State v. Ampey

609 P.2d 96, 125 Ariz. 281, 1980 Ariz. App. LEXIS 396

• Court: Court of Appeals of Arizona
• Decided: January 31, 1980
• Docket: 1 CA-CR 4080
• Status: Published

Opinions

OPINION

JACOBSON, Judge.

The defendant, Jeffrey Allen Ampey, raises the propriety of the stop of his vehicle under the doctrine of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and the sufficiency of the evidence to show the substance he possessed was marijuana.

The defendant was charged with the crime of possession of marijuana. Following the denial of his motion to suppress, the matter was submitted to the trial court on the basis of the police report. The defendant was found guilty of a misdemeanor and fined $127.00. He appeals.

The facts giving rise to the stop, arrest and seizure are that on September 23, 1978, Officer Michael Davin of the Phoenix Police Department, observed the defendant, a black man, getting into a car parked in front of a convenience market near the intersection of Cave Creek Road and Cactus Road. Seated in the car was a white male companion.

Officer Davin was aware that two days earlier, a black man and a white man working as a team had committed an armed robbery of a gas station approximately a block from the convenience market. Officer Davin also had information that a suspect in that robbery lived in the 3700 or 3800 block of East Sunnyside Drive. The defendant’s vehicle proceeded in that general direction after leaving the convenience market.

Officer Davin, after making his observation, contacted the detective in charge of the robbery investigation by radio to determine if any further information was available. After being advised that there was none, Officer Davin inquired as to whether he should stop the vehicle containing the defendant which he was then following. He was advised, “Yeah, you might as well go ahead,” at which point Officer Davin turned on his red lights and pulled the defendant’s vehicle over.

The defendant got out of his car and walked back toward the police car, meeting Officer Davin about halfway between the parked vehicles. Officer Davin immediately recognized that the defendant did not remotely resemble the description of the robbery suspect. However, as they were talking, the officer smelled freshly burned marijuana on the defendant’s person. He then went to the vehicle, looked through the open driver’s window and saw a number of partially smoked marijuana cigarettes in the ash tray. A plastic bag containing a green leafy substance which appeared to be marijuana was found in the glove compartment.

Officer Davin’s police report stated that he had training in recognizing the smell of freshly burned marijuana, that he knows the physical characteristics of marijuana and that during his four years on the police force he had made numerous marijuana arrests. In addition, the report contained statements by the defendant that the marijuana found was his, that he knew it was in the glove compartment and that he grew it himself for his own consumption.

The defendant first argues that the initial stop of the vehicle was without probable cause (the state agrees with this contention) and the information possessed by Officer Davin did not rise to the level of a “reasonable suspicion” to justify an investigative stop under Terry v. Ohio, supra. He argues that if the officer had seen two white men at the convenience market, the stop would never have occurred. He concludes, therefore, that as the defendant’s race was the only identifiable characteristic giving rise to the stop, the stop was racially motivated and consequently impermissible.

We disagree. The defendant’s race was simply one of the identifying characteristics within the officer’s knowledge that matched the robbery suspects. This information was no different than a description that the robbery suspects wore identifiable clothing. It was this identifying characteristic, matched, with the fact that his companion was white, that the robbery was of recent origin and that the vehicle was proceeding in the general direction of an address of a suspect that must be considered in determining whether the officer had a reasonable suspicion to justify an investigative stop.

Viewed under the totality of these circumstances, we hold the initial stop of the defendant was justified and that the trial court properly denied the motion to suppress. Once the stop was accomplished, the defendant concedes that probable cause developed thereafter to allow the seizure of the offending substance.

The defendant finally argues that since there was no chemist’s report showing the “green leafy substance” to be marijuana, there is insufficient evidence to convict him. Again we disagree. Besides the officer’s report which possibly had sufficient foundation to qualify him as an expert in marijuana identification, the defendant himself admitted the substance was marijuana. In the absence of contrary evidence, this is sufficient evidence that the substance was marijuana to convict.

Judgment and sentence affirmed.

HAIRE, P. J., concurs.