State v. Sery

the common defini errant cow under Utah, terms. Nor defendants tions of those STATE of Plaintiff and large. See San Respondent, the cow run “allow” Cooper, Ariz. tanello (“allow” sanction, per means to SERY, Joseph Defendant Mark of). mit, acknowledge, approve Appellant. event, 10-10-3 must any section No. 860333-CA. light Code Ann. of Utah construed 41-6-38(3) (1987), states: § Appeals Court of of Utah. owner, brought by the civil action July motor occupant of a vehicle operator, damages caused collision with

... or animals on a

any domestic animal presumption

highway, there is negligence on collision was due person in or the owner

behalf

possession livestock. (1987) provides:

Utah Code chapter appli- are provisions this throughout and uniform this state

cable political of its subdivisions and all

municipalities. authority A local any rule or ordi- enact or enforce provisions of in conflict with the

nance may, chapter. Local authorities

this

however, adopt consistent ordinances chapter, additional this traffic which are not conflict with

ordinances chapter. re- Hornsby’s court’s refusal of

The trial negligence

quested per se instruction was

correct.

Finally, Hornsby contends the court refusing jury

erred in to instruct Hornsby liability. claims the cow

strict tendency dangerous or known

had a vicious Nothing sup in the record

to defendants. his assertion. The court’s refusal

ports justified. instruction therefore

give the J.,

BILLINGS, concurs. J.,

JACKSON, in the result. concurs minutes,

entered snack In a bar. few he exited the snack bar with a soft drink. He directly pay walked across to a bank of telephones down in one of and sat holding phone enclosures. While receiv- er, up he stood and looked over twice partition. booth’s three to five Within min- utes, phone he booth area left path different the one he used to it, rejoining past enter the concourse sever- booths, standing phone men al near the proceeded baggage in the direction point, stopped claim area. he At that was standing three the men who had been outside the area after phone booth follow- gate. They him from the arrival identi- Sery fied as themselves to officers. Agent One was Mark Whittaker Liquor Enforcement Utah Narcotics and Bureau; one William Pear- was Miami, Depart- son of the Florida Police Watt, (argued), Joan Salt Karen Stam C. ment. Assoc., Legal Defender Lake Lake Salt day arrived, Sergeant Sery Pearson appellant. City, defendant and for conducting drug courier seminar for was Wilkinson, Atty. Gen., Kimberly L. David training City police. Lake session Salt Gen., for (argued), Atty Asst. Homak twenty twenty-five officers for State. out and into the moved of the classroom practical application. airport for concourses JACKSON, ORME Before watching officers were Approximately six DAVIDSON, JJ. Florida, Sery’s flight from deplaning As including and Whittaker. soon Pearson OPINION Sery and looked entered the terminal Whittaker, around, to trainee Pearson said JACKSON, Judge: “Let’s take look at “Let’s follow him” or Joseph his Sery appeals Defendant Mark Sery emerged from snack him.” When possession con- convictionfor unlawful of a feet bar, away to fifteen Pearson was ten substance, degree felony, trolled a third Sery in the from him. was While Utah violation Code area, and several booth Pearson 58-37-8(2)(a)(i)(1986). We reverse him, watching some within trainees stood suppres- denial of trial court’s defendant's feet. five motion and remand for sion withdrawal ques- for stopped first Sery When was underlying judg- of no contest Pearson, Whittaker, tioning by and another ment conviction. trainee, his airline asked to see Pearson May Sery at Salt On arrived bearing the name Sidsel ticket. ticket Airport at a.m. on Lake International 11:05 returned the ticket produced. Pearson was flight He Delta Airlines Florida. for identification. and asked “Mr. Sidsel” none, suitcase carrying Sery responded was a blue with brown that he had his Sidsel, trim; nothing that the unusual about name on there was