                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                      MAURICE THOMAS, Appellant.

                             No. 1 CA-CR 18-0779
                               FILED 10-17-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2017-030335-001
               The Honorable Susanna C. Pineda, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Nicholas Chapman-Hushek
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant
                           STATE v. THOMAS
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Jennifer M. Perkins and Judge Paul J. McMurdie joined.


T H U M M A, Judge:

¶1             Maurice Thomas appeals his conviction for possession of
marijuana, a Class 1 misdemeanor. Thomas challenges the superior court’s
finding that the arresting officers had reasonable suspicion to stop him.
Because he has shown no abuse of discretion, his conviction and probation
grant are affirmed.

                FACTS AND PROCEDURAL HISTORY

¶2              In July 2015, two Tempe Police Department gang unit
detectives were patrolling two adjacent neighborhoods, both of which were
considered high-crime areas with the presence of rival street gangs.
Although unmarked, the detectives in a vehicle that displayed police lights
in the windshield and grill, a siren and a “prisoner cage” in the back seat
that was visible from the street. Both detectives were wearing vests and
shirts indicating they were police officers. One of the detectives later
testified “[i]t was obvious that we were the police.”

¶3             While patrolling on a north-south street, the detectives saw
two males walking along the east curb crossing into one of the
neighborhoods. The detectives recognized one of the men as Kevin Kelly,
who was wanted on outstanding warrants. The detectives did not recognize
the other man, who they later learned was Thomas. As the detectives turned
the vehicle around, the two ran east through the neighborhood. The
detectives attempted to follow, but lost sight of the men. A few minutes
later, they found Thomas, who continued to walk away from them.

¶4             The detectives followed Thomas on foot to an area apartment.
Thomas remained outside of the apartment, and the apartment door was
closed as the detectives arrived. The officers later testified they believed
Kelly was hiding in the apartment. The detectives began asking Thomas
about Kelly and “began speaking to [Thomas] about who he was running
with, why he was running, what was going on, things of that nature.” At
that time, the detectives detained Thomas in the back of a patrol car.



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                            STATE v. THOMAS
                            Decision of the Court

¶5            Thomas provided the detectives with conflicting responses.
Thomas claimed he did not know Kelly or was not with Kelly just minutes
earlier. When asked why Thomas ran from police, Thomas gave two
different, inconsistent responses. First, Thomas denied running from the
detectives. Then Thomas changed his story, claiming to be running to meet
a woman. When asked about Kelly’s location, Thomas claimed not to know
Kelly’s whereabouts. Kelly was later discovered in the apartment where
detectives found Thomas. The officers arrested Thomas for obstructing a
criminal investigation in violation of Tempe City Code section 22-6 (2019).1
A detective conducted a search incident to arrest and discovered marijuana
in Thomas’ possession. See Virginia v. Moore, 553 U.S. 164, 177-78 (2008)
(holding evidence found in a search incident to misdemeanor arrest is
admissible under Fourth Amendment).

¶6             Thomas was charged with possession of marijuana, a Class 6
felony. Thomas filed a pre-trial motion to suppress, arguing the detectives
lacked reasonable suspicion for the initial contact, meaning the subsequent
arrest and search was improper. After the suppression hearing, during
which both detectives testified, the court denied the motion, finding they
had reasonable suspicion to detain Thomas for questioning. Following a
bench trial, Thomas was convicted of possession of marijuana, a Class 1
misdemeanor, and placed on unsupervised probation for three months.
This court has jurisdiction over Thomas’ timely appeal under Article 6,
Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.)
section 12-120.21 (A)(1), 13-4031, and -4033(A)(1).

                                DISCUSSION

¶7             This court reviews “a trial court’s ruling on a motion to
suppress for abuse of discretion, considering only the evidence presented
at the suppression hearing and viewing the facts in a light most favorable
to sustaining the trial court’s rulings.” State v. Adair, 241 Ariz. 58, 60 ¶ 9
(2016) (citing State v. Butler, 232 Ariz. 84, 87 ¶ 8 (2013)). The court defers to
the superior court’s factual findings and reviews questions of law de novo.
Id. (citing cases).




1 Absent material revisions after the relevant dates, statutes cited refer to
the current version unless otherwise indicated.


                                       3
                            STATE v. THOMAS
                            Decision of the Court

¶8            Thomas argues the detectives needed reasonable suspicion to
approach him outside of the apartment. Not so. Thomas was not detained
at that time, and the detectives approached him to speak with him about
Kelly’s location. See Florida v. Bostick, 501 U.S. 429, 434 (1991) (“a seizure
does not occur simply because a police officer approaches an individual and
asks a few questions”). “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.” Id. (quoting California v. Hodari
D., 499 U.S. 621, 628 (1991)). The record does not show, and the superior
court did not find, that Thomas was compelled to answer their questions or
was not free to leave at that time.

