*1 See, numerous occasions. tical instruction on Brooks,
e.g., 365-66 State v. Gonzalez,
(Utah.Ct.App.1992); (Utah.Ct.App.1991);
P.2d 1217-18 Pedersen, P.2d 1331-32 denied,
(Ct.App.1990), cert.
(Utah 1991). light ap of these court of decisions,
peals think “it we do
should have been obvious to the trial court Elm, committing it was error.”
P.2d at 1100. Because the trial court’s rea obviously
sonable-doubt instruction was not Arguelles
erroneous and because did not ob court,
ject to the before the trial instruction Arguelles’
we decline to reach the merits of
argument. reasons, foregoing Arg-
For the affirm
uelles’ conviction.
STEWART, C.J., HOWE, Associate RUSSON, JJ.,
DURHAM and concur. Utah,
STATE of Plaintiff Respondent,
Quetzalcohual CHAPMAN, Defendant
and Petitioner.
No. 930026.
Supreme Court of Utah.
July *2 Jeep Wagoneer
ticed a
with two individuals
High
parked
the back seat
Central
parking
pulled
School’s
lot. Rasmussen
be-
warning
hind the car and turned on his
himself,
lights.
identifying
After
Rasmussen
*3
approached
occupants,
the ear. He asked its
woman,
Chapman
young
they
and a
what
they
doing,
responded “just
were
to which
talking
requested
and stuff.”
then
He
identi-
woman,
fication from each of them. The
who
car,
a
produced
owned the
driver’s license
registration. Chapman
and a vehicle
did not
spelled
have
but
identification
out his
name for
Rasmussen
Rasmussen.
asked
Graham,
Gen.,
Atty.
Murphy,
Jan
J. Kevin
Chapman
companion
and
his
remain in the
Gen.,
Atty.
City,
Asst.
plaintiff.
Salt Lake
patrol
car. He returned to his
car and ran
driver’s license
warrants
and
cheeks on
Wells,
Watt,
Brook C.
Joan C.
Salt Lake
officer,
Chapman.
Ellertson,
Craig
A second
City, for defendant.
Chapman’s
heard
over his
name
radio and
promptly contacted Rasmussen. Ellertson
ON
THE
CERTIORARI TO
UTAH
warned
be careful
Rasmussen to
because
COURT OF APPEALS
gang
alleged
was an
member and
carry
gun.
was known to
a
Ellertson had
DURHAM, Justice:
rough-
received this second-hand information
petition
This case is before the court on a
ly three weeks earlier. Ellertson then drove
Quetzal-
for a writ of certiorari. Defendant
high
join
Upon
school to
Rasmussen.
cohual
arrested
after
arrival,
approached
ear,
his
both officers
a
County loitering
Salt Lake
ordinance. He
out,
asked
step
and told him to
charged
was subsequently
with one count of
place his hands on
head
his
and lean forward
theft,
burglary and two counts of
all second
against
They
the car.
told
about
degree felonies. The Third District Court
concerning
alleged
the information
gang
pretrial
suppress
denied his
motion to
evi
likely
membership
gun possession.
gathered
dence
time of
his arrest. He They
pat-down
then conducted a
search and
appeal,
filed an interlocutory
and the court of
weapon.
found no
asked if
When
he was
appeals
affirmed. State
841 armed, Chapman replied that he was not
(Utah
P.2d
Ct.App.1992).
carrying
gun,
point
but
some
he con-
granted Chapman’s petition for certiorari.
ceded that he
in a
pack
did have
small
(Utah 1993).
FACTS
bullets,
gun’s clip
but
contained
no bullet
p.m.
January
Around
firing
10:00
was in
presence
and its
chamber
Rasmussen,
police
Officer Todd
officer em-
vehicle
that condition was lawful. See
ployed by
District,
76-10-502,
§§
the Granite School
no- Utah
Ann.
Code
-504. At
exactly
1. It is
report
unclear from the record
back
received the
Rasmussen had
after
response
Officer Rasmussen received the
to the
from Officer
Ellertson
was an
However,
testimony
alleged gang
warrants check.
from
during
member and some time
parties,
together
pieced
all
it can be
that it came
search of either
or &e vehicle.
