State v. Leonard

Utah, Appellee, Plaintiff and STATE of LEONARD, Defendant

Foster Appellant.

No. 900560-CA. Appeals of Utah.

Dec. Fitt, Orem, appel-

Jay for defendant lant. Decker, Dam and Marian

R. Paul Van plaintiff appellee. City, for Salt Lake RUSSON, JACKSON, ORME Before JJ.

OPINION JACKSON, Judge: from appeals Leonard Defendant Foster equipment possession of for his conviction a controlled intent to manufacture felony, in substance, degree viola- a third (1990), 58-37C-8 Ann. tion of Utah Code § a con- to manufacture conspiracy felony, in substance, degree a third trolled Ann. 76-4-201 Code violation of Utah §§ affirm. (1990) We and 58-37-8 amine. Caldwell testified that he BACKGROUND made the decision to the vehicle based on his May approximately From possession belief that defendant was in occurred, facts law en- present when the drug paraphernalia and controlled sub- conducting agencies forcement stances. Orem, in at Intertech Chemical surveillance had resulted in sev- Utah. The surveillance pulled When defendant’s vehicle was relating and convictions to the eral arrests over, the officers had defendant and Garza of controlled possession and manufacture get out of the vehicle and kneel down on substances, specifically methamphetamine. freeway. the side of the Under Caldwell’s Terry July Police Officer Fox On direction, Greening placed Officer Sean at Intertech. conducting surveillance name, Garza his vehicle and asked her April He noticed defendant Garza address, produced and birthdate. Garza parking Both were dressed in lot. Oregon Greening driver’s license. testified clothing typical [people],” of business “not that he also advised Garza she did not have and looked nervous. Defendant went into questions. why to answer his Garza asked carrying out a box of Intertech and came being stopped, Greening she was to which glassware appeared what to be and chemi- replied possession drug parapherna- “for cals. Defendant loaded the box into a Ford explained lia.” Greening Garza then to Bronco, away parking from the and drove paid that someone had her and defendant lot with Garza. Fox decided to follow the items, purchase to identify in order to its owner. vehicle to deliver the items to a motel room. parking proceeded As Fox out of the lot Meanwhile, Caldwell asked defendant for vehicle, in his unmarked a Datsun truck registration. driver’s license and vehicle swerved in front of him. Fox testified that Defendant had no identification and told thought he the driver of the Datsun was belonged Caldwell the vehicle to Garza. trying pursuing to him from defen- block gave Defendant then Caldwell the name dant’s vehicle. Fox continued to follow “Scott Leonard” and a birthdate which was recklessly onto the who drove later determined to false. Caldwell tes- freeway. Defendant’s vehicle accelerated tified he advised defendant of his constitu- seventy per to over miles hour and made rights tional and defendant consented to illegal changes, according several lane to answering questions. some Caldwell then putting Fox. Fox also observed defendant proceeded question to defendant as to what bandanna-type flags out both windows of doing County. he was in Utah Defendant Bronco, apparently signal to the occu- told Caldwell that he had come to Utah pants attempted of the Datsun. Fox to County purchase someone, the items for find out who owned the vehicle he was and that he could not tell Caldwell who that pursuing, police dispatcher but the found was, get because defendant in trou- registered plates for the license owner ble. Caldwell also testified that he could on defendant’s vehicle. The Datsun sim- Bronco, see a box the back of the ilarly registered had no owner. that the box contained items Intertech Fox testified that he decided to de- had him purchased. told defendant had fendant for the traffic violations he had Thinking might given by witnessed. that he be in Because the stories danger, different, Fox called for assistance. Three Garza were because eventually purchased other assisted knew what items defendant had those, Intertech, Fox in stopping defendant. One of Caldwell arrested Caldwell, Gary Detective In- learned from and Garza. Defendant and Garza were tertech companion transported that defendant and his to the American Fork Police purchased glassware Department questioned by and a chemical. and both were None of purchased Eventually the items were con- Caldwell. Caldwell determined substances, commonly apartment trolled but all were the exact address of the which shared, methamphet- used in the defendant and and a search manufacture Garza obtained, OF THE INITIAL STOP LEGALITY premises warrant affidavit. on Caldwell’s based Amendment to the The