                                IN THE

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

                                   v.

                            DALE LEE EVANS,
                               Appellant.

                          No. CR-14-0285-PR
                           Filed June 4, 2015

           Appeal from the Superior Court in Cochise County
              The Honorable Wallace R. Hoggatt, Judge
                          No. CR-200500455
                             AFFIRMED

             Opinion of the Court of Appeals, Division Two
                   235 Ariz. 314, 332 P.3d 61 (2014)
                              AFFIRMED

COUNSEL:

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor
General, Joseph T. Maziarz (argued), Chief Counsel, Criminal Appeals
Section, Phoenix, Amy Pignatella Cain, Assistant Attorney General,
Criminal Appeals Section, Tucson, Attorneys for State of Arizona

Joel A. Larson (argued), Legal Defender, Cochise County, Bisbee, Attorney
for Dale Lee Evans

David J. Euchner, Tucson, Attorney for Amicus Curiae Arizona Attorneys
for Criminal Justice

JUSTICE BERCH authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES
                             STATE v. EVANS
                            Opinion of the Court

BRUTINEL and TIMMER joined.

JUSTICE BERCH, opinion of the Court:

¶1            The Fourth Amendment guarantees “[t]he right of the people

to be secure . . . against unreasonable searches and seizures.” U.S. Const.

amend. IV. An officer’s investigatory stop of a vehicle is a seizure and

therefore must be based on reasonable suspicion. United States v. Cortez,

449 U.S. 411, 417, 421–22 (1981). We must decide whether, to establish that

reasonable suspicion exists, the state must show that the circumstances

giving rise to a vehicle stop “eliminate a substantial portion of the innocent

motoring public,” as petitioner Dale Evans asserts. We conclude that the

Fourth Amendment does not require such a showing.

                            I. BACKGROUND

¶2            Cochise County Deputy Sheriff Dana Anderson saw Evans,

who was the driver of a truck stopped at a stop sign on an adjoining street,

“[f]lailing his arms” with closed fists toward the truck’s front seat

passenger.    Anderson alerted his partner to a potential assault and

instructed him to turn around. As the patrol car approached, Evans drove

away from the intersection.     The deputies initiated a traffic stop that

ultimately led to Evans’s arrest for possession of marijuana, possession of




                                      2
                              STATE v. EVANS
                             Opinion of the Court

drug paraphernalia, and aggravated driving under the influence. Before

trial, Evans moved to suppress the evidence on the ground that the deputies

lacked reasonable suspicion to pull him over.

¶3             At the suppression hearing, Anderson testified that he could

clearly see the truck’s driver direct three rapid, closed-fisted movements

toward the passenger. He demonstrated the arm movements he witnessed.

Defense counsel asked during cross-examination if Anderson had seen

“blows” actually being struck, and thus the motions Anderson

demonstrated apparently suggested punching or hitting.              The deputy

acknowledged that he did not see contact between Evans’s fists and the

passenger. Nonetheless, he was concerned enough that he directed his

partner to turn the patrol car around so they could investigate further.

¶4             The trial court denied Evans’s motion to suppress, finding

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.” The court of appeals affirmed the trial court’s denial of Evans’s

suppression motion. State v. Evans, 235 Ariz. 314, 315 ¶ 1, 332 P.3d 61, 62

(App. 2014).    Deferring to the trial court’s ability to view Anderson’s

demonstration of the actions that aroused his suspicion, id. at 317 ¶ 8, 332




                                        3
                             STATE v. EVANS
                            Opinion of the Court

P.3d at 64, the court of appeals declined to require that “every stop be

supported by testimony regarding how the factors ‘serve to eliminate’

innocent conduct” before reasonable suspicion will be satisfied, id. at 320

¶ 22, 332 P.3d at 67 (quoting United States v. Foreman, 369 F.3d 776, 781 (4th

Cir. 2004)).

¶5             We granted review to clarify what constitutes reasonable

suspicion sufficient to justify an investigatory stop, a recurring issue of

statewide importance. We have jurisdiction pursuant to Article 6, Section

5(3) of the Arizona Constitution and A.R.S. § 12–120.24.

