State v. Hurt

CONCLUSION Boys that Bad

14 The terms of the bond behalf of the Jeffersons

posted on Boys's limited Bad

unlawful detainer action

obligations guaranteed that the Jef- appear required. court as

fersons ordered, Judgment "the

The district court action, good in this cause show-

entered Boys ... that Bad ... shall forfeit $10,000, paid the sum of to be

[Dixon]

the Possession Bond filed with the Court." Boys posses-

In this Bad had not filed a represented

sion bond or it had filed a

possession bond. Under these cireum-

stances, the district court erred when it es-

sentially Boys's converted Bad bail bond to a

possession bond and thereafter ordered for-

feiture of the bail bond. We reverse the

judgment.

[ DAVIS, CONCUR: Z. WE JAMES ORME,

Presiding Judge and K. GREGORY

2010UT 33 Utah, Appellee,

STATE of Plaintiff HURT,

Russell E. Defendant Appellant.

No. 20080662-CA. Appeals

Court of Utah.

Feb. judgment joinder.

tion to set aside the and motion for

BACKGROUND August was arrested on T2 Hurt Highway Trooper Patrol when a Utah Wurtz, pos- to be in David discovered par- methamphetamine and related session of stop. a traffic The State aphernalia possession para- charged drug Hurt with offenses, and Hurt filed a motion to phernalia against him. suppress the evidence Hurt's impermissibly motion asserted that Wurtz perform 'pat down' "ordered self [Terry gen- ] which is a frisk." See force[d] Ohio, Terry erally 392 U.S. S.Ct. (1968). 1868,20 L.Ed.2d 889 The State de- pending briefing its on Hurt's motion ferred completion suppression hearing. of a suppression T8 The district court held a factual hearing, at which it made extensive stop. findings pertaining to the traffic Those were later set out order, and summa- district court's written p.m. Au- rize them here. At about 7:80 gust patrolling in Wurtz was Wasatch County when he observed vehicle exceed- speed stopped limit. Wurtz the vehi- approached it from the driver's side. cle and stopped Black was the driver of the Grant vehicle, passenger. Upon and Hurt awas Black, running a warrants check on Wurtz had an arrest war- was informed Black history rant and a of involvement with meth- amphetamine. Wurtz arrested Black on the Provo, Facemyer, Appellant. Dana M. warrant. Shurtleff, Gen., Atty. and Marian Mark L. spoke 1 4 Wurtz then with Hurt about the Decker, Gen., Atty. City, for Asst. Salt Lake possibility driving Black's vehicle Appellee. seene, away from the but did have time, At valid driver license. Wurtz DAVIS, THORNE, Judges Before step Hurt to out of the vehicle so that asked BENCH.1 trooper could search the Wurtz another incident to Black's arrest. Hurt com- OPINION plied. THORNE, Judge: any weap- asked Hurt if he had Wurtz him, replied appeals T1 E. Hurt from his con- ons on and Hurt that he did not. Russell possession pock- of a asked Hurt to turn out his viction of controlled sub- Wurtz then stance, degree felony, ets and an third see Utah Code 58-37-8(2) § (Supp.2009). Ann. We affirm. which Hurt did. The case con- Judge W. Bench heard this case as a designated Russell and hence he is January regular Appeals Ann. herein as a Senior See Utah Code member of the Utah Court 78A-3-103(2) (2008); Sup.Ct. § prior January R. of Prof'l to his retirement on 2010. How- ever, 11-201(6). Practice his vote on this decision occurred after violated Fourth his Amendment contraband. At no time did tained Hurt. physically against seizure, frisk unreasonable search and amend. legal Const. IV. "We review the suppression hearing, After T6 ity of a