Fourth requires that all United States Constitution suppress the evi- Defendant moved proba based on seizures of an individual be search in the warrantless dence found Supreme cause.1 The United States ble of his search and in the warrant the Bronco explicitly permitted a seizure of Court first did claiming that the officers apartment, probable cause upon less than an individual to initiate the probable cause not have Ohio, Terry court denied his The trial of his vehicle. entered a condi- then motion. Defendant officer must be able held to this guilty pursuant plea of tional and articulable facts point “specific Sery, v. decision State court’s which, infer together with rational taken appeal this (Utah App.1988), and 938 facts, reasonably warrant ences from those followed. 392 U.S. at 88 S.Ct. at that intrusion.” suspicion standard is 1880. The reasonable court, appeals the Before this Ann. 77-7-15 codified at Utah Code § claiming suppress, of his motion denial (1990): illegally obtained. the evidence was that may stop any person in peace A officer that his ar- claims Specifically, defendant has a reasonable public place when he a cause; not on rest was based he has committed or suspicion to believe on Bronco was not based the search of the committing attempting in the act of is cause; of his and that the search public may and de- commit a offense illegality of by the was tainted residence name, explana- and an mand his address the arrest. tion of his actions. decided “Stressing that each case must be facts, court con- upon REVIEW its own OP STANDARD frisk was the limited and cluded that findings fact un of of Our review police officer observes ‘a justified where on a motion derlying a trial court’s decision leads him reason- conduct which unusual “clearly governed by the suppress is light of his ably to conclude [or her] Grovier, standard, v. erroneous” State activity is experience afoot_’” criminal (Utah App.1991), because P.2d Sery, 758 P.2d v. State position to advantageous in an trial court is Terry, 392 (Utah App.1988) (quoting underlying the factual determine basis 1884). Thus, a at finding is “The trial court’s justified such a motion. is temporary detention or seizure only against if it is clearly suspicion erroneous is an articulable when there or is about to v. has committed weight clear of the evidence....” State an individual (quoting Florida (Utah a crime.2 See id. App.1988). commit P.2d Sery, 758 any- (1) may approach citizen at an officer to the United States 1. The Fourth Amendment long emphasis: pose questions so as the provides, our time [sic] Constitution will; against his is not detained citizen (2) right people their to be secure in of effects, houses, may person if the officer against seize a papers, an officer persons, seizures, person suspicion” that the shall not "articulable searches and has an unreasonable crime; issue, violated, shall but about to commit be and no Warrants or is has committed however, cause, supported temporary Oath or upon probable affirmation, must the “detention describing particularly necessary longer to effectu- than is and last no searched, persons or place and the to be stop”; purpose of the ate the things to be seized. (3) suspect if the offi- officer an an offense probable cause to believe cer has course, suspicion required when 2. Of being committed. or is has been committed inquiry merely makes an officer Deitman, P.2d v. State wholly voluntary the context of a individual in curiam) 1987) (quoting (per Supreme has deter- The Utah encounter. Cir.1984)). Merritt, "The police-citi- are three levels mined that there consequent deten- stopping of a vehicle and encounters, requires a differ- each of which zen occupants two ‘sei- constitute a level constitutionally of its tion degree justification to be ent permissible: meaning amend- of the fourth within the zure’ entitled, only probably not re but Royer, (1983) (plurality opin quired, to obtain more information when suspected a crime ion)). they reasonably has further refined the This court test, concluding Folkes, suspicion been committed. See State Terry reasonable investigatory stop (Utah), must be P.2d that a “brief facts’ that the ‘individu ‘objective on based ” activity.’ (1977); Holmes, hold, involved criminal 774 P.2d at 508. We al is (Utah App. Holmes, therefore, constitution that defendant was omitted). 1989) (citations detained, ally stopped briefly req the trial court’s determination that sup- argues that several facts The State suspicion uisite reasonable existed was not that the officers port the conclusion clearly erroneous. present case had a reasonable afoot, and that activity that criminal OF DEFENDANT AND justi- ARREST of defendant was

