                             IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                     THE STATE OF ARIZONA,
                            Appellee,

                                v.

                         DALE LEE EVANS,
                            Appellant.

                     No. 2 CA-CR 2013-0342
                       Filed July 31, 2014


        Appeal from the Superior Court in Cochise County
                        No. CR200500455
           The Honorable Wallace R. Hoggatt, Judge

                           AFFIRMED


                            COUNSEL

Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Amy Pignatella Cain, Assistant Attorney General, Tucson
Counsel for Appellee

Joel A. Larson, Cochise County Legal Defender, Bisbee
Counsel for Appellant
                          STATE v. EVANS
                         Opinion of the Court


                              OPINION

Judge Vásquez authored the opinion of the Court, in which
Presiding Judge Kelly and Judge Olson1 concurred.


V Á S Q U E Z, Judge:

¶1           After a jury trial, appellant Dale Evans was convicted in
absentia of possession of marijuana, possession of drug
paraphernalia, and aggravated driving under the influence pursuant
to A.R.S. §§ 28-1381(A)(3) and 28-1383(A)(1).2 The trial court later
sentenced him to concurrent, presumptive terms of imprisonment,
the longest of which is 2.5 years. On appeal, Evans contends the
court erred in denying his motion to suppress all evidence obtained
from the traffic stop that led to his arrest. Relying on Terry v. Ohio,
392 U.S. 1, 20, 30 (1968), he asserts the stop was “not justified at its
inception” because Cochise County Sheriff’s deputies lacked “an
articulable, reasonable suspicion, based on the totality of the
circumstances, that [he was] involved in criminal activity.” For the
following reasons, we affirm Evans’s convictions and sentences.

¶2          “In reviewing the denial of a motion to suppress
evidence, we consider only the evidence presented at the
suppression hearing, and view that evidence in the light most
favorable to upholding the trial court’s ruling.” State v. Olm, 223


      1The Hon. Robert Carter Olson, a retired judge of the Arizona
Superior Court, is called back to active duty to serve on this case
pursuant to orders of this court and the supreme court.

      2  The trial court’s sentencing minute entry erroneously
indicates Evans was convicted pursuant to a guilty plea. By this
decision, we correct the minute entry to reflect his conviction after a
jury trial. See State v. Ovante, 231 Ariz. 180, ¶ 38, 291 P.3d 974, 982
(2013) (appellate court may correct sentencing minute entry where
error is clear from record).


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                         STATE v. EVANS
                        Opinion of the Court

Ariz. 429, ¶ 2, 224 P.3d 245, 247 (App. 2010) (citation omitted). We
“give deference to the trial court’s factual findings, including
findings regarding [an officer’s] credibility and the reasonableness of
inferences that he drew, but we review de novo the trial court’s
ultimate legal determination.” State v. Gonzalez-Gutierrez, 187 Ariz.
116, 118, 927 P.2d 776, 778 (1996).

                        Relevant Background

¶3             At the hearing on Evans’s motion to suppress, Deputy
Dana Anderson testified that his duties included “[p]atrol, DUI
investigation, . . . [and] booking people in jail” and agreed that he
was “[b]asically a uniformed officer out on the street.” He stated he
had been the passenger in a marked patrol car on an afternoon in
November 2004 when, at about four o’clock, he had seen a truck
parked “right at the stop sign” of an intersection in an area “known
for illegal immigrant activity . . . [and] marijuana hauling.” When he
looked at the vehicle, he saw the driver turned in his seat and
“[f]lailing his arms towards the passenger” with closed fists.
Anderson demonstrated the movements for the court and said he
told his partner, “[H]ey, we might have a rolling domestic
violence . . . pull over and turn around.” After his partner returned
their patrol car to the intersection and turned around, the truck
pulled out in front of them, and the deputies initiated the traffic
stop.