Chapman had
the ordi-
discovering
gun, was because
violated
shortly after
point
some
companion
Chapman’s
was neither
weapons
nance.
an
stolen
officers ran
NCIC
nor issued a citation.
arrested
against
gun. Also at or about this
check
time,
handcuffed
Rasmussen
charged with
count of
Chapman was
one
warning.2 Chapman
a Miranda
him
gave
theft,
second
burglary and two counts
all
agreed to talk to Rasmussen. Rasmussen
degree
pretrial
felonies. He filed a
motion
comput-
questioned
gun.
him about the
suppress
gathered
ini
the evidence
after his
it
been stolen in a
check revealed that
er
tial
trial court denied the
detention. The
question-
During
following
evidentiary hearing.
burglary.
motion
an
residential
interlocutory
burglary. Chapman
appeal,
ing,
confessed to
filed
Chap
affirmed. appeals
apartment,
went to
court
The officers
man,
They
Ct.App.1992).
it,
nothing.
and found
then
searched
*4
majority
panel
A
of the
held
the trial
that
police
to
School District
went
the Granite
finding
suspicion
of reasonable
court’s
him.
question
and
to
office
continued
Id. at 727-28.
clearly
It
not
erroneous.
also
eventually
Chapman
po-
took
to the
officers
probable
had
cause
found
officers
station,
jail.
he
into
lice
where
was booked
presence
Chapman, given his
on
arrest
ap-
Rasmussen’s initial decision to
Officer
having
property “without
lawful
school
some
his
proach the ear was based on
belief that
Id. at
Because the court felt
business.”
728.
companion,
occupants, Chapman
its
and
probable
had
cause to arrest
Rasmussen
lawful
were on school
“without
busi-
him,
Rasmussen saw
it
the moment
ness,”
following
of the
ordinance:
violation
could search
found that Rasmussen
loiter,
any
person
It is unlawful for
arrest,
though the
to that
even
incident
in, about,
idle, wander,
or
on
play
stroll
or
Id. at
prior
search occurred
arrest.
school,
university grounds,
any
college or
Judge
728
4.4
dissented. He ar
n.
Orme
any
in or
building, either on foot or
on
or
interroga
gued
and related
that the search
having some lawful busi-
without
appropriate deten
scope
tion
exceeded
thereabout,
or
connec-
ness therein
stop. tion,
given the
for the initial
reason
school, college
university,
tion with such
(Orme, J., dissenting).
granted
at 729
employees
or the
thereof.
for certiorari. Chapman’s petition
(Utah 1993).
Chapman,
suspicion Chapman, that did to detain Fourth Fourteenth Amendments to the permissible scope by initially States exceed the de- United Constitution detain- tention, probable interrogation.7 cause to him for search argues arrest. also even if The State State concedes was seized improper, meaning the officers’ conduct was that con- within the of the Fourth Amend- sufficiently pulled duct was attenuated the dis- from ment when Officer Rasmussen behind covery inculpatory parked warning evidence to render vehicle and activated his Prouse, lights. See evidence admissible.5 Delaware v. 440 U.S. 653,
648,
1395-96,
99 S.Ct.
59 L.Ed.2d
(1979);
Lopez,
ANALYSIS
(Utah 1994). “However,
Vhat the Con-
I. STANDARD OF REVIEW
stitution forbids is not all searches and sei-
zures, but unreasonable searches and sei-
addressing
Before
the merits of
Lopez,
zures.’”
(quoting
Chapman’s arguments, we
must resolve
Ohio,
1, 9,
Terry v.
preliminary question concerning
appro
(1968)).
L.Ed.2d
To determine
priate standard of review for reasonable sus
a search or
whether
a seizure is constitution-
picion
appeals
determinations. The court of
reasonable,
ally
first
must
determine
suspicion
characterized the reasonable
deter
“ ‘justified
whether
officer’s action was
question
mination as a
of fact and therefore
”
*5
inception.’
(quoting Terry,
its
Id. at 1132
applied
clearly
erroneous
of
standard
19-20),
1878-79).
at
392
88
U.S.
S.Ct.
If
review.
