State of Arizona v. Lemon Montrea Johnson

FILED BY CLERK
IN THE COURT OF APPEALS MAY 21 2009
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO DIVISION TWO

THE STATE OF ARIZONA, )
) 2 CA-CR 2006-0079
Appellee, ) DEPARTMENT B
)
v. ) OPINION
)
LEMON MONTREA JOHNSON, )
)
Appellant. )
)

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. CR-20021357

Honorable Ted B. Borek, Judge

AFFIRMED

Terry Goddard, Arizona Attorney General
By Kent E. Cattani and Joseph L. Parkhurst Tucson
Attorneys for Appellee

Robert J. Hirsh, Pima County Public Defender
By M. Edith Cunningham Tucson
Attorneys for Appellant

B R A M M E R, Judge.

¶1 In State v. Johnson, 217 Ariz. 58, ¶ 27, 170 P.3d 667, 673 (App. 2007)

(Johnson I), we determined a police officer’s pat-down search of appellee Lemon Johnson
violated the Fourth Amendment. We reasoned the search was improper because the initially

lawful seizure of passenger Johnson “incident to a traffic stop of the driver [had] evolved

into a separate, consensual encounter.” We so reasoned because Johnson would have felt

free to remain in the vehicle rather than get out to continue his conversation with the officer,

and her questioning of him was unrelated to the reason for the traffic stop. Id. Our supreme

court denied the state’s petition for review of our decision.

¶2 The United States Supreme Court reversed, determining the encounter was not

consensual because the initial seizure had not ended. Arizona v. Johnson, ___ U.S. ___, 129

S. Ct. 781, 788 (2009) (Johnson II). The Court also determined that, because passengers in

a stopped vehicle are lawfully seized, officers may, consistent with the Fourth Amendment,

perform a pat-down search of such a passenger absent a suspicion of criminal activity if the

officer had a reasonable suspicion the passenger was armed and dangerous. Id. at 787. The

Court remanded the case to this court for further proceedings, including determining if the

officer reasonably suspected Johnson was armed and dangerous. Id. at 788, 788 n.2.

¶3 Because we conclude the officer’s pat-down search was constitutional, the trial

court did not err in denying Johnson’s motion to suppress evidence discovered in that search.

We also reject Johnson’s arguments that the reasonable doubt instruction the court gave was

structural error and that the court’s finding of prior convictions violated his right to a jury

trial. We therefore affirm Johnson’s convictions and sentences.

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 Factual and Procedural Background

¶4 When reviewing the denial of a motion to suppress, “we consider only the

evidence presented at the suppression hearing and view that evidence and reasonable

inferences therefrom in the light most favorable to upholding the court’s ruling.” State v.

May, 210 Ariz. 452, ¶ 4, 112 P.3d 39, 41 (App. 2005). We set forth the factual background

in our previous opinion as follows:

Oro Valley Police Officer Maria Trevizo, on assignment
with the state gang task force, was on patrol in Tucson with two
other officers at approximately 9 p.m. on April 19, 2002. The
officers were in an area in which “[d]irectly to the west . . . [is]
a neighborhood known as Sugar Hill . . . that is a gang-related
area.” Trevizo testified Sugar Hill is associated with the Crips
gang, and members of that gang wear blue apparel. Trevizo also
noted that “gang members will often, in general, possess
firearms.”

An officer in Trevizo’s vehicle “r[a]n the license plate of
a vehicle” and found it had a “mandatory insurance
suspension.” FN1 Trevizo and the other officers in the vehicle
“were not investigating gang activity as part of the traffic stop”
and were not “targeting [the vehicle] for [their] gang task force
function.” They also “[did not] know where [the car had] been
. . . [and did not] know where it [was] going.” The officers had
seen no behavior in the vehicle “indicative of criminal activity.”

FN1. Trevizo stated a mandatory insurance
suspension occurs when “the Motor Vehicle[]
Department has suspended the registration . . . for
an insurance-related purpose . . . . Sometimes
people will get a ticket for [not having] insurance
and not pay it, or sometimes they’ve been cited
multiple times for not having insurance. There’s
different reasons.” According to Trevizo, it “is a
ticketable offense” and “[a] civil citation” but

3
 does not “bring concern with regard to criminal
activity.”