                              II. DISCUSSION

¶6             Whether there is a sufficient legal basis to justify a stop of a

vehicle is a mixed question of fact and law. State v. Gonzalez-Gutierrez, 187

Ariz. 116, 118, 927 P.2d 776, 778 (1996). We review the trial court’s factual

findings on the motion to suppress for an abuse of discretion, but we review

its ultimate legal determination de novo. Id.; see also State v. Gilstrap, 235

Ariz. 296, 297 ¶ 6, 332 P.3d 43, 44 (2014).

¶7             “[P]olice can stop and briefly detain a person for investigative

purposes if the officer has a reasonable suspicion supported by articulable

facts that criminal activity ‘may be afoot,’ even if the officer lacks probable




                                       4
                              STATE v. EVANS
                             Opinion of the Court

cause.” United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v. Ohio,

392 U.S. 1, 30 (1968)). Although the reasonable suspicion standard affords

flexibility, investigatory stops cannot be arbitrary.             “The Fourth

Amendment requires ‘some minimal level of objective justification’ for

making the stop.” Id. (quoting INS v. Delgado, 466 U.S. 210, 217 (1984)).

¶8            Courts have struggled to articulate when evidence rises to a

level that satisfies the reasonable suspicion standard. See Ornelas v. United

States, 517 U.S. 690, 695 (1996) (noting that “[a]rticulating precisely what

‘reasonable suspicion’ and ‘probable cause’ mean is not possible”).

Reasonable suspicion has been called a “commonsense, nontechnical

conception[] that deal[s] with ‘the factual and practical considerations of

everyday life on which reasonable and prudent [people], not legal

technicians, act.’” Id. (quoting Illinois v. Gates, 462 U.S. 213, 231 (1983)). In

determining whether reasonable suspicion exists, officers and courts

reviewing    their   actions take     into   account   “the   totality of the

circumstances—the whole picture” of what occurred at the scene. Cortez,

449 U.S. at 417. From “that whole picture” the officers must derive “a

particularized and objective basis for suspecting the particular person

stopped of criminal activity.”         Id. at 417–18.      Although a mere




                                       5
                              STATE v. EVANS
                             Opinion of the Court

“unparticularized suspicion or ‘hunch’” does not establish reasonable

suspicion, consideration “must be given . . . to the specific reasonable

inferences [that an officer] is entitled to draw from the facts in light of his

experience.” Terry, 392 U.S. at 27.

¶9             Citing several cases, Evans argues that the state must show

that the “factors together . . . serve to eliminate a substantial portion of

innocent travelers before the requirement of reasonable suspicion will be

satisfied.” See, e.g., United States v. Neff, 681 F.3d 1134, 1142 (10th Cir. 2012);

Foreman, 369 F.3d at 781; Karnes v. Skrutski, 62 F.3d 485, 493 (3d Cir. 1995),

abrogated on other grounds by Curley v. Klem, 499 F.3d 199 (3d Cir. 2007). That

is, his argument suggests that officers must affirmatively consider the

number of people who might engage in the activity observed so that

significant percentages of innocent travelers are not subject to seizures.

¶10            We view the constitutional requirements differently. To say

that an officer must have “particularized” suspicion incorporates the notion

that the facts supporting a stop must be specific, distinct, or “particular” to

the suspect. That alone will eliminate most members of the public. See Reid

v. Georgia, 448 U.S. 438, 441 (1980) (noting that particularized suspicion

necessarily does not “describe a very large category of presumably innocent




                                        6
                             STATE v. EVANS
                            Opinion of the Court

travelers”). And that most non-criminal activity does not give rise to

“suspicion” also serves to prevent the reported facts from applying to too

many people. Cf. Gonzalez-Gutierrez, 187 Ariz. at 121, 927 P.2d at 781

(holding that a Hispanic driver glancing, scratching his head, and gripping

his steering wheel tightly was insufficiently particularized to provide a

reasonable suspicion of illegal alienage). Thus, the requirement that an

officer state facts that, when taken together, give rise to particularized

suspicion already serves to eliminate a substantial number of innocent

travelers.

¶11           Nor, as Evans concedes, need the officer expressly rule out the

possibility of innocent explanations for the conduct. See United States v.

