                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                   MACK CALVIN MARTIN, Appellant.

                             No. 1 CA-CR 16-0064
                               FILED 11-15-2016


          Appeal from the Superior Court in Maricopa County
                       No. CR2015-112136-001
        The Honorable Carolyn K. Passamonte, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Legal Defender’s Office, Phoenix
By Cynthia D. Beck
Counsel for Appellant
                            STATE v. MARTIN
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Christopher T. Whitten1 delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined.


W H I T T E N, Judge:

¶1           Martin appeals from his convictions and sentences for
possession or use of narcotic drugs, possession of drug paraphernalia, and
tampering with physical evidence. He contends that the trial court erred
by denying his motion to suppress evidence. For the following reasons, we
affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2           On March 14, 2015, Detectives Snow and Rosky were on
patrol as members of the Gang Enforcement Unit. They were part of the
Nighttime Enforcement Squad that evening, conducting proactive patrols
and responding to assist other patrol officers. At around 7:30 p.m. they
were driving southbound near 6300 South 20th Street, an area with high
gang and drug activity. It was completely dark out when they saw Martin
riding a bicycle northbound, with no lamp emitting a visible light, as
required pursuant to Arizona Revised Statutes (“A.R.S.”) § 28-817(A).2

¶3         Detective Snow, who was driving the unmarked patrol car,
approached Martin and, from a few feet away, asked Martin if everything


1      The Honorable Christopher T. Whitten, Judge of the Arizona
Superior Court, has been authorized to sit in this matter pursuant to Article
VI, Section 3 of the Arizona Constitution.

2       We cite to the current version of the statute unless otherwise noted.
A.R.S. § 28-817(A)—“A bicycle that is used at nighttime shall have a lamp
on the front that emits a white light visible from a distance of at least five
hundred feet to the front and a red reflector on the rear of a type that is
approved by the department and that is visible from all distances from fifty
feet to three hundred feet to the rear when the reflector is directly in front
of lawful upper beams of head lamps on a motor vehicle. A bicycle may
have a lamp that emits a red light visible from a distance of five hundred
feet to the rear in addition to the red reflector.” (Emphasis added.)


                                      2
                            STATE v. MARTIN
                           Decision of the Court

was OK. Martin looked in Detective Snow’s direction, but failed to verbally
acknowledge him and accelerated away at a faster pace. Believing the
behavior to be suspicious and that Martin was committing a traffic
violation, the detectives turned their car around and caught up to Martin to
conduct a traffic stop. As they pulled alongside Martin, Detective Rosky
told Martin to stop. He did not. Instead, he quickly glanced at the
detectives and then accelerated away. Detective Snow then pulled the
patrol car in front of Martin to cut off his pathway, forcing Martin to stop.

¶4             Upon making contact with Martin, Detective Rosky
conducted a weapons frisk and found drug paraphernalia on Martin’s
person. Martin was placed under arrest and, during a search incident to
arrest, the detectives found crack cocaine.

¶5             Martin was charged with one count of possession or use of
narcotic drugs, a class four felony, one count of possession of drug
paraphernalia, a class six felony, and tampering with physical evidence, a
class six felony. Martin filed a motion to suppress the evidence seized as a
result of the traffic stop, arguing that the weapons frisk was
unconstitutional.

¶6             After an evidentiary hearing on the motion, the trial court
denied Martin’s motion to suppress, finding there was a “sufficient
confluence of circumstances to create a reasonable suspicion that [Martin]
might be armed and dangerous.” The matter proceeded to trial and the
court found Martin guilty of possession of narcotic drugs, possession of
drug paraphernalia, and tampering with physical evidence. At sentencing,
Martin waived his right to trial on priors and admitted to three prior felony
convictions. The court sentenced Martin to concurrent, presumptive prison
terms for all three counts, the longest of which is 10 years, with 311 days of
presentence incarceration credit. Martin timely appealed. We have
jurisdiction pursuant to A.R.S. § 13-4033.

                               DISCUSSION

¶7            Martin argues that the trial court erred by denying his motion
to suppress. He does not dispute that the detectives had reasonable
suspicion to conduct a traffic stop. Instead, Martin contends that the trial
court erred in ruling that Detective Rosky had reasonable suspicion—
supported by articulable facts—to believe that Martin was armed and
dangerous such that a pat down search was warranted.