¶9             The point at which the officers needed reasonable suspicion
was when Thomas was detained. See State v. Serna, 235 Ariz. 270, 273 ¶ 12
(2014). The record supports a finding that officers detained Thomas after he
answered their questions by providing inconsistent statements. When the
officers placed Thomas in the back of a patrol vehicle is the point when a
reasonable person would not have felt free to leave, and by then, the
detectives had a reasonable suspicion that Thomas was involved in criminal
activity. See Bostick, 501 U.S. at 434.

¶10            Reasonable suspicion requires “a particularized and objective
basis.” State v. Primous, 242 Ariz. 221, 223 ¶ 11 (2017) (quoting Ornelas v.
United States, 517 U.S. 690, 696 (1996)). Reasonable suspicion is determined
from “the totality of the circumstances.” State v. Evans, 237 Ariz. 231, 234 ¶
8 (2015) (quoting United States v. Cortez, 449 U.S. 411, 417 (1981)). Reasonable
suspicion requires more than a hunch, but an officer may draw reasonable
inferences based upon experience. Id. (quoting Terry v. Ohio, 392 U.S. 1, 27
(1968)).

¶11            Thomas’ actions and statements gave rise to a reasonable
suspicion that he was hindering the detectives’ search for Kelly. Given
Thomas’ proximity to Kelly (who had two warrants for his arrest) in a high
crime neighborhood and, more specifically, Thomas’ unprovoked flight
upon seeing the officers coupled with his inconsistent statements in
response to their questions, the superior court did not err in concluding the
detectives had reasonable suspicion by the time they detained Thomas. See
Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (concluding “it was not merely
respondent’s presence in an area of heavy narcotics trafficking that aroused
the officers’ suspicion, but his unprovoked flight upon noticing the police”);
cf. Primous, 242 Ariz. at 224-25 ¶¶ 13-21 (holding “mere proximity or
companionship” with other men who fled, when defendant “did not react
in a suspicious manner to the police encounter or when one of the other


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                            STATE v. THOMAS
                            Decision of the Court

men ran away,” did not suggest defendant was engaged in criminal
activity, was armed or dangerous).

¶12           Thomas relies extensively on State v. Rogers, 186 Ariz. 508
(1996) (4-1 decision) in arguing that “[s]uspicious circumstances do not
necessarily support a particularized and objective basis for an investigative
stop.” Rogers, however, is distinguishable.

¶13            In Rogers, while conducting a traffic stop at night, officers
“saw defendant emerge with another individual from behind a couple of
large bushes in a darkened residential area, walk down the middle of the
street, and stare at the officers.” 186 Ariz. at 509. Another officer then
approached the defendant and said “police officers, we need to talk to you.”
Id. In response, the defendant refused to speak with the officer, “started
backing up, and then ran,” the officer gave chase and defendant “continued
to run and eventually entered a house.” Id. When the “defendant came out
of the house voluntarily, . . . he was patted down and handcuffed” and later
charged with unlawful possession of a narcotic for sale, based on a baggy
containing cocaine near a wall the “defendant had jumped over during the
chase.” Id. at 509-10. Rogers affirmed the grant of a motion to suppress. Id.
at 509.

¶14             In concluding the superior court had not abused its discretion
in granting the motion to suppress, Rogers stated that the fact “it was dark,
that defendant and his companion emerged from behind some large bushes
in a darkened residential area, walked down the middle of the road, and
stared at the officers while they were making a traffic stop” did not
constitute reasonable suspicion. Id. at 511. By contrast, here, Thomas’ flight
was nearly immediate, unprovoked and occurred before police approached
him. Similarly, although Thomas could have decided not to respond to the
officers’ questions when they later found him, instead, he provided
inconsistent (and demonstrably false) answers to their questions. Moreover,
there is no suggestion that Thomas (or a reasonable person) would not have
felt free to leave before doing so. Unlike Rogers, the superior court did not
abuse its discretion in concluding Thomas’ actions and statements gave rise
to a reasonable suspicion for the officers to detain him when they did. See
Adair, 241 Ariz. at 60 ¶ 9; see also State v. Teagle, 217 Ariz. 17, 22 ¶ 19 (App.
2007).




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                          STATE v. THOMAS
                          Decision of the Court

                              CONCLUSION

¶15           Because Thomas has not shown the court abused its
discretion in denying his motion to suppress, his conviction and resulting
probation grant are affirmed.




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




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