State v. Roybal

22(e). guilt. Specifically, after a determination of trial court the court of 77-18-l(2)(a) §§ and 77-18- properly Code Ann. “illegal Utah failed construe an sen- l(10)(a)(i). necessary It therefore not is tence” to include constitutional violations. monitoring impose additional incremental for Courts must consider constitutional as well probation. defendants sentenced to statutory jurisdictional challenges 22(e). sentences rule under But we do not Finally, recognize poten- while probation find that Utah’s statute violates judge arbitrarily impose tial a trial process rationally due because the statute is absurdly period long probation compared to legitimate related to the state interest committed, severity of the crime these restitution, among other interests. Accord- present in concerns are not Candedo’s ease. ingly, challenge Candedo’s constitutional was authorized to sentence Cande- imposition nine-year probationary of his sentence, fifteen-year prison do to a but in- probation term under Utah’s statute fails. nine-year imposed probation stead sen- We therefore affirm the district court’s deci- tence and ordered restitution to the victims nine-year sion to order pro- restitution and a fraud, of his a far less severe sentence. We bationary term. can envision ease where defendant could successfully challenge probation sentence truly arbitrary discriminatory that is un- DURHAM, 26 Chief Justice Associate process prove der the due clause or that the DURRANT, Chief Justice Justice WILKINS unusual,

probation statute is cruel and but and Justice concur in NEHRING Justice such a case is not before us now. opinion. PARRISH’s

¶ 24 Under a rational basis standard review, a require statute will meet the process

ments of due “if it has ‘a reasonable proper legislative to a purpose,

relation ” arbitrary discriminatory.’ [is] neither nor Dist.,

Tindley City v. Salt Lake Sch. ¶30, 29, (quoting UT 116 P.3d 295 Condema University Hosp.,

rin v. (Utah (alternation 1989)) original). None Utah, Petitioner, STATE of Plaintiff and potential arbitrary about concerns sen present tences are in this case because Can nine-year probation dedo’s term is shorter ROYBAL, Jose Baltarcar Defendant fifteen-year than prison sentence he Respondent. statutory could have received under the sen No. 20080776. tencing Additionally, scheme. there no judge evidence that the sentencing treated Supreme Court of Utah. differently Candedo from other defendants suspect on account of race or other classifica May against tions or any discriminated him in way. Finally Candedo does make the

argument that his sentence was cruel and Eighth

unusual in violation of the Amend

ment of the United States Constitution or I

article section 9 of the Utah Constitution. short, Candedo’s constitutional challenge

to his sentence fails.

CONCLUSION

¶25 We hold that the court of by refusing

erred to reach the merits of

Candedo’s constitutional claim rule Shurtleff, Gen.,

Mark L. Att’y Ryan D. Gen., Tenney, Att’y Asst. City, Salt Lake for petitioner. Richards,

Randall W. Ogden, respon- for dent Ralphs,

Stewart P. City, Salt Lake Amicus.

WILKINS, Justice:

INTRODUCTION ¶ 1 Defendant Jose Baltarcar convicted of one count of under the trial, influence of alcohol. Before he moved suppress the admission of the evidence stop, obtained from a traffic arguing that the traffic constituted an unreasonable search rights and seizure in violation of his under the Fourth Amendment to the United Constitution, I, States as well as article sec- tion 14 of the Utah Constitution. The dis- trict court denied suppress, his motion to but the court granted reversed. We majori- certiorari on one issue—whether the ty panel of the of the court of erred reversing the district court’s determina- reasonable, tion that there was a articulable stop Roybal. We reverse.

