The STATE of Utah, Plaintiff and Respondent, v. Joseph P. DORSEY, Defendant and Appellant.
No. 20124.
Supreme Court of Utah.
Dec. 31, 1986.
731 P.2d 1085
[T]here is no way of knowing exactly how long before the hour of 4:20 p.m. the applicant first felt the effects of that stress or at what time he actually died but it could have been some hours before 4:20 p.m. We are not called upon to speculate as to those times or as to the excessive stress or exertion later in the afternoon in view of the fact that two fine cardiologists have agreed that the evidence is sufficient to convince them that the death was industrially related.
The Administrative Law Judge finds that Mr. Mabbutt died as the result of an accident in the course of his employment on October 23, 1981 resulting from unusual exertion and stress connected with his employment on that fateful afternoon.
I would affirm. The Commission has found the necessary facts, and it is not for us to ignore them.
HALL, C.J., concurs in the dissenting opinion of STEWART, Associate C.J.
David L. Wilkinson, Atty. Gen., Earl F. Dorius, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.
G. Fred Metos, Salt Lake City, for defendant and appellant.
STEWART, Associate Chief Justice:
Defendant Joseph P. Dorsey appeals his conviction of possession of cocaine with intent to distribute for value in violation of
Late on March 6 or early on March 7, 1983, Detective Russell Adair of the Metro Narcotics Strike Force made a warrantless search of Dorsey‘s truck and found one pound of cocaine packaged in sixteen one-ounce packages. The events leading up to that search were as follows.
In late February, 1983, Detective Charlie Hafen of the Metro Narcotics Strike Force met with informant John McGraw and Brian Schiell. Hafen sought to purchase a large amount of cocaine from Schiell, who indicated that he could obtain the cocaine for Hafen. When Hafen and Schiell met several days later, Schiell told Hafen that the suppliers would be driving from California and would be in town within several days. Hafen understood from Schiell that the suppliers were male and that more than one person would make the delivery. On March 6, 1983, Schiell informed Hafen that the suppliers were in town with the cocaine and wanted to complete the transaction that night.
At a briefing that night of other Metro Narcotics Strike Force officers, Hafen informed them that he believed the deal was
Hafen was then equipped with a body microphone, and transmitter, which made it possible for two other officers equipped with a receiver to hear everything that Hafen said. The officers with the receiver were the only officers who could hear Hafen‘s transmissions.
Hafen and John McGraw picked up Schiell and met Schiell‘s contact with the supplier, Scott Vaughn. They drove to the La Quinta Motel where protracted negotiations ensued with Schiell and Vaughn acting as go-betweens between Hafen, who was sitting in his car in the parking lot of the motel, and the people inside the motel with the cocaine, over whether the money or the cocaine would be turned over first. Several strike force detectives were in automobiles surrounding the motel, and one detective was on the second floor inside the motel. At one point during the negotiations, when both Schiell and Vaughn were out of the car, Hafen transmitted a description of them, stating that one of them was wearing a dark leather jacket. The officers who received that transmission then rebroadcast it to the other officers surrounding the motel, but did not mention that the person wearing the dark leather jacket was either Schiell or Vaughn.1
Adair, who was in a parked car to the northwest of the mоtel, heard that broadcast.
Shortly thereafter, the detective inside the motel broadcast that there was a person in a leather jacket who seemed to be involved in the transaction moving around in the parking lot. Adair heard that broadcast. The same detective also broadcast, after conferring with the motel managers, that Rooms 131 and 137 appeared to be the rooms involved in the transaction. The next transmission Adair heard was from two other detectives located in the parking lot, who observed a man in a dark leather jacket walk to a pickup truck located in the motel parking lot, get in and out of the truck, and then walk back toward the motel. They described the truck as a silver, recent-model Chevrolet S-10 with California plates with the numbers 3535. They said the man, who was looking around the parking lot, then walked over to and stood behind a dumpster and continued to observe the parking lot. At that point, Adair drove through the parking lot and observed a white male, who was wearing a dark leather jacket, standing behind the dumpster. At trial, he identified Dorsey as the man he saw.
