In re the Appeal in Pima County Juvenile Delinquency Action No. 102091-01

783 P.2d 1213, 162 Ariz. 421, 48 Ariz. Adv. Rep. 65, 1989 Ariz. App. LEXIS 328
CourtCourt of Appeals of Arizona
DecidedNovember 30, 1989
DocketNo. 2 CA-JV 89-0034
StatusPublished

This text of 783 P.2d 1213 (In re the Appeal in Pima County Juvenile Delinquency Action No. 102091-01) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Appeal in Pima County Juvenile Delinquency Action No. 102091-01, 783 P.2d 1213, 162 Ariz. 421, 48 Ariz. Adv. Rep. 65, 1989 Ariz. App. LEXIS 328 (Ark. Ct. App. 1989).

Opinion

OPINION

HATHAWAY, Judge.

This appeal is taken from the orders of the juvenile court adjudicating the minor delinquent on charges of possession of cocaine for sale (A.R.S. § 13-3408(A)(2)) and possession or use of cocaine within 300 feet of a school (A.R.S. § 13-3411(A)(2)) and placing him on probation. The issues raised on appeal pertain to the juvenile court’s denial of the minor’s motions to suppress.

On Monday, February 20, 1989, at approximately 3:30 p.m., Tucson Police Officer Stevenson was hailed by a passing motorist in the area of Drexel Road and Campbell Avenue in Tucson. The motorist told the officer that, as he was driving eastbound on Drexel over a wash that runs underneath Drexel, he observed a juvenile “pop up from the wash that runs there underneath the bridge, look toward his vehicle, popped back down in the wash, popped back up, looked at the vehicle again and go back down under the bridge at the wash.” The officer drove to the bridge, parked his vehicle and walked down into the wash.

The wash is sufficiently wide at the point where it is crossed by Drexel that the bridge contains three large, rectangular tunnels approximately six feet tall. There are three schools on the block immediately south of Drexel. Sierra Middle School is located on the west side of the wash, Sun-nyside Adaptive Education School is located on the east side of the wash, and Sunny-side High School is located to the south of both these schools. The schools are separated from the wash by chain link fences, and the officer testified that from his experience in working with school officers, the children were instructed not to enter the wash.

The officer spotted appellant sitting alone in the tunnel on the west side of the bridge. He was wearing a heavy jacket, despite the fact that it was “shirt sleeve” weather. The officer observed two other juveniles approaching the tunnel. He called to the three to come to him with their hands out of their pockets. All three complied, but appellant continued to place his hands in his jacket pockets despite the repeated request of the officer that he not do so. He also looked quickly over his shoulder several times. When appellant was approximately two feet from the officer, he once again reached into his pocket and quickly pulled his hand out. The officer grabbed his hand and told the minor to drop whatever was in it. The minor complied and revealed a brown vial with a spoon attached to it. The officer testified that based on his training and experience, he believed the vial to contain cocaine.

Appellant was placed under arrest and searched. The search revealed a small brown vial containing white powder, a large clear vial containing white powder with a silver spoon attached, a plastic bag containing white powder, two white envelopes, and $460 in $20 bills. He was then given his Miranda warnings and agreed to answer questions. He told the officer that the white substance was cocaine, that the money came from his allowance and from selling cocaine and that he took cocaine with him to Sunnyside High School every, day and sold it to other students.

Appellant moved to suppress the physical evidence and his statements to the officer on the ground that the officer had no right to “search out and hail [the minor] from under the bridge” because the information provided by the motorist gave him no reason to suspect any criminal activity, citing inter alia Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); and United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). Appellant concedes that, if the officer was justified in calling the minor to him, the minor’s behavior warranted the officer’s subsequent actions.

[423]*423The cited cases address the reasonableness under the fourth amendment of “seizures” by the police which are “less intrusive than a traditional arrest.” Brown v. Texas, 443 U.S. at 50, 99 S.Ct. at 2640, 61 L.Ed.2d at 361. The analysis in each case begins with the determination whether the conduct in question constituted a “seizure” within the meaning of the fourth amendment. Not every contact between a police officer and a citizen, however, implicates the fourth amendment. See Florida v. Rodriguez, 469 U.S. 1, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984). Under Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889, 903 (1968), a seizure occurs “whenever a police officer accosts an individual and restrains his freedom to walk away____”

In the present case, we do not believe that the officer’s conduct amounted to a seizure of appellant. The only testimony was that the officer stood at the entrance of the tunnel and “called the subject[s] to come toward me” with their hands out of their pockets. He did not at that point ask the minors their names, Terry v. Ohio, supra, nor did he ask them to explain what they were doing in the wash, Brown v. Texas, supra. To hold that this conduct constitutes a “seizure” within the meaning of the fourth amendment would mean that a policeman is essentially precluded from addressing any inquiry to a citizen unless he suspects criminal activity. Such a conclusion would severely restrict legitimate police activity such as, in this case, investigating the well-being of a child whose conduct has aroused the concern of a passerby, and is not required by Terry or its progeny.

Even if the officer’s actions were construed as a seizure of appellant, however, there was no fourth amendment violation. That amendment does not preclude seizures, but only requires that they be reasonable. United States v. Brignoni-Ponce, 422 U.S. at 878, 95 S.Ct. at 2578, 45 L.Ed.2d at 614. Whether a seizure is reasonable requires a balancing of the public and private interests involved. Id. at 878, 95 S.Ct. at 2579, 45 L.Ed.2d at 614-15.

Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.
A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.

Brown v. Texas, 443 U.S. at 50-51, 99 S.Ct. at 2640, 61 L.Ed.2d at 362 (citations omitted).

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Related

Terry v. Ohio
392 U.S. 1 (Supreme Court, 1968)
United States v. Brignoni-Ponce
422 U.S. 873 (Supreme Court, 1975)
Delaware v. Prouse
440 U.S. 648 (Supreme Court, 1979)
Brown v. Texas
443 U.S. 47 (Supreme Court, 1979)
Florida v. Rodriguez
469 U.S. 1 (Supreme Court, 1984)
State v. Hernandez
320 P.2d 467 (Arizona Supreme Court, 1958)
State v. Loyd
574 P.2d 1325 (Court of Appeals of Arizona, 1978)

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Bluebook (online)
783 P.2d 1213, 162 Ariz. 421, 48 Ariz. Adv. Rep. 65, 1989 Ariz. App. LEXIS 328, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-appeal-in-pima-county-juvenile-delinquency-action-no-102091-01-arizctapp-1989.