BACKGROUND “¶ 2 legal analysis ‘The of search and highly dependent.’” seizure cases is fact Alverez, 61, ¶ 2, State v. 2006 UT Brake, right Sergeant ing onto 30th. Ledford testi- (quoting State v. 699). “Therefore, give a de fied that as turned the corner and Id. Ledford, recitation of the facts.” approached Sergeant tailed he drove “really, really speed slow.” The limit on 30th August police dispatcher 3 On per (mph), hour was 35 miles but Roy- call from Jose Baltarcar received Ledford estimated McCaine, Annalee re- girlfriend, bal’s live-in mph. Sergeant between 5 and 25 Ledford dispute in a be- questing police assistance stopped stop light at the at the intersec- upset the two. McCaine tween Harrison tion 30th and Boulevard. As person living that she wanted stated rear, Roybal approach watched him from asked her out house. appeared it assaulted, Ledford that she had been her whether light about, hoping change was the red and would responded, yes.” “Just which McCaine however, clarified, Sergeant go through would the in- Later, dispatcher Ledford the However, Roybal you?” tersection before arrived. he hasn’t to which “And assaulted light change, replied, Roybal pulled the the did not dispatcher “No.” When and McCaine Roybal drinking, Sergeant light, in next if had been McCaine to Ledford at asked seconds, you might stopped both And for a few replied, “We have. then made anoth- right take She said that she [us].” have to both of er turn onto Harrison Boulevard. Ser- care, “just want[ed] him out.” geant Roybal did not she followed. to Ledford continued dispatcher to told McCaine “take a speed After drive limit below and made anoth- breaths,” deep couple of McCaine identified right-hand er turn onto Patterson Avenue. gave her and Roybal as roommate the dis- appeared Sergeant Roybal It that Ledford names, Roybal’s age, and last patcher first trying was to avoid him. Earlier, ethnicity. gave McCaine and ¶ observations, Sergeant 6 Based on his names, dispatcher her own first and last her suspected Roybal Ledford that was drunk. number, phone and her address. McCaine Sergeant through testified his Ledford that reported Roybal “out putting also training experience, he rec- has come to “leaving,” gave van” stuff his and was ognize driving a sign slow of intoxication description partial of and a a the van license drinking, because someone when has been Roybal pulled plate number. After out of thinking im- their fine motor skills are driveway, dispatcher McCaine told the paired, causing slowly. them to drive more Roybal road was on and the

which direction Sergeant Ledford asserted that in an effort heading. that he was The district court la- impaired police, to avoid will also drivers observed, listening a recording ter after stay slow down and vehicles. behind call, McCaine sounded intoxicated. Sergeant Roybal Ledford testified that had ¶4 call, dispatcher Based on the the 911 engaged in these exact behaviors. He also requesting police a bulletin sent out officer acknowledged Roybal violated had not Sergeant respond- Ledford assistance. Chad any traffic laws. ed. The informed Ledford that a verbally fighting, and a “[m]ale [were] female ¶ 7 Sergeant Ledford also testified that he weapons, very parties no both intoxicat- suspected Roybal vi- committing domestic ed.” also from the dispatch olence. He knew bul- gave the make and color of his vehicle and dispute letin had been a that there domestic travel, and stated his direction that he was prompted Department a 911 had call. “1055,” police meaning that driver code a policy required him both thus to interview may be intoxicated. addition, suspect. the victim and the Ser-

