In re Ilono H
In In re Ilono H., 210 Ariz. 473, 113 P.3d 696 (App. 2005), the Court held a police officer was not entitled to conduct a protective search as part of a consensual encounter even if the officer had reasonable grounds to believe the target of the encounter was armed and dangerous in the absence of any reason to believe the target had committed or was committing a crime. Id. at 476,11, 113 P.3d at 699.
The court thus imposed the same justification requirements on a Terry frisk as are imposed on a Terry stop.
The Court recognized that a police officer's right to conduct a frisk must be predicated on the officer's right to initiate the investigatory stop in the first place. Id. at 477,12, 113 P.3d at 700.
To not do so, the court explained, would "contradict" the logic of the Fourth Amendment jurisprudence that recognizes an individual is entitled to be free from government restraint unless reasonably suspected of criminal activity. Id. at 477,12-13, 113 P.3d at 700.
Quoting from Justice Harlan's concurring opinion in Terry, the Ilono H. court explained: "If the frisk is justified in order to protect the officer during an encounter with a citizen, the officer must first have constitutional grounds to insist on an encounter, to make a forcible stop." Id. at 476,11, 113 P.3d at 699.