¶4           On cross-examination, Anderson estimated that the
patrol car had been travelling at fifty-five miles an hour, that he was
twenty-five to thirty feet from the intersection when the driver’s
actions “caught the corner of [his] eye,” and that he observed the
driver for ”four or five seconds.” He stated he had seen the driver
make three arm movements toward the vehicle’s passenger, which
he described as “[l]eft, right, left,” but had not seen any contact
made, “just . . . arms.”

¶5           At the close of the hearing, the trial court agreed with
Evans that it was unlikely Anderson had observed the driver for as
much as four or five seconds. Rather, based on Anderson’s
testimony, the court found his observations of Evans’s arm


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                          Opinion of the Court

movements lasted “closer to a second-and-a-half or a second than
. . . to four or five seconds.” The court then stated,

                    But, in any event, I believe, based on
             the evidence presented, that the arm
             movements, though they might not have
             been criminal activity, were articulable
             facts that justified the Officers in trying to
             find out more.

                   ....

             . . . [T]here was a lot that [Anderson] didn’t
             know, but it wasn’t as if [he] looked at the
             vehicle and decided based on a hunch that
             there was something afoot. He saw arm
             activity that might have been consistent
             with some domestic violence assault, and I
             think that the officers were justified in
             investigating further by stopping the
             vehicle, after it apparently started up.

Accordingly, the court denied Evans’s motion to suppress.

                              Discussion

¶6            Evans contends Anderson’s limited observations of
Evans’s arm movements “formed the sole basis for the stop.” He
argues those observations were insufficient to give rise to the
reasonable suspicion required by Terry, and, citing this court’s
decision in State v. Fornof, 218 Ariz. 74, 179 P.3d 954 (App. 2008), he
suggests the probative value of Anderson’s observations was
“undermine[d]” by the state’s failure to elicit evidence of his training
or experience or of the “significance of the surrounding
circumstances such as the location, the time of day, and the physical
appearance of the individuals involved.” He also relies on United
States v. Foreman, 369 F.3d 776 (4th Cir. 2004), to argue Anderson’s
“extremely fleeting observation of movements which [were]
ambiguous at best fails to eliminate that substantial portion of the


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                          Opinion of the Court

innocent motoring public necessary [to establish] a reasonable
suspicion” for the investigative stop. See id. at 781. He posits that
the arm movements Anderson saw may have been consistent with
the driver gesticulating while telling a story, waving away an insect
inside the passenger compartment, extinguishing a match, dancing
to a musical beat, or using American Sign Language.

¶7            A law enforcement officer’s investigatory stop of a
vehicle constitutes a seizure under the Fourth Amendment and
“must be justified by some objective manifestation that the person
stopped is, or is about to be engaged in criminal activity.” State v.
Richcreek, 187 Ariz. 501, 503-04, 930 P.2d 1304, 1306-07 (1997), quoting
United States v. Cortez, 449 U.S. 411, 417 (1981); see also United States v.
Sokolow, 490 U.S. 1, 7 (1989) (Sokolow II) (investigatory stop
permissible when based on “a reasonable suspicion supported by
articulable facts that criminal activity ‘may be afoot’”), quoting Terry,
392 U.S. at 30. “Although an officer’s reliance on a mere ‘hunch’ is
insufficient to justify a stop, the likelihood of criminal activity need
not rise to the level required for probable cause.” United States v.
Arvizu, 534 U.S. 266, 274 (2002) (citation omitted), quoting Terry, 392
U.S. at 27. And “reasonable suspicion” is a “commonsense,
nontechnical concept[] that deal[s] with ‘the factual and practical
considerations of everyday life on which reasonable and prudent
men, not legal technicians, act.’” Ornelas v. United States, 517 U.S.
690, 695 (1996), quoting Illinois v. Gates, 462 U.S. 213, 231 (1983); cf.
Terry, 392 U.S. at 27 (pat-down search after investigatory stop
permissible if “reasonably prudent man in the circumstances would
be warranted in the belief that his safety or that of others was in
danger”).

