                                IN THE

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

                                   v.

                      ANTHONY BENARD PRIMOUS,
                             Appellant.

                          No. CR-16-0205-PR
                          Filed May 23, 2017


          Appeal from the Superior Court in Maricopa County
                The Honorable Pamela S. Gates, Judge
                         No. CR2012-005697
                            REMANDED

             Opinion of the Court of Appeals, Division One
                239 Ariz. 394, 372 P.3d 338 (App. 2015)
                              VACATED

COUNSEL:

Mark Brnovich, Arizona Attorney General, Dominic Draye, Solicitor
General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section,
Robert A. Walsh (argued), Assistant Attorney General, Phoenix, Attorneys
for State of Arizona

Maricopa County Public Defender’s Office, Carlos Daniel Carrion (argued),
Deputy Public Defender, Phoenix, Attorneys for Anthony Benard Primous

David J. Euchner, Pima County Public Defender’s Office, Tucson, Josephine
Bidwill, The Bidwell Law Firm, PLLC, Phoenix, Kathleen E. Brody (argued),
American Civil Liberties Union Foundation of Arizona, Phoenix, Attorneys
for Amici Curiae Arizona Attorneys for Criminal Justice and American
Civil Liberties Union Foundation of Arizona
                          STATE V. PRIMOUS
                          Opinion of the Court




JUSTICE BOLICK authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES
BRUTINEL and BERCH (RETIRED), and JUDGES MILLER and MACKEY
joined.*

JUSTICE BOLICK, opinion of the Court:

¶1            We consider whether police can form a reasonable suspicion
that an individual is engaged in criminal activity and is armed and
dangerous, thus justifying a pat-down search, based merely on where they
encounter the individual (e.g., a “high-crime neighborhood”) and a
companion’s flight. Viewing the totality of the circumstances, we hold that
the police here did not have an individualized reasonable suspicion
sufficient to justify the pat-down search of Anthony Benard Primous;
therefore, the trial court erred in denying his motion to suppress evidence
found in the search.

                          I.     BACKGROUND

¶2            One February morning, five Phoenix police officers went to
an apartment complex in a high-crime neighborhood. They were looking
for a suspect with an outstanding warrant who they believed carried and
sold weapons.

¶3            Officers Ohland and Casillas approached four men who were
talking outside the apartment complex, which had external surveillance
cameras. Two were standing and two were seated, including Primous, who
held an infant on his lap. None of the men were the suspect.



* Justices Ann A. Scott Timmer, Andrew W. Gould, and John R. Lopez IV
recused themselves. Pursuant to article 6, section 3 of the Arizona
Constitution, the Honorable Rebecca White Berch, Justice of the Arizona
Supreme Court (Retired), the Honorable Michael O. Miller, Judge of the
Arizona Court of Appeals, Division Two, and the Honorable David L.
Mackey, Presiding Judge of the Yavapai County Superior Court, are
designated to sit in this matter.
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                           Opinion of the Court



¶4             Ohland and Casillas identified themselves as police officers
and asked the men how they were doing. Both officers thought one of the
men appeared nervous. When that person noticed three other officers
approaching, he ran and was chased by those officers. The other men
remained and made no sudden moves. Primous remained seated with the
infant on his lap. He did not appear nervous or to have a weapon.

¶5           Ohland and Casillas announced they were going to pat down
the men for weapons. Before the frisk commenced, one of the men handed
Ohland a baggie of marijuana. Ohland then patted down all three men.
The search revealed no weapons, but Ohland felt an object in Primous’s
pocket, which turned out to also be a baggie of marijuana.

¶6            Primous was charged with misdemeanor marijuana
possession. He moved to suppress the marijuana as the product of an
unlawful search. After an evidentiary hearing, the trial court concluded the
“officers had a reasonable suspicion that criminal activity may be afoot”
and “appropriately decided to perform a pat-down search for officer
safety.” Assessing the “totality of the circumstances,” the court noted “the
conduct of the one individual who ran, coupled with the reason for [the
officers’] encounter with the group, the dangerousness of the area, the
number of individuals remaining compared to the number of officers, and
the cameras.” Based on those factors, the trial court denied the motion.
Primous was convicted following a bench trial and placed on one year of
unsupervised probation.

¶7            The court of appeals affirmed. The court applied a two-step
analysis to assess the propriety of the frisk: whether officers reasonably
suspected that the person who was searched (1) was committing or had
committed an offense and (2) was armed and dangerous. State v. Primous,
239 Ariz. 394, 396 ¶ 9, 372 P.3d 338, 340 (App. 2016) (citing Arizona v.
Johnson, 555 U.S. 323, 326–27 (2009)). As to the second prong, the court
considered “whether a reasonably prudent [officer] in the circumstances
would be warranted in the belief that his safety or that of others was in
danger.” Id. (citing Terry v. Ohio, 392 U.S. 1, 27 (1968)).