841 P.2d at
As our
727.
so,
then
resulting
we
consider whether the
(Utah
Pena,
decision in State v.
II.
AND
SEARCH
SEIZURE
696, 702-03, 103
2637, 2641-42,
462 U.S.
S.Ct.
by
begin
analyzing
(1983));
whether the
77
110
L.Ed.2d
accord United States
Sokolow,
Chapman’s rights
7,
1,
1581,
violated
under the
490
109
U.S.
requested
The State
represents
prior
has also
dismiss
precedent
that we
a "clear break” from
improvidently granted. According
certiorari as
apply prospectively only.
and therefore should
State,
present
special
to the
this case fails to
argument
The State’s
is without merit. Pena did
important
question
legal
and should there-
precedent
any
not overrule
other
but
Mendoza
Having
fore not be reviewed on certiorari.
al-
merely fine-tuned the "correctness” standard ar-
ready denied the State’s “Motion to Dismiss Cer-
Ramirez,
ticulated
State v.
781-
Proceeding,"
tiorari
we do not address the
1991).
fact,
(Utah
expressly
82
Pena
distin-
request.
State’s renewed
Pena,
3;
guished
P.2d at
869
935 & n.
Mendoza.
Vincent,
see
P.2d
also
883
281-82
argues
6. The that at the
court
time the
(Utah 1994).
case,
appeals
"clearly
decided this
erroneous”
appropriate
reviewing
was the
standard for
rea-
I,
7.Chapman
has not
relied
cited or
on article
suspicion
sonable
determinations.
State re-
Constitution,
Mendoza,
14
section
of the Utah
and there-
lies on State v.
fore,
1987),
analysis
protections
we confine our
to the
suspi-
in which we reviewed a reasonable
guaranteed Chapman
clearly
cion
under
determination
erroneous
under
United States
State,
According
standard of review.
to the
Pena
Constitution.
(“The
(1989);
trial
fact
Terry,
findings
court’s
show
104 L.Ed.2d
Ramirez,
1879-80;
21-22,
person
conclude
a reasonable
would
88 S.Ct. at
ordinance.”);
786;
§
Code Ann.
77-7-15.
had violated
id.
P.2d at
Utah
(“I
(Orme, J., dissenting)
agree
of ap-
and the court
at 729
with
Both the district court
majority
police
possessed
had reasonable
peals found that the officers
suspicion
suspicion
stop.”).
was
to initiate a
to believe
reasonable
articulable
Chapman Moreover,
loitering
testified that
violating the
ordinance.
Officer Rasmussen
occasion,
on two
on
one
he had
challenges
this
determination
at least
encountered
First,
rape
progress
very
under
similar circum-
grounds.
he claims that the officers
suspicion to
facts
the latitude
did
have reasonable
believe
stances.8 Given these
making
“without a
the determina-
was
school
the trial court has
loitering
given
tion
set of
constitutes
purpose,”
lawful
in violation of
facts
Second,
argues
law,
suspicion
as a
ordinance.
even
reasonable
matter
see
939-40,
Pena,
suspicion
had
be-
hold that the
the officers
reasonable
ordinance,
loitering
concluding
trial
did
err in
lieve he violated the
court
facially
suspicion
ordinance is
unconstitutional and Officer Rasmussen
reasonable
therefore cannot be used
deten-
to believe
ordinance,
justified
initially
tion.
de-
taining
appeals properly
him. The court
above,
suspi
As
indicated
point.
affirmed the trial court on this
requires
objectively
cion
reasonable belief
engaged or is about to
that an individual is
III.
THE ORDINANCE
RELIANCE ON
activity.
alleged
in criminal
engaged
be
Chapman argues
the statute re
activity in
case
the violation
criminal
by
upon
lied
officers to detain him was
“in,
prohibits
anof
ordinance that
and that
the unconstitu
unconstitutional9
grounds,
...
