FILED BY CLERK IN THE COURT OF APPEALS STATE OF ARIZONA OCT 28 2010 DIVISION TWO COURT OF APPEALS DIVISION TWO THE STATE OF ARIZONA, ) ) Appellee, ) 2 CA-CR 2010-0093 ) DEPARTMENT B v. ) ) OPINION LANDO ONASSIS AHUMADA, ) ) Appellant. ) )
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20092638001
Honorable John S. Leonardo, Judge
AFFIRMED
Terry Goddard, Arizona Attorney General By Kent E. Cattani and Alan L. Amann Tucson Attorneys for Appellee
Robert J. Hirsh, Pima County Public Defender By David J. Euchner Tucson Attorneys for Appellant
E C K E R S T R O M, Judge. ¶1 After a jury trial, appellant Lando Ahumada was convicted of possessing
both the narcotic drug cocaine and drug paraphernalia. He was sentenced to substantially
mitigated, concurrent prison terms of 2.25 and .75 years. He argues the trial court should
have granted his motion to suppress the cocaine found in his pocket because the officer‟s
search exceeded the scope of the consent Ahumada had given. He also argues the search
was unlawful under the “plain-feel” doctrine. Because we conclude the evidence was
lawfully seized under that doctrine, we affirm the trial court‟s ruling and, in turn,
Ahumada‟s convictions and sentences.
Factual and Procedural Background
¶2 When reviewing the denial of a motion to suppress evidence, we consider
only the evidence presented at the suppression hearing, viewing that evidence in the light
most favorable to upholding the trial court‟s ruling. State v. Teagle, 217 Ariz. 17, ¶ 2,
170 P.3d 266, 269 (App. 2007). Tohono O‟Odham police officer Paul South testified he
was called to the Desert Diamond Casino to respond to a “probable drug transaction.”
There, he viewed a surveillance video in which a person he later identified as Ahumada
approached a man sitting at the casino bar. The men spoke briefly and looked around,
“making sure that no one was watching them.” Then the seated man “handed something
up” to Ahumada, who placed the item in his pocket.
¶3 South found Ahumada near the slot machines, identified himself, and asked
Ahumada his name and whether “he had anything illegal on him.” Ahumada said he did
not. South then asked Ahumada to empty his pockets, which Ahumada appeared to do.
South next asked if he could conduct a “pat down,” to which Ahumada agreed. South felt
2 an object in Ahumada‟s right pocket and asked what it was. Ahumada said he did not
know, and South reached in and pulled out “two small plastic bindles with a white rocky
substance in them.”
¶4 The trial court denied Ahumada‟s motion to suppress, finding it was
“objectively reasonable” for the officer to believe Ahumada‟s consent to the pat-down
included the inside of his pants pockets. The evidence was admitted at trial, Ahumada
was found guilty, and this appeal followed his conviction and sentencing.
Discussion
¶5 Ahumada argues the trial court abused its discretion when it denied his
motion to suppress the evidence found in his pocket. Specifically, he contends the officer
exceeded the scope of Ahumada‟s consent to a pat-down when he reached into
Ahumada‟s pocket. When reviewing a trial court‟s ruling on a motion to suppress, “we
evaluate discretionary issues for an abuse of discretion but review legal and constitutional
issues de novo.” State v. Huerta, 223 Ariz. 424, ¶ 4, 224 P.3d 240, 242 (App. 2010). We
will uphold a trial court‟s ruling on a motion to suppress if it is correct for any reason.
State v. Cañez, 202 Ariz. 133, ¶ 51, 42 P.3d 564, 582 (2002).