Adair later heard a transmission stating that the deal could not be put together and that it was therefore called off. Almost immediately thereafter, the detective located on the upper floor of the motel broadcast that the people in Rooms 131 and 137 were leaving the building. Within two minutes of that broadcast, one of the detectives in the parking lot broadcast that he saw two people, one of whom was wearing a dark leather jacket, leave the motel and get into the truck with California license plates and drive off. Adair pulled out behind the truck, got close enough to determine that it had California license plates
It has long been held that warrantless vehicle searches are not invalid under the Fourth Amendment if probable cause for a search exists.2 Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). See also United States v. Johns, 469 U.S. 478, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985); United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). The probable cause requirement is subject to a narrow exception for stops of moving vehicles where police officers have an articulable suspicion that the automobile‘s occupants are “involved in criminal activity.” United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 679, 83 L.Ed.2d 604 (1985) and United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975), discussed infra.
The United States Supreme Court defined probable cause for a vehicle search as
Probable cause exists where “the facts and circumstances within their [the officers‘] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being committed. Brinegar, 338 U.S. at 175-76, 69 S.Ct. at 1310-11 (quoting Carroll, 267 U.S. at 162, 45 S.Ct. at 288).
The validity of the probable cause determination is made from the objective standpoint of a “prudent, reasonable, cautious police officer . . . guided by his experience and training.” United States v. Davis, 458 F.2d 819, 821 (D.C.Cir.1972). See also Taylor v. Commonwealth, 222 Va. 816, 820-21, 284 S.E.2d 833, 836 (1981), cert. denied, 456 U.S. 906, 102 S.Ct. 1753, 72 L.Ed.2d 163 (1982). Police officers by virtue of their experience and training can sometimes recognize illegal activity where ordinary citizens would not. Some recognition should appropriately be given to that experience and training where there are objective facts to justify the ultimate conclusion. United States v. Ortiz, 422 U.S. 891, 897, 95 S.Ct. 2585, 2589, 45 L.Ed.2d 623 (1975); United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975); Terry v. Ohio, 392 U.S. 1, 23 (1968); 1 W. LaFave, Search and Seizure § 3.2 at 462 (1978).
In Brinegar, the Court emphasized that probable cause does not require more than a rationally based conclusion of probability:
In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are nоt technical; they are the factual and practical considerations of every day life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.
Brinegar, 338 U.S. at 175, 69 S.Ct. at 1310. See also Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983). The line between “mere suspicion and probable cause . . . necessarily must be drawn by an act of judgment formed in the light of the particular situation and with account taken of all the circumstances.” Brinegar, 338 U.S. at 176, 69 S.Ct. at 1311.
The determination of whether probable cause exists, therefore, depends upon an examination of all the information available to the searching officer in light of the circumstances as they existed at the time the search was made. Id. The trial court‘s findings as to the facts and circumstances pertaining to probable cause will not be overturned on appeal unless it appears that the trial court clearly erred. State v. Torres, 29 Utah 2d 269, 271, 508 P.2d 534, 536 (1973); State v. Eastmond, 28 Utah 2d 129, 132, 499 P.2d 276, 278 (1972); State v. Criscola, 21 Utah 2d 272, 275, 444 P.2d 517, 519 (1968).
In making a probable cause determination, a police officer is entitled to rely on information gained from other police officers. “Observations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant appliеd for by one of their number.” United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 747, 13 L.Ed.2d 684 (1965). See also, e.g., United States v. Esle, 743 F.2d 1465, 1476 (11th Cir.1984); State v. Olson, 134 Ariz. 114, 117, 654 P.2d 48, 51 (Ct.App.1982).
When Adair stopped and searched Dorsey‘s vehicle, he was aware that Hafen, another strike force officer, had been attempting to make a “controlled buy” of a large quantity of cocaine, that Hafen had been setting the deal up through Brian Schiell with suppliers from California who had cocaine in the La Quinta Motel, and that two of the negotiators left the room in
Adair‘s information at the time of the search and seizure might not be sufficient by itself to establish guilt, but there clearly was sufficient evidence to establish probable cause.
Other courts have found probable cause to exist on facts similar to this case. In United States v. Esle, 743 F.2d 1465 (11th Cir.1984), a Drug Enforcement Administration agent met one of the defendants and tried to arrange a cocaine buy through him. Although that attempt failed, two of the defendants later met with the agent and negotiated a buy. The buy was to take place at a Marriott Hotel, which was surrounded by DEA agents. The purchasing agent did not see the cocaine, but was informed by one of the defendants that the cocaine was in a car in the parking lot. When the defendants went to get the cocaine, they simply got in the car and drove off. The purchasing agent followed them and asked what the trouble was. They told him there were DEA agents all around and they would not show him the cocaine. When they started to leave again, the purchasing agent gave the signal for their arrest. A different agent then searched the car and the trunk and found a briefcase. After obtaining a search warrant for the briefcase, the agents opened it and fоund the cocaine inside. Id. at 1468. The court held that even though the purchasing agent had not seen the cocaine, when officers are involved together in an operation and there is communication between them, the collective knowledge of the officers is considered in determining whether there was probable cause for the search. The court also held that the information that the cocaine was in the car, which was communicated to the searching agent, was sufficient to establish probable cause. Id. at 1476.
