry, the Court suggested that both conditions must be met,
stating that officers may conduct weapons searches if the “officer is entitled
to make a forcible stop, and has reason to believe that the suspect is armed
and dangerous.” Adams v. Williams, 407 U.S. 143, 146 (1972) (internal
footnote omitted). In 2009, the Supreme Court again reiterated this two-
part analysis, explaining that in Terry, it

       upheld “stop and frisk” as constitutionally permissible if two
       conditions are met. First, the investigatory stop must be lawful.
       That requirement is met in an on-the-street encounter, Terry
       determined, when the police officer reasonably suspects that
       the person apprehended is committing or has committed a
       criminal offense. Second, to proceed from a stop to a frisk, the
       police officer must reasonably suspect that the person
       stopped is armed and dangerous.

Arizona v. Johnson, 555 U.S. 323, 326–27 (2009) (emphasis added).

¶16          Justice Harlan’s concurrence in Terry provides the clearest
explanation of the rationale for requiring that both conditions be met:

       [I]f the frisk is justified in order to protect the officer during
       an encounter with a citizen, the officer must first have
       constitutional grounds to insist on an encounter, to make a
       forcible stop. Any person, including a policeman, is at liberty
       to avoid a person he considers dangerous. If and when a
       policeman has a right instead to disarm such a person for his
       own protection, he must first have a right not to avoid him




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                            Opinion of the Court

       but to be in his presence. That right must be more than the
       liberty (again, possessed by every citizen) to address
       questions to other persons, for ordinarily the person
       addressed has an equal right to ignore his interrogator and
       walk away; he certainly need not submit to a frisk for the
       questioner’s protection. I would make it perfectly clear that
       the right to frisk . . . depends upon the reasonableness of a
       forcible stop to investigate a suspected crime.

Terry, 392 U.S. at 32–33 (Harlan, J., concurring). The Court expressly
acknowledged Justice Harlan’s concurrence in United States v. Place, 462
U.S. 696, 702 n.4 (1983).         And a prominent Fourth Amendment
commentator has endorsed this analysis as “eminently sound.” See Wayne
R. LaFave, 4 Search & Seizure § 9.6(a), at 839 (5th ed. 2012). So while the
dual justification required for a frisk was not explicitly recognized in Terry,
the Court’s evolving Fourth Amendment jurisprudence supports the
conclusion that both conditions must be met to justify a frisk of an
individual. See Johnson, 555 U.S. at 326–27; Williams, 407 U.S. at 146.

¶17             Our conclusion is buttressed by the decisions of other state
and federal courts that have considered the issue. See, e.g., United States v.
Massenburg, 654 F.3d 480, 485 (4th Cir. 2011) (noting that reasonable
suspicion is “required prior to a frisk when the officer’s initial encounter
with the citizen is voluntary”); United States v. Burton, 228 F.3d 524, 527 (4th
Cir. 2000) (stating that a “police officer may elevate a police-citizen
encounter into an investigatory detention only if the officer has ‘a
reasonable suspicion supported by articulable facts that criminal activity
may be afoot’” (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)); United
States v. Ubiles, 224 F.3d 213, 214 (3d Cir. 2000) (finding stop and search
based on possession of gun unjustified because carrying firearms was not
illegal and thus could not alone provide reasonable suspicion of criminal
activity); United States v. Gray, 213 F.3d 998, 1000–01 (8th Cir. 2000) (finding
protective frisk violated Fourth Amendment because officers had no
reasonable suspicion that a man who willingly stopped and answered
questions was engaged in criminal activity); accord In re Ilono H., 210 Ariz.
473, 477 ¶ 12, 113 P.3d 696, 700 (App. 2005) (observing that “an officer’s
right to conduct a pat-down search should be predicated on the officer’s
right to initiate an investigatory stop in the first instance”); Gomez v. United




                                       6
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                             Opinion of the Court

States, 597 A.2d 884, 890–91 (D.C. 1991) (noting that, without reasonable
suspicion, police could not justify a frisk based on officer safety concerns
alone); Narcisse, 927 N.E.2d at 445 (stating that “police officers may not
escalate a consensual encounter into a protective frisk absent reasonable
suspicion that an individual has committed, is committing, or is about to
commit a criminal offense and is armed and dangerous”); Speten v. State, 185
P.3d 25, 33 (Wyo. 2008) (observing that “there is neither a ‘freestanding’
right to search based solely upon officer safety concerns, nor is there a
‘freestanding’ right to search based solely upon reasonable suspicion of the
presence of weapons”).

