STATE of Utah, Appellee, v. Matthew James HINMON, Appellant.
No. 20150015-CA
Court of Appeals of Utah.
October 27, 2016
2016 UT App 215 | 385 P.3d 385
¶31 “When a party raises on issue an appeal without having properly preserved the issue below, we require that the party articulate an appropriate justification for appellate review; specifically, the party must argue either ‘plain error’ or ‘exceptional circumstance.‘” State v. Winfield, 2006 UT 4, ¶ 14, 128 P.3d 1171 (quoting State v. Pinder, 2005 UT 15, ¶ 45, 114 P.3d 551); see also Hatch v. Davis, 2004 UT App 378, ¶ 56, 102 P.3d 774 (“Absent plain error or exceptional circumstances an appellate court will not consider an issue—even a constitutional issue—which is raised for the first time on appeal.“). Because Barnes “did not properly preserve his objections below and has failed to argue plain error or demonstrate exceptional circumstances justifying appellate review,” his arguments are waived and we decline to address them. See Pinder, 2005 UT 15, ¶ 42, 114 P.3d 551.
CONCLUSION
¶32 We conclude the district court did not err in issuing the stalking injunction against Barnes, and Barnes has not preserved his constitutional argument against the firearms restriction.
¶33 Affirmed.
John B. Plimpton, Heather J. Chesnut, and Alexandra S. McCallum, Attorneys for Appellant.
Sean D. Reyes, Salt Lake City, and Lindsey L. Wheeler, Attorneys for Appellee.
Judge Kate A. Toomey authored this Memorandum Decision, in which Judge Michele M. Christiansen and Senior Judge Pamela T. Greenwood concurred.1
Memorandum Decision
TOOMEY, Judge:
¶1 In this memorandum decision, we determine whether the trial court erred in denying
BACKGROUND
¶2 In September 2013, a grocery store employee (Employee) noticed a small green passenger car backed into a parking stall in the store parking lot. The car, which was next to Employee‘s own vehicle, caught his attention because the passenger side door was welded shut and because it was parked on the west side of the parking lot, “where most employees park.” Two people were sitting in the car. As Employee approached his own car, a man seated in the passenger seat saw him, “lurched forward” to cover something in his lap, and looked over at Employee “in a manner that struck [Employee] as suspicious.” Looking through the window on the driver‘s side of the vehicle, Employee saw a towel on the man‘s lap “with a bunch of pink balloons” on top of the towel.
¶3 The number of balloons seemed too many “for just personal use,” and Employee suspected a drug transaction. He radioed the store manager and the security guard (Guard) to “come out and handle” the situation. Guard worked part time at the grocery store and was a full-time peace officer with the Utah Division of Wildlife Resources. He had worked with the Division for twenty-five years. At the time of the incident, he was wearing a gun belt, a gold name badge, and a dark blue uniform, which “looks like” “a police officer‘s uniform.” Employee met the manager and Guard as they emerged from the store, and explained the situation to them. Employee described the car as a “little small green vehicle,” told them where it was parked, and that it had been backed into the stall. He also described the passenger‘s “suspicious” reaction, and said the passenger had a towel across his lap and was “twisting up” little pink balloons. He disclosed his suspicions that the passenger was involved in a drug transaction, and more specifically, that he assumed the passenger was selling heroin to the driver.
¶4 Guard decided to investigate, and he and the manager moved toward the car Employee had described. Guard approached it from behind and peered into the window on the passenger‘s side without being noticed by either occupant. As Guard looked over the passenger‘s shoulder, he saw a towel on the man‘s lap and observed him manipulating something “on the towel in the middle of his lap.”
¶5 The next events happened in rapid succession. As Guard moved closer, the passenger looked up at him and froze. Guard called out, “Don‘t move.” The passenger briefly hesitated, then grabbed what was in his lap and “thr[ew] his hands toward the floor of the vehicle.” He yelled at the driver to “take off, take off” and to “just drive, just drive” and reached toward the car‘s gearshift. When Guard saw the passenger‘s hands shove something towards the floor, he thought the passenger was either “hiding contraband” or “going for a weapon.” Guard reached inside the open passenger window to grab the passenger‘s hands and restrain him, saying, “Police, you are under arrest.”
