State v. Jarzab

STRUCKMEYER, Vice Chief Justice. Appellant, Eugene Francis Robert Jarzab, Jr., was convicted of possession of marijuana, a misdemeanor. The Court of Appeals, in a memorandum decision, reversed. We accepted review. Opinion of the Court of Appeals, 1 CA-CR 3395 (filed January 11, 1979), vacated. Judgment of the Superior Court affirmed. At about 1:40 a. m. on June 18,1977, near Phoenix, Arizona, sheriff’s deputy Russell Pearce while driving over an overpass saw a new Chevrolet Blazer four-wheel-drive truck stopped on the desert approximately one-quarter mile off of Interstate 10. Pearce turned his headlights on the truck and, when it appeared to be unoccupied, drove over to investigate. After he left his car and approached the truck, appellant appeared from behind some nearby bushes. He told the officer that the vehicle was his and that he had stopped to relieve himself. Appellant had a noticeable odor of alcohol on his breath. Pearce asked for identification from appellant to determine whether he was of legal drinking age. Appellant produced a valid Arizona driver’s license which showed his age. Pearce then asked appellant for the truck’s registration card. 1 When appellant opened the door of the truck to get the card, the interior lights came on and the deputy observed a plastic bag containing marijuana on the console. At a suppression hearing, Pearce testified: “Q. Are there usually people in that area? A. No, sir. Q. So then it would be strange to have a vehicle in the area? A. That’s correct, sir. Q. You didn’t know whether or not the truck was stolen when you went to investigate it. Did you? A. No, sir. I had no idea why it was there at that time. Q. You just wanted to see what was going on? A. Yes, sir.” It is palpably clear that the investigation which Pearce then entered upon was reasonable and lawful. Therefore, the question governing the disposition of this case is whether subsequent events deprived the investigation of continuing legality. Appellant does not argue that it was improper for the officer to investigate the status of the truck. His position is that any suspicion that the vehicle was abandoned 2 should have been “quickly dispelled when the defendant, virtually contemporaneously with the officer’s arrival, approached and identified the vehicle as belonging to him.” He urges that the officer was operating on “a hunch” or “a vague, unsubstantiated suspicion” and that his Fourth Amendment rights 3 were violated by conducting a further investigation because the investigative detention did not meet the test for reasonable police action set forth in State v. Hooker, 113 Ariz. 450 , 556 P.2d 784 (1976). In Hocker, we said: *310 “This Court recently elucidated its position on the reasonableness standard and adopted the California test. State v. For-tier, 113 Ariz. 332 , 553 P.2d 1206 (Filed Aug. 6, 1976), citing Irwin v. Superior Court of Los Angeles County, 1 Cal.3d 423 , 82 Cal.Rptr. 484 , 462 P.2d 12 (1969). While it is true that a temporary investígative detention is allowed under certain circumstances, these circumstances must be ‘such as to distinguish the activity of the detained person from that of any other citizen’ and must be based on an ‘objective perception of events rather than the subjective feelings of the detaining officer.’ In order to justify the intrusion, the state must be able to point to specific and articulable facts, which may be combined with rational inferences from those facts. Thus, even in the absence of bad faith, detention based on a ‘mere hunch’ is illegal. There must be a reasonable suspicion by the law enforcement officer that ‘some activity out of the ordinary’ is or had occurred, some suggestion to connect the detained person with the unusual activity, and some indication that the activity is related to crime. State v. Fortier, 113 Ariz. 332 , 553 P.2d at 1208 .” 113 Ariz. at 456-57, 556 P.2d at 790-791 . (Emphasis added.) The federal test for determining the validity of an investigative detention is different from California’s. 4 See United States v. Contreras-Diaz, 575 F.2d 740 (9th Cir.), cert. denied, 439 U.S. 855 , 99 S.Ct. 167 , 58 L.Ed.2d 161 (1978); United States v. Walling, 486 F.2d 229 (9th Cir. 1973), cert. denied, 415 U.S. 923 , 94 S.Ct. 1427 , 39 L.Ed.2d 479 (1974). Constitutional perimeters are spelled out in Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). There, the Supreme Court of the United States held that a police officer may effect a limited detention of an individual, not amounting to an arrest, if the officer’s actions were reasonable under the circumstances. The Court did not hold that “some indication that the activity is related to crime” was an essential ingredient of the test of the police action. “Terry requires a dual inquiry into the reasonableness of an investigatory stop. The reviewing court must determine: ‘(1) whether the facts warranted the intrusion on the individual’s Fourth Amendment rights, and (2) whether the scope of the intrusion was reasonably related “to the circumstances which justified the interference in the first place.” ’ Carpenter v. Sigler, 419 F.2d 169, 171 (8th Cir. 1969).” United States v. Stevie, 578 F.2d 204, 207 (8th Cir. 1977). A police officer cannot base his actions on “inarticulate hunches”; he “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, supra, 392 U.S. at 21-22 , 88 S.Ct. at 1880 , 20 L.Ed.2d at 906 . (Footnote omitted.) “Whether an officer’s conduct was ‘reasonable’ or ‘appropriate’ depends on the facts and circumstances of the particular case, so that the decision in one case seldom furnishes a pat answer in another case. (Cites omitted.) A principle to be applied generally however is that in judging the reasonableness of the actions of the officer the circumstances before him are not to be dissected and viewed singly; rather they must be considered as a whole. So considered they are to be viewed through the eyes of a reasonable and cautious officer on