Claim of Unconstitutional Pat Down Search In Arizona

In In re Ilono H., 210 Ariz. 473, 476, P 11, 113 P.3d 696, 699 (App. 2005), Office Pegnato and another police officer approached a group of five individuals who were sitting underneath a ramada "marked with gang graffiti" in a park. Id. at 474, P 2, 113 P.3d at 697. Upon seeing Ilono's baggy clothing and before asking Ilono "a single question," Officer Pegnato conducted a frisk. Id. at 474, 476, PP 2, 9, 113 P.3d at 697, 699. The frisk revealed that Ilono had a bottle of beer under his clothes, and Officer Pegnato subsequently arrested him for possessing alcohol. Id. at 474, P 2, 113 P.3d at 697. Ilono argued that both the initial stop and the patdown were unconstitutional under Terry because Officer Pegnato was "unable to articulate a reason for believing that he had been involved in criminal activity or that he had been armed." Id. at P 3. The court found that the State had failed to present any evidence that Ilono had committed or was about to commit a crime and thus the stop of Ilono was unlawful. Id. at 475, P 6, 113 P.3d at 698. The panel in Ilono further concluded that "the officers were not entitled to conduct a protective search of Ilono in the absence of any reason to believe that he had committed, or was committing, a crime." Id. at 476, P 11, 113 P.3d at 699. The Court explained: Notably, Terry and its Supreme Court progeny addressed the propriety of a pat-down search exclusively in the context of a lawful investigatory stop. We do not read those cases to authorize a pat-down search as part of a mere consensual encounter -- even when an officer may have grounds to believe the targets of the encounter are potentially armed and dangerous. Id. at 476-77, P 11, 113 P.3d at 699.