In United States v. Mendoza, 722 F.2d 96 (5th Cir.1983), DEA agents were tipped off that a certain man would be moving a large shipment of cocaine over the Labor Day weekend. They began twenty-four-hour surveillance of his house and also began following several people who had contact with him. The individuals being watched, including the defendants, were variously observed to be walking or driving in an erratic manner, as if looking for someone following them, using pay telephones, checking the undercarriages of their cars, and driving into and out of a warehouse. The police decided to stop the vehicles. On searching Mendoza‘s car, they found thirty pounds of cocaine. Id. at 97-99. The court, in finding probable cаuse for the search, recognized that the individual details recited in the facts could also be consistent with innocent behavior since none of the acts observed were criminal. However, the court held that the circumstances, considered as a whole and in light of the experience of the narcotics agents, combined with the informant‘s tip to form a valid basis for a reasonably prudent police officer‘s belief that criminal conduct was afoot. Id. at 101-02.
In State v. Dupuy, 116 Ariz. 151, 568 P.2d 1049 (1977), narcotics agents, acting on a tip from one of the participants that marijuana was to be smuggled over the Arizona-Mexico border that night, followed the informant‘s car to a motel in Nogales, Arizona. The agents watched the informant‘s companion enter a motel room. Later, a camper-truck pulled into the parking lot behind the motel. Shortly thereafter,
The facts in this case were sufficient to justify a belief that cocaine was located in Dorsey‘s truck. Hafen dealt with Brian Schiell, who claimed he could get cоcaine for him. Schiell or Vaughn claimed to have seen the cocaine and described it as being packaged in sixteen one-ounce packages. All the surveilling officers informed each other of the activities they observed in and around the motel and how they seemed to relate to the negotiations being carried on by Hafen. When Adair stopped and searched the truck, he was aware of that collective information, and even though his own actual observations were not enough to rise to the level of probable cause, the information that he had received from other officers was sufficient to conclude that there was probable cause for his stop and search of Dorsey‘s truck.
As stated above, automobiles may in some circumstances be stopped where police do not have probable cause to do so, but do have an articulable suspicion that the vehicle‘s occupants are “involved in criminal activity.” United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) and United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). See generally Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Nevertheless, the precise scope of the articulable suspicion standard with respect to the search of automobiles has not been decided by the United States Supreme Court. See generally Hensley, 105 S.Ct. at 680-81; Michigan v. Long, 463 U.S. 1032, 1046-47, 103 S.Ct. 3469, 3479-80, 77 L.Ed.2d 1201 (1983). See also Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968).
Since both the search and seizure in this case were properly conducted under the probable cause standard, we need not address the articulable suspicion standard relied on in the concurring opinion.
Affirmed.
HALL, C.J., and HOWE, J., concur.
ZIMMERMAN, Justice: (concurring in the result).
I dissent from the majority‘s determination that Adair‘s search of defendant Dorsey‘s truck was proper because Adair had probable cause to believe that the truck contained cocaine. However, analyzing the stop and subsequent search under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), I conclude that Adair did have an articulable suspicion that the truck‘s occupants were involved in criminal aсtivity and did have an articulable and objectively reasonable belief that the occupants were potentially dangerous. Therefore, he acted reasonably in stopping the truck and searching its interior for weapons, and his actions do not violate the fourth amendment to the United States Constitution. I therefore concur with the result of the majority opinion: the contraband discovered in the search was properly admissible.
The majority concludes that the search of the truck was permissible because the fourth amendment allows warrantless searches of vehicles if those searches are
A careful examination of the facts known to Adair shows that there was simply nothing beyond suspicion to connect the “man in the leather jacket” and the “truck with California plates” with the aborted cocaine transaction; certainly, nothing Adair knew would support a finding that he had probable cause to believe that the pound of cocaine was located in the truck.