¶6 A struggle ensued. Guard continued trying to restrain the passenger‘s hands and told him repeatedly to “quit resisting” and to “stop resisting arrest.” The passenger freed his right hand and reached toward the driver with a clenched fist, telling her to “eat this,” but she shook her head. In an attempt to free himself from Guard‘s grip, the passenger “lurched really hard up over the seat” so that his head was in the backseat and his feet were in the passenger seat. He tried to “shov[e] something in his mouth,” but “a little pink balloon bounce[d] off and roll[ed] into the backseat.” While Guard struggled to restrain the passenger, the manager was on the driver‘s side of the car. The manager saw the balloon when it fell and immediately picked it up from the backseat. Eventually, the manager and Guard restrained and arrested the passenger, who was later identified as Hinmon. A police officer soon arrived and field tested the contents of the pink balloon, which tested positive for heroin.
¶7 Hinmon was charged with possession of a controlled substance and interfering with an arresting officer. He moved to suppress the evidence of the pink balloon and the results of the field test as the fruit of an unconstitutional search. The trial court held
¶8 The court determined that Guard had initiated an investigatory stop when he told Hinmon, “Don‘t move.” It also concluded that Guard had reasonable suspicion to make the stop: Employee‘s tip was from a citizen informant and “highly reliable,” “sufficiently detailed,” and confirmed by Guard. Next, the court determined that Guard arrested Hinmon when he attempted to restrain Hinmon‘s hands.2 The court also concluded Guard had probable cause for this arrest because after Guard told Hinmon not to move, Hinmon reacted by shoving everything in his lap to the floor, reaching for the gearshift, and yelling at the driver to “take off.” This reaction, combined with Employee‘s tip and Guard‘s investigation, was enough to show an objectively reasonable high probability of criminal activity.” Accordingly, the court denied Hinmon‘s motion to suppress, and Hinmon entered a Sery plea reserving the right to appeal the trial court‘s ruling.3
ISSUES AND STANDARDS OF REVIEW
¶9 Hinmon contends the trial court erred when it denied his motion to suppress. A trial court‘s decision to grant or deny a motion to suppress presents a “mixed question of law and fact.” State v. Fuller, 2014 UT 29, ¶ 17, 332 P.3d 937. The court‘s factual findings are reviewed for clear error, while its legal conclusions are reviewed for correctness. Id. Hinmon further alleges the court made four clearly erroneous findings of fact. We will set aside the trial court‘s factual findings as clearly erroneous only if they are “against the clear weight of the evidence, or if [we] otherwise reach[] a definite and firm conviction that a mistake has been made.” Brown v. State, 2013 UT 42, ¶ 37, 308 P.3d 486 (alterations in original) (citation and internal quotation marks omitted).
ANALYSIS
¶10 The
¶11 Hinmon contends that the trial court erred in concluding Guard had reasonable suspicion to initially detain Hinmon, and that the court erred in concluding Guard had probable cause to arrest him. Hinmon also alleges that the court clearly erred in making four particular findings of fact. We address Hinmon‘s challenges to these findings of fact within our discussion of the ultimate issues of reasonable suspicion and probable cause.
I. Reasonable Suspicion
¶12 First, Hinmon claims Guard “lacked reasonable suspicion when he performed an investigatory detention of [him].”4
¶13 Here, Guard relied on a tip provided by an identified citizen informant—Employee. Reasonable suspicion may be based on an informant‘s tip. See State v. Roybal, 2010 UT 34, ¶ 14-15, 20, 232 P.3d 1016. The Utah “Supreme Court has declined to adopt a ‘rigidly exact[ing]’ standard in assessing an informant‘s tip and instead undertakes a ‘flexible, common sense test’ with a view toward the ‘totality of the facts and circumstances.‘” State v. Lloyd, 2011 UT App 323, ¶ 15, 263 P.3d 557 (alteration in original) (quoting State v. Saddler, 2004 UT 105, ¶ 10-27, 104 P.3d 1265). When determining whether a tip was sufficiently reliable to support a conclusion that reasonable suspicion existed, we look to the “indicia of veracity, reliability, and basis of knowledge” as “non-exclusive elements.” Id. (quoting Saddler, 2004 UT 105, ¶ 11).5 Officer corroboration of the tip may also be considered. See State v. Keener, 2008 UT App 288, ¶ 12 n.4, 191 P.3d 835 (explaining that officer corroboration may be used to establish probable cause).