¶18            Nonetheless, the State argues that a frisk satisfies the Fourth
Amendment when the officer has reason to believe that the individual to be
frisked is armed and dangerous, even if the officer has no reasonable
suspicion of criminal activity. But many of the cases on which the State
relies for this proposition are unhelpful because the courts there found
reasonable suspicion of criminal activity. See, e.g., United States v. Ellis, 501
F.3d 958, 962 (8th Cir. 2007) (finding “there was reasonable suspicion [of
criminal activity] to justify a pat-down search”); United States v. Romain, 393
F.3d 63, 71–72 (1st Cir. 2004) (evaluating whether pat-down was
appropriate “following a valid Terry stop” and determining that
defendant’s behavior “gave rise to a reasonable suspicion . . . [of] criminal
wrongdoing”); United States v. Davis, 202 F.3d 1060, 1062 (8th Cir. 2000)
(stating that “[t]o be constitutionally reasonable, a protective frisk must also
be based upon reasonable suspicion that criminal activity is afoot”); United
States v. $84,000 U.S. Currency, 717 F.2d 1090, 1098–99 (7th Cir. 1983)
(upholding pat down, but finding reasonable suspicion of criminal
activity).

¶19           Another case on which the State relies, United States v. Bonds,
considered the frisk of a drug dealer who arrived at an associate’s
apartment while police were executing a search warrant. 829 F.2d 1072,
1073–74 (11th Cir. 1987). The court found it unnecessary to establish
reasonable suspicion of criminal activity by the defendant, instead focusing
on the inherent dangerousness of the circumstances: the officer was
executing a search warrant for drugs, knew Bonds dealt drugs, and “had
reason to believe that Bonds was a person to be feared and . . . was carrying
a gun.” See id. at 1074–75. Thus, while Bonds provides some support for the




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State’s argument, it is distinguishable from the case at hand.

¶20              The State urges us to follow United States v. Orman, 486 F.3d
1170, 1173 (9th Cir. 2007), in which the Ninth Circuit determined that “Terry
did not cabin the use of officer safety patdowns to lawful investigatory
detentions.” In Orman, an off-duty officer, having heard that Orman was
carrying a gun in the mall, stopped him and asked if he was armed. Id. at
1171–72. Orman acknowledged that he had a gun in his waistband. Id. at
1172. The officer retrieved the weapon, and Orman was later charged with
unlawfully possessing the firearm. Id. The district court denied Orman’s
motion to suppress the gun. Id. at 1173. The Ninth Circuit affirmed,
reasoning that “a Terry stop-and-frisk ‘constitutes two independent
actions.’” Id. at 1174 (quoting United States v. Flippin, 924 F.2d 163, 165 n.2
(9th Cir. 1991)). The court held that the encounter was consensual, but the
seizure was nonetheless justified “for safety purposes.” Id. at 1176–77. It
concluded that “reasonable suspicion that [a person is] carrying a gun . . .
is all that is required for a protective search under Terry.” Id. at 1176.

¶21            We disagree and conclude that Terry allows a frisk only if two
conditions are met: officers must reasonably suspect both that criminal
activity is afoot and that the suspect is armed and dangerous. See, e.g.,
Johnson, 555 U.S. at 326. Because the analysis in Orman ignores one prong
of Terry, we disagree with the Ninth Circuit’s reasoning.

¶22           We also disagree with the Ninth Circuit’s determination that
mere knowledge or suspicion that a person is carrying a firearm satisfies
the second prong of Terry, which itself involves a dual inquiry; it requires
that a suspect be “armed and presently dangerous.” See Terry, 392 U.S. at
30 (emphasis added); see also Johnson, 555 U.S. at 326–27 (observing that “to
proceed from a stop to a frisk, the police officer must reasonably suspect
that the person stopped is armed and dangerous”). In a state such as
Arizona that freely permits citizens to carry weapons, both visible and
concealed, the mere presence of a gun cannot provide reasonable and
articulable suspicion that the gun carrier is presently dangerous.

¶23           Here, the initial stop was based on consent, not on any
asserted suspicion of criminal activity. Had reasonable suspicion of
criminal activity existed before the encounter or developed during the




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                            Opinion of the Court

encounter, given that Serna was armed, the officer may have had grounds
to frisk Serna. See Narcisse, 927 N.E.2d at 446. But when officers
consensually engage citizens on the street without having any evidence of
wrongdoing, the mere presence of a weapon does not afford officers
constitutional permission to search weapons-carrying individuals. To
conclude otherwise would potentially subject countless law-abiding
persons to patdowns solely for exercising their right to carry a firearm.