¶ geant suspects testified will of- Ledford traveling eastbound on 30th While residence, initially ten the house circle back leave but Sergeant toward Street McCaine’s the scene if do not Roybal’s return to approaching saw van on an Ledford slow, street, Roybal driving arrive. a adjoining Although Avenue. Because Brinker traffic, Roybal vicinity in the oncoming no at circuitous route of McCaine’s there was sat house, stop sign Sergeant for Ledford’s concern increased. a few seconds before turn- pulled Roybal support suspicion Ledford over insufficient a reasonable actually where approximately blocks from McCaine’s because had vio- twelve any laws, could smell as he traffic conduct home. Because he alcohol lated his was not car, approached “suggestive criminality.” and because Id. 16. Final- tests, field-sobriety ly, a Ser- failed number court noted that Ledford geant Ledford arrested a suspicion lacked domestic (DUI). of alcohol under the influence merely violence because the call indicated “nonphysical confrontation” insufficient subsequently Roy- charged 9 The State stop. justify a Id. 17 n. 6. influ- bal with one count of under the alcohol, degree felony, a third dissented, ence of Judge concluding Thorne violation of Utah Code section 41-6a-502 call, that based did (2005).1 Roybal all suppress moved to evi- suspicion Judge have a reasonable of DUI. stop, dence obtained as result of his traffic relationship Thorne reasoned that McCaine’s stop arguing unsupported was insufficient to render call unreliable, he had committed provided, and that the details she crime. the district court denied coupled apparently with her intoxicated suppress, concluding motion to state, were sufficient to create a reasonable justified by dispatcher’s ¶¶ the 911 (Thorne, J., suspicion of DUI. Id. 19-22 suspicion Roybal driving reasonable was dissenting). Judge Thorne, According to under the influence of alcohol. The court did justified Sergeant Ledford was therefore in specifically address whether making stop. independent Ledford had an reasonable sus- Following 12 issuance court of picion Roybal driving while intoxi- appeals’ ruling, petitioned the State for cer- cated based on his own observations or a review, tiorari which granted. The Utah Roybal suspicion reasonable had com- Council, joined by Domestic Violence Following mitted violence. domestic Assault, Against Utah Coalition Sexual sub- Roybal ruling, court’s entered a conditional jurisdiction mitted an amicus brief. We have guilty plea count of under one pursuant to Utah Code section 78A-3- influence, degree felony, preserving a third 102(3)(a) (2008). right Roybal timely his appeal. thereafter appealed appeals following court of to the STANDARD OF REVIEW sentencing. certiorari, 13 “On we review the A panel 10 divided of the court of of the court decision of not that 286, Roybal, App reversed. State v. 2008 UT Alverez, of the district court.” v. State 2006 ¶ 1, 191 P.3d 822. The court concluded that ¶ 8, (internal 61, quotation 147 P.3d 425 justified by was not reasonable sus- omitted). is for marks Our review correct picion First, for four reasons. because ness, granting no to the deference court of personal relationship McCaine’s appeals’ application underlying to the law call, provided and the lack in of detail findings. factual Id. relayed court considered information ¶¶ her 911 call less reliable. Id. 11-13. Sec- ANALYSIS ond, the court found the 911 suspicion lacked reasonable 14 The sole issue before us is reasonable, driving while intoxicated because there was there a whether articulable regarding no information quantity suspicion support Roybal’s “the or sufficient to traf type consumed!,] long of alcohol stop. prohibits how he fic “The Fourth Amendment had drinking,” weight. been or Id. ‘unreasonable searches and seizures’ ¶¶ Third, Government, 14-15. the court protections concluded that and its extend to investigatory persons Ledford’s own were stops observations brief or vehi However, (2007). charged count was also with one tion 53-3-232 the district license, violating a no a class charge. alcohol conditional court later dismissed this misdemeanor, B in violation of Utah Code sec-

