                          NOTICE: NOT FOR PUBLICATION.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.

                      JAMES ALLEN POSEY, Appellant.

                             No. 1 CA-CR 13-0910
                               FILED 2-24-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-164559-001
             The Honorable William L. Brotherton, Jr., Judge
                    The Honorable Rosa Mroz, Judge

                                  AFFIRMED


                                   COUNSEL

The Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

The Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
                             STATE v. POSEY
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Maurice Portley and Judge Jon W. Thompson joined.


G O U L D, Judge:

¶1           Defendant, James Allen Posey, timely appeals from his
conviction on one count of possession of a dangerous drug, a Class 4 felony.
He argues that the trial court erred in denying his motion to suppress and
in denying his request for an instruction based on his theory of the case.
For reasons set forth below, we affirm.

                FACTS1 AND PROCEDURAL HISTORY

¶2            Police contacted Defendant as part of a burglary
investigation. Officer Edmundo Saldivar testified that he conducted a pat
down of Defendant and, as a result, “located a glass pipe that [he] believed
to be a pipe used to smoke methamphetamine” in Defendant’s left jacket
pocket. The pipe looked like it had been used; it had “white residue”
“consistent with smoking, being used.” The officer arrested Defendant for
possession of drug paraphernalia.

¶3            During a search incident to arrest, the officer located a baggie
with a white crystal-like substance in Defendant’s “front shirt pocket” that,
based on training and experience, he believed to be methamphetamine.
Officer Saldivar testified that, after he found the pipe, he asked Defendant
“what it was,” to which Defendant replied, “It’s just a pipe. I’ll go to prison
for a long time.” When he asked Defendant what was inside the baggie,
Defendant replied something to the effect, “I would assume it’s drugs but I
don’t know.” An analysis revealed that the baggie contained 1.0 gram of
methamphetamine in a usable condition.

¶4         The State charged Defendant with possession of a dangerous
drug (methamphetamine), a Class 4 felony and possession of drug


1  We view the facts in the light most favorable to sustaining the jury’s
verdict and resolve all reasonable inferences against defendant. State v.
Vandever, 211 Ariz. 206, 207 n.2 (App. 2005).



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                            Decision of the Court

paraphernalia (pipe), a Class 6 felony. Defendant represented himself at
trial and testified on his behalf. The jury found Defendant guilty of the drug
possession charge but was “unable to agree” on the possession of drug
paraphernalia charge. The jury also found Defendant was on probation at
the time of the offense. The trial court further found Defendant had two
prior felony convictions and sentenced Defendant to a presumptive 10-year
term of imprisonment.2

                               DISCUSSION

I.     Motion to Suppress

¶5           Prior to trial, Defendant moved to suppress the pipe and the
methamphetamine, arguing the search violated his Fourth Amendment
rights. Defendant argued the officers had no reasonable suspicion to stop
him and that, even if they did, the search was neither consensual nor
supported by officer safety reasons.

¶6             The court held a suppression hearing at which both Officer
Saldivar and Defendant testified. The evidence established that around
2:30 p.m. Officer Saldivar and his partner, Officer Smith, received an
emergency radio call of a residential burglary in progress that described
“three males” who had stolen three bicycles from the victim’s residence and
were last seen “walking with the bikes southbound on 16th Street.” The
radio call indicated that the subjects were “white males” wearing “a brown
shirt, a white shirt, and a green shirt and they all had bicycles with them.”
Approximately 6 minutes later, the officers made contact with Defendant
and his two companions who matched the descriptions of the white males
and were seen walking southbound on 16th Street with bicycles.

¶7            The officers stopped the men and asked them for
identification. While Officer Smith returned to the patrol car to run the
three subjects’ information on the computer, Officer Saldivar stood by with
the men. At some point during the investigation, Officer Saldivar was
informed that the caller who had initially called 911 “drove by and told the
911 operator that the individuals that we were out with were, in fact the
same ones that were at the residential burglary.” Meanwhile, other officers
at the scene of the residential burglary were in communication with Officer
Saldivar relaying information back and forth with him through dispatch.


22 At sentencing, the trial court dismissed the drug paraphernalia charge
without prejudice.



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                            Decision of the Court

When Officer Smith returned from the patrol car, the officers “proceeded to
pat down” the three men for officer safety reasons.

¶8            On appeal, Defendant concedes that the officers had
reasonable suspicion to initially stop him, but maintains that the frisk was
deficient because, by the time it occurred, the officers no longer had reason
to detain him and because there was no reason to believe he was armed or
dangerous. Defendant also maintains the officers exceeded the permissible
scope of the frisk itself.