therefore OF under surveil- SEARCH VEHICLE fied. Intertech had been selling drug paraphernalia; de- lance for Having determined that the initial sei suspiciously incon- fendant’s behavior was lawful, must zure defendant was we legitimate with that of a business- sistent subsequent determine if the arrest and man; purchased several items argues search were lawful. Defendant commonly used in from Intertech which are probable officers lacked methamphetamine; de- the manufacture of him, cause to arrest or to conduct a war- unregistered in left Intertech an fendant in rantless search of the vehicle which vehicle; person in a Datsun tried to some riding. court found that the was The trial pursuing defen- prevent the officers from probable on arrest of defendant was based dant; displayed from bandannas equipment cause because the chemicals apparent in of his vehicle an the windows commonly found in the vehicle were used attempt signal occupants of the Dat- together in the manufacture of metham sun; erratically and and defendant drove testimony phetamine, and because revealed freeway, apparently engag- illegally on the only specialized piece glassware one ing in tactics.3 evasive lacking and some chemicals were to make agree illegal that there was an articu- substance. As to the search of We vehicle,5 stop of the trial court found justified which defendant’s lable vehicle, that therefore the that there was cause based on the defendant’s re purchased of defendant was reasona list of items from Intertech level two seizure pursuit, the officers defendant contends that the ceived while ble.4 While defendant, and suspicious had no evidence that a crime had the behavior of However, committed, circumstances.”6 note that the officers “all attendant we ment, charge purpose stop contacted if the of the is limited of the situation once he was even Fox, resulting pur- by stopped and the Steward, detention brief.” State v. defendant’s vehicle for the (Utah was, App.1991) ascertaining P.2d pose who defendant Sierra, (Utah (citing P.2d State v. purpose glassware and chemicals for what 1988)). disputed App. In our it is not purchased had been from Intertech. level two occurred. 5. We refer to the vehicle which defendant support for the 3. The State also lists as conten- vehicle,” driving as “defendant's but we note tion that the of defendant was based on a actually belonged passenger that the vehicle suspicion, several facts which oc- reasonable Garza. stopped. curred defendant had been Of after course, only facts known to the officers at the argue that be- 6. The State does not they stopped vehicle time are rele- defendant’s vehicle, has cause he was not the owner of the Baird, vant. See State v. 763 P.2d challenge standing the ve- the search of Mendoza, (Utah App.1988). v. See also State Therefore, question we do not reach the hicle. (Utah 1987). legitimate expecta- defendant had a of whether privacy in the vehicle. tion of originally planned 4. While Fox testified that he Schlosser, violations, 774 P.2d 1132 Prior to State defendant for traffic it Caldwell, 1989), supreme required our court never clear the record that from who took exactly indicate which fact that the officers knew what ruling does not court’s purchased defendant had from Intertech requirement of exception to the warrant on the list of items received based while relying upon Amendment it was Fourth pursuit, and the fact that the items found search. the warrantless justifying commonly in defendant’s vehicle were used together in the manufacture of metham- The Arrest phetamine, arresting warranted defendant. arrest, legality of the As to the Accordingly, say cannot we that the trial (1990) provides Ann. 77-7-2 Utah Code § finding court’s cause was an peace to make an authority for erroneous one. Reason arrest with or without warrant. The dissent takes issue with the for arrest without a warrant able cause employed by the officers in effectu tactics by Supreme defined the Utah ating stop, concluding a level two that a de Hatcher, 2d 495 P.2d 27 Utah State actually Admittedly, facto arrest occurred. (1972): “The should be determination immediately if arrested defendant had been objective standard: whether made on an officers, being proba upon officer, and the facts known to the from cause have to be ble established fairly might the inferences which be drawn point, after and not Caldwell inter therefrom, prudent per a reasonable many viewed defendant. While courts position justified in son in his would be the issue of seizure have addressed when a believing that the had committed occurs,7 the cases are less clear on when an (citations Id. at 1260 omit the offense.” Supreme occurs. The United States ted). Ayala, also acknowledged that it is some Court has (Utah App.1988), investiga distinguish times difficult to (Utah 1989). 773 P.2d 45 tive from a de facto arrest. See Unit officer, Caldwell, arresting tes 685, 675, Sharpe, v. 470 U.S. 105 ed States regard questioned tified that he (1985). 1568, 1575, 84 L.Ed.2d 605 S.Ct. ing presence County in and the Utah “litmus-paper test for ... de There is no purchase Only from Intertech. after de the termining when a seizure exceeds birthdate, gave a false name and fendant investigative stop[,]” of an Florida bounds provide plausible explanation for could 491, 506, 1319, Royer, 460 U.S. 103 S.Ct. v. purchase, and not tell the would Caldwell 1329, (1983), 229 and becomes 75 L.Ed.2d purchase, paid him to make the who had Rather, determination an arrest. the an arrest. did Caldwell effectuate upon the usually depends reasonableness facts, together stop the the under the circumstances. Two These taken of factors, proper a basis by in whether there was engaged tactics evasive him, degree the of stop, the and whether pursuing officers were when the officer, by physical standing by parties Only means of when the the issue of to be raised appeal. "Standing way authority, is an in the trial court or on has in some force or show of any sponte court can raise sua at issue that a liberty con- of a citizen we restrained the 1203, Tuttle, v. 780 P.2d 1207 time.” State Terry v. a seizure has occurred. clude that 1018, 1323, 1989), denied, cert. 494 U.S. 110 S.Ct. 1, 1868, 1877, Ohio, 20 L.Ed.2d U.S. 88 S.Ct. 392 Rather, (1990). that court 108 L.Ed.2d 498 (1968). Immigration and Naturali- See also 889 regardless of whether or not a reached the issue 210, 216-17, Delgado, 466 U.S. Serv. v. zation Constantino, party raised it. See State v. 1758, 1763, (1984) 80 L.Ed.2d 247 125, (Utah 1987) curiam); (per 732 surrounding police (intimidating circumstances 1334, (Utah 1984); State v. 689 P.2d 1335 Valdez. questioning Amendment sei- result in Fourth 441, Purcell, (Utah 1978). State v. 586 P.2d 443 Mendenhall, zure); v. 446 United States Schlosser, however, the court held that stand In 1870, 1877, L.Ed.2d 497 64 challenge validity ing of a search is not a when, (1980) of (person “in view of all is seized doctrine, and, such, jurisdictional that issue incident, surrounding a the circumstances by if not raised before the trial court is waived person have believed that he would reasonable Schlosser, parties. at But 1138-39. leave”). was not free to J., Schlosser, (Howe, 774 P.2d at 1139-41 see (two dissenting) justices sponte sua raise standing). issue of 670 attack); Lego, v. United States reasonably 855 F.2d related to

