                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee

                                        v.

                     PEDRO VALENZUELA, Appellant.

                             No. 1 CA-CR 13-0403
                              FILED 06-26-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-119766-001
             The Honorable William L. Brotherton Jr., Judge
                 The Honorable Dawn M. Bergin, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Charles R. Krull
Counsel for Appellant
                        STATE v. VALENZUELA
                          Decision of the Court



                     MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.


B R O W N, Judge:

¶1           Pedro Valenzuela appeals his convictions and sentences for
two counts of misconduct involving weapons, one as a class 4 felony
(prohibited possessor) and one as a class 1 misdemeanor (failure to
report); possession or use of a dangerous drug, a class 4 felony; and
possession of drug paraphernalia, a class 6 felony. He argues the trial
court erred in denying his motion to suppress because police lacked
reasonable suspicion to conduct a stop and frisk. For the following
reasons, we affirm.

                              BACKGROUND

¶2           The following evidence was presented at the evidentiary
hearing. At about 3:50 p.m. on April 13, 2012, police were dispatched to
an apartment complex based on an emergency call of “unknown trouble”
involving persons with firearms near the pool area. Officers Olmos and
Callison were within a quarter mile of the complex at the time of the call
and quickly arrived at the location. The officers were wearing standard
police uniforms with gun belts, patches, and badges.

¶3            When they arrived, they observed two males and two
females near the pool area. As soon as Valenzuela saw the officers, he
“immediately stood up” and walked toward the open arcadia door of an
apartment. Olmos recognized Valenzuela as someone he had previously
arrested. He also had personal knowledge of Valenzuela’s criminal
record, including felony convictions.

¶4            Based on the nature of the call and Valenzuela’s reaction,
Olmos told Valenzuela to stop and put his hands up. Valenzuela
hesitated and then tried to reach down into one of his pockets. The officer
repeated the command, at which time Valenzuela complied. Olmos
directed Valenzuela to put his hands on top of his head and spread his
feet when the officer noticed what appeared to be a trail of blood going
into the apartment Valenzuela was approaching.

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                          STATE v. VALENZUELA
                            Decision of the Court

¶5             Olmos asked Valenzuela if he had any weapons or firearms,
but Valenzuela did not respond.           He repeated the question and
Valenzuela remained silent. The officer then conducted a Terry 1 frisk for
weapons and found a four-inch folding-type knife in Valenzuela’s right
front pants pocket. The officer also felt a “hard metal type object . . . that
had the dimensions of a firearm” in the right side of Valenzuela’s
waistband. He lifted Valenzuela’s shirt and saw the handle of a handgun.
The other officer removed the gun and Valenzuela was placed under
arrest for failing to declare a firearm to a law enforcement officer. 2 As
Olmos conducted the search incident to arrest, he found three small
baggies containing a crystal substance later determined to be
methamphetamine.

¶6            Valenzuela filed a motion to suppress, arguing the search
was unreasonable because the officers had not asked any questions or
gathered any evidence that a crime had been committed. Following the
evidentiary hearing, the trial court denied the motion, finding the State
proved there was reasonable suspicion that Valenzuela “posed a danger
to those on the arrest scene.” The court concluded that both the stop and
the search of Valenzuela were lawful.

¶7           Valenzuela was convicted on all counts and the court
sentenced him to 4.5 years of imprisonment. This timely appeal followed.

                                 DISCUSSION

¶8           When reviewing a trial court’s denial of a motion to
suppress, we defer to the trial court’s factual findings, but review the
court’s ultimate legal determination as to whether the totality of the

1      Terry v. Ohio, 392 U.S. 1, 27 (1986).

2      Arizona Revised Statutes (“A.R.S.”) section 13-3102(A)(1)(b) reads:

              A person commits misconduct involving
              weapons by knowingly . . . [c]arrying a deadly
              weapon . . . concealed on his person or within
              his immediate control . . . [w]hen contacted by
              a law enforcement officer and failing to
              accurately answer the officer if the officer asks
              whether the person is carrying a concealed
              deadly weapon[.]