...
about or on
school
*6
have
tionality of the ordinance should
been
vehicle,
any
or in
on
without
either on foot
or
they
to the officers and therefore
obvious
or
having some lawful business therein
there
properly rely on
detain him.
it to
could
County Ordinance ch.
about.” Salt Lake
31,
DeFillippo,
In
Michigan
443 U.S.
10.32.010(C).
officer
this case articu
The
(1979),
2627,
if use makes their justified suspicion and therefore sonable long. unduly detention. The continued LaFave, A Search and Seizure: Wayne R. affiliation, itself, gang by no that is admits 9.2(f), Amendment, § the Fourth Treatise investigative for an detention. When basis omitted). (1987) (footnotes at 375-80 pos- coupled possible about with information Johnson, relies on State however, gun, a the State main- session of (Utah 1991), that argument for his P.2d 761 tains that these facts constitute expand to the not allowed the officers were notwithstanding suspicion information’s the by running a scope warrants of detention hearsay disagree. After nature. receiv- is Chapman’s. him. reliance against cheek to report the that was known Johnson, held run- misplaced. certainly carry weapon, a officer was the in an ning passenger check on a a warrants ordinary safety procedures follow entitled to stopped properly had been automobile may have protect to himself. This included scope of detention. appropriate the exceeded arrive, asking waiting back-up for a officer to hold, however, that 764. We did vehicle, step Chapman to out of the and even driver, check on the who running a warrants being him armed. Once questioning about stopped, would have ex- had been of the vehicle and was outside As forth detention. set the ceeded unarmed, however, the officers known to be above, properly detained was reasonable, suspicion ei- had no articulable were point, and the officers therefore regarding questioning to him ther continue check. to run the warrants entitled However; weapons or to for them. search however, alone, as to not resolve the the record is unclear does because This weapon he had question of officers exceeded disclosed whether “weapons detention. It unclear both the search” appropriate scope of exactly be “Terry arguments officers frisk” must exam- from record when the response negative warrants ined. received receiving response, Upon cheek. Rasmussen testified Officer Chap- required either arrest officers were inside the vehi Chapman said had man, citation, If him. him a or release issue initially questioned about cle when he was already at the had been arrested being Assuming that accu armed. back, his response came detention time the were, searching rate, justified in officers hand, If, he was on the other proper. weapon weapon insure questioning after detained for additional loaded). (i.e., illegally See being carried cheek, response negative warrants (1994). §Ann. How Code 76-10-502 Utah may appropriate have exceeded made, ever, that determination was once scope of detention. Continued detention reasonable, suspi no articulable officers had only had a justified if the officers would be weapon running a check on cion reason, independent ordi- By weapon been stolen. see nance, do so. *8 testimony, independent no facts officers’ own ad- possible reasons have been Three Chapman surrounding the with encounter why offi- by explain to the
vanced State any involved in suspicion created that was the initial detention cers continued beyond activity violating the illegal (i) had Chapman: of The officers Therefore, impermis- the officers ordinance. committed, suspicion to believe Chapman’s de sibly scope of expanded the (ii) offense; commit, another or was about to they ran the additional check when tention questioning related the search and ownership. gun determine its on the to (iii) frisk; search Terry appropriate mean officers are This does not that as questioning appropriate were related running weapons from such prohibited “weapons a search.” If the appropriate circumstances. checks reasonable, surrounding give rise to a facts that second claims The State stolen, gun is suspicion that a gang articulable concerning member- hand information Here, appropriate. underlying a the offi- about the nature of the such check offense such testified that no cir- being investigated cers themselves prompted a for concern existed; therefore, cumstances their actions did, safety [njothing by ... defendant [and] permissible. were not conduct, attitude, way gesture, suggest of or presence weapon ed the of a in the vehicle.” assume, analysis, purposes If we for of (Orme, J., testimony Chapman’s companion dissent that the of true, Therefore, ing). indicated he had no the officers were entitled to weapon originally questioned by prolong the detention of to search a possessing officers but to admitted weapons only Chapman immediately for only questioning, after the vehicle continued possessed weapon. indicated that he a interroga- officers’ additional then even the Moreover, if we assume that the officers beyond of have been tion would