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State v. Primous

Court of Appeals of Arizona, First Division

May 5, 2016

STATE OF ARIZONA, Appellee,
v.
ANTHONY BENARD PRIMOUS, Appellant.

Appeal from the Superior Court in Maricopa County No. CR2012-005697-001 The Honorable Pamela S. Gates, Judge

Arizona Attorney General's Office, Phoenix By Robert A. Walsh Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix By Carlos Daniel Carrion Counsel for Appellant

Presiding Judge Peter B. Swann delivered the opinion of the court, in which Judge Lawrence F. Winthrop and Judge Donn Kessler joined.

OPINION

SWANN, Judge

¶1 Defendant Anthony Benard Primous appeals the superior court's denial of his motion to suppress marijuana found when police frisked him for weapons. Although we reject frisks of lawfully detained individuals' companions as a matter of course, we hold, based on the totality of the circumstances here, that the frisk was justified and the seizure of the marijuana was lawful. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On February 8, 2012, at approximately 10:15 a.m., five police officers, including Officers Ohland and Casillas, arrived at a Phoenix apartment complex in a neighborhood known for violent crimes. They were looking for an individual who had an outstanding felony arrest warrant, acting on information that the individual frequented the area, carried weapons, and sold drugs and weapons.

¶3 Ohland and Casillas approached a group of four men gathered outside one of the apartments. The officers noticed surveillance cameras on the apartment. Two of the men were standing; two others were seated, including Defendant, who held a young child on his lap. The group appeared to be talking. Defendant did not match the description of the subject of the arrest warrant.

¶4 Ohland and Casillas identified themselves as police officers and Ohland, who was dressed in plainclothes with a badge on the outside of his shirt, asked the men how they were doing. Both officers noticed that one of the standing men appeared nervous. When that man noticed the other three officers approaching from a different direction, he ran and those officers gave chase. The remaining men did not move. Defendant remained seated with the child. He did not exhibit any nervous behavior or make any sudden moves, and he was not visibly armed.

¶5 Ohland immediately began patting down the remaining men for weapons. One of the men (not Defendant) either volunteered or was found to be carrying a small plastic bag of marijuana in his shorts pocket. Ohland then frisked Defendant and felt an object in his shorts pocket that had the same size and consistency as the just-recovered drugs. Ohland removed the object from Defendant's pocket and confirmed that it was a baggie of marijuana.

¶6 The state prosecuted Defendant for misdemeanor possession of marijuana. Defendant moved to suppress the marijuana as the product of an unlawful search. After holding an evidentiary hearing that established the foregoing facts, the court denied Defendant's motion. The court held that "[b]ased on the totality of the circumstances, [the] officers had a reasonable suspicion that criminal activity may be afoot, " and "[a]s a result of the one individual who ran, coupled with the reason for [the officers'] encounter with the group, the dangerousness of the area, the number of individuals remaining compared to the number of officers, and the cameras, [the] officers appropriately decided to perform a pat down search for officer safety."

¶7 The matter proceeded to a bench trial, at the conclusion of which the court found Defendant guilty and placed him on one year of unsupervised probation. Defendant appeals, ...


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