1021 reasonable, suspicion articulable of traditional arrest.” short cles that fall 273, Arvizu, 266, the influence of alcohol. 534 v. U.S. United States (2002) (quot primarily 744, L.Ed.2d 740 this conclusion 151 The court reached Const, IV). “However, questionable it is to be of ing by considering amend. the call U.S. may detain ‘a officer Lake reliability. Relying City on Salt v. settled law when Bench, 655, individual the officer question P.3d App 177 2008 UT reasonable, suspicion articulable has stated, a citizen-informant has “When is, been, engaged or is about be person has involvement with the personal kind of some ” Markland, activity.’ v. State in criminal conveyed is suspect, the information consid- ¶ 10, 112 (quoting State P.3d 2005 UT possibili- a there is ered less reliable because (Utah 1996)). 446, 450 Chapman, v. making allegations ty that the is out citizen required facts specific and articulable “The person- anger, jealousy, or for other out of fre most support App 2008 UT v. al reasons.” State investigating on an officer’s quently based ¶ 11, 822. This statement is ” inferences.... State own observations incorrect, sug- extent that Bench and to the (Utah Case, 1274, 1276-77 Ct. v. otherwise, clarify. gests we now circum “under certain App.1994). Bench, rely may on other sources officer “Because stances the As stated flyers such as or “bulletins[ ] volunteer[s] of information” citizen-informant information out law community other enforcement received from not for of concern for “ sources,” long benefit, ‘the who issued so and because informant flyer possessed bulletin exposed pros criminal and civil possible is stop.’”2 Id. at suspicion justifying false, if is from an report ecution U.S. Hensley, (quoting States United generally con identified citizen-informant S.Ct. L.Ed.2d highly sidered reliable.” (1985)). appeals correctly (alteration ¶ As the court 15, in original) 177 P.3d 655 noted, quali in this dispatch report case (citations quotation marks omit and internal v. 2008 UT “flyer,” fies as State a ted). Norris, 104, 2001 v. UT See also State 822, ¶ 286, 5, term App n. 191 P.3d which 9 ¶ 18, (“[Reliability and veracity 48 P.3d 872 any mean information “has taken to been generally when the informant is are assumed investigation that prompt to intended nothing police from the a citizen who receives channels, regard through transmitted (internal exchange in the information.” for n. 4. Id. at 1277 less of method.” Keener, omitted)); v. quotation State marks ¶ (“[Citi 10, 191 288, 835 P.3d App 2008 UT vehicle, Roybal’s stopping 15 In reliability high on the zen informants are dispatch primarily on 911 Ledford relied presumption and to a of scale are entitled appropriate long so as the report. This “ Comer, veracity.”)_; State a sus- ‘possessed reasonable 911 ” (“[N]ot 219, 22, tips all are App 51 P.3d 55 (quoting at justifying stop.’ a Id. 1277 picion 675). establishing equal reasonable sus 233, of value at 105 Hensley, 469 U.S. S.Ct. ... citizen infor picion[,] an identified However, appeals [b]ut court of determined reliability scale. The girlfriend high mant is on the call from the 911 ordinary indepen needs no citizen-informant provide the with not sufficient to sufficient, dently own then the officer's observa- argues 2. The court of State may to conquer” the factual scenario reach applied impermissible "divide tions bolster an instance, suspicion. the dis- analysis In of the facts. We in its consideration report patch own observations the officer’s look to of have that "courts must said However, whether, not in isolation. should be considered determine taken circumstances 911 investiga- in this case together, because determine facts warranted further Alverez, to form a reason- had sufficient facts State v. 2006 tion officer.” (internal 14, suspicion, report 61, alone sufficient quotation able 425 UT 147 P.3d stop, provided omitted). determining justify Sergeant his own Ledford's when marks Therefore, report "flyer not inconsistent. dispatch or or observations were other whether a 911 remaining argu- support the State's stop, we need not address a court was sufficient bulletin” analy- appeals' method of independent ment that the court of may report an basis at the look indepen- suspicion. If it is sis incorrect. for 1022 reliability veracity. proof greater opportuni or We or friend often