intrusion was (8th Cir.1988) (officer hand, point 545 can a at are deter facts and circumstances Terry, gun suspect transforming 392 without inves minative of reasonableness. United v. 1878-79; arrest); United States 19-20, tigative stop into S.Ct. at U.S. at 88 (6th Trullo, 108, 113 (1st Cir.) (because Hardnett, F.2d 356 809 F.2d States denied, Cir.1986), suspected appellant dealing of in cert. 479 U.S. “officer narcotics, pattern of criminal conduct rife While S.Ct. deadly weapons,” display weapon dispute there was a with does not the dissent denied, cert. stop, justified), it take 482 U.S. for the does reasonable basis (1987); employed the officers. S.Ct. L.Ed.2d issue with tactics Eisenberg, proper 807 F.2d reaching In our conclusion case, (8th Cir.1986) (experienced police effectuated this two level drawing reasonably weapons addressed acted of cases which have a review investigative stop suspected narcotics question useful to illustrate that no this is dealer). place. took recognize correct in acknowl the officers’ The dissent is We conduct, general pro ordering at the edging exception to the defendant to kneel one road, against weap conduct: side of the was intrusive.8 If scription intrusive drawn, more permitted to use a show force ons were conduct even a Ter during exceptional Certainly methods intrusive.9 such conduct would or other surrounding if ry measures are reason not be warranted cir when such protection give justifiable rise to a ably necessary for the and safe cumstances did not United States v. investigating personal safety. mere ty of the officers. The fear for Hardnett, Cir.1986). display making force in use or case, justifica necessarily convert a into an However this there was will not Greene, acknowledges United States arrest. tion. While the dissent denied, Cir.), approach certain merit officers situations (1986); drawn, ing weapons suspect with their White, ordering ground, to lie on the United States (D.C.Cir.), argues dissent in this such ac See also po tions not warranted because Williams, 407 U.S. 143, 146, Adams v. 92 lice never determined whether defendant (1972) (po weapon, 32 L.Ed.2d 612 had a and there was no indication S.Ct. However, making investiga dangerous. that defendant was lice officers a reasonable opportu faulty assump on tory stop should not be denied the that conclusion is based nity protect possible to themselves from tions. Focusing nothing supports requiring in on whether or not a driver 9. There is the record step the to scope out of his or her vehicle exceeds the conclusion that defendant was not dissent’s stop, Supreme has fact, of a the Court quite opposite the violent or armed. In concluded that is at most a mere incon "[w]hat given the recited can be assumed facts above. prevail against venience cannot when balanced facts, Circuit Court of On similar the Ninth legitimate safety.” for the officer’s concerns Appeals held that it was reasonable to assume 106, Mimms, Pennsylvania v. 434 U.S. suspected narcotics dealer was armed and 330, See also United Salas, dangerous. United States v. 879 F.2d (8th Cir.1988) Lego, (9th Cir.) (erratic driving by and evasive (officer’s confining suspect police car within reports drug materials in defendants and scope investigative stop); United States gave police room reasonable defendants’ motel Manbeck, Cir.1984) armed), suspicion that defendants were investigative (upholding reasonableness of denied, 107 L.Ed.2d police where the to take a seat ordered Post, (1989); see also United States v. car), (9th Cir.1979) (”[i]t F.2d is not unrea Also, sonable to assume that a dealer in narcotics out, points police may require dissent the suspect armed”). might be See, ground. e.g., lie the on Buffington, States v. Cir.1987). points to defendant’s The dissent wheth-