¶8             In reviewing a claim that law enforcement officers
lacked the reasonable suspicion required for an investigatory stop,
we “apply ‘a peculiar sort of de novo review,’ slightly more
circumscribed than usual, because we defer to the inferences drawn
by the [trial] court and the officers on the scene, not just the [trial]
court’s factual findings.” United States v. Valdes-Vega, 738 F.3d 1074,
1077 (9th Cir. 2013) (citation omitted), quoting Arvizu, 534 U.S. at 278
(Scalia, J., concurring). As the Supreme Court has explained,



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                         STATE v. EVANS
                        Opinion of the Court

                  A trial judge views the facts of a
            particular case in light of the distinctive
            features and events of the community;
            likewise, a police officer views the facts
            through the lens of his police experience
            and expertise.     The background facts
            provide a context for the historical facts,
            and when seen together yield inferences
            that deserve deference.

Ornelas, 517 U.S. at 699. A reviewing court must consider whether
the historical facts, along with the inferences drawn by law
enforcement officers and the trial court, satisfy the constitutional
standard. Id. at 696-97, 699. The need for such deference is rarely
more apparent where, as in this case, an officer testifies it was a
defendant’s physical actions that aroused suspicions, and the trial
court has relied on the officer’s in-court demonstration of those
actions to determine the stop was reasonable. See Arvizu, 534 U.S. at
276 (noting trial court’s “superior access to the evidence and the
well-recognized inability of reviewing courts to reconstruct what
happened in the courtroom”; appellate court “should not have
casually rejected” testimony about and demonstration of conduct
officer found suspicious).

¶9            Evans is correct that, in reviewing a Fourth Amendment
claim involving a Terry stop, a court must consider whether, given
the “‘totality of the circumstances,’” the officer had “a
‘particularized and objective basis’ for suspecting legal
wrongdoing.” Arvizu, 534 U.S. at 273, quoting Cortez, 449 U.S. at 417-
18. In Fornof, for example, we considered “such objective factors as
the suspect’s conduct and appearance, location, and surrounding
circumstances, such as the time of day, . . . taking into account the
officer’s relevant experience, training, and knowledge.” 218 Ariz.
74, ¶ 6, 179 P.3d at 956. And here, although Anderson indicated his
decision to stop Evans had been influenced, in part, by the fact that
the truck was parked “right at the stop sign” in an area known for
criminal activity, we agree that his suspicion was based primarily on
his observations of Evans “flailing” his fists toward the truck’s
passenger.


                                  6
                          STATE v. EVANS
                         Opinion of the Court


¶10           But Evans appears to read our decision in Fornof too
broadly in arguing the evidence was insufficient because the state
failed to elicit “the relevant experience, training and knowledge of
the officer involved.” In Fornof, we identified certain objective
circumstances that were relevant to the legality of a Terry stop under
the facts of that case. 218 Ariz. 74, ¶¶ 6-11, 179 P.3d at 956-57
(inquiry into whether officer possessed reasonable suspicion “is fact
specific”). But we did not intend to suggest that a law enforcement
officer may only establish a reasonable basis for his or her suspicion
by accounting for each of these circumstances in every case
involving an investigatory stop. See State v. Ramsey, 223 Ariz. 480,
¶ 23, 224 P.3d 977, 982 (App. 2010) (facts proffered as basis for
reasonable suspicion “must be considered in the context of the
totality of all the relevant circumstances”) (emphasis added).
Evidence of Anderson’s training and experience, in domestic
violence cases or generally, was not critical in determining whether
his particular observations in this case were sufficient to establish
reasonable suspicion.

¶11          The Supreme Court repeatedly has cautioned that
Fourth Amendment analysis is not amenable to such a formulaic
approach. See, e.g., Ohio v. Robinette, 519 U.S. 33, 39 (1996) (to
determine “reasonableness” under the Fourth Amendment, Court
has “consistently eschewed bright-line rules, instead emphasizing
the fact-specific nature” of the inquiry); Sokolow II, 490 U.S. at 7
(concept of reasonable suspicion “not ‘readily, or even usefully,
reduced to a neat set of legal rules’”), quoting Gates, 462 U.S. at 232;
Adams v. Williams, 407 U.S. 143, 147 (1972) (“One simple rule will not
cover every situation.”); Terry, 392 U.S. at 30 (“Each case of this sort
will, of course, have to be decided on its own facts.”). Thus, while
recognizing the need to consider “‘the totality of the
circumstances—the whole picture’”—to determine whether an
investigatory stop was based on a reasonable suspicion of criminal
activity, the Court has concluded, “[U]nder appropriate
circumstances, an anonymous tip can demonstrate ‘sufficient indicia
of reliability to provide reasonable suspicion to make [an]
investigatory stop,’” without regard to the law enforcement officer’s
professional experience or other factors that might be relevant in a