¶8            We review a trial court’s denial of a motion to suppress for an
abuse of discretion. State v. Crowley, 202 Ariz. 80, 83, ¶ 7, 41 P.3d 618, 621


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                             STATE v. MARTIN
                            Decision of the Court

(App. 2002). A trial court’s ruling on a motion to suppress evidence will
not be set aside absent a clear abuse of discretion, and is viewed in the light
most favorable to upholding the trial court’s ruling. State v. Sharp, 193 Ariz.
414, 419, ¶ 12, 973 P.2d 1171, 1176 (1999); State v. Estrada, 209 Ariz. 287, 288,
¶ 2, 100 P.3d 452, 453 (App. 2004). We defer to the trial court’s factual
determinations, but the ultimate ruling as to whether the suppression of
evidence is warranted is a conclusion of law we review de novo. State v.
Box, 205 Ariz. 492, 495, ¶ 7, 73 P.3d 623, 626 (App. 2003). “We restrict our
view to consideration of the facts the trial court heard at the suppression
hearing.” State v. Blackmore, 186 Ariz. 630, 631, 925 P.2d 1347, 1348 (1996).

¶9              A police officer is justified in frisking individuals for weapons
if the officer can reasonably discern that criminal activity may be afoot and
that the individual with whom the officer is dealing may be armed and
dangerous. State v. Serna, 235 Ariz. 270, 275, ¶ 21, 331 P.3d 410, 415 (2014);
Terry v. Ohio, 392 U.S. 1, 30 (1968). An officer may conduct a weapons
search if, based on specific articulable facts, the officer had any reasonable
fear for his safety. State v. Baggett, 232 Ariz. 424, 427, ¶ 13, 306 P.3d 81, 84
(App. 2013). The standard for reasonable suspicion is lower than that
required for probable cause and requires a showing that is considerably less
than a preponderance of the evidence. State v. Ramsey, 223 Ariz. 480, 484, ¶
18, 224 P.3d 977, 981 (App. 2010). “[R]easonable suspicion must be based
on specific, articulable facts, along with rational inferences that arise from
those facts.” Id. at ¶ 17 (quotation omitted). Moreover, a reasonable
suspicion determination may be based on “commonsense judgments and
inferences about human behavior” in order to meet the minimal level of
objective justification for the frisk. Illinois v. Wardlow, 528 U.S. 119, 125
(2000).

¶10            Standing alone, presence in a high-crime area does not
establish reasonable suspicion; however, presence in a high-crime area,
coupled with unprovoked flight upon noticing the police and nervous and
evasive behavior are pertinent factors in determining reasonable suspicion.
Id. at 124; see also State v. Garcia, 169 Ariz. 530, 821 P.2d 191 (App. 1991).
Here, Detectives Rosky and Snow were patrolling in a high-crime
neighborhood known for gang and drug activity, in the dark of night, when
they initially attempted to have a consensual communication with Martin.
Detective Rosky testified that Martin was seen on a bicycle riding
northbound, with no light, in violation of law. The traffic infraction
provided the detectives with probable cause to conduct a traffic stop.
Detective Rosky testified that Martin was evasive and nervous because he
avoided eye contact when Detective Rosky asked Martin if he was OK.



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                            STATE v. MARTIN
                           Decision of the Court

Martin ignored them, looked over his shoulder and accelerated away on his
bicycle.

¶11           Detective Rosky told Martin to stop, but he did not do so.
Because of Martin’s evasiveness and his failure to acknowledge Detective
Rosky, Detective Snow pulled his patrol car in front of Martin to stop him.
Detective Rosky further testified that based on his experience and the
circumstances, he had reason to believe that Martin’s evasiveness was
indicative of criminal activity for which the detectives felt their safety was
in jeopardy. Although neither Martin’s evasiveness nor his presence in a
high-crime area alone established reasonable suspicion, the totality of the
circumstances supported a finding of reasonable suspicion. See Ramsey, 223
Ariz. at 485, ¶ 23, 224 P.3d at 982; Wardlow, 528 U.S. at 119. And because
there was reasonable suspicion to conduct a weapons pat-down search, the
trial court did not abuse its discretion in denying Martin’s motion to
suppress.

                              CONCLUSION

¶12           For the foregoing reasons, Martin’s convictions and sentences
are affirmed.




                          AMY M. WOOD • Clerk of the Court
                           FILED: AA




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