First, not indicate record does rights as further being read his Miranda frisked. Two was or not defendant er place. took In indication that an arrest gave different testified officers who McCarty, Berkemer transpired after defen- of what accounts (1984), the Su stopped. dant’s vehicle warnings that Miranda preme Court held that the Second, indicate the record does is required when a defendant were not dangerous thought during a routine subjected questioning weapon. carrying a Officer could and be stop. pointed The to the cir traffic Court when he fearful testified that became Fox com around a traffic and cumstances put outside windows were bandannas interrogation, pared them to stationhouse to call for car. He decided of defendant’s frequently prolonged, “which car defendant’s back-up officers the detainee often is aware that which appeared, and when when the bandannas provides until he questioning will continue following Datsun the cream-colored he saw interrogators they seek.” answers car, assist- a chase an him. “I felt it was (citations 104 S.Ct. at 3149 omit Id. at testified, car,” again I “and was ance Fox ted). stops pub that traffic occur Given enough help I needed to have fearful that brief, lic, relatively and that get hurt.” so wouldn’t this vehicle “persons temporarily concluded that addition, he sees Fox stated that when In stops are not ‘in pursuant to such detained vehicle, immediately he unregistered purposes of custody’ for the Miranda.” Greening, gives it more caution. Officer The 104 S.Ct. at 3150. Id. 468 U.S. at suppression hear- testified at the who also however, Court, also noted that in a he called to assist ing, stated that was compliance ensure with law “could drug paraphernalia, and that he stop for warnings.” Id. at giving the full Miranda past informed in circumstances has been n. 13.10 n. 104 S.Ct. at 3145-46 dangerous, people could that “these place exactly what took here. That is to assist.” why was there thats [he] de- present defendant was In the officers, in- say that Greening went on to highway. briefly on the side of tained himself, often called to assist cluding interrogated defendant. De- regular stops, traffic on DUI’s and gave arrested after fendant was may feel he is in an officer “whenever information, plau- and had officers false in deal- danger,” and that it was his belief pur- for the Intertech explanation sible with ing people who were involved facing the the circumstances chase. Given “[t]hey have been convicted drugs that they pursued officers, we conclude possession of fire- and in the criminals diligent and reason- investigation their support in find arms.” We abundant manner, methods em- able that the officers believed record not excessive. ployed were not, as dangerous, could be armed police had suggests, that the dissent The Search nothing than a hunch that defendant more conducted Therefore, Admittedly, a search dangerous. the offi- might be per se is unreasonable in- a warrant unreasonable to without actions were not cers’ recognized exception a unless it falls within safety. sure their Hickman, Cir.1979)); Bautista, F.2d v. 523 United States 684 F.2d 1286 In United States v. denied, Cir.1982), 323, (9th Cir.1975), (9th Ap- Circuit Court of 423 the Ninth 327 required 778, 1050, not peals that while officers are Com held L.Ed.2d 639 S.Ct. 46 96 every they question give warnings 911, Baron, time Miranda 860 F.2d 914 pare United necessary warnings suspect, “Miranda a (9th Cir.1988) scope (police of investi exceeded suspect during Terry stop has been a if the even ordering touch gative stop by not to custody questioning takes or if the taken into place thirty-five anything, min anything say or compelling atmo- in a dominated her to a small room confined utes later (citing sphere.” United States v. Id. at 1291 1040, 109 questioning), 490 U.S. 1241, Cir.1982); Wilson, 1247 666 F.2d 1944, S.Ct. Harris, v. United States on to those in requirement. See State v. found to exist facts similar warrant to the (Utah Mendoza, App. present drug case. In en- P.2d Bartley, 784 State, agents 1989). acknowledging that forcement conducted surveillance The residence, and upon specific ex also followed individuals rely did not trial court justi had contact with the who re- that the search was who ception, claims agents exception. The to the sided there. observed several pursuant automobile fied driving these individuals “in a manner States, 267 In v. United Carroll surveillance,” Mendoza, calculated to elude (1925), 69 L.Ed. 543 45 S.Ct. pay telephones, at using that a war- Supreme Court determined trips making several to and from a ware- per of an automobile was rantless search While the these house. court said probable cause if the officers have missible may facts be consistent with innocent be- contains either the automobile to believe havior, totality of the circumstances and that or evidence of a crime contraband justified a of the sus- warrantless search immediately may lost if seized. they not pects’ vehicles. Id. at 101-02. 284; 151-52, 45 at see also Id. at Similarly, supreme court Dorsey, our Ross, 806- v. 456 U.S. United States upheld a warrantless an automo- 2157, 2163-64, search of 102 S.Ct. assist- 42, bile where officer who was (1982); Maroney, v. 399 U.S. Chambers ing other officers in an undercover 1975, 1978-80, involved 90 S.Ct. purchase, narcotics defendant’s (1970); Mendoza, followed United States v. eventually stopped truck and him. The 96, 100 (5th Cir.1983); Dorsey, v. State found that the officer knew (Utah 1986); court because v. P.2d State 1984); purchase controlled had Christensen, (Utah narcotics P.2d attempted; been that two of the individuals Droneburg, v. 781 P.2d State negotia- left the motel room (Utah Carroll, had where App.1989)(citing 267 U.S. at taking place; someone in- 280); Holmes, tions were at (Utah Thus, volved the transaction had on a dark App.1989). n. 6 P.2d jacket; and defendant was here, leather lawfully a vehicle is where wearing probable dark jacket, leather criminal based on a reasonable Dorsey, cause existed. 