correctness, search and seizure for opposition responding filed an brief giving no deference to the decision of the Hurt's motion and the district court's factual Dennis, trial court." State v. findings. argued The State's brief 167 P.3d 528 properly Hurt out Wurtz ordered of the vehi- omitted); Brake, see also cle, that Hurt consented to the search of the ¶ ("We 95, 15, abandon the eyeglass by complying case when Wurtz standard which extended 'some deference' to pocket him to take the case out of asked his application the underlying of law to the factu it, and and that Wurtz's detention of findings al in search and seizure cases in Hurt was reasonable under the circum- review."). favor of non-deferential stop. stances of the traffic T7 The district court issued a written or- ANALYSIS denying der Hurt's motion. The order recit- following ed the conclusions of law: I. Unlawfully Hurt Was Not Detained lawfully 1. a motor Onee vehicle has been argues T9 Hurt first that his deten violation, detained for a traffic peace the impermissible tion was because Wurtz had no pas- officer order the driver and all suspicion reasonable that Hurt had commit sengers violating out of the vehicle without ted or was about to commit a Specifi crime. proscription the Fourth Amendment's cally, argues Hurt that his analogous case is against unreasonable searches.... Baker, to State v. 2008UT 182P.3d 2. That is what occurred in this case. granted, 2008), placed the custody, Onee driver was into in which this court reversed the criminal step [Hurt] was asked to out of the vehicle. conviction passenger vehicle who was necessary in This was order for troop- the following detained the arrest of the driver. passenger er to effect a search of the apart We unpersuaded are impermissi- from the vehicle incident to the driver's bly detained Hurt the course of the - arrest. stop traffic under either Baker or recent Supreme United States Having testimony Court case law on the considered having Findings made of Fact based on the passengers during vehicle traf testimony, I am stops. satisfied that the fic by Trooper evidence seized Wurtz was 110 As a passenger, vehicle Hurt pursuant seized to consent of [Hurt]. was detained from the moment that Wurtz persuaded am not the officer stop. initiated the traffic See Brendlin v. eyeglass commanded [Hurt] California, 249, 257-58, 551 U.S. 127 S.Ct. case which the contraband was discover- (2007). Such an inci ed. There was no show of force used dental detention of a passenger "ordi officer; there an absence of a continues, reasonable, and remains narily authority cooper- claim of Johnson, stop." the duration Arizona v. ated with the - -, -, 129 S.Ct. there was an absence of or trick. (2009). certainly There are L.Ed.2d conclusions, Based on its aspects stop might this district court's order denied Hurt's motion to lead to the conclusion that its duration was suppress. appeals. ordinary outside that of stop- traffic See, notably, most the arrest of the driver. ISSUE AND STANDARD OF REVIEW Baker, e.g., argues, generally, (observing arrest, that his that upon the driver's "a stop brief traffic had turned into an indefi stopped detention and removal from the vehi cle, (Thorne, leading J., well as Wurtz's actions nite concurring)); detention" of contraband in Hurt's also, Brendlin, e.g., 551 U.S. at 127 S.Ct. discovery of the contents of Hurt's ("[A] of the Wurtz's stop entails seizure traffic contrast, stop By purpose pockets case. though the 'even driver resulting quite Baker, detention passed and the minutes between