¶6 “The Fourth Amendment to the United States Constitution prohibits
unreasonable searches and seizures.” State v. Jones, 188 Ariz. 388, 395, 937 P.2d 310,
317 (1997). Generally, searching a person without a warrant supported by probable
cause is unreasonable. State v. Gant, 216 Ariz. 1, ¶ 8, 162 P.3d 640, 642 (2007), aff’d,
Arizona v. Gant, ___ U.S. ___, 129 S. Ct. 1710 (2009). However, “„a few specifically
established and well-delineated exceptions‟” exist. Id., quoting Katz v. United States,
3 389 U.S. 347, 357 (1967). Consent, voluntarily given, is one of those exceptions. State
v. Davolt, 207 Ariz. 191, ¶ 29, 84 P.3d 456, 468 (2004). Here, Ahumada does not
contend his consent to the pat-down was involuntary; rather, he argues the officer
exceeded the scope of that consent.
Scope of Consent
¶7 “The standard for measuring the scope of a suspect‟s consent under the
Fourth Amendment is that of „objective‟ reasonableness—what would the typical
reasonable person have understood by the exchange between the officer and the suspect?”
Florida v. Jimeno, 500 U.S. 248, 251 (1991); accord State v. Swanson, 172 Ariz. 579,
584 n.5, 838 P.2d 1340, 1345 n.5 (App. 1992). Here, the trial court found that a
reasonable person would have understood Ahumada‟s consent to the pat-down to include
consent to search his pockets. The court concluded Officer South‟s previous request for
Ahumada to empty his pockets had “identified the object of the search.” Cf. United
States v. Ross, 456 U.S. 798, 824 (1982) (holding scope of warrantless search of
automobile “defined by the object of the search and the places in which there is probable
cause to believe that it may be found”). It also found Ahumada had not objected to the
search of his pocket and concluded this circumstance tended to show it was reasonable
for South to believe Ahumada had consented. See United States v. Jones, 356 F.3d 529,
534 (4th Cir. 2004) (“[A] suspect‟s failure to object (or withdraw his consent) when an
officer exceeds limits allegedly set by the suspect is a strong indicator that the search was
within the proper bounds of the consent search.”).
4 ¶8 Ahumada counters that a pat-down is reasonably understood to involve the
passing of an officer‟s hands over the outside of a person‟s clothing only, commonly to
determine whether the person is carrying a weapon. This understanding of a “pat down”
is consistent with our Supreme Court‟s use of the term—and the limitations on that type
of search—in the context of investigatory detentions conducted pursuant to Terry v. Ohio,
392 U.S. 1, 16 (1968).
¶9 Terry held that, “[w]hen an officer is justified in believing that the
individual whose suspicious behavior he is investigating at close range is armed and
presently dangerous to the officer or to others,” the officer may “conduct a carefully
limited search of the outer clothing of such person[] in an attempt to discover weapons
[that] might be used to assault him.” Id. at 24, 30. Since Terry, the Court has
emphasized that “„[t]he purpose of this limited search is not to discover evidence of
crime, but to allow the officer to pursue his investigation without fear of violence.‟”
Minnesota v. Dickerson, 508 U.S. 366, 373 (1993), quoting Adams v. Williams, 407 U.S.
143, 146 (1972); see also United States v. Casado, 303 F.3d 440, 447 (2d Cir. 2002)
(officer exceeded scope of Terry by reaching inside suspect‟s pocket and removing all
items without first doing pat-down for weapons). And lower courts repeatedly have held
that a pat-down search does not lawfully include reaching into the pockets of clothing to
secure items that could not possibly have resembled weapons during the pat-down. See,
e.g., United States v. Miles, 247 F.3d 1009, 1014-15 (9th Cir. 2001) (officer‟s
manipulation of box in suspect‟s pocket exceeded scope of Terry pat-down when object
“could not possibly be a weapon”); State v. Valle, 196 Ariz. 324, ¶ 12, 996 P.2d 125, 129
5 (App. 2000) (search of pocket exceeded scope of Terry frisk when officer testified he had
not believed object was weapon); Davis v. State, 829 S.W.2d 218, 219, 221 (Tex. Crim.
App. 1992) (search of matchbox found in suspect‟s coat pocket during pat-down
exceeded scope of weapons search under Terry because “unreasonable for two armed
police officers to fear a razor blade that might be contained in a matchbox”).