dent close has a ty veracity when a citizen-infor the criminal simply assume observe behavior may suspect victim incentive provides information as a or have an not to mant (alterations report suspect family loyalty. original) due to of crime.” witness McArthur, (internal See, 326, e.g., Illinois v. 531 U.S. omit quotation citations and marks 331-32, (2001) 946, ted)). contrast, 121 S.Ct. 838 148 L.Ed.2d informants considered are probable (finding tip cause where wife’s was they anonymous, are Flor less reliable when personal 1375, based on observation of criminal J.L., 266, 270, ida v. 529 U.S. Smith, activity); United States v. 457 (2000), they receive 146 L.Ed.2d 254 or when (E.D.Mich.2006) 802, F.Supp.2d (relying 805 activity through criminal their information tip ex-girlfriend on from claimed to who have by pecuniary gain. are State v. motivated defendant); personal relationship a close with McArthur, App 996 UT 2000 Cowdin, 176, 25 Kan.App.2d State v. (1998) 929, reliability (presuming 933 Bench, despite recognizing pre 17 In residence); spouse living from at the same sumption reliability an citi Ruiten, 536, Van State v. 107 N.M. zen-informant, the went court of on (“[T]he 1302, 1305(N.M.Ct.App.1988) familial say where a that “there circumstances relationship of the no [informant] doubt lent veracity may properly citizen-informant’s be credibility....”); Butchino, People v. 152 ¶30, 15, called question.” App into UT 64, (1989) A.D.2d 65-66 N.Y.S.2d illustrate, To P.3d 655. the court cited (upholding wife’s affidavit because she “clear personal several cases where involvement be personal ly knowledge the facts [had] as suspect tween and the led to a the informant serted”); Nelson, State v. 691 N.W.2d possibility allegations. and fabricated bias (N.D.2005) (stating that other courts Indeed, Id. tips some courts have treated presumed reliability have when informant family from personally involved or friends as spouse living is a at the residence to be See, questionable reliability. e.g., United searched); Boushee, State v. 284 N.W.2d 392, 393-94, Phillips, States v. 727 F.2d (N.D.1979) (deeming a wife’s affidavit of (5th Cir.1984) (noting that the informant’s greater reliability inculpated because it her quarrel estrangement recent from Deluna, spouse); State v. defendant, husband, “may have cast ¶ 21, tip greater (granting 40 P.3d 1136 relia trustworthiness”); doubt on her State v. bility because informants relied (dis Morris, (La.1984) 444 So.2d implicating observation and risked an in cussing who, veracity informant involved member). family Similarly, volved several dispute wife, in custody may with his have specifically rejected have argu courts the give “a report wanted to false to embarrass family ment that or friend informants her); Lindquist, or inconvenience” State v. reliable, presumed less and instead have (1973) 398, 333, 295 Minn. 205 N.W.2d 335 See, openly tips. e.g., on such relied United “prior (stating relationship that a awith sus (4th 106, Hodges, v. States 705 F.2d 108 pect might an give informer to motive lie or Cir.1983) (concluding that if the even infor Williams, exaggerate”); v. 193 S.W.3d State mant, girlfriend, a former live-in “harbored (Tenn.2006) 502, (declining pre 507-08 defendant], ill credibility [the will toward her reliability tip sume when informant was rejected ground”); not] be [could on [that] girlfriend, they recently defendant’s and had Olson, 402, 297, State v. 314 Mont. White, quarreled); 656, State 662 (2003) (determining 303 that evidence of (Utah Ct.App.1993) that (recognizing ex- relationship strained between informant and allegations high wife’s that defendant on defendant, wife, his estranged was insuffi cocaine been and had involved in a domestic presumption reliability); cient to overcome day “ques disturbance earlier the were of Amelio, State v. 962 A.2d 197 N.J. reliability”).. tionable (2008) (relying daughter 502 tip on from de ¶ However, many defendant); spite dispute 18 courts also con recent have her with the tips family sidered Bradley, App.3d from or to be of friends State v. 101 Ohio greater 721, 722, (1995) reliability family (relying girl because a member N.E.2d personal Roybal, Her involvement with with able. tip despite earlier altercation friend’s weakens, defendant). face, strengthens, nor on its neither the presumption; we must consider the the case reviewing After full unique gave facts of this case. She ease law, arguments in the well as the as address, thereby fully exposing name and us, personal the find that fact of we before allegations. liability herself to for fraudulent an informant and a sus involvement between Further, she call with intention of did not conflicting be to have pect can construed reporting drunk but to re- such, inappropriate find it As we effects. him quest help removing from her home. greater of either presumption attach Roybal had Her statement that been drink- personally from reliability to a lesser off-handedly made ac- ing was with the We therefore hold involved informant. she, too, knowledgment had drink- been with the personal fact of involvement ing, which that her remark was indicates way or presumption one suspect carries no an simply a statement of fact and lacked other; is informant personally involved addition, provided ulterior motive. she any greater presumed to have lesser or specific details of her first-hand observations. inform reliability any other identified than reported dispatcher Indeed, McCaine she citizen-infor ant.3 reliable, in Roybal, they been with had presumed had been mant suspect together, just informant with the drinking volvement and that had left. weakens, strengthens, pre neither nor partial vehicle She also described his with Instead, ini sumption. recognizing after number, in, plate area license he was Judge Thorne stated presumption, tial heading. Coupled direction with he was below, “Courts evaluate his dissent should noticeably the fact that McCaine was intoxi- specific required and articulable facts phone, cated on the could totality, support reasonable in their make the inference that looking than at each fact in isolation.” rather intoxicated, similarly driving. 286, 19, P.3d 822 appeals, the court of do not believe Unlike J., (Thorne, dissenting) (citing v. Wor State necessary report it was McCaine to wood, 397); see long how much or how had been 230-31, Gates, Illinois v. 462 U.S. also consumed, drinking, the type of drink or his (1983) (adopt 76 L.Ed.2d 527 weight. Undoubtedly these details would “totality-of-the-circumstanees” ap ing a strengthened report. have be- reliability in determining informant proach McCaine had been drink- cause said test). rigid, separate-elements of a place her, intoxicated, ing clearly with and she to infer it was reasonable for Looking to Thus, was likewise intoxicated. case, in the instant we believe circumstances call, provided together in the with the details provide the 911 call was sufficient to inferences, given from a re- their reasonable suspicion that liable, citizen-informant, were suffi- identified Ir driving was under the influence. form Roy- dispatcher cient for the to a reasonable that respective of the fact McCaine was suspicion driving that was in- while girlfriend, live-in she was an bal’s presumptively who is reli- toxicated.4 citizen-informant alcohol, we argues the influence of need not make 3. The State also that we should consider under it presumptively because McCaine’s call reliable we that additional determination. yet emergency a 911 call. This issue has not degree to six of the note that the footnote Utah, decide in and we not been addressed need suggests appeals’ opinion only a of it in this case. justify police stop physical confrontation would a purposes, that is incorrect. for domestic violence addition, Sergeant 4. the State contends that amounting where actions to Circumstances exist stop justified making based in the Ledford was physical be suffi- less than encounter would dispatcher's suspicion the reasonable on suspicion of a cient to form the basis reasonable Hav- had domestic violence. committed committed domestic vio- that a defendant had ing dispatcher possessed a the determined that lence. suspicion Roybal was reasonable 1024