limited ten to fifteen brief'"). However, argue Hurt does alert, drug dog's and the the driver's arrest particular (Thorne, J., that the cireumstances concurring), and the see id. general rule that inciden place it outside investigatory targets passengers had become reasonable, and are passenger detentions tal justify grounds independent from those the otherwise law permissible, for therefore driver, detention stop.2 ful duration of ("[Thhe effectively had be driver's detention investigatory seope permanent, come and the Rather, case is argues his Baker, Bak had widened to include of the detention analogous to Baker. (Thorne, J., concurring). to detain a case, target." continued police officers er as a detention remained inciden Because Hurt's the after the arrest of passengers vehicle's ¶¶ 115, 12-13, detention and was not App tal to the driver's 182 2008 UT driver. See However, passengers in the actions, Baker P.3d 935. by we appreciably extended Wurtz's period of subjected to a substantial were require that does not rever conclude Baker for the the driver's arrest insal detention after this situation.3 subjecting screening them to purpose sole of ¶¶ 3-6. dog. The drug-sniffing See by a Not Unlawful II. Consent Search Was have a reasonable in Baker did not officers $13 challenges consti Hurt next the passengers the involved suspicion that were tutionality actions that resulted of Wurtz's ¶ 13. This court illegal drugs. See id. with eye discovery of the contents of Hurt's the pas that such detention determined appears to characterize glass case. Hurt arrest, for reasons sengers after the driver's "weapons requir actions frisk" Wurtz's stop unsupported the unrelated to ing suspicion that Wurtz was reasonable im wrongdoing, of was suspicion reasonable dangerous. generally See State armed permissible. See id. Warren, 36, ¶ 13, 78 P.3d 590. v. 2008 UT { however, are, aspects several of 12 There argues had no such reason that Wurtz distinguish it from Hurt's detention that violated the suspicion able and therefore Here, entirely Hurt's detention was Baker. when he frisked Hurt Fourth Amendment detention and arrest of the incidental weapons. for lim Police interaction with driver. rejected The court Hurt's district ability legal to inquiring ited to about Hurt's events, expressly finding characterization of ly away from the scene and drive the vehicle Trooper execute that no time did "[alt removing him the vehicle in order to Instead, person." the [Hurt's] a frisk it to the driver's arrest. Nor search incident that Hurt to district court found Wurtz asked appreciable any suggestion of an is there pockets, produce arrest turn out his delay between the driver's Supreme applicability Although passenger's of the United States of a deten tial the duration - ordinarily deemed reasonable for the law tion is Gant, recent decision v. Court's Arizona detention, -, the driver's officers ful duration of S.Ct. 173 L.Ed.2d 485 U.S. scope any may expand detention Gant, still not (2009), was issued to this case. which justified beyond that which in the first the events of this held that after police See, place. e.g., Vialpando, State v. 2004 UT the interior of a vehicle inci officers understood, ¶ 10 ("It n. arrest when the driver dent to the driver's detention, course, regardless justi any physical access to the interior of has continued fication, scope and duration to must be limited to believe that the the vehicle or there is reason prompted the deten the circumstances for contains evidence of the offense tion."). argue However, Hurt does not at was arrested. See id. which the driver preceding Wurtz's actions Belton, (limiting New York v. proper scope exceeded the of Hurt's contraband (1981)). Because S.Ct. to the detention of the driver. detention incident grounds uphold other Hurt's conviction on Thus, possibility. we do consider this opinion, body we decline discussed in the argument. Gant to address the State's Although in his Hurt does not raise the issue brief, poten appellate State's brief raises the it, 24(a)(9) ("A and concluded that party challenging these P. a fact find ing must first marshal all record evidence "pursuant events occurred to the consent of The district court further concluded [Hurt]." supports challenged finding."); persuaded Chavez-Espinoza, I am not the officer com- ("[In challenge order to a trial [Hurt] manded case which the contraband was discover- factual findings, party court's must marshal all the very evidence in favor of the ed. There was no show of force used officer; there was an of a absence they oppose denied, appeal."), authority cooper- claim of 2008). fact, P.3d 367 In the State ated with the and correctly appellate asserts that Hurt's brief there was an absence of or trick. acknowledge fails to even the district court's reliance on present Hurt's much less congent, See any (listing argument reasoned indicating authority against factors or of n cer obtain it. generally Chavez-Espinoza, See 2008UT lack of duress or coercion search).4 consent to 191, ¶¶ 19-26, (discussing P.3d 1023 requirements argument section of appel Regardless of whether Wurtz's briefs). light late of Hurt's failure to frisk,5 actions here constitute a it is determi factually legally challenge the district native the district court found as a factu ruling, court's consent we will not disturb the al matter that Hurt consented to the search district court's factual finding that Hurt con eyeglass police a case. Consent sensually produced opened eyeglass and exception search is an to the warrant re legal or its conclusion that the search quirement of the Fourth Amendment. See was, therefore, 12, 143 lawful. Dunkel, 339, App v. State 2006 UT ¶ 290; Dunn, P.3d see also v. State 850 P.2d (Utah 1998) ("One 1201, 1217-18 of the nar CONCLUSION exeeptions requirement row to the warrant is 117 has not demonstrated a violation brought play into when a defendant volun of his Fourth stemming search, tarily thereby waiving consents to a Amendment resulting the traffic requirement the constitutional of a war of contraband in his case. Accord- rant."). "Consent a finding is factual ingly, we will not disturb district court's totality should be made based on the ruling denying suppress, Hurt's motion to Grossi, cireumstances." 2003 UT and we affirm Hurt's conviction. ¶ 181, 10, " omitted). a 'Since district court is BENCH, 118 I CONCUR: RUSSELL W. unique position