Johnson was sitting in the rear of the vehicle, with the
driver and another passenger in the front seats. Trevizo stated
she had no “reason to believe that [Johnson] was engaged in
criminal activity or about to engage in criminal activity when
[she] made the traffic stop.” Johnson “looked back [at the
officers], said something to the people in the front, and then
continued to look back at [the officers] while [they] initiated the
stop.” Trevizo testified this was unusual conduct for an
occupant of a vehicle being stopped, and it made her nervous.
One officer spoke to the driver and “at some point . . . asked
everybody to put their hands where he [could] see them.” He
asked whether any of the men in the car had weapons and all the
occupants said no. The officer also had the driver exit the
vehicle to get “his basic information: driver’s license,
registration, insurance.”

Trevizo examined Johnson for seven indicia of gang
affiliation.FN2 Johnson was dressed entirely in blue, and had a
blue bandanna. Trevizo testified that bandannas are often used
“to show . . . allegiance or . . . affiliation with a certain gang”
and that the only indicator she saw was Johnson’s blue clothing.
The driver of the car, however, was wearing red clothing.

FN2. Trevizo testified the “seven basic . . .
criteria to determin[e] if somebody is a gang
member” are: 1) the colors the person is wearing,
2) tattoos, 3) gang signs, 4) self-proclamation of
membership, 5) particular jewelry that might be
associated with gangs, 6) photographs, and
7) “correspondence between gang members.”

Trevizo said she was “concern[ed]” because Johnson had
“a scanner in his jacket pocket,” which people normally do not
have “unless they’re going to be involved in some kind of
criminal activity or going to try to evade police by listening to
the scanner.” It was the first time Trevizo had seen anyone
“carry [a scanner] on their person.” According to her, “[t]here’s

4
nothing illegal about [having a scanner],” but “it’s out of the
ordinary.” Trevizo did not know whether the scanner was
turned on or off.

Trevizo began to talk with Johnson, who was still in the
vehicle. He was cooperative and told her his name and date of
birth but said he did not have any identification on him. He said
he was from Eloy, and Trevizo testified there is a “predominant
gang [there] called the Trekkle Park Crips.” Trevizo asked
Johnson if he had spent any time in prison, and Johnson
responded that “he had done time for burglary and had been out
for about a year.”

Trevizo testified she “wanted to gather intelligence about
the gang [Johnson] might be in” because “gather[ing]
intelligence” was one of her “main missions in the task force.”
She hoped to learn about how big his possible gang was, where
it was located, who its leaders were, and “what kind of crimes
they’re involved in.” She sought to isolate him from the other
occupants of the vehicle in the hope he would contribute more
information. Her “intentions were only to gather gang
intelligence and talk to him.” The other passenger remained in
the vehicle throughout the encounter, talking to the third police
officer. According to Trevizo, Johnson “could have refused [to
get out of the car], certainly.”

Once Johnson left the vehicle in a normal manner,
Trevizo “asked him to turn around,” and she “patted him down
for officer safety because [she] had a lot of information that
would lead [her] to believe he might have a weapon on him.”
Trevizo did not tell Johnson she planned to pat him down before
he got out of the vehicle but “made the decision” when he exited
the vehicle. It was “the totality of what happened that evening
that led [her] to pat him down.” She had “not observe[d]
anything that appeared to be criminal” at the time of the
pat-down search. She stated he could have refused to turn
around and put up his hands for the pat-down search. Trevizo
felt the butt of a gun near Johnson’s waist when she patted him
down. Johnson then began to struggle, and she put handcuffs on
him.

5
 Johnson was charged with possession of a weapon by a
prohibited possessor, possession of marijuana, and resisting
arrest. The trial court denied his motion to suppress the
evidence found in Trevizo’s pat-down search. A jury found
Johnson guilty of the first two charges but not guilty of resisting
arrest.

Johnson I, 217 Ariz. 58, ¶¶ 2-10, 170 P.3d at 668-70.

¶5 After finding Johnson had two prior felony convictions, the trial court

sentenced him to a mitigated, eight-year prison term for prohibited possession of a deadly

weapon and to a concurrent, presumptive, one-year prison term for marijuana possession.