informed, were so were entitled to scope of detention for violation of the only long search necessary so as was to loitering ordinance. safety insure the of companion and themselves. If we further assume Applied to the State’s next conten tion, weapon Terry during stolen was found cannot a search be considered frisk, reasonable, search, requires which articulable above-described en the officers were pres suspicion suspect is armed and expand titled to the detention of dangerous. Terry, ently 21, 23, only enough long weap determine 1879-80, 1881-82. legally transported.10 on was stored and Un admitted on the of his own basis obser independently suggested less other factors vations, Chap no he had reason believe stolen, weapon officers such dangerous. presently man was armed and permit a search would not the officers to Therefore, failed to the State has demon expand Chapman’s continue detention justified in strate that con were Therefore, run an NCIC check. the State tinuing detention of their under cannot officers’ actions as a neces Terry. sary “weapons agree search.” We with Judge impermissibly Orme the officers above,
Finally, as indicated unless expanded of their initial detention gave immediate indication that weapon therefore the should be there was a in the the ensu justified from “weapons search cannot be as a excluded evidence. stated, (Orme, Judge J., “Nothing dissenting). search.” As Orme at 732 10. Under 76-10-504(1), section it is misde- whereas section 76-10-505.5 was enacted in does, carry however, dangerous weap- meanor to "concealed 1993. Section 53A-3-502 con- on,” exception loaded unloaded. There exemption weapons or is an tain own its for on school section, however, (2) provid- paragraph of that property "present toor be used in connection ing, “Nothing prevent any lawful, in this Part ... shall approved activity.” with a person keeping business, place ... within from 76-10-504(2)’s excep- It is clear that section residence, place any vehicle under explicitly by legislature tion was intended firearm, except any his control that it shall be a prohibition override section 76-10-505.5’s un- carry B class misdemeanor to a loaded firearm in weapons loaded on school and would added.) (Emphasis a vehicle.” "lawful, exempted qualify ap- therefore as acts proved Rasmussen, officer, activities]” under section 53A-3-502. arresting Officer testi- event, the more recent statute is a clear weapon fied that the case was not loaded intent, legislative misguid- indication of however qualified exemption and therefore con- policy might ed 76-10-504(2). seem to us to law enforce- tained in section has personnel. ment cited section 76-10-505.5 and section 53A-3-502 posses- our suggest Hence conclusion that having weapon defendant’s in vehicle *9 weapon a property sion of this in vehicle was and school lawful was nonetheless unlawful. Williams, However, our specifically says determination that State v. 636 section 76-10-505.5 (Utah 1981), State, by apply "persons P.2d that it relied on the does not authorized to Williams, (in apply. possess provided does a as not In the a firearm under Section ... firearm vehicle) “loaded, 76-10-504(2),” permitting provision fully the unload- satchel in was in a weapons weapon position.” ed vehicles. in Section 53A-3-502 does cocked 1093. A loaded exemption qualify exception not cross-reference the in 76- does the section not for vehicle in 10-505.5(2) 76-10-504(2). passed in because it was section
y. weapon, find that the offi- possess we also PROBABLE CAUSE pat- allowed conduct a brief cers were Chapman’s final claim is to ensure down search their arrest probable not have cause to did officers safety Chapman’s companion. that of loitering him the ordinance. for Chapman’s companion consented Because however, in Chapman, did raise this issue vehicle, pro- of her the search that a search petition petition, In his his for certiorari. acceptable. Chapman’s weapon is also duced rely on a argued the officers could not may independent The officers also have had loitering ordinance blatantly unconstitutional weapon, to search grounds for the after In his probable cause to arrest. establish gun carrying a in indicated he was merits, only brief the makes on prop- to insure the was the However, passing argument. mention of this erly being legally stored and carried. How- III, in he has as mentioned above section ever, impermissibly we find the officers officers acted failed to demonstrate that the expanded scope of their detention of in is “fla bad faith or ordinance they additionally ran when DeFillippo, grantly unconstitutional.” See on the of the NCIC cheek serial-number primary 99 S.Ct. 2632. His proba Chapman Nothing carried. indicated that claim that the officers did not have stolen, was, weapon weapon ble cause to believe he was on the was and the purpose. law, legally a lawful This issue is carried without under current Utah properly granting “In before the court. notwithstanding fact it the vehicle was certiorari, ‘[o]nly petition we for review