731 P.2d at 1089. justified activity, a warrantless search is probable where the officers have cause Reviewing all information of the contraband is contained in the ve believe present available to immediately if hicle which be lost not hold that there cause to we Larocco, seized. See State justify a search. Officers Caldwell 1990) Carroll, (citing 267 U.S. at drug they Fox both testified that observed 151-52, 284). plain paraphernalia chemicals view “The determination of whether in the vehicle.11 also testified depends upon exists ... an examina- they cause had learned from Intertech what purchased tion of all information available to the searching light commonly officer in of the circum- these items were used in the they methamphetamine. stances as at the time the Fur existed manufacture ther, Dorsey, explain why search made.” State v. defendant could not items, (citing Brinegar at 1088 purchased or for whom States, purchased. While the officers’ infor (1949)). might L.Ed. Probable mation at the time of the search not by guilt, cause for a warrantless search has been itself it be sufficient to establish Although suppression hearing. none of the officers testified It is not clear whether actually Any "plain conducted a ve search of defendant’s these facts raise “search” issue. items, by hicle to locate these the record does indi observations defen view” the officers into cate the officers Intertech invoice would obtained the dant’s vehicle not constitute a search. Lee, (Utah), point. vehicle at from the some The invoice See State v. denied, photographs containing and of box the In- purchase were tertech introduced evidence CONCLUSION probable cause. establish was sufficient Therefore, court’s deter- the trial id. See subsequent hold that We existed for probable cause that mination vehicle, search of defendant’s warrantless not erroneous. search was arrest, and the warrant search defendant’s did not violate his of defendant’s home THE SEARCH OF VALIDITY therefore, rights, and the trial court’s deci- WARRANT deny sup- defendant’s motion to sion to is that last claim Defendant’s found as a result of press the evidence support of warrant the affidavit clearly not erroneous. those searches was nothing apartment contained search affirmed. The conviction is magis neutral a detached and from which apartment that could conclude trate RUSSON, Judge (concurring in the It is well of a crime. contained evidence result): finding “probable established or affirmation” is supported by oath cause opinion, I concur in the result of the main of a search war required for the issuance I separately prefer because but write Brown, 798 P.2d rant. State analytical approach to reach the different omitted). (citation In re (Utah App.1990) I hold that same result. would determination, a viewing probable cause the time to arrest Leonard existed at cause upheld if “the magistrate’s decision will be the officers Leonard’s at which for ... magistrate had a substantial basis support probable The facts vehicle. which probable cause existed.” [determining] that (1) that the con- cause include: evidence (Utah Babbell, 770 P.2d State resulted in several tinuing surveillance had Gates, 1989) (quoting Illinois v. relating pos- to the arrests and convictions 238-39, methamphet- session and manufacture (1983)). L.Ed.2d 527 amine; (2) that Officer Fox’s observation suspi- manner were dress and Leonard’s assertion, Contrary to defendant’s legi- those of a ciously inconsistent with is sufficient. Tak affidavit this case businessman; (3) the Datsun truck’s mate whole, that the affidavit establishes en as a attempt Officer Fox from follow- to block upon on his own and the affiant relied Leonard; (4) driving evasive ing Leonard’s de investigation and Fox’s observations manner, driving including at excessive conduct; pur had that defendant fendant’s illegal lane making numerous speeds known to items which were chased several (5) attempt to apparent changes; Leonard’s manufacture of metham used Datsun truck signal occupants of the gave in that defendant false phetamine; flags resided, waving bandanna-type out by and when formation as to where window; (6) discovery that no Fox’s purchase; Officer questioned about the Intertech plates registered for the license Garza, owner was with whom driving; that Leonard was on the vehicle apartment, and who was arrest shared the had (7) that Officer Caldwell the fact upon time based the same ed at the same had Intertech what items learned from previously been facts as his com- by Leonard and purchased conspiracy to manufacture convicted for Caldwell’s panion, in concert with Officer illegal substances. and distribute are common- (Utah knowledge that the said items Stromberg, 783 P.2d methampeta- ly in the manufacture determination used App.1989) (probable cause facts, I of these previ mine. On the basis that defendant has supported fact offense), probable cause to the officers had hold that convicted of similar ously been 1990). they stopped his ve- Leonard when hicle, trial court therefore the facts, together, support the taken These sup- Leonard’s motion to properly denied trial court’s determination agree Leonard’s press. Accordingly, of the search for the issuance cause existed should be affirmed. conviction warrant. Nonetheless, ORME, (dissenting): Officer Fox testified that Judge defendant, questioning he ordered before brief, not contend the State does In its kneel at the defendant to down side of the cause to arrest there was highway. occupant The female of defen- anything more subject or him to placed dant’s in one of the vehicle Terry stop at the than a level-two intrusive Further, police although cars. neither Of- stop police effected the time the officers spe- ficer Fox nor Officer Caldwell recalled questions. initial Accord- and asked their cifically any police whether the officers appeal principally ingly, the debate on guns police pos- they drew their at the time made the the officers directed whether suspicion necessary stop, pos- Fox “very sessed the articulable Officer claimed it was agree I justify drawn, encounter. guns level-two sible” and Officer Cald- requisite had the articulable the officers “hoped” well stated that he at least one of stop. a level-two It to warrant gun. Finally, had his the officers drawn follow, however, that what the does not question- Officer Fox testified that before actually proper effected was a lev- ing Officer Caldwell advised de- stop. the intrusive tactics el-two Given rights. fendant of his Miranda officers, investigating employed by the Terry stop A “involves no than a more opinion the main errs determin- believe and, stop, interrogation, brief under the ing the initial seizure was a level-two circumstances, proper check for brief requiring stop not a de facto arrest Robertson, weapons.” United States v. probable cause. (9th Cir.1987). Anything record, police According to the the offi- beyond narrowly-defined such a brief and stopped cers defendant because sus- arrest, intrusion constitutes a de facto pected committing him of a non-violent fel- id.; required. cause is See Duna ony possession equipment used — York, way v. New controlled manufacture substances. 