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                          STATE v. EVANS
                         Opinion of the Court

different context. Navarette v. California, ___ U.S. ___, ____, 134 S. Ct.
1683, 1687-88 (2014), quoting Cortez, 449 U.S. at 417, and Alabama v.
White, 496 U.S. 325, 327 (1990) (second alteration in Navarette).

¶12           In this case, Anderson saw Evans flailing his closed fists
toward the truck’s passenger in a manner suggestive of—or at least
consistent with—an assault. As the trial court observed, although
Anderson’s first thought was the possibility of “rolling domestic
violence,” the gender or identity of the passenger was irrelevant to
the deputy’s suspicion that a violent crime was occurring or was
about to occur. The cause for his suspicion simply did not depend
on specialized training, beyond his experience as a patrol officer, or
other factors, such as the time of day, that might be relevant in a
different case. See, e.g., Fornof, 218 Ariz. 74, ¶¶ 17-18, 179 P.3d at
958-59 (reasonable suspicion of drug exchange based on multiple
factors, including location and lateness of hour).

¶13          Evans recognizes that “[t]he inquiry into whether an
officer possessed reasonable suspicion is fact specific.” But, relying
primarily on Reid v. Georgia, 448 U.S. 438 (1980), and Foreman, he
maintains Deputy Anderson’s “singular and fleeting” observations
“do[] not reliably distinguish between suspect and innocent
behavior, and similarly fail[] to eliminate a substantial portion of
innocent travelers.” Evans’s reliance on Reid and Foreman is
misplaced.

¶14           Reid was one of the first cases in which the Supreme
Court considered law enforcement’s reliance on a “drug courier
profile” to make investigatory stops of persons at an airport. 448
U.S. at 440-41. In that case, a Drug Enforcement Administration
(DEA) agent stopped Reid outside a Georgia airport because he had
(1) arrived from Fort Lauderdale, which the agent described as “a
principal place of origin of cocaine”; (2) arrived early in the
morning, “when law enforcement activity is diminished”; (3) walked
in front of another person and occasionally looked back at him as the
two walked through the airport; and, (4) “they apparently had no
luggage other than their shoulder bags.” Id.




                                    8
                           STATE v. EVANS
                          Opinion of the Court

¶15            The Court concluded the agent had lacked reasonable
suspicion for the stop because only two of the four factors related to
Reid’s “particular conduct” and the other factors “describe a very
large category of presumably innocent travelers, who would be
subject to virtually random seizures were the Court to conclude that
as little foundation as there was in this case could justify a seizure.”
Id. at 441. But, the Court’s admonition did not create a new standard
for determining reasonable suspicion. Indeed, the Court noted that
“[a]lthough there could, of course, be circumstances in which wholly
lawful conduct might justify the suspicion that criminal activity was
afoot, this is not such a case.” Id. (citation omitted).

¶16           Evans also relies on the Fourth Circuit’s statement in
Foreman that “Sokolow teaches us that . . . [t]he articulated factors
together must serve to eliminate a substantial portion of innocent
travelers before the requirement of reasonable suspicion will be
satisfied.” 369 F.3d at 781. As Evans points out, this court
previously has cited this statement with approval. See State v.
Sweeney, 224 Ariz. 107, ¶ 22, 227 P.3d 868, 874 (App. 2010); State v.
Teagle, 217 Ariz. 17, ¶ 25, 170 P.3d 266, 273 (App. 2007). Upon closer
review, however, we question whether it is a correct statement of the
law to the extent it articulates a standard not present in Sokolow II.
The cited language is not derived from the Supreme Court’s own
discussion of the issues raised in Sokolow; instead, it resembles the
Ninth Circuit’s holding, which the Supreme Court reversed. Sokolow
II, 490 U.S. at 6-7, 10, rev’g United States v. Sokolow, 831 F.2d 1413 (9th
Cir. 1987) (Sokolow I).