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                          STATE v. VALENZUELA
                            Decision of the Court

circumstances warranted an investigative detention, and whether its
duration was reasonable, de novo. State v. O’Meara, 197 Ariz. 328, 329,
¶ 2, 4 P.3d 383, 384 (App. 1999). We look “only to the evidence presented
at the suppression hearing and view it in the light most favorable to
sustaining the court’s ruling.” State v. Brown, 233 Ariz. 153, 156, ¶ 4, 310
P.3d 29, 32 (App. 2013).

¶9            The Fourth Amendment of the United States Constitution
grants individuals the right to be protected against unreasonable searches
and seizures. U.S. Const. amend. IV. These protections extend to brief
investigatory stops of persons or vehicles that fall short of traditional
arrest. U.S. v. Arvizu, 534 U.S. 266, 273 (2002), (citing Terry, 392 U.S. at 9 ).
Valenzuela asserts his Fourth Amendment rights were violated because
Olmos lacked reasonable suspicion to conduct an investigative stop or a
weapons search. Although the trial court correctly determined there was
reasonable suspicion to conduct a search, the court did not specifically
address the pertinent legal standards for evaluating whether reasonable
suspicion existed for the investigatory stop. As explained below, we
conclude that Olmos’ seizure of Valenzuela did not violate the Fourth
Amendment. See State v. Boteo-Flores, 230 Ariz. 551, 553, ¶ 7, 288 P.3d 111,
113 (App. 2012) (noting a trial court’s ruling may be affirmed if it is legally
correct for any reason).

       A.     Investigatory Stop

¶10            The parties dispute whether a seizure occurred when Olmos
gave the first command to Valenzuela to stop and put his hands in the air.
It is undisputed, however, that Valenzuela was seized, for purposes of the
Fourth Amendment, when he complied with Olmos’ second command to
stop and place his hands in the air. Regardless of the precise moment
when the seizure occurred, it does not affect our analysis of whether the
investigatory stop was justified.

¶11           Police officers may stop and briefly detain a person for
investigative purposes if they have a reasonable suspicion supported by
articulable facts that criminal activity “may be afoot.” Illinos v. Wardlow,
528 U.S. 119, 123 (2000) (citing Terry, 392 U.S. at 30). “[R]easonable
suspicion is a commonsense, non-technical concept [ ] that deal[s] with the
factual and practical considerations of everyday life on which reasonable
and prudent men, not legal technicians, act.” In re Ilono H., 210 Ariz. 473,
475, ¶ 6, 113 P.3d 696, 698 (App. 2005) (quoting Ornelas v. United States,
517 U.S. 690, 695 (1996) (internal quotations omitted)). The concept entails
some minimal level of objective justification for making a stop—that is,

                                       4
                          STATE v. VALENZUELA
                            Decision of the Court

something more than “an inchoate and unparticularized suspicion or
‘hunch,’” but less than the level of suspicion required for probable cause.
United States v. Sokolow, 490 U.S. 1, 7 (1989). The test for the validity of a
Terry stop is therefore objective; the court must ask whether “a reasonably
prudent [person] in the circumstances would be warranted in the belief
. . .” that criminal activity is occurring. State v. Blackmore, 186 Ariz. 630,
633, 925 P.2d 1347, 1350 (1996) (quoting Terry, 392 U.S. at 27). “In
evaluating the reasonableness of a stop, the trial court must evaluate the
totality of the circumstances” and even “seemingly small factual
distinctions can affect a court’s conclusions as to the reasonableness of a
stop.” State v. Livingston, 206 Ariz. 145, 148 n.1, ¶ 12, 75 P.3d 1103, 1106
n.1 (App. 2003).

¶12           An investigatory stop and a frisk for weapons are separate
actions with distinct legal justifications. An officer may conduct an
investigatory stop if he has reasonable suspicion that criminal activity may
be afoot, Sokolow, 490 U.S. at 7, or if the person stopped is reasonably
suspected of having committed a crime. United States v. Hensley, 469 U.S.
221, 229 (1985). An officer may perform a limited search for weapons if
the officer has reason to believe the suspect is armed and dangerous. Adams
v. Williams, 407 U.S. 143, 146 (1972); In re Ilono H., 210 Ariz. at 474-75, ¶ 4,
113 P.3d at 697-98. Therefore, we turn first to the question of whether an
officer, standing in the shoes of Olmos, would have had reasonable
suspicion that criminal activity was occuring.