¶9             In reviewing a trial court’s denial of a motion to suppress, we
review only the evidence presented at the hearing on the motion and view
it in the light most favorable to sustaining the trial court’s ruling. State v.
Gay, 214 Ariz. 214, 217, ¶ 4 (App. 2007). We defer to the trial court’s factual
findings absent an abuse of discretion. State v. Valle, 196 Ariz. 324, 327, ¶ 6
(App. 2000). The trial court is also responsible for resolving conflicts of
testimony, and this court will defer to those findings absent an abuse of
discretion. State v. Lacy, 187 Ariz. 340, 347 (1996). “We review de novo,
however, the trial court’s ultimate legal determination that the search
complied with the dictates of the Fourth Amendment.” Valle, 196 Ariz. at
327, ¶ 6.

       A.      The Initial Stop

¶10          Defendant first maintains that, by the time Officer Saldivar
frisked him, the initial reason for the stop had “dissipated” because the
officers had investigated the original offense and the officers “had not
developed new suspicion of a separate crime.”

¶11             The officers clearly had reasonable suspicion based on
specific facts to stop Defendant. State v. Romero, 178 Ariz. 45, 49 (App. 1993)
(citing Terry v. Ohio, 392 U.S. 1, 21-24 (1968)). The men were located just
minutes after the reported burglary; they matched the description of the
suspects, and were walking southbound with three bicycles on 16th Street
as the 911 caller had indicated.

¶12           It is also clear that the initial investigation was still on-going
at the time the frisk occurred. The officers made initial contact with
Defendant at 2:36 p.m. and the record at the hearing established that
Defendant was arrested at 2:46 p.m. During those ten minutes, Officer
Smith was confirming their identifications, Officer Saldivar was talking
with the men, conducting his investigation, and receiving information from
police at the burglary investigation via dispatch. There is simply no
indication that the initial investigation was completed, or that the initial


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                             STATE v. POSEY
                            Decision of the Court

suspicions of the police regarding the burglary had “dissipated,” by the
time the frisk occurred.

¶13            The fact that Defendant was not arrested for residential
burglary as a result of the encounter is immaterial. The frisk occurred for
officer safety reasons as part of the initial stop, for which the officers had
reasonable cause. State v. Navarez, 235 Ariz. 129 (App. 2014), on which
Defendant relies, is inapplicable to these facts.

       B.     Terry Frisk

¶14            Defendant next argues there was no reason for Officer
Saldivar to frisk him because there was no indication that he was armed or
dangerous or made any threatening gestures. A police officer may lawfully
conduct a pat-down of an individual when the officer is “justified in
believing that the individual whose suspicious behavior he is investigating
at close range is armed and presently dangerous to the officer or to others.”
Terry, 392 U.S. at 24. “The purpose of this limited search is not to discover
evidence of crime, but to allow the officer to pursue his investigation
without fear of violence.” Valle, 196 Ariz. at 327, ¶ 9 (quoting Adams v.
Williams, 407 U.S. 143, 146 (1972)).

¶15           According to Terry, an 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 that
of others was in danger.” 392 U.S. at 27. In determining whether an officer
acted reasonably under the circumstances, “due weight must be given, not
to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific
reasonable inferences which he is entitled to draw from the facts in light of
his experience.” Id.

¶16           Here, the two officers were confronted with three men whom
they suspected of having been involved in a residential burglary minutes
earlier. Officer Saldivar testified that he executed the pat down for officer
safety reasons because it was he and his partner and “three individuals,”
and “a potentially dangerous situation.” Under these circumstances, it was
not unreasonable for the officer to expect that any one of the three men
might possess weapons or burglary tools that could prove dangerous to
him and his partner. See, e.g., United States v. Barnett, 505 F.3d 637, 640 (7th
Cir. 2007) (reasoning burglary is a crime “normally and reasonably
expected to involve a weapon”). Furthermore, Officer Saldivar and his
partner were outnumbered; they were justifiably concerned for their safety.




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                             STATE v. POSEY
                            Decision of the Court

       C.     Scope of the Frisk

¶17           Finally, Defendant contends the frisk exceeded the
permissible scope. Defendant argues the officer knew the item in his pocket
was not a weapon and it was also not “immediately identifiable” as
contraband. The State argues we should not consider this issue because
defendant failed to raise it below and deprived the state of developing the
record or addressing it. See State v. Estrella, 230 Ariz. 401, 404 n.1, ¶ 9 (App.
2012) (declining to consider argument raised for the first time on appeal in
the context of a motion to suppress because reviewing court is limited to
record presented at the hearing which is inadequate). Because we find that
Defendant raised the issue, however unartfully, in his reply as well as
during the suppression hearing, we will address it on review.