2248, 2254, 60 L.Ed.2d 824 The present, police There were four accepted might rule is that what have oth cars, police only defendant and three while stop erwise been a level-two evolves into a companion occupied the and his female when, de facto arrest level-three view along occurred vehicle. circumstances, reasonable, all the inno highway, the shoulder of a well-traveled person suspect’s place cent apparently during daylight.1 At no time himself to under arrest. believe be See prior to the had the officers seen Pinion, United States v. companion possession defendant or (9th Cir.1986), provides weapon, of a and the record police anything indication that had Royer, Florida v. also pre-stop than a hunch that defendant more 1319, 1326-27, might dangerous. be When defendant’s (1983) (characterizing inquiry as relevant vehicle came to a halt on the shoulder of being whether the believed he was highway, voluntarily exited detained). Accordingly, in the course of a the vehicle and walked toward not, valid as a cars. There is no evidence that defendant routine, matter of utilize methods which gestures, made furtive carried himself sus- might commonly employed incident piciously, approached po- otherwise LaFave, anything cooperative, lice in arrest. 3 W. Search and but a non- Seizure 9.2(d) (2d ed.1987). violent manner.2 at 366 § Although appear any pre-stop the record does not state the time of 2. It would thus con- i.e., that, stop, just prior potential danger- other cern the officers about facts — stop, conducting largely officers had been surveillance ousness of defendant would have been business, open dispelled by approach. at a wholesale establishment his non-confrontational clearly being Any lingering and that officers saw bandannas concern could have been dis- pelled by simple pat permit- waved from defendant’s vehicle—indicate that down of the sort place during daylight by Terry. took hours. ted that, agree I in the instant the however, to this is, exception one There sup- facts to po- has set forth sufficient against intrusive proscription general finding police port a the had reason- permitted to em- are lice conduct. Police stop to defendant and make exceptional able force or other ploy a show of However, given inquiry. the stop such a level-two during a when methods encounter, of the I do not necessary for the circumstances reasonably measures support finding facts a investigating believe those same safety of the protection and by used the However, then, the intrusive methods the investi- even officers.3 police necessary protect to the offi- employ the least intru- were must gating officers during stop.4 pro- The State has effect cers the reasonably available to means sive justify the no additional evidence to stop. Royer, 103 vided purpose of the the Therefore, that, conduct.5 on the although officers’ (recognizing at 1325 S.Ct. us, I the to record before believe seizure vary intrusion will permissible level of qualify circumstances, been too intrusive to as a means must have least intrusive stop.6 level-two always employed). be police may 4. The officers did not frisk other- in which 3. For situations see, effecting stop, e.g., attempt carrying weapons if he was while wise to discern draw 633, (8th Jones, that, strongly suggests weapon. 759 F.2d 638-39 once de- United States v. This Cir.) car, (drawing weapons permissible part of is and exited his the fendant had been police stop action is reasonable vehicle "if the suspect was armed. Robert- officers did not circumstances," taking considera son, into under F.2d at 781. Other circumstances of police locale, officers and cars tion "the number of highway-side presence the —the involved, whether the nature of the crime and officers, the non-violent nature of the of four suspect might be reason to believe the there is offense, suspected and defendant’s non-furtive articulable, armed, strength of the officers’ approach police attempt vehicles—also to objective suspicions, erratic behavior of or potentially dan- indicate the situation was not by persons suspicious servation, ob movements under inappro- gerous, and that intrusive tactics by for immediate action and the need priate. 837, denied, officers_”), cert. 113, (1985); L.Ed.2d 92 United States v. essentially by problem may a failure 5. (2d Cir.1984) (display Nargi, 732 F.2d court, State, develop at the trial the avail- weapons does not transform into proof. so as to meet its burden of able evidence felony suspected and crime is a serious when given at the attention seems to have been Little area); United made in an isolated hearing police evidentiary did in to what Jacobs, States opposed effecting to what knew 1983) acceptable (drawing weapon ve when Cir. deciding stop. to effect the suspected robbery occupant bank is hicle’s drugs, possibly under the influence of and Nonetheless, willing might view still be alone).' police officer is and the moving the case from the level- the facts as not police may For situations in which if, pigeonhole at the time the level-three two to ground, suspect lay require down on the reasonable, occurred, innocent the seizure see, Laing, e.g., United States person place not have be in defendant’s would (D.C.Cir.1989) (when suspect ran toward 285 apartment arrest. See United himself to be under lieved police had a warrant for which Cir.1986), Pinion, States v. guns drugs, suspect put his search for denied, rt. 480 U.S. ce acceptable police pants, into his it was hand possibility such a L.Ed.2d 770 I find denied, floor), suspect to lie on the to force police converged unlikely on defen here. The separate The initial confron in three cars. dant (1990); Taylor, 716 F.2d United States v. despite defendant’s was somewhat hostile tation (9th Cir.1983) po (stop not invalid because passivity, a show of well have included floor, suspect when to lie on the lice ordered suspect weapons officers. Defendant one or more disobeyed police to raise commands the side of the to his knees at was ordered gestures); furtive Peo hands and had made companion highway, female while his Chestnut, ple 409 N.E.2d 51 N.Y.2d Defen placed back of a vehicle. in the (ordering suspect to 431 N.Y.S.2d rights. his Miranda then informed of dant was permissible was in when the floor was encounter, that, point unlikely at this It is company of man whom there was position person in defendant’s a reasonable robbery armed that had cause to arrest for an a level- committed, seizure to be less than believe his just had witnessed a have reached one. Other cases three custodial suspicious exchange and the between that man See, circumstances. result in similar the same suspect), 582, Delgadillo-Velasquez, e.g., that the burden to show It is the State’s sufficiently justify it