¶8           The court of appeals framed the issue as “whether the
suggestion of wrongdoing created by Defendant’s companions justified a

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                            Opinion of the Court


frisk of Defendant, who remained seated and gave no indication of
complicity in either the flight or the drug possession.” Id. ¶ 11. The court
concluded that “[c]ompanionship with a suspected criminal may, in view
of the totality of the circumstances, justify a protective stop and frisk even
absent a particularized reasonable suspicion that the person to be searched
is committing or has committed a crime.” Id. at 397 ¶ 13, 372 P.3d at 341.
Based on the facts identified by the trial court, the court of appeals
determined that the frisk was justified and affirmed the trial court’s ruling.
Id. at 397–98 ¶¶ 14–15, 372 P.3d at 341–42.

¶9           We granted review because identifying the circumstances
that may justify a pat-down search involves recurring legal issues of
statewide importance. We have jurisdiction under article 6, section 5(3) of
the Arizona Constitution and A.R.S. § 12-120.24.

                              II.    DISCUSSION

¶10            We review rulings on motions to suppress for abuse of
discretion, considering only the evidence presented at the suppression
hearing and viewing it in the light most favorable to sustaining the trial
court’s ruling. State v. Butler, 232 Ariz. 84, 87 ¶ 8, 302 P.3d 609, 612 (2013).
“An error of law constitutes an abuse of discretion.” State v. Bernstein, 237
Ariz. 226, 228 ¶ 9, 349 P.3d 200, 202 (2015). We review the constitutionality
of the frisk de novo. See State v. Havatone, 241 Ariz. 506, 509 ¶ 11, 389 P.3d
1251, 1254 (2017).

              A. The Frisk

¶11           Although a frisk is less intrusive than a full-body search, the
Fourth Amendment prohibits any search of an individual unless the police
have a reasonable belief that crime is afoot and the individual is armed and
dangerous. The controlling Arizona case is State v. Serna, 235 Ariz. 270, 331
P.3d 405 (2014), which neither the State nor the court of appeals cited. There
this Court held that in the context of a consensual encounter, “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.” Id. at 276 ¶ 28, 331 P.3d at 411 (emphasis added). Reasonable


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                            STATE V. PRIMOUS
                            Opinion of the Court


suspicion in turn requires “a particularized and objective basis” for the
suspicion. Ornelas v. United States, 517 U.S. 690, 696 (1996).

¶12            In Serna, police were patrolling a known gang neighborhood
at night and encountered a man and woman standing in the middle of the
street. 235 Ariz. at 271 ¶ 2, 331 P.3d at 406. As the patrol car approached,
the duo walked in opposite directions, and the officers engaged defendant
Serna in a consensual encounter. Id. He was polite and cooperative. Id. at
272 ¶ 3, 331 P.3d at 407. The officers noticed a bulge in his waistband, which
Serna disclosed was a gun. Id. The officers removed the gun and patted
him down. Id. In response to the officers’ subsequent questioning, Serna
admitted that he had a felony conviction. Id. This Court reversed the trial
court’s denial of Serna’s motion to suppress the gun in a prosecution for
prohibited possession of a firearm by a convicted felon. Id. at ¶ 4, 277 ¶ 30,
331 P.3d at 407, 412. Because there was no reasonable suspicion that Serna
was engaged in criminal activity, we concluded that “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 citizens to pat-downs solely for exercising
their right to carry a firearm.” Id. at 275 ¶ 23, 331 P.3d at 410.

¶13            The State seemingly agrees that nothing Primous did or said
gave rise to a reasonable suspicion that he was engaged in criminal activity
or was armed or dangerous. He was not the suspect police were seeking.
When police approached, he was seated with an infant on his lap, talking
with three other men. He did not react in a suspicious manner to the police
encounter or when one of the other men ran away. He was cooperative. In
sum, Primous gave the police no justification to search him. Any other
justification could only have arisen from the surrounding circumstances.

¶14            In approving the frisk, the trial court relied on five
circumstances, the “totality” of which it considered to give rise to
reasonable suspicion that “crime was afoot”: (1) the individual who ran, (2)
the reason for the police encounter with the group, (3) the dangerousness
of the area, (4) the number of individuals remaining at the scene compared
to the number of officers, and (5) the surveillance cameras. From these same
circumstances, the court of appeals concluded “we cannot say that [the
officer] unreasonably suspected that Defendant might be armed and
dangerous.” Primous, 239 Ariz. at 397 ¶ 14, 372 P.3d at 341. We disagree.