the scene, guided by his experience and training. See United States v. Davis, 147 U.S.App.D.C. 400 , 458 F.2d 819 (1972).” United States v. Hall, 174 U.S.App.D.C. 13, 15 , 525 F.2d 857, 859 (1976). An investigative stop will be deemed reasonable where the officer demonstrates some basis from which the court can determine that the police were not arbitrary or harassing. United States v. Walling, supra; Wilson v. Porter, 361 F.2d 412, 415 (9th Cir. 1966). *311 Our examination of Terry v. Ohio and federal cases subsequent to it in the light of the facts of this case leads us to disapprove the standard enunciated in Irwin v. Superior Court, supra, and adopted in State v. Hocker, supra, and State v. Fortier, 113 Ariz. 332 , 553 P.2d 1206 (1976), because it is unduly restrictive of lawful police activities. When confronted with strange or unusual activities, a police officer, as the public’s representative delegated with the responsibility of maintaining law and order, should satisfy himself as to the innocence of the activity by all reasonable, lawful means. We do not believe that an officer, when he commences an investigation, need be convinced that “criminal activity is afoot.” “The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. See id., [392 U.S.] at 23, [ 88 S.Ct. 1868 ]. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. Id., at 21-22 , [ 88 S.Ct. 1868 ]; see Gaines v. Craven, 448 F.2d 1236 (CA9 1971); United States v. Unverzagt, 424 F.2d 396 (CA8 1970).” Adams v. Williams, 407 U.S. 143, 145-46 , 92 S.Ct. 1921, 1923 , 32 L.Ed.2d 612, 616-17 (1972). The Supreme Court of the United States in Pennsylvania v. Mimms, 434 U.S. 106, 108-09 , 98 S.Ct. 330, 332 , 54 L.Ed.2d 331, 335-36 (1977), set forth the test for Fourth Amendment violations in this fashion: “The touchstone of our analysis under the Fourth Amendment is always ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ Terry v. Ohio, 392 U.S. 1, 19 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). Reasonableness, of course, depends ‘on a balance between the public interest, and the individual’s right to personal security free from arbitrary interference by law officers.’ United States v. Brignoni-Ponce, 422 U.S. 873, 878 , 95 S.Ct. 2574 , 45 L.Ed.2d 607 (1975).” In the recent opinion of Brown v. Texas, - U.S. -, 99 S.Ct. 2637, 2640 , 61 L.Ed.2d 357 (1979), the Supreme Court said that a central concern in balancing these competing considerations “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 applying the federal standard to the facts of this case, we do not find that Pearce’s actions were unreasonable. The investigation began when the officer’s attention was directed to a vehicle parked off the road in the desert at 1:40 a. m. Since the vehicle appeared to be abandoned, there was a reasonable suspicion that it could have been stolen. During the investigation, appellant appeared from out of the brush. The request that appellant produce identification to show he was old enough to drink was clearly reasonable. The request by the officer to see the registration card of the Chevrolet Blazer was in response to appellant’s claim of ownership. Officer Pearce was not compelled to terminate his investigation of the apparently abandoned vehicle because of appellant’s asserted ownership. The scope of the intrusion was fleeting and minimal and reasonably related to the circumstances justifying it. Balancing the public’s interest in law enforcement against appellant’s right to be free from arbitrary interference by law officers, such an investigation was constitutionally warranted. 5 *312 Where a motion to suppress has been denied, the lower court will not be reversed unless the denial constitutes clear and manifest error or is an abuse of discretion. See State v. Mosley, 119 Ariz. 393 , 581 P.2d 238 (1978); State v. Boyer, 106 Ariz. 32 , 470 P.2d 439 (1970). Considering all the circumstances and our conclusions as to the appropriate law, the denial of the motion to suppress was not error. To the extent that State v. Hocker and State v. Fortier are incompatible or inconsistent with this decision, they are overruled. Judgment affirmed. HAYS and HOLOHAN, JJ., concurring. . A.R.S. § 28-305(D) provides in part: “The registration card [of a motor vehicle] shall at all times be carried within the driver’s compartment of the vehicle for which issued, and shall be subject to inspection by * * * members of the highway patrol or any peace officer.” . Officer Pearce testified: “Q. Now, you say you observed an abandoned vehicle and you say you observed it as you came over this overpass? A. As I came over the other side my lights hit it. Q. Would you give the judge a description of an abandoned vehicle? A. A vehicle without any occupants. Q. So any vehicle without an occupant is an abandoned vehicle? A. Temporarily it is. * * * ” . The Fourth Amendment to the Constitution of the United States provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated * * * ” . See In re Tony C., 21 Cal.3d 888 , 148 Cal.Rptr. 366 , 582 P.2d 957 (1978) for a detailed exposition of the current California test. . Appellant urges that the Court of Appeals decision in State v. Rosenberg, 24 Ariz.App. 341 , 538 P.2d 770 (1975), should control here. We find that case inapposite. There, a Conconino County Deputy Sheriff entered a roadside rest area at 3:00 a. m., singled out a “hippy” vehicle, and decided to make a registration check. He awoke the occupants of the car, asked for a driver’s license and car registration. He observed two plastic bags of marijuana in the glove compartment when it was opened. The trial court denied the defendant’s motion to *312 suppress. The Court of Appeals reversed, finding that the evidence supported the suspicion that the registration check was a subterfuge and that there was no evidence to show that the sleeping occupants of the car were engaged in illegal conduct. Viewed in this light, the registration check was arbitrary and harassing.