name was not paused due to airline error. appearance attire. He momenta- ticket incorrect was area, around, Pearson, Sery not ask According he did gate rily in the arrival looked offer, his for, correct passen- Sery waited a few minutes while other destination, gers him, along name. Pearson asked passed and then started Evanston, Sery Wyo- concourse, stated again, looked and which around they Sery could seized ming. then asked and his outside the carry-on bag. terminal, Sery said he Sery’s specific, search did not have articulable did not. Pearson rather Pearson warranting would a reasonable to leave. Sery told was free carrying illegal drugs in his court, bag. stating The trial after that the along way on his the con- continued one, question a close Sery’s denied course, bag- down took the escalator motion. minutes, area, gage waited for a claim few the He re-entered and then left terminal. Sery plea then entered a of no contest to once, building at least looked around the possession offense of the of a controlled area, again. baggage the claim exited plea explicitly substance. The was condi- releasing Sery, preservation ability on his After Pearson obtained tional to appeal suppression checked out—the ruling from Delta Airlines—and court’s left plea callback that had been number to withdraw the it was determined After Sery’s ticket reserved. appeal was suppress on that the motion to discovering Lauder- that number Ft. granted. judgment have A should been dale, changed non- had been to a Florida subsequently entered conviction was based number, drug ordered a published plea. on the conditional dog police depart- from detection a local ment. CONDITIONAL NO PLEA CONTEST dog The his at the handler arrived matter, preliminary As a we must Shortly airport noon. thereafter about appeal that, claim on address State’s again officers confront- Pearson and other although prosecutor assented Sery, time terminal ed this outside arrangement, plea to conditional record this pick-up zone. Pearson passenger agreement improper and was mistaken. bag carry-on his to a Sery asked to submit that, The asserts under Utah State now sniff; drug dog Sery declined. detection law, pleads no con case defendant who Sery that he and Pearson then advised both pre-trial right appeal to all test waives the bag being his “detained” and that rulings. go into terminal would have to back presented bag argues that, to with them while the was under State v. State (Utah 1978) dog. Beck, (per drug detection 870 cu 584 P.2d Yeck, riam), 566 P.2d 1248 v. State Sery inside After the officers took back (Utah 1977), plead cannot a defendant terminal, Sery’s bag, car- Pearson took alleged appeal on guilty and base then to a ried it the Delta ticket counter behind the voluntariness of the other than errors baggage out of and off-limits to area view Yeck, the Utah plea. general public, placed in a four- it that, entering voluntary concluded dog bag lineup. detection was the defendant had waived plea guilty, posi- brought his and reacted handler and, it, right on to claim trial with bag. was tively Sery’s This information right denied his appeal he was Whittaker, conveyed who by Pearson to Beck, Similarly, in the defend trial. jury public where went to the concourse area voluntary guilty plea to entry ant’s of a him and informed was detained murder, hung degree jury after second under arrest. he was murder, degree held his trial for first carry-on the blue warrant search appeal that his claim on a waiver of to be on subsequently issued based warrant did underlying arrest the facts con- affidavit. It was found to Pearson’s probable cause.1 not constitute suppress tain moved cocaine. Although Utah cases neither these physical evidence on fourth amendment suppression mo- officers, timely pre-trial time involved grounds at the because hung jury Furthermore, sufficiency trial pleaded guilty the evidence at because Beck charge. degree State v. murder degree the first and had no trial on second charge, murder Beck, precluded challenging at 872. 938 applies equal