¶21 ¶ DURHAM, suspicion a reasonable 25 Justice Once Chief Associate originator DURRANT, informa by reached the Chief Justice and Justice case, concur in tion —in the re Justice this PARRISH WILKINS’ —the rely opinion. sponding officer is entitled on to the information unless officer’s NEHRING, Justice, dissenting: suspect interaction with observations or ¶ respectfully 26 I dissent because I be- present contrary. to the That is indications under the lieve that the circum- say, suspect’s to if actions not incon are stances, Sergeant not Ledford did have rea- suspicion, po sistent with the reasonable suspicion stop Roybal. sonable to Mr. stop may pursue suspect lice officer City immediately. Kaysville ¶ him or See 27 In order to stop, make a lawful traffic (Utah Mulcahy, Ct.App. v. P.2d 234 943 an officer must have reasonable articulable 1997) (“An dispatched receiving officer suspicion subject stop that the is in- message may it at face act on take value and Kohl, criminal activity. volved in See State v. (internal quotation ¶ it forthwith.” marks omit 35, 11, 7. majority The ted)). correctly notes that while articulable supporting suspicion facts reasonable ¶22 Applying standard this frequently “most based on investigating case, determine must whether inferences,” own officer’s observations and presented Sergeant actions Ledford evi circumstances, may rely some an officer contradicting dispatcher’s dence reason other sources of stop, information make a suspicion. Sergeant able Ledford observed including dispatch reports in- based on Roybal driving slowly and in carefully tips. supra formant See though manner appeared were ¶28 However, the fact that an officer re trying Although to avoid the car. this police dispatch ceives information from does conclusive, behavior in and itself is not it necessarily suspicion end the reasonable disprove does not or contradict the reason Indeed, inquiry. investigation where “the suspicion able stop’s legality end[s] arrest and the [is] influence, and therefore did not diminish attacked, the State must—-albeit after the Sergeant ability rely Ledford’s on the that adequate fact —establish articulable sus dispatcher’s report pursue and to detain picion initially spurred dispatch.” Kays Roybal. City Mulcahy, ville v. (Utah (internal Ct.App.1997) quotation marks omitted); Bench, City see also Salt Lake CONCLUSION (“To Roy- 23 We conclude that the evidence adequate suspicion establish articulable bal’s intoxication observed Led- broadcast, spurred dispatcher’s pros ford during the traffic properly ecution must show that [the informant’s] Roybal. against admitted At the time of the reliable.”). stop, Sergeant rely Ledford was entitled 29 We assess whether the had upon dispatch report. the 911 911 call based on content of by Roybal’s girlfriend adequate was of relia- provided by the information the informant bility give and detail degree reliability. and its See id. suspicion Roybal’s intoxication White, (citing Alabama v. 496 U.S. driving, while own Ledford’s (1990)). L.Ed.2d Roybal’s observations of conduct not con- did quantity “Both quality and factors — —are Thus, tradict suspicion. that Sergeant Led- in ‘totality considered the of the circum- justified ford stopping questioning was in and analysis.” stances’ State v. Roybal. ¶ White, App (quoting 191 P.3d 822 ¶24 2412). We therefore reverse the court of at Although 496 U.S. by reliability and affirm the conviction the dis- the of a on is based the circumstances, trict. traditionally of the we have (1) Roybal similarly was intoxi- type [Mr.] the ence considerations: on three focused (2) cated, id. driving.” and now See involved, much detail how informant about the observed provided the informant ¶ by the made 33 I am troubled inference (3) activity, any corroboration criminal majority. the information Ms. the When personal police officer’s through the obtained gave dispatcher is examined MeCaine to the ¶ 11; also Mul- id. see See observations. totality, in its it reveals Ms. MeCaine cahy, at 235-36. the crimi- alleged little detail about provided Case, activity. nal See State consideration, ¶ agree I first 30 As to the (Utah Ct.App.1994) (stating that although majority’s the statement with person’s corroborating based details supplier the informa- Ms. MeCaine—the description not “is corroboration