Johnson appealed and, as we noted above, we reversed the court’s denial of Johnson’s

motion to suppress. Id. ¶ 30. Because we found the encounter had been consensual,

however, we expressly declined to reach the question whether Trevizo had a reasonable

suspicion Johnson was armed and dangerous. Id. ¶ 27. Nor did we reach the other issues

raised in Johnson’s appeal. Id. ¶ 30. Pursuant to the Supreme Court’s mandate, we now

address these questions.

Discussion

Armed and Dangerous

¶6 “We review a trial court’s ruling on a motion to suppress evidence for an abuse

of discretion if it involves a discretionary issue, but review constitutional issues and purely

legal issues de novo.” State v. Moody, 208 Ariz. 424, ¶ 62, 94 P.3d 1119, 1140 (2004)

(citation omitted). As stated above, a police officer may frisk a passenger of a lawfully

stopped vehicle for weapons if the officer has reason to believe the person is armed and

6
dangerous. Johnson II, 129 S. Ct. at 787. “The officer need not be absolutely certain that

the individual is armed; the issue is whether a reasonably prudent man in the circumstances

would be warranted in the belief that his safety or that of others was in danger.” Terry v.

Ohio, 392 U.S. 1, 27 (1968). “[I]n determining whether the officer acted reasonably in such

circumstances, due weight must be given, not to his inchoate and unparticularized suspicion

or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the

facts in light of his experience.” Id. We do not view the relevant facts in isolation, but

instead must determine whether the officer’s conclusions were reasonable after “evaluat[ing]

the totality of the circumstances.” State v. O’Meara, 198 Ariz. 294, ¶ 9, 9 P.3d 325, 327

(2000).

¶7 The stop occurred in an area associated with the Crips gang—a gang whose

members frequently wear blue clothing, as Johnson was. Johnson also informed Trevizo he

was from Eloy, where she knew a Crips gang was active. Viewing these factors together, it

was reasonable for Trevizo to suspect Johnson was a gang member.1 And, according to

Trevizo, gang members often carry firearms. Johnson, however, asserts that testimony did

not support the conclusion he was armed and dangerous because Trevizo “said nothing

about” whether Crips members in particular, as opposed to gang members in general, carried

firearms. Johnson relies on our comment in State v. Fornof, 218 Ariz. 74, n.5, 179 P.3d 954,

1
Even if, as Johnson suggests, the fact the vehicle’s driver was wearing red clothing
undermines the reasonableness of that conclusion, Trevizo testified she had not noticed what
the driver was wearing.

7
959 n.5 (App. 2008), that we had “assign[ed] less weight than the trial court” to the officer’s

“law enforcement experience as a factor supporting reasonable suspicion” because “the state

failed to introduce any evidence or elicit specific testimony relating [the officer’s]

considerable years of experience to the suspicious conduct he observed.” But Trevizo’s

testimony sufficiently related her experience to the facts she observed; the import of her

testimony was clearly that, in her experience, Crips members often carried firearms.

¶8 There were several other relevant factors present here.2 Johnson informed

Trevizo that he had been in prison for burglary. Additionally, he was carrying a police

scanner, which Trevizo testified criminals use to avoid law enforcement officers.3 Plainly,

Trevizo’s conclusion that Johnson might have been armed and dangerous was not based on

“inchoate and unparticularized suspicion” but instead on “specific reasonable inferences”

from the facts she observed. Terry, 392 U.S. at 27.

¶9 Although Johnson cites authority suggesting that, standing alone, the individual

factors listed above might not warrant a pat-down search, he cites none where all, or even

2
We agree with Johnson that the fact he looked back at the officers when they were
stopping the car may be of questionable value in determining whether he was armed and
dangerous. See United States v. Montero-Camargo, 208 F.3d 1122, 1136 (9th Cir. 2000);
Gonzales-Rivera v. Immigration & Naturalization Serv., 22 F.3d 1441, 1446-47 (9th Cir.
1994); but see United States v. Pearce, 531 F.3d 374, 382 (6th Cir. 2008) (listing as fact
supporting reasonable suspicion that defendant had “glance[d] towards” officer before
placing hand in small of back and backing away).
3
Although Trevizo was uncertain if the scanner was on or off, even assuming that
were significantly relevant to assessing whether Johnson was armed and dangerous, Johnson
easily could have turned the scanner off as the officers approached.