Despite the contrary suggestion in the majority opinion, Adair knew nothing at the time of the stop that connected the truck‘s occupants with rooms 131 and 137 of the motel, the rooms where the cocaine transaction was being negotiated and where the police might reasonably have suspected the possessor of the cocaine to have been located. Instead, Adair knew only that a man in a leather jacket had walked to a truck bearing California plates located in the parking lot of a large motel and had then stood near a dumpster looking around the parking lot for a period of time. This man he identified as Dorsey. There was some mention in the police broadcasts that either Schiell or Vaughn, the two persons intimately involved in the drug transaction and with whom Hafen was dealing face-to-face, was wearing a dark leather jacket, and the majority seems to suggest that this information gave Adair reason to believe that the man in the leather jacket who got into the truck and drove away was one of these persons. However, these facts would not lead a reasonable person to believe that either Schiell or Vaughn was the person Adair associated with the truck. Since Schiell and Vaughn were shuttling back and forth between rooms 131 and 137 and the car where Hafen was sitting, obviously neither of them could have been the person who, during the same period of time, walked to the truck and then stood near the dumpster for an extended period.
A final reason why I cannot accept the majority‘s determination is that Adair never claimed to have probable cause to believe that the truck carried the cocaine. Adair stopped the truck only because its leather-jacketed occupant‘s actions had raised a suspicion that he somehow was involved in the transaction and because another officer directed Adair to make the stop and to identify the occupants of the truck.
There is an alternative ground for finding the search lawful that does not strain either the facts or the law. An officer lacking the probable cause necessary to justify the issuance of a search or arrest warrant may still stop a person for investigative questioning if the officer has an articulable suspicion that the person is engaged in or is about to engage in criminal
Once an investigative Terry stop is made, the officer has the right to take steps reasonably necessary to protect himself from assault by the suspect during the stop. According to the Terry Court, a narrowly circumscribed search for weapons is permissible if the officer “is justified in believing that the individual . . . is armed and presently dangerous to the officer or to others . . . .” Terry v. Ohio, 392 U.S. at 28, 88 S.Ct. at 1883. This search can extend beyond the suspect‘s person to the area “within his immediate control.” Chimel v. California, 395 U.S. 752, 763 (1969).
In Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), the Supreme Court considered the permissible scope of such a weapons search when an automobile stop was involved. It concluded that a search of the
passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant” the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.
Id. at 1049, 103 S.Ct. at 3481 (quoting Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. at 1879). The legality of the search in the present case is a close call even under Long. However, I conclude that the trial court did not err in finding it permissible.
Here, Adair had a reasonable basis for suspecting Dorsey of being involved in a large, wholesale narcotics transaction that involved the transportation of the drugs from Californiа to Utah. Adair reasonably could assume that those participating in moving large quantities of illegal drugs over long distances might be armed to protect themselves from criminals who might attempt to “rip-off” a drug dealer. Dorsey‘s truck did bear California license plates. When Adair announced who he was, Dorsey made a furtive gesture, which consisted of taking something off the seat and placing it between his legs on the floor of the car. Given the dangers always present when an officer confronts suspects in an automobile, id. at 1048 n. 13, 103 S.Ct. at 3480 n. 13. I conclude that, under the circumstances, Adair was justified in concluding that the occupants of the truck might be armed and a danger to himself and the other officers.
The most difficult aspect of this matter is presented by the fact that at the time Adair searched under the seat, the truck‘s occupants were standing by the rear of the truck under control of several officers holding drawn weapons. Dorsey contends that,
This claim has some appeal. There are various degrees of restraint. Plainly, if a suspect is handcuffed or otherwise taken into custody and physically secured, there is little real likelihood that he will be able to retrieve a weapon from some remote location. But we are not dealing here with a suspect who has been handcuffed and belted into a police car—common steps taken to secure prisoners. Nor are we dealing with suspects who have been arrested or taken into custody. Instead, we have two persons who have been stopped for investigation and are standing outside their vehicle late at night. Had they not been subsequently arrested, they might have reentered their vehicle and presented a threat to the officers. Under these circumstances, we should not second guess the officers, at least when the trial court found this fear reasonable.3
Based on the facts known to Adair at the time of the stop and the fourth amendment teachings of Long, I conclude that the search was lawful as incident to a Terry stop. Therefore, I join the majority in affirming the conviction.
DURHAM, J., concurs in Justice ZIMMERMAN‘S concurring opinion.