tions, the common- force to a defendant who they consistent with are voluntary guilty plea is a plea, law rule that enters an unconditional no contest nonjuris- right appeal all waiver of accepted by “if the court shall have issues, including alleged pre-plea dictional guilty....” the same effect as a E.g., Gordon v. violations. constitutional Ac- 77-13-2(3) (1982). Utah Code 1978); State, v. (Alaska State P.2d 701 577 State, (Alas- Cooksey cord v. 524 P.2d 1251 Carter, (App. 729 P.2d 336 151 Ariz. State, 294 So.2d 114 1974); Jackson v. ka Coffin, 104 Idaho v. 1986); State New, People supra. v. (Fla.App.1974); Rivers, v. (1983); Neb. P.2d City Heights Duty, Huber But see State, (1987); Webb N.W.2d App.3d Ohio 500 N.E.2d Vogel v. (1975); 538 P.2d 164 91 Nev. contest, (unlike guilty plea plea of no Beach, 291 S.C. Myrtle City of suppres- waives claimed errors denial (1987); Beaver v. Common S.E.2d motion). sion (1987), wealth, 521, 352 S.E.2d 342 232 Va. — However, general the aforementioned denied, U.S. -, 3277, cert. where, here, inapplicable plea rule the (1987). general rule of is This 97 L.Ed.2d 781 in applied by oth defendant the consent appellate procedure has been entered preclude appellate review jurisdictions to accepted by er the trial prosecution the de issues where of fourth amendment preserves suppres judge specifically guilty an unconditional fendant entered appeal sion issue for and allows withdrawal motion. losing suppression plea after arguments if in plea defendant’s 159, E.g., Defoy, v. 109 Ariz. 506 P.2d State accepted by suppression are favor of People, 724 P.2d 1329 v.Waits (1973); 1053 Municipal v. See Oveson appellate court. New, 482, People v. (Colo.1986); 427 Mich. 801, Anchorage, 4 ity P.2d 803 n. 574 Schulz, v. (1986); State 398 N.W.2d 358 1978) (Alaska (approving expressly condi Arm State v. (S.D.1987); 409 N.W.2d 655 tional nolo contendere plea if resolution of (1987). 344, 1183 strong, 148 Vt. 533 A.2d dispositive, re appeal issue on reserved plea, is based on the Because the conviction Cooksey v. fining rule first announced defendant rather than on the evidence State, Ashby, 245 So.2d supra); v. State unconstitutionally, claims was obtained nolo (Fla.1971) (approving conditional 225 Turcotte, 164 State v. Mont. questions of contendere pleas that reserve (1974), uncondition 787 the defendant who Crosby, 338 So.2d v. appeal); for law right press to ally pleads guilty forfeits the Peo (conditional plea); (La.1976) guilty 584 appeal, just claim on his fourth amendment Reid, 362 N.W.2d 655 ple v. 420 Mich. by rights can forfeited as constitutional be guilty pleas (1984) conditional (approving timely fashion. a failure to raise them a defendant, prosecutor, and agreed by to 11.1(d) and Seizure LaFave, Search 4 W. § prosecution could be no trial court there Away Westen, (2d 1987) (citing ed. claim is fourth amendment if defendant’s A Rationale Waiver: for Forfeiture of appeal).2 sustained on Proce Rights in Criminal Constitutional dure, (1977)). Mich.L.Rev. conditional the use of such We believe agreed to defendants —if pleas by criminal Utah, regarding for- general rule accepted by the trial prosecution and by the of an adverse appellate feiture of review practice.3 If sound a sensible and suppress court —is ruling pre-plea on a motion to statute, supra has been alleged note statutorily exempted York’s 3. New 2. A few states have by described the com fourth amendment violations from problem relieve the effort "to as a commendable rule, ap specifically permitting mon-law waiver manner that congested in a trial calendars of does not diminish suppression pellate denial of a review opportunity for the asser though judgment of conviction motion even by rights guaranteed Constitution.” tion entry guilty appealed from is based Newsome, v. Lefkowitz (West 1538.5(m) plea. E.g., § Cal.Penal Code (per Stew L.Ed.2d 196 S.Ct. 710.70(2) (Consol. 1982); § N.Y.Crim.Proc.Law art, J.). argued the United One writer has (West 1985). 1984); 971.31(10) Wis.Stat.Ann. give compels de courts States Constitution guilty conditionally option plead fendants hinges proceedings ultimately guilty on the admissibili- and the come to an a case is chal- ty acquisition ultimately whose of evidence end if the reserved issue is lenged by the on constitutional government’s decided in the favor. through grounds, forcing parties go Comment, Guilty Pleas: Conditioned sup- merely preserve the an entire trial Post-Guilty Appeal Nonjurisdic Plea pointless pression issue is a and wasteful Issues, tional UCLA L.Rev. Rogers rel. exercise. See United States ex (1978). logical inconsistency see no We Prison, 381 Attica State Warden of plea guilt— between a admits factual F,2d 209, (2d Cir.1967) (forced trial preserved contest or refuses to it—and the a “waste of these circumstances would be appeal government is claim on manpower”). time, money and constitutionally barred from able It is true that a conditional prove illegal its case because of the seizure appeal reserving suppression issue of evidence. finality of an complete does not have pleas We hold that conditional of the sort plea, results but it still unconditioned here, agreed in issue the de- conviction, interlocu not an judgment prosecution approved fendant and the judgment is as final as order. That tory court, permissible the trial are Utah might after trial that any conviction though they specifically au- even are not Note, appeal. on direct Condi reversed governing the en- thorized statutes Pleas, Guilty 93 Harv.L.Rev. tional try pleas by defendants.4 See criminal Reid, People 362 N.W. See (1988); Ann. Utah Code 77-13-1 Utah § The essence of the conditional 2d at 660. 77-13-2, -3, (1982); -6 Utah Code Ann. §§ plea (1988). 77-35-11 Code Conditional § legal guilt the defendant is that the of plea agreements accepted by the were only prosecution’s if the case rests exists Oveson, Crosby, in and Ashby, courts state crux of the on admissible evidence. The above, Reid, in despite cited the absence dispute alleged error is resolution of the authorizing any of court jurisdictions those appeal, guilt not factual or innocence. accepted They rule or statute. were also plea to further The conditional is tailored long federal before the 1983 by two circuits at specific resolution of issues these 11(a)(2), adoption Fed.R.Crim.P. which of in- expense any state the reasonable of affirmatively authorized for the first time obtaining proceed- finality in the terest pleas guilty of or nolo conten- conditional par-