8
most, of these factors are present.4 For example, Johnson relies heavily on United States v.

Davis, 94 F.3d 1465, 1467 (10th Cir. 1996), in which the Tenth Circuit Court of Appeals

concluded a Terry stop was unjustified when the defendant, a known criminal, walked away

from officers who had asked him to stop, kept his hands in his pockets, and approached an

establishment known for criminal activity. But there was no evidence the defendant in Davis

was part of an organization whose members are often armed, nor that he was carrying

anything, like the police scanner in this case, that might arouse suspicion when viewed in

light of all the surrounding circumstances. 94 F.3d at 1468-70. Moreover, the officer in

Davis testified that he had no information suggesting the defendant had a firearm and that

his conclusion the defendant was armed and engaging in criminal activity was based on what

he “fe[lt].” Id. at 1469; see Terry, 392 U.S. at 27 (reasonableness must rest on more than

unparticularized suspicion). And, even if we agreed that Johnson’s cooperation and his

admission of a burglary conviction when queried weigh against an inference that he was

armed and dangerous, those facts would not render Trevizo’s suspicion unreasonable in light

of all the circumstances present here.5 See O’Meara, 198 Ariz. 294, ¶ 9, 9 P.3d at 327.

4
In his opening brief, Johnson cites extensively to United States v. Mendez, 467 F.3d
1162 (9th Cir. 2006), but that opinion was subsequently withdrawn by the Ninth Circuit. See
476 F.3d 1077, 1078 (9th Cir. 2007). Accordingly, we do not consider it. Cf. Ariz. R. Civ.
App. P. 28(c).
5
We note that, despite Johnson’s characterization of burglary as a “nonviolent crime”
that therefore did not support an inference Johnson may have been armed and dangerous, the
elements of burglary can include the possession of “explosives, a deadly weapon or
dangerous instrument.” A.R.S. § 13-1508(A).

9
¶10 Finally, the state has provided authority in which pat-down searches were

found constitutionally valid based on similar facts. See, e.g., United States v. Flett, 806 F.2d

823, 828 (8th Cir. 1986) (search proper when appellant dressed like members of gang known

for “violent propensities”); State v. Anderson, 119 P.3d 1171, 1180 (Kan. Ct. App. 2005)

(pat-down search justified when officers suspected drug activity and knew passenger “was

a gang member and might be carrying a gun”); State v. Jackson, 78 P.3d 584, 587 (Or. Ct.

App. 2003) (pat-down of passenger justified when, inter alia, vehicle “spe[d] off when

officers approached,” stop occurred in gang territory, and driver had known gang affiliation).

Here, Trevizo had encountered an admitted felon carrying a police scanner, who was dressed

in clothing consistent with membership in a particular gang, in an area where that gang was

active. These facts, combined with her knowledge that gang members often carry firearms

and that police scanners are used by criminals to evade police, justified Trevizo’s conclusion

that Johnson might have been armed and dangerous. Thus, her pat-down search of Johnson

was proper under the Fourth Amendment. See Johnson II, 129 S. Ct. at 787. As our supreme

court has stated about street encounters, “‘[e]ven when the police officer has the upper hand,

the tables are easily turned’”; thus, “officers should have leeway in handling such situations

and should not be compelled to act at their peril.” State v. Vasquez, 167 Ariz. 352, 354, 807

P.2d 520, 522 (1991), quoting People v. Peters, 219 N.E.2d 595, 599 (N.Y. 1966) (alteration

in Vasquez).

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Right to Privacy under the Arizona Constitution

¶11 Johnson also argues that article II, § 8 of the Arizona Constitution provides a

“broader right to privacy” than the Fourth Amendment. Thus, he reasons, we need not reach

the same conclusions as the United States Supreme Court did in Johnson II that passengers

may be subject to search without a suspicion of criminal activity or that Trevizo’s

questioning Johnson about matters unrelated to the stop was permissible because it did not

measurably extend the stop’s duration.6 See Johnson II, 129 S. Ct. at 783, 788; see also

Muehler v. Mena, 544 U.S. 93, 100-01 (2005).