¶17          In Sokolow I, a divided panel of the Ninth Circuit
reversed the defendant’s conviction for cocaine possession,
concluding DEA agents had lacked reasonable suspicion to stop him
at an airport. 831 F.2d at 1415-16, 1423. In considering the Court’s
admonition in Reid, the majority stated that a law enforcement
officer who justifies a Terry stop by reference to aspects of a profile
“shared by drug couriers and the public at large” also “must testify
that [such] pattern of behavior, otherwise explicable as innocent
behavior, does not exist in a significant number of innocent people.”
Sokolow I, 831 F.2d at 1420. But the Supreme Court rejected this
additional requirement, emphasizing, as it has repeatedly, that


                                    9
                          STATE v. EVANS
                         Opinion of the Court

reasonable suspicion is dependent on the totality of the
circumstances in a particular case. Sokolow II, 490 U.S. at 8; see also
Ornelas, 517 U.S. at 696 (reasonable suspicion “fluid concept[]” that
takes “substantive content from the particular contexts” of its
application). The Court explained that the Ninth Circuit majority
had “divided the facts bearing on reasonable suspicion into two
categories”: those “describing ‘ongoing criminal activity,’ such as
the use of an alias or evasive movement through an airport” and
those “describing ‘personal characteristics’ of drug couriers, such as
the cash payment for tickets, a short trip to a major source city for
drugs, nervousness, type of attire, and unchecked luggage.” Sokolow
II, 490 U.S. at 6, quoting Sokolow I, 831 F.2d at 1419-20. The Court
continued,

             The majority believed that such [personal]
             characteristics, “shared by drug couriers
             and the public at large,” were only relevant
             if there was evidence of ongoing criminal
             behavior and the Government offered
             “[e]mpirical documentation” that the
             combination of facts at issue did not
             describe the behavior of “significant
             numbers of innocent persons.”

Id., quoting Sokolow I, 831 F.2d at 1420 (second alteration in Sokolow
II).

¶18          The Supreme Court concluded the Ninth Circuit’s
“effort to refine and elaborate the requirements of ‘reasonable
suspicion’ in this case creates unnecessary difficulty in dealing with
one of the relatively simple concepts embodied in the Fourth
Amendment”: “In evaluating the validity of a stop such as this, we
must consider ‘the totality of the circumstances—the whole
picture.’” Id. at 7-8, quoting Cortez, 449 U.S. at 417. The Court added,
“‘The process does not deal with hard certainties, but with
probabilities. Long before the law of probabilities was articulated as
such, practical people formulated certain common-sense conclusions
about human behavior; jurors as fact-finders are permitted to do the



                                  10
                          STATE v. EVANS
                         Opinion of the Court

same—and so are law enforcement officers.’” Id. at 8, quoting Cortez,
449 U.S. at 418.

¶19          Thus, the Fourth Circuit’s conclusion in Foreman that an
investigatory stop violates the Fourth Amendment unless the factors
causing an officer’s suspicion of criminal activity, taken together,
“serve to eliminate a substantial portion of innocent travelers” is
inconsistent with the Court’s reasoning in Sokolow II. Foreman, 369
F.3d at 781. It also is inconsistent with the greater weight of
authority that holds, “When determining whether reasonable
suspicion exists, the police are not required to rule out the possibility
of innocent explanations for a defendant’s conduct.” Ramsey, 223
Ariz. 480, ¶ 23, 224 P.3d at 982; see also Arvizu, 534 U.S. at 277
(determination reasonable suspicion exists “need not rule out the
possibility of innocent conduct”); Illinois v. Wardlow, 528 U.S. 119,
125 (2000) (“[e]ven in Terry, the conduct justifying the stop was
ambiguous and susceptible of an innocent explanation”; stop
permissible “to resolve the ambiguity”). Under Sokolow II, the
“relevant inquiry” to determine whether a stop was supported by
reasonable suspicion “‘is not whether particular conduct is innocent
or guilty, but the degree of suspicion that attaches to particular types
of noncriminal acts.’” Sokolow II, 490 U.S. at 10, quoting Gates, 462
U.S. at 243 n.13.