¶10 Although the pat-down search here was not conducted pursuant to Terry
and therefore was not necessarily subject to the constraints placed upon such searches in
that case and its progeny, we cannot address the scope of consent to a pat-down search
without considering the objectively reasonable understandings of its nature, purpose, and
extent. See Jimeno, 500 U.S. at 251. We think it relevant that, in the most common
context for pat-down searches—namely, those conducted by officers during investigatory
encounters—a pat-down is understood by our jurisprudence, and presumably therefore by
our officers, to be a search for weapons, conducted for officer safety, that does not
include searching the inside of the suspect‟s pockets for other contraband.
¶11 Nor, in our view, does South‟s previous focus on the contents of
Ahumada‟s pockets necessarily define the scope of the pat-down later requested. While
South‟s request that Ahumada empty his pockets undoubtedly conveyed the officer‟s
interest in their contents, Ahumada could have reasonably understood that request, like
the request to conduct a pat-down, as an effort by South to satisfy himself that Ahumada
was unarmed. And Ahumada‟s strategic decision to empty his pockets only partially,
presumably so that he would not expose the cocaine, tends to contradict the theory that he
6 implicitly was consenting to the full search of the inside of his pockets when he agreed to
the pat-down moments later.
¶12 The trial court cited Ross for the proposition that the scope of a search can
be defined by the apparent object of the search, a principle also articulated in Jimeno.
“The scope of a search is generally defined by its expressed object.” 500 U.S. at 251; see
also Ross, 456 U.S. at 824 (holding scope of warrantless search of automobile “defined
by the object of the search and the places in which there is probable cause to believe that
it may be found”).1 But in Jimeno, the officer expressly articulated to the defendant that
the object of the search was narcotics, 500 U.S. at 251, and in Ross, the circumstances
preceding the search made its object clear. 456 U.S. at 800-01. Here, by contrast, South
asked only if Ahumada possessed anything illegal. And, as discussed above, the fact that
South previously had asked Ahumada to empty his pockets did not clarify the officer‟s
goal in conducting the pat-down thereafter. Thus, in our view, South‟s previous request
that Ahumada empty his pockets did little to objectively clarify the scope of the consent
Ahumada provided when he agreed to the pat-down.
¶13 Although no Arizona case has squarely addressed the scope of consent to a
non-Terry pat-down, cases with similar facts from other jurisdictions are split as to
1 Since then, the Court has not expressly extended the principle to searches of persons and one commentator suggests it ought not do so. See 4 Wayne R. LaFave, Search and Seizure § 8.1(c), at 28 (4th ed. 2004) (stating the “Jimeno principle . . . cannot be literally applied to consent searches of the person”). But see Safford Unified Sch. Dist. No. 1 v. Redding, ___ U.S. ___, 129 S. Ct. 2633, 2649 (2009) (Thomas, J., concurring in part and dissenting in part) (noting Ross would apply to search of student); Pinkney v. State, 742 N.E.2d 956, 960 (Ind. Ct. App. 2001) (citing Jimeno principle to support officer‟s search of pocket after suspect consented “to search his person for drugs and weapons,” concluding pocket “might reasonably contain those specified items”). 7 whether a search into a suspect‟s pocket exceeds the scope of consent to a pat-down.
Compare United States v. Smith, 649 F.2d 305, 307, 309 (5th Cir. 1981) (when consent to
pat-down given to drug enforcement agent, officer “acted well within the scope of a
reasonable narcotics pat-down” in removing cocaine from inside pocket of suspect‟s
jacket), and Aranda v. State, 486 S.E.2d 379, 382 (Ga. Ct. App. 1997) (consent to pat-
down not exceeded by officer‟s investigation of “suspicious cardboard-like object” under
suspect‟s shirt when “consent given did not restrict the patdown to one for weapons”),
with United States v. Lemons, 153 F. Supp. 2d 948, 963 (E.D. Wis. 2001) (finding
consent to pat-down did not allow for search of pockets because “the ordinary person in
either the suspect‟s or the officer‟s position would know that a consent to a pat-down
means a consent to a Terry pat-down search”), Sanders v. State, 732 So. 2d 20, 21 (Fla.