¶18             In Minnesota v. Dickerson, the Supreme Court held that, if in
the course of conducting a legitimate Terry search, a police officer lawfully
pats down a suspect’s outer clothing and feels an object whose contour or
mass makes its identity “immediately apparent” as contraband, the officer
may lawfully seize the item. 508 U.S. 366, 375-76 (1993); see also Valle, 196
Ariz. at 327, ¶ 10 (quoting Dickerson 508 U.S. at 375-76). This is known as
the “plain feel” exception to the warrant requirement, and is viewed as the
equivalent of the “plain view” exception. State v. Ahumada, 225 Ariz. 544,
548-49, ¶ 15 (App. 2010). The Fourth Amendment’s requirement that the
officer have probable cause to believe that the item is contraband before
seizing it ensures against excessively speculative seizures. Dickerson, 508
U.S. at 377 (requiring the contraband be “plainly detected through the sense
of touch”). To be valid under the plain feel exception, the incriminating
character of the object must be immediately apparent to the officer and not
obtained through “squeezing, sliding and otherwise manipulating the
contents.” Id. at 378.

¶19           Defendant claimed the officer improperly manipulated the
object to ascertain that it was contraband. The officer testified he “felt a
cylindrical object with a bulbous tip, which is from my training and
experience it is a pipe.” In denying Defendant’s motion to suppress, the
trial court ultimately found the officer’s version of events credible over
Defendant’s. Inherent in its ruling, is the fact that the court credited Officer
Saldivar’s “plain feel” avowal over Defendant’s allegations of
manipulation. Absent an abuse of discretion, we defer to the trial court’s
resolution of conflicts in the evidence. Lacy, 187 Ariz. at 347.

¶20            Also inherent in the ruling is the legal determination that the
officer’s testimony supports the conclusion the object was “immediately”


                                       6
                             STATE v. POSEY
                            Decision of the Court

recognized as contraband and not, for example, a generic pipe. This legal
determination, we review de novo. Valle, 196 Ariz. at 326, ¶ 6. We will infer
the necessary findings to affirm the trial court, but will do so only if the
implied findings do not conflict with the trial court’s express findings. State
v. Zamora, 220 Ariz. 63, 67, ¶ 7 (App. 2009).

¶21           Officer Saldivar was a patrol officer for five years, had
performed numerous investigations, and had taken courses in reference to
drug investigations. His description of the “cylindrical object with a
bulbous tip” coupled with his explicit reference to the fact that it was his
“training and experience” that told him that “it is a pipe,” support the
inference that the officer immediately knew, at the moment he felt it, that it
was a pipe used for drugs and therefore contraband. We conclude that the
evidence at the suppression hearing, including reasonable inferences to be
drawn therefrom, viewed in the light most favorable to supporting the trial
court’s ruling, supports the court’s determination. Gay, 214 Ariz. at 217,
¶ 4. The trial court did not err in denying the motion to suppress.

II.    Theory of the Case Instruction

¶22           On appeal, Defendant argues the trial court incorrectly
instructed the jury regarding possession of dangerous drugs because its
instructions did not inform the jury the State had to prove he knew the
substance he possessed was a dangerous drug, specifically,
methamphetamine.

¶23           “A party is entitled to an instruction on any theory reasonably
supported by the evidence.” State v. Rodriquez, 192 Ariz. 58, 61, ¶ 16 (1998).
“Nevertheless, a trial court generally is not required to give a proposed
instruction when its substance is adequately covered by other instructions.”
Id. “Nor must the trial court give every specific instruction requested by
the defense; [t]he test is whether the instructions adequately set forth the
law applicable to the case.” Id.

¶24           “We view jury instructions in their entirety when
determining whether they adequately reflect the law.” Id. at 61-2, ¶ 16.
Furthermore, the “[c]losing arguments of counsel may be taken into
account when assessing the adequacy of jury instructions.” State v.
Bruggeman, 161 Ariz. 508, 510 (1989). This court will reverse only if the
instructions taken together would have misled the jurors. State v. Doerr, 193
Ariz. 56, 65, ¶ 35 (1998). “Where the law is adequately covered by
instructions as a whole, no reversible error has occurred.” Id.




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                            STATE v. POSEY
                           Decision of the Court

¶25           The trial court did not abuse its discretion when it refused to
give Defendant’s requested instruction. See State v. Axley, 132 Ariz. 383, 392
(1982) (not error to refuse specifically requested instruction when
instructions given to jury adequately set forth applicable law). The court’s
instructions adequately and properly instructed the jury on the applicable
law. The instructions specifically informed the jury the State was required
to prove “each element of each charge beyond a reasonable doubt” and that,
to prove possession of a dangerous drug, the State had to prove that
defendant “knowingly possessed a dangerous drug, to wit,
methamphetamine.” Defendant was permitted to argue to the jury that
there was no proof that he knew that the substance he had was
methamphetamine. There is no probability the jury was misled.


                              CONCLUSION

¶26           For the foregoing reasons, we affirm Defendant’s conviction
and sentence.




                                  :ama




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