ings. plea The serve a continues to defendant’s however, preserved a federal dere finality, tial state interest pre-tri- appellate adverse right to review of establishing defendant’s admission of the fourth rulings, including those on guilt. The defendant stands al factual See, Arnsberg, e,g., system court rule. State v. plea needless statute or because an unconditional ly 205, by forcing (1976); rights Ariz.App. fourth State v. burdens amendment 553 P.2d 238 Dorr, (Iowa 1971) (conditional the defendant to choose either the benefits plea bargaining 184 N.W.2d 673 preservation of the constitu or ap reserving plea issues for search and seizure Note, appeal. Conditional tional issues for interlocutory appeal); peal is unauthorized 564, Pleas, (1980). Guilty 577-85 93 Harv.L.Rev. 426, Turcotte, 164 Mont. State v. arguments against the condition The four main (1974) (conditional guilty plea agreement is not rejected by practice analyzed plea and al statutorily used to authorized and cannot be governing feder drafters of the current rule appeal). preserve fourth amendment issue 11(a)(2) procedure. al criminal advisory Fed.R.Crim.P. however, dissenting colleague, dowe Unlike our notes, reprinted C. in 3A committee mention of not construe absence Wright, Practice Procedure 77-80 Federal pleas in Utah Code Ann. conditional Comment, (Supp.1987). also Conditioned See 11, (1988), affirmative bar Utah R.Crim.P. as an Nonju Post-Guilty Appeal Guilty Pleas: Plea Indeed, arrangements. Utah Su to such 360, Issues, 26 375-82 UCLA L.Rev. risdictional recently guilty preme approved Court agreed- imposition on the of an conditioned recognize have re- that some state courts 4. We upon although makes no men sentence Rule 11 defendant, prosecution, permit fused any type plea. State v. tion of conditional judge conditional authorizing the trial to make such and plea (Utah 1986). Kay, P.2d 1294 agreements specific without a cause, affirmation, States v. supported by issues. See United Oath or amendment Cir.1978); (3d particularly describing place Moskow, Unit F.2d 882 Burke, (2d searched, persons things and the 517 F.2d 377 Cir. ed States v. suppress).5 More be seized. 1975) motion to (pre-trial recently, the defendant Ohio, 1, Terry 392 U.S. 88 S.Ct. Place, 103 S.Ct. (1968), the 20 L.Ed.2d 889 United (1983), pleaded L.Ed.2d recognized Supreme first States Court right expressly reserved guilty but exception limited to the fourth amend suppression motion. appeal the denial of requirement that all “seizures” of ment’s tacitly Court The United States probable cause. persons must be based on plea practice, approved of that conditional Terry involved a Since the intrusion any authoriz notwithstanding lack of weapons, “stop and frisk” for brief rule, addressing the mer ing statute or arrest, probable an the Court held issue and af fourth amendment its of the Nonetheless, necessary. cause was firming reversal the Second Circuit’s justify the fourth amend order to under Place’s mo of defendant trial court’s denial intrusion, Terry held ment even this lesser suppress.6 tion to police point that the officer must be able to Yeck, which, in Beck “specific and articulable facts the defendants Unlike together taken with rational inferences his claim that he was not forfeit facts, reasonably amendment from those warrant of the fourth in violation seized intrusion.” Id. at Instead, at plea. by entering an unconditional part pointed requirement that claim as out that specifically preserved upon prosecution specificity in the information plea agreement. record; police predicated is “the central agreed to that condition on action juris agreed-upon teaching” conditional its fourth amendment accepted court Id. relied thereon 21 n. 88 S.Ct. at 1880 plea. prudence. The defendant reviewing as the proceeded accordingly. Inasmuch It enables a court n. 18. agreed procedure counsel ac court and the reasonableness of the assess standard, find prohibited, we against objective and it is not otherwise not the tion no error. good faith of the individual offi subjective cer. DEFENDANT OF

