Just because someone is at the scene of suspicious activity does not give police the right to search that person, the Arizona Supreme Court ruled Tuesday.
In a ruling curbing what police can do, the justices said the evidence presented shows that Anthony B. Primous posed no threat to officers. In fact, they noted, all he was doing — and all he continued to do — when cops arrived was sitting with an infant in his lap.
What that most immediately means is that the 2 grams of marijuana police found when they searched him — the equivalent of less than a tenth of an ounce — was improperly seized. And that effectively overturns his conviction for illegal drug possession.
The decision also sets some guidelines for what police can and cannot do in similar circumstances. And the justices, in refusing to let the illegally seized marijuana be used as evidence, said they were sending a message to police to ensure that they do not have “a de facto policy of frisking all individuals with whom police have investigative encounters in high-crime neighborhoods.”
This case involves an incident where Phoenix police went to an apartment complex in what was described as a high-crime neighborhood. They were looking for a suspect with an outstanding warrant who they believed carried and sold weapons.
The officers approached four men who were talking outside the apartment complex, two who were standing and two who were seated, including Primous. None of the men were the suspect.
According to police, the men appeared nervous. One ran and was chased by other officers; the others remained and made no sudden moves.
The officers then told the other men they were going to pat them down for weapons. None were found but an officer felt an object in Primous’ pocket which turned out to be a baggie with marijuana.
A trial judge refused to disallow the use of the evidence and Primous was convicted at a bench trial and sentenced to one year of unsupervised probation.
But Supreme Court Justice Clint Bolick said that decision was legally wrong.
“Although a frisk is less intrusive than a full-body search, the Fourth Amendment prohibits any search of an individual unless the police have a reasonable belief that crime is afoot and the individual is armed and dangerous,” the justice wrote. More to the point, Bolick said the risk has to be from “the person to be searched.”
In this case, Bolick said prosecutors appear to agree that nothing Primous did or said gave rise to a reasonable suspicion that he was engaged in criminal activity or was armed and dangerous.
“He was not the suspect police were seeking,” the justice wrote, saying when officers approached he was seated with an infant in his lap, talking with the other men.
“He did not react in a suspicious manner to the police encounter or when one of the other men ran away,” Bolick continued.
“He was cooperative,” the justice continued. “In sum, Primous gave the police no justification to search him.”
And Bolick said the mere fact that Primous had been speaking with the man who fled does not suggest Primous himself was engaged in criminal activity or dangerous.
The court, in its ruling, did acknowledge the encounter occurred in a dangerous neighborhood.
But the justices said that, by itself, does not authorize people to pat down those they encounter. And they said it also is irrelevant to the only legal authorization for a search: whether an individual is involved in criminal activity and is armed and dangerous.
The justices also rebuffed arguments by prosecutors that even if the search was improper they should still be able to use the marijuana they seized to prosecute Primous.
“We find the argument unpersuasive,” Bolick wrote for the court. “Suppressing the illegally seized evidence here helps ensure that frisks are based upon the legitimate factors outlined … and do not devolve into a de facto policy of frisking all individuals with whom police have investigative encounters in high-crime neighborhoods.”