physical personal dispatcher some tion the —had activity”). the The information from criminal live- in this case Mr. involvement only Roybal dispatcher established Mr. an citizen- is still girlfriend, she and that he had some- was in a white vehicle presump- to a is thus entitled informant and thing to drink. ¶ supra reliability. See tion of ¶ People drinking together can individu analysis second majority’s The alcohol, amounts of or ally consume various troubling. is more third considerations all, at and it is erroneous to as no alcohol called that Ms. MeCaine The record indicates people the fact that sume that mere fight her live-in upset a verbal with after they have had same together means the dispatcher Ms. asked boyfriend. the When to drink. As the amount hap- “exactly [was] what to tell her MeCaine below, person “the that a stated statement replied, person “[t]he pening,” Ms. MeCaine drinking, by no other has itself —with been hole, living with me an that’s been regarding amount of alcohol con a— facts The f— out of here.” I want him the sumed, consumed, type beverage or she had dispatcher Ms. MeCaine if asked person which the period of time over assaulted, MeCaine re- to which Ms. been provide ... does not consumed alcohol about, a few yes.” sponded, “just rationally infer adequate basis on which contradicted later Ms. MeCaine beyond moments person has an alcohol level that the physical no confirmed that per herself when she legally proscribed limit or that the dispatcher then violence had occurred. to the extent that he son consumed alcohol drinking. boyfriend if had been Roy asked her safely drive vehicle.” she could responded, both have.” MeCaine “We bal, Ms. 191 P.3d 822 MeCaine dispatcher (citations omitted). asked Ms. When was, currently Ms. boyfriend where Sergeant Ledford’s observa- putting out stuff replied, “[h]e’s MeCaine that Mr. negate further the “inference” tions you going gone to be before his van ... He’s Roybal driving was under the influence. Ms. asked get here.” The call, Sergeant dispatcher’s response boyfriend kind of car her MeCaine what not far from Ms. located a white van Ledford told Ms. MeCaine drove. stopping Instead McCaine’s house. gave van and he drove white immediately, Sergeant Ledford followed van asked partial plate number. When license He no Roybal as drove. observed Mr. boyfriend going, Ms. MeCaine where her Instead, he violations. observed traffic stated, heading “I south.” no idea. He’s have traveling “slowly and care- Mr. fully.” Sergeant Ledford testified based communication, majori- From this officer, uniformly experience as an this on his dispatcher had reason- ty concludes that driving was an effort hyper-competent that Mr. able his car. avoid ¶20. The supra the influence. See under majority, According this obser- ad- majority that since MeCaine reasons Ms. ... disprove or contradict “was “does not Mr. vation drinking mitted to “the noticeably phone,” [Mr.] on the intoxicated disagree. Supra I 22. infer- influence.” make the reasonable dispatcher could soundly re- has Our jected im- implication that the State can

pute activity hyper-cautious unlawful driv- Bench,

ing. court of noted: however,

Safe, driving, even ultra-cautious

if motivated a desire to avoid

contact, not, more, does without create rea- suspicion justify sufficient to

sonable stop. Simply put, a

traffic desire to avoid

an encounter with does not indicate person

that a while intoxicated engaged

or is otherwise criminal activi-

ty- ¶ 12, I

2008 UT P.3d 655. imprimatur

would bestow of our court on analysis Although

this from Bench. Ser-

geant Ledford had some information that may

Mr. have been under the

influence, quantity in- and detail of this reliability was sparse,

formation and its question

put into when Ledford’s

personal observations were inconsistent with Thus,

the information. based on the case,

of the circumstances in this I believe Ledford lacked the reasonable needed to Mr.

driving under the influence.

In the matter of the ADOPTION OF

T.B., person eighteen

years age.

T.M., Appellant, S.B., Appellees.

B.B. and

No. 20090074.

Supreme Court Utah.

May

Case Details

Case Name: State v. Roybal

Court Name: Utah Supreme Court

Date Published: May 14, 2010

Citation: 232 P.3d 1016

Docket Number: 20080776

Court Abbreviation: Utah