SEIZURE Amendment The scheme of the Fourth to the Unit The fourth amendment meaningful only when it is as- becomes Constitution, applicable to the ed States point the conduct of that at some sured amendment, through fourteenth states the enforcing charged the laws those Ohio, 643, 1684, Mapp v. 81 S.Ct. 367 U.S. detached, more subjected to the can be (1961), provides: 1081 6 L.Ed.2d judge who must scrutiny of a neutral particu- of a the reasonableness secure in evaluate right people of the to be light par- in houses, lar search or seizure papers, and ef- persons, their making in And fects, ticular circumstances. against searches and unreasonable imperative that the violated, it is seizures, and no that assessment shall not be objective stan- against an issue, probable judged facts upon shall but Warrants Matthews, Supreme Previously, had considered the Court 472 F.2d v. 5. Contra United States claim rejected merits a defendant’s Swann, on the and that his (4th Cir.1973); v. 574 United States 1173 by the statute of prosecution was barred (conditional (5th Cir.1978) inap- pleas F.2d 1316 limitations, pleaded though nolo he had even authorizing propriate ride or stat- in absence of de- to dismiss was after his motion contendere nied Clark, (8th ute); 459 F.2d 977 United States v. States, court. Jaben v. United the trial Benson, Cir.1972); 579 F.2d 508 United States v. 1365, 214, 14 L.Ed.2d 345 85 S.Ct. 381 U.S. (9th Cir.1978) (conditional statutory plea has no Boyle, (1965). States v. the court in United As contrary prior United States basis and out, 715, (2d Cir.1965), pointed the 719 F.2d 348 decisions); States v. United plea that defendant’s in Jaben showed record (conditional Brown, (7th Cir.1974) 499 F.2d 829 right appel- explicitly conditioned logically improper). thus inconsistent and issue. of the limitations late review

