Case Information
*1 IN THE UTAH COURT OF APPEALS
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State Utah, ) MEMORANDUM DECISION
)
Plaintiff Appellee, ) Case No. 20100563 ‐ )
v. ) F I L E D
) (September 2012) Christopher Duane Ellis, )
) UT App Defendant Appellant. )
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Fourth District, Provo Department, Honorable David N. Mortensen
Attorneys: Margaret P. Lindsay Matthew R. Morrise, Provo, Appellant
Mark L. Shurtleff Kenneth A. Bronston, Salt Lake City, Appellee ‐‐‐‐‐
Before Judges Thorne, McHugh, Roth.
ROTH, Judge:
¶1 Defendant Christopher Duane appeals district court’s denial his motion suppress evidence alleges seized when detaining exceeded protective frisk. affirm. If has “reasonable suspicion [a] detained individual armed dangerous,” conduct warrantless frisk, known Terry discover “might harm officer” “ensure safety” during investigative detention. Peterson ¶¶ 10, omitted) Ohio U.S. 24, *2 26 ‐ 27 (1968)). For Terry frisk to be permissible, “the action [must been] at its inception” the protective frisk must be “reasonably related scope to circumstances which interference first place.” Id. ¶ 12 (citing , U.S. at 19 20). “Because only objective is discovery be used against . . . , ‘a [that] goes beyond what necessary to determine suspect armed . . . is no[t] . . . valid . . . [the] fruits [of search] will be suppressed.’” Id. (quoting v. Warren UT ¶ 590).
¶3 “The . . . [is] evaluated objectively according to totality circumstances.” Warren U.S. 21). “To reasonableness, court should question facts available to . . . warrant man reasonable caution action taken was appropriate.” Id. (internal marks omitted). “[T]he must be able to point to specific facts which, considered with rational inferences those facts, warrant intrusion.” Id. “In determining reasonableness, due weight must be given to specific reasonable inferences [an officer] entitled to draw facts light his experience.” Id. (alteration original) quotation omitted). “[T]his process allows draw upon their own experience training make determinations based on cumulative them .” Id. ¶4 Here, encountered Ellis while investigating suspected automobile burglary. Upon approaching Ellis, saw “a clip right pocket.” He also noticed pockets were “very bulky.” Concerned safety, officer frisked weapons. began clipped
right, front pocket. That same “bulging,” so felt outside of attempt identify items inside were benign included things Touching outside pocket, felt “numerous items,” several “long seemed sharp” pointed. Concerned these used weapons, pens, reached into remove items. While hand pocket, several objects, as “pouches all kinds stuff.” Because “there so many it hard pull just one thing,” “just started taking everything [he] could what was dangerous and what wasn’t.” The officer emptied pocket about “two or three handfuls” items that included another knife, pens, papers, and couple “pouches.” One pouches was described as “knife sheath” ‐‐ about three inches long, one two inches wide, and thickness a pencil. In officer’s experience, could contain like “[r]azor blades, Leatherman tools, small pen knives ‐‐ things that sharps them” and can weapons. ¶6 Without opening manipulating that pouch, another who had joined the investigation could see that it contained that resembled glass methamphetamine pipe. When that asked what was pouch, Ellis admitted that it contained drug paraphernalia agreed that pouch searched. That opened pouch found it fact glass methamphetamine pipe. On search, drugs found Ellis’s possession. After charges filed, Ellis filed motion suppress both paraphernalia the drugs. district court’s denial motion subject this appeal. Ellis does dispute that, under circumstances, was in
detaining him conducting Terry nor does dispute the expanding by reaching into pocket further investigate felt during pat down. Rather, Ellis exceeded scope removing everything from Ellis’s pocket ‐‐ more particularly, from pocket did believe making argument, Ellis concedes the investigate reasonably believed to weapon, long pointed pouch knife sheath. Indeed, Ellis does dispute pouch during pouch accordingly concedes believed the contained weapon, removal pouch would fall within the frisk. Rather, argument much more narrow challenge It unclear testimony other unsheathed additional item pocket. *4 facts supporting officer’s belief that contained a weapon. Specifically, that
[the o]fficer . . . did not testify that he believed black sheath contained meth pipe a weapon. . . . [The o]fficer . . . testified that pockets contained pouches, that these pouches a cause concern because they contain whether the pouches contain is not relevant question. question is, rather, whether [the o]fficer . . . believed that did weapons, particular, whether he believed that black sheath contained meth pipe a weapon. . [The o]fficer . . . did not testify he believed sheath a weapon or contained a [The o]fficer did not testify contours of sheath, provide any specific, articulable facts which indicated particular sheath a weapon contained a weapon.
Thus, argues, effect, did articulate sufficient support a belief actually a weapon. distinction between thought “ contain
[a] weapon[]” “believed pouch[] [a] weapon[]” is of little significance, however, allowable is determined officer’s an object weapon might one, degree certainty object is contains weapon. See generally Zearley N.W.2d 391, (N.D. 1991) (“Weapon verification is essential safety preserved potentially volatile situation neutralized. We cannot impose condition certainty object weapon allowing an continue search can impose condition belief weapon reasonably grounded mere subterfuge random search.” omitted)); North Dakota Heitzmann ND N.W.2d Zearley N.W.2d (“[W]hen a[] reveals presence size density suggests *5 object might a weapon, searching entitled to continue the search in order to fact a weapon.”).
¶9 Here, testified his experience, pouches, as pouch and then removed from pocket, commonly weapons. officer’s identification of and nature of experience with gives his this particular weapon basis reason. That belief supported by attendant circumstances: had already observed plain sight same detected by feel hard, pointed objects that, based on experience, have been weapons objects be weapons. Some of turned to potential weapons when they from another several pens. Under totality circumstances, then, removing from part frisk because he had reasonable concern it another See State v. Warren 14, 78 P.3d (“The frisk [is] evaluated objectively according to totality circumstances. In determining reasonableness, due weight must be given specific reasonable inferences [an officer] entitled draw light experience. [T]his [approach] allows draw upon their own experience training make determinations based cumulative facts them elude untrained person.” (second alteration original) (citations internal omitted)).
¶10 Having reached this conclusion, we need not address broader contention raised by expanded search beyond scope by removing everything pocket, including did believe See generally United States Campa F.3d 736, (1st Cir. 2000) (concluding expanded search beyond appropriate scope intentionally removing defendant’s ‐‐ particularly, wallet, yielded contraband issue ‐‐ where not even assert thought weapon); Fowler (Wash. Ct. App. 1994) (concluding expanded beyond appropriate intentionally removing “two soft indeterminate shape” knew turned out cigarette packages containing drugs). do reach issue, however, we already concluded pouch, independently indistinguishable mass also pocket. Thus, contraband charged with possessing extracted mass but found pouch, discovery led discovery contraband. ¶11 Ellis also exploited illegal obtain consent search. we concluded not exceed we need address argument.
¶12 We affirm.
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Stephen L. Roth, Judge
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¶13 WE CONCUR:
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William A. Thorne Jr., Judge
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Carolyn B. McHugh, Judge