Appeal from the Superior Court in Cochise County. The Honorable Wallace R. Hoggatt, Judge. No. CR-200500455. Opinion of the Court of Appeals, Division Two, 235 Ariz. 314, 332 P.3d 61 (2014) .
Appeal from the Superior Court in Cochise County, AFFIRMED. Opinion of the Court of Appeals, Division Two, AFFIRMED.
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 BRUTINEL and TIMMER joined.
¶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, 101 S.Ct. 690, 66 L.Ed.2d 621 (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.
¶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 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 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" ...