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                            STATE V. PRIMOUS
                            Opinion of the Court



¶15            What is striking about the five factors relied upon by the
courts below is that Primous had control over none of them. Although
“[t]he officer 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 others was in danger.” Terry, 392
U.S. at 27. The ultimate inquiry is whether police have reasonable suspicion
that the person searched was either engaged in criminal activity or armed and
dangerous. Serna, 235 Ariz. at 276 ¶ 28, 331 P.3d at 411. The surrounding
circumstances here do not sufficiently suggest that Primous was engaged
in crime or that he was armed and dangerous to justify a pat-down for
weapons.

¶16           The court of appeals justified the frisk largely on Primous’s
fleeing companion, holding that “[c]ompanionship with a suspected
criminal may, in view of the totality of the circumstances, justify a
protective stop and frisk even absent a particularized reasonable suspicion
that the person to be searched is committing or has committed a crime.”
Primous, 239 Ariz. at 397 ¶ 13, 372 P.3d at 341 (citing Trice v. United States,
849 A.2d 1002, 1004, 1008–09 (D.C. App. 2004); United States v. Flett, 806 F.2d
823, 827–28 (8th Cir. 1986)). Thus, “[d]espite Defendant’s passivity and the
absence of any objective evidence of criminal collusion with his
companions,” the court of appeals could not “say that [Officer] Ohland
unreasonably suspected that Defendant might be armed and dangerous.”
Id. ¶ 14.

¶17           The court of appeals’ analysis understates the personalized
and particularized showing required by the Fourth Amendment. Analysis
of the United States Supreme Court’s jurisprudence shows that more is
required than appears here. In Ybarra v. Illinois, 444 U.S. 85 (1979), for
example, a search warrant was executed for a bar and bartender suspected
of selling heroin. The police frisked all of the bar’s patrons for weapons,
finding heroin in defendant Ybarra’s pocket. Id. at 88–89.

              Upon entering the tavern, the police did not
              recognize Ybarra and had no reason to believe
              that he had committed, was committing, or was
              about to commit any offense under state or
              federal law. Ybarra made no gestures indicative

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                           STATE V. PRIMOUS
                           Opinion of the Court


             of criminal conduct, made no movements that
             might suggest an attempt to conceal
             contraband, and said nothing of a suspicious
             nature to the police officers. In short, the agents
             knew nothing in particular about Ybarra, except
             that he was present, along with several other
             customers, in a public tavern at a time when the
             police had reason to believe that the bartender
             would have heroin for sale.

Id. at 90–91. The Court concluded that “a person’s mere propinquity to
others independently suspected of criminal activity does not, without more,
give rise to probable cause to search that person.” Id. at 91.

¶18           Moreover, the police “neither recognized [Ybarra] as a person
with criminal history nor had any particular reason to believe that he might
be inclined to assault them.” Id. at 93. His “hands were empty” and he
“gave no indication of possessing a weapon, made no gestures or other
actions indicative of an intent to commit an assault, and acted generally in
a manner that was not threatening.” Id. The Court thus concluded that the
frisk “was simply not supported by a reasonable belief that he was armed
and presently dangerous, a belief which this Court has invariably held must
form the predicate for a pat-down of a person for weapons.” Id. at 92–93.

¶19           As in Ybarra, the facts surrounding the police encounter with
Primous did not generate the requisite personalized and particularized
reasonable suspicion that he was engaged in crime or was presently armed
and dangerous. The encounter took place in broad daylight. None of the
men were the suspect who occasioned the police presence. Once one of the
men fled, the remaining men, including Primous who was seated with an
infant on his lap, exhibited no hostile, furtive, or even uncooperative
behavior. Primous had been talking with the man who ran, but that mere
proximity or companionship did not suggest Primous was engaged in
criminal activity or dangerous. The surveillance cameras could have been
intended to protect apartment dwellers against crime rather than the police,
and in any event did not suggest Primous was dangerous. In sum, nothing
about the environment gave rise to a reasonable suspicion that Primous was
involved in a crime, much less that he was armed and dangerous to police
officers.

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                             STATE V. PRIMOUS
                             Opinion of the Court


¶20           Nor were Primous and his companions acting in concert in
such a way as to give rise to a reasonable suspicion that they all were
engaged in a criminal activity and might be armed and dangerous. See Flett,
806 F.2d at 828 (holding that frisk was appropriate where subject of arrest
was an “enforcer” for a violent gang and companion was dressed in gang
attire and identified as a member); cf. Bernini v. City of St. Paul, 665 F.3d 997,
1003–04 (8th Cir. 2012) (arrest appropriate where the “group was acting as
a unit” and “the group, as a whole, was committing one or more offenses”).
Here, Primous and his companions were engaged in no apparent concerted
action other than conversation.