a credibility to assess the of evidence, weigh Senior witnesses the court appeals may judgment not substitute its DAVIS, Presiding Judge (concurring in question

to a unless the district factual result): finding clearly court's is erroneous" Id. ¶ Hansen, (quoting v. State 2002 UT 1 I agree majority with opinion 650). 63 P.3d challenge-either failed to legally or Here, factually-the 1 16 Hurt makes no effort to demon district ruling court's that he strate that finding the district court's consent consented to the search conducted Officer clearly is marshaling erroneous the evi Wurtz. Accordingly, I concur in the result against However, dence it. R.App. See Utah reached in the case. I sepa- write 99, 4. We cite to State v. suggests 2001 UT P.3d Case law that an officer's command 1073, appears because it to be person empty objects remove from a source by the enumerated district court. 'See id. pocket requiring probable constitutes a search factors note, 147. We do however, the Bisner fac- cause, even if the officer could down the pat only tors address "whether consent ato warrant- pocket suspicion. same based on reasonable (em- given less search was voluntarily," ¶ 27 Lafond, See State v. 2003 UT n. added), phasis not whether consent has been 68 P.3d 1043. given place. in the first 4) 8) search; officers; mere adequacy of Hurt's had the rately because [property]; appeal, cooperation the owner of pursued properly been consent 5) result. or trick on likely reach a different the absence part officer." "(while the well settled T20 It searches unreasonable prohibits Constitution (alteration (additional quota original) Id. seizures, expressly preclude it does omitted) (quoting State v. Whit tion marks its obtained violation using evidence 1980). tenback, 621 P.2d Hansen, v. 2002 UT commands." factors, court to these the district Pursuant (internal quotation marks ¶ 47, P.3d 650 law, concluded, a matter of that Hurt had omitted). police illegally if Accordingly, even The district validly consented to the search.1 deter we have detain defendant-which supporting also made in this case-"evidence did not occur mined accept findings we must conclusion-which subsequent obtained challenged properly Hurt has not because person gave if the be admitted nevertheless Widdison, v. appeal, them on see State search." Id. other to the valid consent ¶60, 60, mar (setting P.3d 1278 forth words, that Hurt was had concluded even However, shaling requirements). for the fol arrested, the driver was illegally seized after reasons, lowing I remain unconvinced Baker, generally State under the cireumstances granted, 182 P.3d voluntarily to the search. consented (Utah 2008), of the con evidence P.3d 367 "may [have] be[en] tents of his First, purportedly time Hurt at the to the gave if valid consent admitted [he] car to the the driver of the consented Hansen, search." passenger had been ar in which he was a outstanding warrants and Hurt rested on to exit the car so that the had been ordered validly consents person A that arrest. car could be searched incident to "(1) if consent property [tlhe of their Second, officers besides Officer three other (2) voluntarily, and the consent given was present separately arrived and were by police exploitation of the not obtained being Hurt was searched. (alteration at the scene while original) prior illegality." Id. Third, although required, it does not omitted). not (internal quotation marks While informed Hurt appear that Officer Wurtz person a consented determination of whether consent, that he could refuse question, presents to a search Hansen, 6,n. legal consent "is a con 68 P.3d 650 voluntariness of that such a clusion, (noting "officer[s] include[ ] who correctness." which is reviewed for §51. warning for consent un voluntary [their] if it is not Id. "Consent present[] stronger case for a doubtedly product 'the of duress or coer obtained as Bisner, suppression cion, finding of in a express implied?" State v. voluntariness or 99, ¶ 47, (quoting (alterations original) hearing" Bustamonte, omitted)). Finally, when Schneckloth (1973)). 93 S.Ct. driving inquired about Hurt Officer Wurtz home, acknowledged that he car indicating a lack of duress or coer- Factors posses in his did not have a driver license cion, in the total- which should be assessed cireumstances, sion; ity surrounding subsequent all the license check confirmed and, "1) Hurt did not have a valid license include, au- of a claim of the absence 2) officers; therefore, legally the car could not drive thority by the to search of consent Had the issue of force scene.2 absence of an exhibition out, dog Hurt had his majority correctly points 2. The trial court also found that 1. As the "Hurt's dog stop and that the the car at the time of the acknowledge appellate the dis brief fails even at the scene. It is had been retrieved officers [legal that Hurt consent trict court's conclusion briefing whether and when the unclear from the search], any present ed rea much less certainly dog While had been returned to Hurt. argument authority against Supra it." soned property personal dispositive, whether Hurt's volun- would factor into the had been returned and, therefore, properly pursued appeal, been his consent was not vol untary. facts, have concluded that these when consid circumstances, totality under a

ered UT P.3d

implied to Hurt that he was not free to

refuse consent to the search of his consensual unless the driver's documents have consent, Hansen, tariness of his cf. " (" (quoting '[Aln encounter been returned to him.' United States v. stop may initiated traffic not be deemed (10th Cir.1996))). Gregory, 79 F.3d 973, 979

Case Details

Case Name: State v. Hurt

Court Name: Court of Appeals of Utah

Date Published: Feb 11, 2010

Citation: 227 P.3d 271

Docket Number: 20080662-CA

Court Abbreviation: Utah Ct. App.