941 690, 694-69, 101 S.Ct. L.Ed.2d 621 dard: would the available Mendoza, at moment of seizure officer See State v. (Utah man 181, 1987). of reasonable the search “warrant in action tak- caution the belief” appeal, Sery argues that On his detention Anything less appropriate? en was officers, by Pearson other and the after upon invite intrusions constitution- would being stopped time the second outside the nothing guaranteed rights ally based on terminal, unsupported an arrest constituted hunch- more substantial inarticulate probable Alternatively, defend cause. consistently es, a result this Court has ant asserts that the detention constituted a “ ‘good simple And refused to sanction. meaning of seizure within the the fourth arresting officer part faith on the amendment that was unlawful because good If enough.’ subjective is not ... based on Pearson’s reasonable test, protections faith alone brief, criminal In its activity. evapo- Amendment would Fourth that the denies detention was an “arrest” rate, in ‘secure people and the would be requires for which the fourth amendment houses, ef- persons, papers and their However, probable cause. the State po- fects,’ only in the discretion of agrees was “seized” for fourth lice.” purposes amendment 21-22, (citations at 1879-80 Id. at 88 S.Ct. were detained the officers for the canine omitted). Tru See State v. and footnotes Place, drug check. v. See United States (Utah 85, App.1987). jillo, 739 P.2d 708-709, 103 U.S. S.Ct. Stressing case decided that each must be (1983); L.Ed.2d 110 United States facts, Terry concluded its own court Mendenhall, justified stop and frisk was limited (1980) (opinion 64 L.Ed.2d 497 “a officer unusual where observes J.) if, Stewart, (person is “seized” reasonably him to con conduct which leads circumstances, reasonable view of all light experience of his that crimi clude he was not person would have believed that activity Terry, 392 U.S. nal is afoot....” leave). the State claims the free to But language S.Ct. at 1884. This seizure was not unconstitutional because Terry is now referred to the “reasonable necessary sus had the test, see, suspicion” e.g., activity to picion of criminal conduct S.Ct. Brignoni-Ponce, length detention which type and (1975), 2574, 45 and has been L.Ed.2d posi subjected. In view State’s codified this state Utah Code tion, not a if we that there was conclude (1982).7 stop, Terry we sufficient basis for even “jus- or seizure is temporary detention proba not consider whether there was need Fourth tifiable Amendment under support an arrest. ble cause suspicion person is that a there articulable the artic The trial court determined that a is about commit has committed or a supported Pearson ulable facts known to 491, Royer, U.S. crime.” Florida v. 460 activity by suspicion of criminal reasonable 1324, 498, 1319, L.Ed.2d 229 103 75 S.Ct. bag Sery his seized when and (1983) opinion). (plurality Based Assuming outside terminal. circumstances, detaining totality of stop investigatory Sery’s detention was an particularized and ob- officers must have requiring probable not an arrest and suspecting activi- jective basis for criminal cause,8 is issue whether threshold particular person detained. Unit- ty 417-18, Cortez, 411, clearly Men- 449 determination is erroneous. v. U.S. ed States (1982). Code provides: Utah That statute 7. stop peace may any person in a officer recently Supreme has The United States 8. suspi- place public has a when he reasonable "may acknowledged prior in that its decisions has committed or is in cion to believe he line-drawing difficult some instances create committing attempting or is to commit act stop name, investigative problems distinguishing an may public demand his offense Sharpe, v. a de arrest." United States explanation actions. of his address and an facto 942 (citing Cortez,