¶21            Cases relied upon by the court of appeals or the State are
either distinguishable or overtaken by Ybarra. See, e.g., United States v.
Berryhill, 445 F.2d 1189, 1193 (9th Cir. 1971) (pre-Ybarra case allowing frisk
of a criminal’s companion at time of arrest); United States v. Bell, 762 F.2d
495, 500–02 (6th Cir. 1985) (holding search was permissible where car
containing defendant was driven by a person suspected of being armed and
dangerous, defendant generally matched description of criminal
accomplice, defendant was uncooperative, and there was risk to bystanders
in the crowded parking lot); Flett, 806 F.2d at 828 (focusing “not [on]
whether the officer had an indication that the person armed was dangerous,
but rather, whether the officer reasonably perceived the subject of the frisk
as potentially dangerous”); Trice, 849 A.2d at 1008 (noting that defendant
“appeared to be the companion of a potentially violent, fleeing criminal and
not a mere bystander”). Reaffirming and applying the clear two-part test
set forth in Serna, we conclude that the facts here were insufficient to
support a reasonable suspicion that Primous was involved in a crime and
was armed and dangerous. Thus, unsupported by reasonable suspicion,
the frisk of Primous violated the Fourth Amendment.

¶22           The amici who support Primous ask us to categorically
exclude the dangerousness of the surroundings from an officer’s calculus
“unless officers can point to a specific attribute of the neighborhood
relevant to the particular person and criminal activity under investigation,”
on the grounds that such factors are a proxy for race. We decline to do so.

¶23         Although the fact that the encounter occurred in a dangerous
neighborhood does not by itself authorize police to pat down people they
encounter during an investigation, it is not irrelevant in determining

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                            STATE V. PRIMOUS
                            Opinion of the Court


whether an individual suspect is involved in criminal activity and armed
and dangerous. In Illinois v. Wardlow, 528 U.S. 119 (2000), the United States
Supreme Court sustained a frisk by police officers who were patrolling an
area known for heavy narcotics trafficking where the defendant fled upon
seeing the officers. The Court held that “the fact that the stop occurred in a
‘high crime area’ [is] among the relevant contextual considerations in a
Terry analysis,” but observed that “[a]n individual’s presence in an area of
expected criminal activity, standing alone, is not enough to support a
reasonable, particularized suspicion that the person is committing a crime.”
Id. at 124.

¶24            In Wardlow, ample suspicion that the defendant was engaged
in criminal activity and was armed and dangerous arose not only from his
presence in a high-crime area, but also “his unprovoked flight upon
noticing the police.” Id. By contrast, here the question is whether
reasonable suspicion justified frisking Primous not because of anything he
did or said but because someone else with whom he was conversing fled
when police approached, while Primous remained seated and cooperative.
The fact that the encounter occurred in a high-crime neighborhood was
insufficient to justify the search of an individual who gave no indication
that he was involved in a crime or posed an imminent threat to the officers.
The Fourth Amendment shields such individuals from pat-downs
regardless of their neighborhood. This rule amply protects law-abiding
residents of high-crime neighborhoods from being searched solely because
of their surroundings.

              B. Motion to Suppress

¶25            The State also argues that the marijuana baggie illegally
seized from Primous should not be suppressed as evidence because there
would be no deterrent value given that police officers will take whatever
steps they deem necessary to protect their safety. See, e.g., Ybarra, 444 U.S.
at 108 (Rehnquist, J., dissenting) (observing that excluding evidence will
have little deterrent effect where frisk is based “on an officer’s well-honed
sense of self-preservation”).      We find the argument unpersuasive.
Suppressing the illegally seized evidence here helps ensure that frisks are
based upon the legitimate factors outlined above and do not devolve into a
de facto policy of frisking all individuals with whom police have
investigative encounters in high-crime neighborhoods. Cf. Herring v. United

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                           STATE V. PRIMOUS
                           Opinion of the Court


States, 555 U.S. 135, 144 (2009) (exclusionary law serves to deter “recurring
or systemic” negligence). “While we understand the need for police officers
to protect themselves in the course of their duties, we must balance that
weighty interest against the ‘inestimable right’ of citizens to be free from
unreasonable governmental searches and seizures.” Serna, 235 Ariz. at 276
¶ 29, 331 P.3d at 411 (citing Terry, 392 U.S. at 8–9).

                            III.   CONCLUSION

¶26          Because the sole evidence supporting Primous’s conviction
was the product of an illegal search, we vacate the court of appeals’ opinion
and reverse Primous’s conviction and probationary term.




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