App. 1999) (“[I]n the absence of additional circumstances which would justify a more
complete search, consent to a mere pat down does not include consent to reach into the
pockets of a suspect and retrieve the contents.”), State v. Labine, 733 N.W.2d 265, ¶ 20
(S.D. 2007) (finding officer‟s reaching into suspect‟s pockets and removing plastic bag of
marijuana exceeded scope of consent for pat-down), and Royal v. Commonwealth, 558
S.E.2d 549, 552 (Va. App. 2002) (consent to pat-down search did not give officer
permission to search suspect‟s pockets either at time of pat-down or after temporary
recess).
¶14 Here, the trial court found it “a close question” but concluded the state had
proven Ahumada had consented to a search of his pocket. We agree it was a close
question but would not necessarily reach the same legal conclusion, given that the state
8 had the burden to show the search was within the scope of consent. See Valle, 196 Ariz.
324, ¶ 19, 996 P.2d at 131; see also State v. Adams, 197 Ariz. 569, ¶ 16, 5 P.3d 903, 906
(App. 2000) (reviewing constitutionality of search de novo). The facts and circumstances
of this case appear ambiguous at best as to whether reasonable persons would understand
that, in consenting to the pat-down, they were agreeing to an intrusion into their pockets.
See State v. Cañez, 202 Ariz. 133, ¶ 53, 42 P.3d 564, 582 (2002) (consent to search must
be expressed in “unequivocal words or conduct”). But, because Ahumada‟s consent to
the pat-down clearly authorized the officer to feel the presence of the rock-like substance
through the outer areas of Ahumada‟s clothing, and because it was immediately apparent
to South that the substance was contraband, we conclude, for the reasons set forth below,
the search was lawful under the plain-feel doctrine even in the absence of Ahumada‟s
consent.
Plain Feel
¶15 Under the plain-feel exception to the warrant requirement, which has been
likened to the plain-view exception, an officer may reach into a suspect‟s pocket and
seize an item of contraband if the officer “lawfully pats down a suspect‟s outer clothing
and feels an object whose contour or mass makes its identity immediately apparent.”
Minnesota v. Dickerson, 508 U.S. 366, 375 (1993).2 In other words, “[i]n order to seize
2 In Dickerson, the evidence was suppressed because the officer manipulated the item in the suspect‟s pocket before seizing it, thereby subjecting him to an additional search. 508 U.S. at 378. Ahumada argues South manipulated the item before retrieving it, citing the surveillance video that captured the encounter. But the surveillance video shows the encounter from behind and thus does not show South‟s hands clearly enough to determine whether any manipulation occurred. 9 an item discovered by feel in a pat-down search, the officer must have probable cause to
believe that the item is contraband.” In re Pima County Juv. Action No. J-103621-01,
181 Ariz. 375, 378, 891 P.2d 243, 246 (App. 1995); see also Texas v. Brown, 460 U.S.
730, 741-42 (1983) (plurality opinion) (explaining that “immediately apparent” language
does not require higher degree of certainty than probable cause); cf. State v. Garcia, 162
Ariz. 471, 474, 784 P.2d 297, 300 (App. 1989) (search and seizure based upon plain view
required probable cause to believe envelope contained drugs).
¶16 Here, South testified he had seen a surveillance video that showed
Ahumada receive something from another man. Ahumada then put that item into his
pocket as the two looked around, as if to determine whether anyone was watching—
behavior South associated from his training and experience with “drug transactions.”
Ahumada was then under video surveillance from the time the transaction was recorded
until South approached him. South asked Ahumada to empty his pockets, and Ahumada
removed everything but the “lump” South felt when he patted him down. When asked by
the court if he had “draw[n] any conclusions as to what [he] suspected it might be in the
pocket before [he] took the object out,” South responded, “[i]llegal drugs,” specifically
“[c]rack, coke, whatever they can pack up in a rock formation.” He also testified that, in
a pat-down, the feel of illegal drugs is “very distinct” and that he is able to detect
marijuana, powdered cocaine, and rock-shaped drugs by touch.