¶12 Article II, § 8 states: “No person shall be disturbed in his private affairs, or his

home invaded, without authority of law.” The Fourth Amendment provides, in pertinent part:

“The right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated.” Our supreme court has stated

that, although “Arizona’s constitutional provisions generally were intended to incorporate

the federal protections, they are specific in preserving the sanctity of homes and in creating

a right of privacy.” State v. Bolt, 142 Ariz. 260, 264-65, 689 P.2d 519, 523-24 (1984)

(citation omitted); see also State v. Pelosi, 68 Ariz. 51, 57, 199 P.2d 125, 129 (1948)

6
Johnson asserts “[t]he State . . . failed to establish that the traffic stop was still
ongoing” and reasons that, had the driver’s paperwork been returned, “there was no
conceivable basis for continuing Johnson’s seizure.” But, as Johnson acknowledges, another
officer was speaking with the driver while Trevizo spoke with Johnson. In the absence of
any evidence suggesting otherwise, that fact clearly permits the inference the traffic stop had
not yet ended.

11
(article II, § 8 “was adopted for the purpose of preserving the rights which the Fourth

Amendment to the Federal Constitution was intended to protect”), overruled on other

grounds by State v. Pina, 94 Ariz. 243, 245, 388 P.2d 167, 168 (1963), and Adams v. Bolin,

74 Ariz. 269, 247 P.2d 617 (1952). In Bolt, the court declined to follow the United States

Supreme Court’s holding in Segura v. United States, 468 U.S. 796 (1984), which had

approved a warrantless entry of a home in the absence of exigent circumstances. The

Arizona court held instead that, “in the absence of exigent circumstances or other necessity,”

police officers may without a warrant secure premises by preventing ingress or egress but

may not enter a home until a search warrant can be obtained. Bolt, 142 Ariz. at 265, 689 P.2d

at 524.

¶13 But we find no authority holding Arizona’s right to privacy outside the context

of home searches to be broader in scope than the corresponding right to privacy in the United

States Constitution. 7 See generally State v. Juarez, 203 Ariz. 441, ¶¶ 14-16, 55 P.3d 784,

787-88 (App. 2002) (citing cases). And, in addressing an automobile search, our supreme

court long ago stated that article II, § 8, “although different in its language, is of the same

7
In his reply brief, citing Rasmussen v. Fleming, 154 Ariz. 207, 741 P.2d 674 (1987),
Johnson asserts Arizona’s “right to privacy has also been held to bestow greater rights than
the federal constitution in the area of medical treatment.” Although the Arizona supreme
court observed in Rasmussen that, “[u]nlike the federal constitution, the Arizona Constitution
expressly provides for a right to privacy,” id. at 215, 741 P.2d at 682, the court did not
suggest that right was broader than the federal right that “emanates from the penumbra of
specific guarantees of particular amendments to the Constitution.” Id. at 214, 741 P.2d at
681.

12
general effect and purpose as the Fourth Amendment, and, for that reason, decisions on the

right of search under the latter are well in point.” Malmin v. State, 30 Ariz. 258, 261,

246 P. 548, 548-49 (1926); see also State v. Reyna, 205 Ariz. 374, ¶ 14 & n.5, 71 P.3d 366,

369-70 & n.5 (App. 2003) (“[W]e do not read the court’s decisions concerning home

searches as evidencing a state-law departure from Fourth Amendment principles governing

vehicle searches.”). Similarly, Division One of this court has declined to find that Arizona’s

constitution provides greater protection than the Fourth Amendment for lawfully stopped

drivers. See State v. Teagle, 217 Ariz. 17, n.3, 170 P.3d 266, 271 n.3 (App. 2007). Although

Johnson identifies other states that have found greater protection in their state constitutions

for lawfully stopped passengers, our jurisprudence has consistently found our constitutional

protections to parallel those provided by the Fourth Amendment. See Reyna, 205 Ariz. 374,

¶ 14, 71 P.3d at 369 (“Our supreme court long ago held that Article 2, Section 8 of the

Arizona Constitution ‘is of the same general effect and purpose as the Fourth Amendment’

and that the decisions concerning the scope of allowable vehicle searches under the federal

constitution are ‘well on point’ in deciding cases under the Arizona Constitution.”), quoting

Malmin, 30 Ariz. at 261, 246 P. at 549.

