Arizona High Court Blocks Conviction Stemming From ‘Neighborhood Profiling’

PHOENIX (CN) – The Arizona Supreme Court has ruled that police do not have reasonable suspicion to perform a search just because a person is in a high-crime neighborhood.

The ruling stems from the 2012 case of Anthony Benard Primous, who was convicted of misdemeanor marijuana possession after a pat-down search revealed a baggie of marijuana in his pocket. At the time of the search, Primous was outside a Phoenix apartment complex with three other men and had a baby in his lap when police officers arrived seeking someone with an outstanding felony warrant. After one man ran away and another admitted he was holding marijuana, the officers searched Primous and found two grams of marijuana.

Primous moved to suppress the marijuana as evidence, since at the time of the search he was not involved in any crime, was unarmed and offering no threat to anyone, but was sitting calmly with a 1-year-old child on his lap. The trial court denied the motion and he was convicted, and the state Court of Appeals upheld the conviction.

Before the state Supreme Court this past January, ACLU legal director Kathy Brody argued that three men who did not run were calm and cooperative and offered no threat to the officers. She said that “neighborhood profiling,” like racial profiling, does not justify a pat-down search.

In response, Assistant Attorney General Robert Walsh told the high court that the officers were seeking a dangerous criminal, in a bad neighborhood, and faced the possibility of the situation escalating.

But the opinion by Justice Clint Bolick analyzed the situation surrounding Primous’s search that morning to determine whether “reasonable suspicion justified frisking Primous not because of anything he did or said but because someone else with whom he was conversing fled when police approached, while Primous remained seated and cooperative,” Bolick wrote.

“The fact that the encounter occurred in a high-crime neighborhood was insufficient to justify the search of an individual who gave no indication that he was involved in a crime or posed an imminent threat to the officers,” he added.

While the ruling found that “nothing about the environment gave rise to a reasonable suspicion that Primous was involved in a crime, much less that he was armed and dangerous to police officers”, the court declined to categorically forbid officers from including the dangerousness of their surroundings as a factor in deciding whether a search is justified, despite an argument in an friend-of-the-court brief filed by the ACLU which claimed that such factors are merely a proxy for racial profiling.

Instead, the high court said that while the dangerousness of the surrounding environment is not irrelevant in determining whether a suspect, it quoted Illinois v. Wardlow which observed that “[a]n individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.”

The court concluded that because the sole evidence supporting Primous’s conviction was based on an illegal search, the appeals court’s opinion must be overturned and Primous’s conviction and probation reversed.

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