¶17 Although we acknowledge that rock-like items in a pocket are not
necessarily contraband, the circumstances surrounding the encounter here supported
South‟s suspicion that the rock-like substance in Ahumada‟s pocket was, in all
10 probability, illegal drugs. Ahumada argues these facts did not give South probable cause
to perform a further search of his pocket and seize the cocaine. He contends South “did
not know what was in the pocket; he suspected drugs, but the contents of the pocket were
not „immediately apparent‟ to him.”3
¶18 But probable cause does not require certain knowledge, it requires only
facts sufficient to “„warrant a [person] of reasonable caution in the belief‟ that certain
items may be contraband or stolen property or useful as evidence of a crime.” Brown,
460 U.S. at 742, quoting Carroll v. United States, 267 U.S. 132, 162 (1925). “A
„practical, nontechnical‟ probability that incriminating evidence is involved is all that is
required.” Id., quoting Brinegar v. United States, 338 U.S. 160, 176 (1949). And,
relevant to the determination of probable cause is an officer‟s factual knowledge based on
his law enforcement experience. See Brown, 460 U.S. at 742-43 (officer‟s knowledge
“that balloons tied in the manner of the one possessed by Brown were frequently used to
carry narcotics” among circumstances supplying probable cause to seize item under
plain-view exception).
¶19 Ahumada points to two cases in which this court has concluded the state
did not show the officer had probable cause to seize items felt in a pat-down search, State
v. Valle, 196 Ariz. 324, 996 P.2d 125 (App. 2000), and Pima County No. J-103621-01.
But in those cases, the state presented no evidence that the officer had known, by its feel,
that the item was contraband. Valle, 196 Ariz. 324, ¶ 12, 996 P.2d at 129; Pima County
3 At the suppression hearing, however, defense counsel appeared to concede South had probable cause before reaching into Ahumada‟s pocket. 11 No. J-103621-01, 181 Ariz. at 376, 378, 891 P.2d at 244, 246. And, under conditions
similar to those in this case, other courts have held an officer had probable cause to seize
contraband from inside a suspect‟s clothing based on the feel of the contraband and the
other surrounding circumstances. See, e.g., United States v. Craft, 30 F.3d 1044, 1045
(8th Cir. 1994) (plain-feel doctrine permitted seizing drugs from inside defendant‟s pant
leg when officer felt bulges on defendant‟s ankles “like hard, compact packages” and
officer “aware of the objects‟ incriminating character” based, in part, on experience as
drug enforcement officer at airport); Doctor v. State, 596 So. 2d 442, 445 (Fla. 1992)
(seizure of cocaine lawful because totality of circumstances gave officer probable cause
to believe defendant carrying crack cocaine in groin area); State v. Rushing, 935 S.W.2d
30, 33 (Mo. 1996) (finding totality of circumstances gave officer probable cause to reach
into suspect‟s pocket and seize container holding cocaine); Commonwealth v. Johnson,
631 A.2d 1335, 1340-41 (Pa. Super. Ct. 1993) (officer‟s tactile impression and years of
experience “combined sufficiently to betray the illegal nature of the object on appellee‟s
person,” giving officer probable cause to seize); State v. Guy, 492 N.W.2d 311, 318 (Wis.
1992) (officer‟s seizure of cocaine from defendant‟s pocket lawful when “[w]hat she felt
and what she knew at the time she felt it” provided probable cause to believe bulge in
pocket connected to criminal activity).
12 Disposition
¶20 We conclude the trial court was legally correct in denying Ahumada‟s
motion to suppress evidence. Accordingly, we affirm his convictions and sentences.
/s/ Peter J. Eckerstrom PETER J. ECKERSTROM, Judge
CONCURRING:
/s/ Garye L. Vásquez GARYE L. VÁSQUEZ, Presiding Judge
/s/ Virginia C. Kelly VIRGINIA C. KELLY, Judge