¶14 The Supreme Court primarily grounded its Johnson II decision in officer-safety

concerns—officers must be able to protect themselves at a traffic stop from both the driver

and passengers. See 129 S. Ct. at 786-87. Additionally, officers must be able to control the

scene of a traffic stop to protect the driver, passengers, and the public in general. Johnson

13
offers no reason to conclude passengers are less likely to be dangerous than drivers during

a traffic stop. Nor does he explain why passengers should receive greater privacy protections

than drivers. Although we recognize it is the driver, and not the passenger, who will have

committed a violation warranting the stop, only rarely is that violation related to any criminal

activity. “[T]he risk of a violent encounter in a traffic-stop setting ‘stems not from the

ordinary reaction of a motorist stopped for a speeding violation, but from the fact that

evidence of a more serious crime might be uncovered during the stop.’” Johnson II, 129 S.

Ct. at 787, quoting Maryland v. Wilson, 519 U.S. 408, 414 (1997). Thus, the risk of violence

by a driver is comparable to the risk presented by a passenger. See Johnson II, 129 S. Ct. at

787. Given these concerns, we conclude that the safety considerations justifying a temporary

seizure of automobile passengers pursuant to a lawful traffic stop outweigh the privacy

implications Johnson suggests.

¶15 Due to Arizona’s long history of finding in our constitution no greater right to

privacy in traffic stop cases than that found in the United States Constitution, we see no

Arizona Constitution-based reason to depart from the rules announced in Johnson II. Thus,

for the reasons stated, we conclude Trevizo’s questioning and subsequent pat-down search

of Johnson did not violate article II, § 8 of the Arizona Constitution.

Reasonable Doubt Jury Instruction

¶16 Johnson argues the reasonable doubt instruction the trial court gave pursuant

to State v. Portillo, 182 Ariz. 592, 898 P.2d 970 (1995), was structural error because it

14
improperly lowered the required standard of proof. Our supreme court repeatedly has

rejected similar challenges to the instruction the Portillo court directed trial courts to give.

See, e.g., State v. Garza, 216 Ariz. 56, ¶ 45, 163 P.3d 1006, 1016-17 (2007); State v. Ellison,

213 Ariz. 116, ¶ 63, 140 P.3d 899, 916 (2006); State v. Roseberry, 210 Ariz. 360, ¶ 55, 111

P.3d 402, 411-12 (2005); State v. Dann, 205 Ariz. 557, ¶ 74, 74 P.3d 231, 249-50 (2003);

State v. Lamar, 205 Ariz. 431, ¶ 49, 72 P.3d 831, 841 (2003); State v. Cañez, 202 Ariz. 133,

¶ 76, 42 P.3d 564, 587 (2002); State v. Van Adams, 194 Ariz. 408, ¶¶ 29-30, 984 P.2d 16,

25-26 (1999). We are bound to follow our supreme court’s decisions. See State v. Sullivan,

205 Ariz. 285, ¶ 15, 69 P.3d 1006, 1009 (App. 2003). Johnson acknowledges our supreme

court has rejected similar arguments and notes he merely “present[ed] this issue in order to

preserve it.” Thus, we need not address this argument further.

Right to Jury Trial for Prior Convictions

¶17 Last, Johnson asserts the trial court’s finding of his two prior felony

convictions violated his right to a jury trial. We have repeatedly held, however, that a

defendant’s right to a jury trial is not violated when the trial court, rather than a jury,

determines whether the defendant has prior felony convictions for purposes of sentence

enhancement. See State v. Robles, 213 Ariz. 268, ¶ 19, 141 P.3d 748, 754 (App. 2006); State

v. Keith, 211 Ariz. 436, ¶¶ 2-3, 122 P.3d 229, 229-30 (App. 2005); Newkirk v. Nothwehr, 210

Ariz. 601, ¶¶ 5-14, 115 P.3d 1264, 1266-67 (App. 2005).

15
 Disposition

¶18 We affirm Johnson’s convictions and sentences.

J. WILLIAM BRAMMER, JR., Judge

CONCURRING:

PETER J. ECKERSTROM, Presiding Judge

PHILIP G. ESPINOSA, Judge

16