¶14 Information from identified citizen informants “is generally considered highly reliable,” Roybal, 2010 UT 34, ¶ 16 (citation and internal quotation marks omitted), and “needs no independent proof of reliability or veracity,” State v. Comer, 2002 UT App 219, ¶ 22, 51 P.3d 55 (citation and internal quotation marks omitted). Reliability can also be assumed when a citizen “receives nothing from the police in exchange for the information.” See State v. Purser, 828 P.2d 515, 517 (Utah Ct. App. 1992).
¶15 Hinmon argues Employee‘s tip was unreliable because “there was no evidence that he ‘had a sufficient basis of knowledge for concluding that the occupants of the car’ were engaged in drug activity.” (Quoting Lloyd, 2011 UT App 323, ¶ 17.) In State v. Lloyd, a caller identified only by her first name told the police that people were “smoking drugs” in a car outside her apartment building. 2011 UT App 323, ¶ 2. Although the caller told the police she could see and smell that the individuals were smoking drugs, there was not
¶16 The facts in this case differ from those in Lloyd. Employee was an identified citizen informant, as he had worked at the grocery store for seven years and Guard had known him for a number of those years. Employee was not compensated or given any other incentive for his report. Thus, his report is given “presumptive reliability.” State v. Rose, 2015 UT App 49, ¶ 11, 345 P.3d 757. Furthermore, Employee supplied Guard with detailed information about what was happening. This allowed Guard to determine from his own experience, based on the facts given, whether a crime was taking place, instead of relying on Employee‘s experience or basis of knowledge for that conclusion.6 See Warren, 2003 UT 36, ¶ 14, 78 P.3d 590 (explaining that due weight must be given to specific reasonable inferences drawn from an officer‘s experience, which allows officers to make determinations based on facts that may elude an untrained person).
¶17 Employee provided a reliable, detailed tip. The tip described the car, its location, and its position. The tip also described in detail the activity of the car‘s occupants, including that Hinmon had been manipulating pink balloons on a towel in his lap and that he had “lurched forward” to hide what he was doing when Employee walked by. Guard‘s investigation corroborated Employee‘s report. Although Guard did not see any balloons before he detained Hinmon, he found the car exactly as Employee had described it: a small, green vehicle, parked on the west side of the grocery store, and backed into the parking stall.7 Hinmon also matched Employee‘s description—he was seated in the passenger seat, manipulating something on a towel in his lap. Guard had twenty-five years of experience as a peace officer, during which time he gained extensive patrol, citation, and arrest experience. Considering the totality of the circumstances—including the information that Guard was given and his personal observations—it was reasonable for Guard to suspect criminal activity was taking place. See State v. Worwood, 2007 UT 47, ¶ 23, 164 P.3d 397. The trial court was thus correct in determining that reasonable suspicion justified the detention.
II. Probable Cause
¶18 Next, Hinmon claims Guard lacked probable cause to make the arrest. Probable cause justifying arrest requires that the facts and circumstances within the arresting officer‘s knowledge be sufficient to warrant a prudent person in believing that a crime has been committed. State v. Hansen, 2011 UT App 242, ¶ 10, 262 P.3d 448 (citing Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979)). The inquiry is a “practical, common-sense decision whether, given all the circumstances ..., there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). “Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time....” Devenpeck v. Alford, 543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004). “We must examine the ‘totality of the circumstances’ to determine whether the informant[‘s] tip[], together with police obser-
¶19 Between the time Guard detained Hinmon by ordering him not to move and arrested him by attempting to restrain his hands, the trial court found that Hinmon shoved what was on his lap to the floor, told the driver to “take off” and “just drive,” and reached toward the gearshift. Our inquiry is whether these actions, in combination with the information Guard already had, are enough to give Guard probable cause to believe that criminal activity was taking place.
¶20 Hinmon contends the trial court clearly erred when it made these particular findings of fact. He does not dispute that these three things occurred, but disputes the court‘s finding of the order in which they occurred. Specifically, Hinmon asserts that he did not tell the driver to “take off” and “just drive” or reach for the gearshift until after Guard had attempted to restrain him. Hinmon also claims the trial court‘s other findings were inconsistent with this particular order of events—finding that Hinmon said “start the car” and “go, go” while he and Guard were already struggling, and finding that Guard reached for Hinmon‘s hands “[a]s soon as [Hinmon] lunged to the floor” and “push[ed] everything off of his lap.”