¶20          Like the Ninth Circuit’s decision in Sokolow I on which it
appears to be based, the Fourth Circuit’s apparent rule in Foreman
would “create[] unnecessary difficulty,” Sokolow II, 490 U.S. at 7,
were courts and law enforcement officers bound to apply it. As the
Court cautioned in Wardlow, neither police officers nor the courts are
privy to “empirical studies dealing with inferences drawn from
suspicious behavior, and we cannot reasonably demand scientific
certainty from judges or law enforcement officers where none
exists.” 528 U.S. at 124-25. Before making an investigatory stop, a
police officer must have “a particularized and objective basis for
suspecting the particular person stopped of criminal activity.”
Cortez, 449 U.S. at 417-18. It seems unreasonable to demand that the
same officer, before acting on his particularized suspicion, must also
consider the number of innocent travelers who might engage in
similar behaviors, under similar circumstances, and whether his


                                   11
                         STATE v. EVANS
                        Opinion of the Court

suspicions serve to eliminate a substantial portion of those innocent
persons. See Wardlow, 528 U.S. at 123 (“the Fourth Amendment
requires at least a minimal level of objective justification for making
the stop”; defendant’s flight in high-crime area gave rise to
reasonable suspicion).

¶21           An officer must, of course be able to identify objective,
particular facts that led to his suspicions, and he may not stop a
person to investigate a mere hunch. In that process, he necessarily
must be mindful of circumstances that may “describe a very large
category of presumably innocent travelers.” Reid, 448 U.S. at 441; see
also United States v. Brignoni-Ponce, 422 U.S. 873, 885-87 (“apparent
Mexican ancestry” of vehicle’s occupants, standing alone, “would
justify neither a reasonable belief that they were aliens, nor a
reasonable belief that the car concealed other aliens who were
illegally in the country”). Under existing Supreme Court standards,
a stop based on such factors alone would be invalid because the
circumstances provide no “‘particularized’” basis for suspicion.
Navarette, ___ U.S. at ___, 134 S. Ct. at 1687 (“brief investigative
stops” permitted when officer “has ‘a particularized and objective
basis for suspecting the particular person stopped of criminal
activity’”), quoting Cortez, 449 U.S. at 417-18.

¶22         We see no need to adopt the Fourth Circuit’s additional
requirement that every stop be supported by testimony regarding
how the factors “serve to eliminate” innocent conduct. Foreman, 269
F.3d at 781. As addressed above, we question the validity of this
standard and, as this case illustrates, such a requirement may cause
confusion about what is needed to establish that an investigatory
stop was reasonable under the Fourth Amendment.

¶23         Thus, we conclude Deputy Anderson was not required,
before stopping Evans’s vehicle, to rule out the possibility that the
arm movements he observed were consistent with swatting at an
insect or “play[ing] air guitar,” as Evans has argued. Nor do the
circumstances here “describe a very large category of presumably
innocent travelers,” as did the circumstances in Reid, 448 U.S. at 441,
on which Evans also relies.



                                  12
                        STATE v. EVANS
                       Opinion of the Court

¶24         In sum, after giving due weight to the trial court’s
factual findings and related inferences, we concur with its
conclusion that the deputies were justified in stopping Evans to
investigate a reasonable suspicion of criminal activity based on
Anderson’s observations. The investigatory stop did not violate the
Fourth Amendment.

                           Disposition

¶25         We affirm Evans’s convictions and sentences.




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