seizure seeks level- satisfy the conditions of a

limited to Williams, 714 stop. States v.

two Cir.1983) (8th (quoting Royer,

F.2d 1325-26).

103 S.Ct. at See United 890, 894 Cir.

Al-Azzawy,

1985), denied, 476 (1986). For the rea above, I the State

sons believe discussed satisfying

falls short of that burden. Accordingly, note supra.

also in deter that the district court erred

hold

mining to a valid subjected defendant was stop, reverse the denial of defen

level-two motion,7 and remand suppression

dant’s permit of

with instructions withdrawal guilty plea.

his Utah, Appellee, Plaintiff and

STATE MONTOYA, Defendant

David Appellant.

No. 900319-CA. Appeals

Court of of Utah.

Dec. arrest), (9th Cir.1988) (Terry-stop to be F.2d suspected approached self 932, under drug held dealers invalid when L.Ed.2d drawn, guns the sus ordered street, pects to and handcuffed lie down from from 7. The evidence seized the car and them, since the "show force detention illegality tainted defendant's home is indistinguishable used in police from this context "arrest” than Proba- on less cause. arrest”); County conduct in Kraus only cause into existence when defen- ble came Pierce, Cir.1986) of (under incriminating dant made statements when police turned circumstances in which custody, custody improper but such where weapons, spotlights suspects, on the drew their supported by nothing an artic- it was more than knees, suspects drop to their ordered suspicion. ulable person would him- a reasonable have believed

Case Details

Case Name: State v. Leonard

Court Name: Court of Appeals of Utah

Date Published: Dec 5, 1991

Citation: 825 P.2d 664

Docket Number: 900560-CA

Court Abbreviation: Utah Ct. App.