¶24           We recognize, as did the Massachusetts Supreme Judicial
Court in Narcisse, that “consensual encounters between police officers and
citizens frequently escalate to the point of a search without being preceded
by an analytically distinct stop.” 927 N.E.2d at 444. These fast-developing
situations may “blur the tidiness of the two-pronged Terry analysis.” Id. In
such cases, the facts that may support reasonable suspicion of criminal
activity may develop as the officer is determining whether the individual is
dangerous or appears ready to commit violence. See id. at 446. As the
Narcisse court explained, “[w]hen an individual appears to be ready to
commit violence, either against police officers or bystanders, it is reasonable
to believe [both] that he is ‘about to commit a crime,’” and “that he is armed
and dangerous,” id., and thus a frisk would be justified. But without the
additional justification provided by such facts, officers may not conduct
protective searches of persons they engage in consensual conversations.

¶25           We also find inapposite Pennsylvania v. Mimms, 434 U.S. 106,
107 (1977), on which the court of appeals relied. Serna, 232 Ariz. at 520–21
¶¶ 20, 24, 307 P.3d at 87–88. In Mimms, when examining a search that
occurred in the course of a lawful traffic stop, the Supreme Court stated that
a “bulge in the [individual’s] jacket permitted the officer to conclude that
Mimms was armed and thus posed a serious and present danger to the
safety of the officer.” 434 U.S. at 112. Mimms is distinguishable because
there, the police already had probable cause to believe that Mimms had
committed at least one offense. See 434 U.S. at 109. The Court also noted
that “approximately 30% of police shootings occurred when a police officer
approached a suspect seated in an automobile.” Id. at 110 (citing Bristow,
Police Officer Shootings ― A Tactical Evaluation, 54 J. Crim. L.C. & P.S. 93
(1963)). Finally, carrying a concealed weapon was itself a criminal act in
Pennsylvania. Id. at 106. Here, the State presented no evidence that the
police had either probable cause or reasonable suspicion that Serna was




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                            Opinion of the Court

engaged in criminal activity when Officer Richey ordered him to put his
hands on his head.

¶26            We instead follow cases from the Supreme Court requiring
compliance with both parts of the Terry analysis. See Johnson, 555 U.S. at
326–27; Williams, 407 U.S. at 146. In applying the two-part analysis here, we
conclude that while the initial encounter was consensual, that consent
ended when the officer ordered Serna to put his hands on his head. At that
point, because the officer had no reasonable suspicion that Serna had
committed or was about to commit a crime, the officer had no justification
for frisking Serna, and the frisk violated the Fourth Amendment.

¶27             The court of appeals observed that requiring an officer to
suspect criminal activity before permitting a Terry frisk “would hinder the
officer’s ability to investigate suspicious behavior” or to assist individuals
in need. Serna, 232 Ariz. at 519 ¶ 17, 307 P.3d at 86. But such reasons cannot
justify unwarranted infringements on Fourth Amendment rights. There are
appropriate ways for officers to protect themselves once they become aware
that a person is armed. An officer can, for example, ask for consent to
remove a gun for the duration of the encounter. But absent consent, to seize
a weapon the officer must justify a frisk with facts sufficient to establish a
reasonable suspicion of criminal activity ― a low standard, readily
established in many search settings. See Navarette v. California, 134 S. Ct.
1683, 1687 (2014) (“Although a mere ‘hunch’ does not create reasonable
suspicion, the level of suspicion the standard requires is ‘considerably less
than proof of wrongdoing by a preponderance of the evidence,’ and
‘obviously less’ than is necessary for probable cause.” (internal citations
omitted)).

¶28           Our holding governs only those circumstances in which the
police wish to search a person with whom they are engaged in a consensual
encounter. In such cases, absent consent, an officer may frisk an individual
only when the officer possesses both a reasonable suspicion that the person
to be searched has engaged or is about to engage in criminal activity and a
reasonable belief that the person is armed and dangerous.

¶29          While we understand the need for officers to protect
themselves in the course of their duties, we must balance that weighty




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interest against the “inestimable right” of citizens to be free from
unreasonable governmental searches and seizures. See Terry, 392 U.S. at 8–
9. That officers must have a constitutional justification to search an
individual has been firmly established by Terry and its progeny. See id. at
30; see also Johnson, 555 U.S. at 326–27; Williams, 407 U.S. at 146.

                           IV. CONCLUSION

¶30            The court of appeals erred in holding that police officers may
frisk individuals without establishing reasonable suspicion that criminal
activity is afoot. We therefore vacate the court of appeals’ opinion and
reverse Serna’s conviction and sentence.




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