Arvizu, 534 U.S. 266, 277 (2002). “Although there could, of course, be

circumstances in which wholly lawful conduct might justify the suspicion

that criminal activity was afoot,” that would be an unusual case, and the

combination of actions and circumstances would have to be such that a “fair

inference” justified the observing officer’s reasonable suspicion. Reid, 448

U.S. at 441; cf. Sokolow, 490 U.S. at 10 (“[T]he relevant inquiry is not whether

particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that

attaches to particular types of noncriminal acts.” (quoting Gates, 462 U.S. at




                                       7
                                STATE v. EVANS
                               Opinion of the Court

243 n.13)).

¶12           Particularized suspicion is a common sense assessment that

officers make every time they conduct an investigatory stop. If all the

circumstances taken together, along with the reasonable inferences derived

from them, describe behavior that is entirely ordinary, then that behavior

cannot reasonably give rise to particularized suspicion. In deciding that

behavior is, in the totality of the circumstances, suspicious, a reasonable

officer recognizes that the circumstances are atypical in a way that suggests

possible criminal conduct.

¶13           Thus, the reasonableness standard does not demand that an

officer affirmatively “consider the number of innocent travelers who might

engage in similar behaviors,” Evans, 235 Ariz. at 320 ¶ 20, 332 P.3d at 67,

nor does it require that the officer rule out possible alternative, innocent

explanations for the actions observed, Navarette v. California, 134 S. Ct. 1683,

1691 (2014). It requires only that an officer exercise common sense to

determine whether the facts justify an objectively reasonable suspicion.

Ornelas, 517 U.S. at 695–96.

¶14           We agree with the court of appeals that there is no “additional

requirement” that every stop be supported by testimony regarding how the




                                        8
                            STATE v. EVANS
                           Opinion of the Court

factors “serve to eliminate” innocent conduct. Evans, 235 Ariz. at 320 ¶ 22,

332 P.3d at 67 (quoting Foreman, 369 F.3d at 781). Officers need not provide

such testimony at suppression hearings, and trial courts need not make

separate findings on that point. Instead, the trial court must exercise its

judgment to determine whether an officer’s suspicion was reasonable

under the totality of the circumstances. This is what occurred when the

superior court concluded that Anderson’s observation of Evans appearing

to punch his passenger justified an investigatory stop. Although there

might have been an innocent explanation for Evans’s actions, the court did

not abuse its discretion in concluding that Anderson had reason to suspect

that an assault or domestic violence event was occurring that warranted

further investigation.

¶15           Evans observes that two Arizona cases―State v. Sweeney, 224

Ariz. 107, 113 ¶ 22, 227 P.3d 868, 874 (App. 2010), and State v. Teagle, 217

Ariz. 17, 24 ¶ 25, 170 P.3d 266, 273 (App. 2007)―have cited with approval

Foreman’s “serve to eliminate” language, 369 F.3d at 781. He asserts that the

court of appeals’ disavowal of that language in this case has created a split

of authority on the court of appeals.

¶16           We do not read either Teagle or Sweeney, which merely quote




                                        9
                             STATE v. EVANS
                            Opinion of the Court

the cited language from Foreman, as creating a rule requiring a separate

showing. The court of appeals in this case read them similarly, disavowing

the “serve to eliminate” language in Foreman only insofar as it “articulates

a standard not present in Sokolow[].” Evans, 235 Ariz. at 319 ¶ 16, 332 P.3d

at 66.    It correctly held that “[w]hen determining whether reasonable

suspicion exists, the police are not required to rule out the possibility of

innocent explanations for a defendant’s conduct.” Id. at 320 ¶ 19, 332 P.3d

at 67 (quoting State v. Ramsey, 223 Ariz. 480, 485 ¶ 23, 224 P.3d 977, 982 (App.

2010)).

¶17           We hold that reasonable suspicion under the Fourth

Amendment does not require officers to testify about how their

observations reduce or eliminate the possibility that innocent travelers will

be subject to seizures or trial courts to make specific findings on that issue.

Objectively reasonable, particularized suspicion of criminal activity

necessarily will reduce the risk of sweeping in a substantial number of

innocent travelers.

                            III. CONCLUSION

¶18           We affirm the opinion of the court of appeals and the trial

court’s denial of Evans’s motion to suppress.




                                      10