¶21 We defer to a trial court‘s findings of fact unless they are clearly erroneous. State v. Green, 2005 UT 9, ¶ 25, 108 P.3d 710. “For a reviewing court to find clear error, it must decide that the factual findings made by the trial court are not adequately supported by the record, resolving all disputes in the evidence in a light most favorable to the trial court‘s determination.” Id. (citation and internal quotation marks omitted). This is a “highly deferential” standard because the trial court is “considered to be in the best position to assess the credibility of witnesses and to derive a sense of the proceeding as a whole, something an appellate court cannot hope to garner from a cold record.” Id. (citation and internal quotation marks omitted).
¶22 In reviewing the record on the precise order of events, there are inconsistencies among the testimonies and in the factual findings. But according to the manager‘s testimony, after Guard ordered Hinmon not to move, Hinmon “moved forward, shoved everything that was in his lap to the ground and started yelling to the driver to take off, take off.” When the prosecutor asked him what happened next, the manager testified that Hinmon “started screaming, [t]ake off, take off, and it looked like he was reaching for the gearshift.” The record thus adequately supports the trial court‘s finding as to the order of events. The court therefore did not clearly err, and any inconsistencies can be resolved in a light most favorable to this determination. See id.
¶23 The State argues that Hinmon‘s attempt to conceal the evidence and flee, in conjunction with Employee‘s tip and Guard‘s own observations, gave rise to probable cause. It asserts that furtive movements, when coupled with other facts, can support probable cause. The United States Supreme Court has stated that
deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors to be considered in the decision to make an arrest.
Sibron v. New York, 392 U.S. 40, 66-67, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).
¶24 Hinmon disagrees with the State and cites four cases, claiming that the furtive movements of the defendants were not enough to justify an arrest or a search. See State v. Schlosser, 774 P.2d 1132, 1138 (Utah 1989) (holding that defendant‘s “turning to the left and to the right, appearing fidgety, bending forward, and turning to look at the officer” were not enough to “show a reasonable probability that criminal conduct had occurred“); State v. Parke, 2009 UT App 50, ¶ 10-11, 18, 205 P.3d 104 (holding that defendant‘s shoulder movement, which appeared to show him reaching for his waistband, was not enough to support a reasonable suspicion that he was armed); State v. Martinez, 2008 UT App 90, ¶ 2 n.3, 182 P.3d 385 (stating that behavior like moving arms and bending forward as if putting something on the floorboard does not alone establish reasonable suspicion); State v. Holmes, 774 P.2d 506, 511-12 (Utah Ct. App. 1989) (holding that a defendant‘s “attempt to stuff [a] roll of paper towels down between the car seat and the console,” standing alone, was not enough to establish probable cause).
¶25 These cases are distinguishable. Schlosser, Parke, and Holmes all involved traffic stops, where the defendant‘s furtive movements or acts of concealment alone were not sufficient to give reasonable suspicion or probable cause of a separate crime. In this case, Guard already had reasonable suspicion that Hinmon was involved in drug activity. From Employee‘s report and his own observations, Guard had a reasonable suspicion that Hinmon was in possession of contraband. Hinmon‘s reaction to Guard‘s commands—trying to conceal what was on his lap, and trying to flee from Guard‘s presence—was enough to support a reasonable probability that Hinmon was involved in criminal activity, when considered with the information that Guard already had. In Martinez, while the defendant made furtive movements, the combination of the information the officer received from a dispatch report and his own observations was enough to give the officer reasonable suspicion of criminal activity. Id. ¶ 8, 9. None of these cases undermines our conclusion that furtive movements, acts of concealment, and attempts to flee, in conjunction with other information that criminal activity is taking place, can support a finding that probable cause exists. See Sibron, 392 U.S. at 66-67.
¶26 In sum, when Guard detained Hinmon, he had reasonable suspicion that Hinmon was involved in drug activity. As soon as Guard detained him by telling him not to move, Hinmon‘s reaction—shoving what was in his lap to the floor, reaching for the gearshift, and yelling at the driver to take off—showed that Hinmon was attempting to conceal evidence and flee. This provided a “fair probability” of a crime—enough that a prudent person would believe a crime was being committed. See Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); State v. Hansen, 2011 UT App 242, ¶ 10, 262 P.3d 448. Thus the trial court did not err in determining that Guard had probable cause to arrest Hinmon.
CONCLUSION
¶27 To the extent that we rely on the trial court‘s contested findings of fact, we conclude the court‘s findings were not clearly erroneous. We further conclude that Guard had reasonable suspicion to detain Hinmon and probable cause to arrest him.
¶28 Affirmed.
KATE A. TOOMEY
JUDGE