concealed and contained ammunition fairly questions petition set forth Therefore, clip. gathered as a evidence for therein’ and which certiorari included improper illegally was result of search Noble, granted.” DeBry v. ap- The of the court of obtained. decision (Utah 1995) 49(a)(4)); R.App.P. (quoting Utah Chapman, v. peals State Utah, 399, 114 Hagen see 510 U.S. also (1992),is reversed. (1994); 958, 127 L.Ed.2d Butter Okubo, 101 n. 1 field ZIMMERMAN, C.J., STEWART, 1992). C.J., concur in DURHAM’S Associate Justice similarly final claim is flawed. The State’s opinion. argues The that even if the officers illegal improperly detained HOWE, Justice, dissenting: sufficiently incul- act attenuated from his majority patory those state- I dissent. The holds statements render they This not consid- ments admissible. issue was officers acted when detained by by companion trial court the court of his to run a war- ered them, pat- it in appeals. parties did not mention on a brief rants check conduct response petition for certiorari or the search of and search the down findings, lack majority of factual weapon. thereto. Given for a automobile however, issue holds, weapon with the failure to raise this combined that once the below, consider inappropriate found, it would be expanded impermissibly “the officers for the first time on certiorari. issue their detention they additionally an NCIC cheek when ran
CONCLUSION gun Chapman the serial on number disagree. I The trial court’s find- carried.” conclusion, we hold that the officers record, fact, supported by the ings of well proper scope of their duties were within placed Chapman un- clarify that the officers initially detained ordi- der arrest violation of proper companion. We also find weapons running the stolen nance run a decision to warrants cheek officers’ before so, being question is no as check. That there violating that the individuals detained for while legality further detention accept ordinance. Because voluntarily that he did the check was conducted. informed *10 chronological findings
The trial court’s weapons the stolen cheek. This version of facts are as follows: the facts is consistent with footnote two of majority opinion. probable
8. Officer Rasmussen had cause to believe that the defendant had appeals’ The court of chronological recita- public committed a offense of “Unlawful tion of supports the facts also this conclusion: Acts About Schools” when he arrested the permission The officers asked to search defendant. weapon. the vehicle for the The owner of legiti- 9. Officer Rasmussen also had the car consented the search. When safety justified physi- mate concerns which fanny pack, they officers located the held it defendant, cal detention of the when he up Chapman nodded. The officers pistol, found an automatic clip[,] a loaded opened fanny pack and removed a and several other rounds of ammunition weapon.... inside the within a few feet of the arrested, handcuffed, was then defendant. given warnings. his Miranda Officer An provided 10. NCIC records cheek Rasmussen testified that he arrested gun information that reported was sto- trespass for violation of the ordi- justified len and to also arrest nance. computer The officers ran a check possession gun. a stolen defendant for weapon on the and received notice that it added.) Thus, (Emphasis the trial court had been stolen. found that when Officer Rasmussen arrested he did so under the loi- Ct.App.1992). tering ordinance. When the officer later de- Because already placed been stolen, gun termined the to be that served as under arrest before the officers ran the grounds additional for the arrest. check, weapons the officers’further detention interpretation This findings court’s permissible. affirm I would supported by suppres- the record. At the appeals. the court of Ellertson, hearing, sion Officer back-up officer, Megan Borg, Chapman’s com- RUSSON, J., dissenting concurs in the panion, both testified that had al- opinion HOWE, J. (and ready been presumably handcuffed ar- rested) gun before Although was found. Rasmussen, officer,
Officer arresting ini-
tially testified that he handcuffed check, weapons
after the stolen he later clari- that, recollection,”
fied to “the best of [his]
arrested for violation of the loiter- right ordinance weapon after the found. When asked what the had to do KUNZ, Fredrick R. Plaintiff ordinance, with the Rasmussen said Appellant, he felt investigate he needed to further. This need for additional investiga- implies tion yet the officer had not con- TEMPORARIES, BENEFICIAL weapons Later, ducted the stolen check. Appellee. Defendant and Rasmussen stated that placed Chap- he had man though under arrest even the search of No. 940210.
the car up “any had not turned other infor- Supreme Court of Utah. illegal activity.” mation of Clearly the officer yet had not conducted weapons check. July Thus, the two officers and com- panion all testified that had been
placed under arrest for violation of the loiter-
ing ordinance before the officers conducted