¶13            The officers arrived at the apartment building based on an
emergency call indicating “unknown trouble” was occurring by people
with firearms near the pool area. Upon arrival, there were four people in
the pool area, one of which was Valenzuela. Valenzuela immediately
stood up to leave upon noticing the officers. See Wardlow, 528 U.S. at 124
(holding that “flight—wherever it occurs—is the consummate act of
evasion: It is not necessarily indicative of wrongdoing, but it is certainly
suggestive of such.”). Officer Olmos had personal knowledge that
Valenzuela was a convicted felon, which, when considered with the report
that people had firearms, provided reasonable suspicion to believe that
Valenzuela had committed misconduct involving weapons. See A.R.S.
§ 13-3102(A)(4) (prohibiting possession of a weapon by a person whose
civil right to carry a gun has not been restored); see also United States v.
Simpson, 609 F.3d 1140, 1147 (10th Cir. 2010) (“Although a person with a
criminal record could not be pulled over or detained based on the record
itself, such a record is one factor that may justify further detention and
that may cast a suspicious light on other seemingly innocent behavior.”);
United States v. Kent, 531 F.3d 642, 648 (8th Cir. 2008) (upholding the lower

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                         STATE v. VALENZUELA
                           Decision of the Court

court’s finding that law enforcement had reasonable suspicion to perform
an investigative stop of a defendant based, in part, on the fact that “the
detective knew that [the defendant] had previously sold crack cocaine”);
c.f. Kenion v. U.S., 302 A.2d 723, 725 (D.C. 1973) (holding that the
investigatory stop was inappropriate because it was based solely on law
enforcement’s knowledge of a defendant’s prior conviction).

¶14           Accordingly, there were sufficiently objective and articulable
facts to support a reasonable suspicion that criminal activity was going on;
thus, the investigatory stop did not violate the Fourth Amendment. See
Adams, 407 U.S. at 146 (“A brief stop of a suspicious individual, in order to
determine his identity or to maintain the status quo momentarily while
obtaining more information, may be most reasonable in light of the facts
known to the officer at the time.”).

       B.     Search For Weapons

¶15            An officer may perform a reasonable search for weapons if
he has an articulable, reasonable suspicion, based on the totality of the
circumstances, that an individual is presently armed and dangerous,
regardless of probable cause to arrest. Terry, 392 U.S. at 30 (When “the
persons with whom [the officer] is dealing may be armed and presently
dangerous . . . he is entitled for the protection of himself and others in the
area to conduct a carefully limited search of the outer clothing of such
persons in an attempt to discover weapons which might be used to assault
him.”). The totality of the circumstances approach allows officers to draw
on their own experience and training to make inferences about the
cumulative information available to them that “might well elude an
untrained person.” Arvizu, 534 U.S. at 273 (quoting U.S. v. Cortez, 449 U.S.
411, 418 (1981)). As such, we give deference and leeway to an officer
trained to recognize signs of criminal activity. Avizu, 534 U.S. at 273; see
also Ilono H., 210 Ariz. at 477, ¶ 14, 113 P.3d at 700. Finally, as previously
discussed, because the test is an objective standard, we look to whether “a
reasonably prudent [person] in the circumstances would be warranted in
the belief that his safety or that of others was in danger.” Blackmore, 186
Ariz. at 633, 925 P.2d at 1350.

¶16           Here, Valenzuela was told to put his hands on top of his
head, interlace his fingers, and spread his feet so the officer could conduct
a protective search. Initially Valenzuela did not comply and began to put
his hand into one of his pockets, requiring the officer to issue a second set
of commands. At that time, the officer noticed blood on the ground
leading into the apartment Valenzuela was attempting to enter. Olmos

                                      6
                       STATE v. VALENZUELA
                         Decision of the Court

asked Valenzuela twice if he had a weapon on his person, but Valenzuela
did not respond either time. He informed Valenzuela at that point he was
not under arrest, and began a protective search outside of Valenzuela’s
clothes. Based on these circumstances, Olmos had reasonable suspicion to
believe that Valenzuela was armed and dangerous. Thus, the limited
search for weapons did not violate the Fourth Amendment.

                             CONCLUSION

¶17          Because we conclude that the evidence presented at the
evidentiary hearing supports the trial court’s denial of Valenzuela’s
motion to suppress, we affirm his convictions and sentences.




                               :gsh




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