doza, objec- 183 449 We conclude that the articulable 748 P.2d at 694). 416, tive facts known to 101 at The trial S.Ct. Sery bag support he seized and his did not if finding clearly only erroneous court’s suspicion a reasonable was en- weight of the evi- against the clear it is gaged activity. Accordingly, in criminal a definite and firm or if we reach dence the trial court’s denial of mo- defendant’s that a mistake has been made. conviction suppress tion to the evidence found Ashe, 1255, (Utah v. State clearly was erroneous. Walker, v. 191, 1987); P.2d (Utah 1987). not examine the We need by respon- Seven facts were enumerated nature, duration and reasonableness support dent of the reasonableness investigation scope of the detention (1) suspicion:9 Pearson’s arrived from the seizure first conclude that Florida; (2) unless we minutes at the waited few constitutionally valid at the outset. nervously gate and looked around there Sharpe, 675, United States v. bar; See entering (3) 470 U.S. the snack went before 1568, 1573, 682, telephone up 84 L.Ed.2d 605 to a booth and twice stood 105 S.Ct. officers; (1985). and looked the direction of the 1568, 1575, suspicion S.Ct. based on the facts that 470 U.S. (1985). Lauderdale; passen- In another airline defendants: arrived from Ft. in the L.Ed.2d 605 ger case, morning; early only carry-on bags; the Fifth Circuit Court of detention with that, except Appeals in the context of appeared agent try has stated to conceal their searches, investigatory stops successive together. Royer, plurality border held the travel police based on the same information of an individual permissible scope conduct exceeded the requiring proba- strongly indicate that an arrest turning Terry investigative stop, of a the encoun- place: cause has taken ble proba- ter into an arrest for which there was no stop coercion inherent in the successive ble cause. The four dissenters concluded there Otherwise, acknowledged. must be suspicion stop situation was reasonable for defendant’s can be much more severe an intrusion which heavy that he: carried two based on the facts actual will allowed to take than an place arrest casually bags; young; American Tourister justification. of much less nervous; around; on the basis dressed; appeared looked Morin, (5th 665 F.2d Miami, major drug flying distribu- out of Cir.1982). bills; center; paid for his ticket with small tion baggage tag; complete and trav- ID The United States Court has scruti Finally, assumed name. in its eled under an passengers exhibiting stops nized "drug of airline Rodriguez, per decision in the Court curiam profile” in three courier characteristics was a seizure of defendant but assumed there Mendenhall, cases. United States v. 544, 446 U.S. justified by an articulable held it was (1980); Reid 100 S.Ct. 64 L.Ed.2d 497 spo- activity because defendant had: of criminal Georgia, S.Ct. 448 U.S. spot- furtively his confederates after ken ting (1980) curiam); Roy (per L.Ed.2d 890 Florida v. officers; plainclothes was told one er, 1319, L.Ed.2d 229 460 U.S. 103 S.Ct. here”; attempted to "Get out of confederate Rodriguez, recently, More in Florida v. officers; gave contradictory state- evade the 83 L.Ed.2d 165 identity during concerning con- ments curiam), stop (per Terry the Court ruled on a encounter before the seizure. These sensual airport apparently initiated that was noted commentator to con- results have led one profile match-up charac based on a with formal clude: teristics. Mendenhall, Reid, Royer and Rodri- From Mendenhall, by agents relied on the facts guez, what cannot be said with assurance it activity of criminal were: their "drug of factors from the courier combination Angeles; defendant arrived from Los was the any, justify Terry profile," will suffice nervous; plane; appeared last to leave the stop. be reached But some conclusions area; luggage; scanned the arrival did not claim thing, fact For one the from these decisions. changed reach and airlines. The Court did not "major come from a source the traveler has appropriate reasoning to the a consensus on the city" significance, but —for the rea- is of some majority reached. Two of the held there result weighty hardly a sons stated in Reid—is was no seizure because the entire encounter Clearly justi- will not consensual; that factor alone factor. fy agents with the the reasonable by stop. suffice in a Nor will that factor reached them. The issue was not conjunction circumstance with some other concurring justices three assumed there was a ambiguous, highly as that the such suspicion. which is Terry seizure and found reasonable appears nervous. traveler The felt there was a seizure four dissenters LaFave, 9.3(c) (2d ed. Search and activi- 3 W. without reasonable ty. of criminal Seizure omitted). 1987) (footnotes Reid, any agent the was held to lack (6) (4) Pearson he had no identification strange a route from the told on took him; concourse; (5) (7) pos- telephone left a to the and number with booth area back plane on he claimed the airline that had been sessed a ticket reservationist recorded; changed unpublished to an inaccurately had been number.10 name any interpretation supplants use a ioral court review be- 10. Pearson disclaimed of stops profile self-verifying. drug the for his courier as basis cause his claims become Nonetheless, closely Sery. analysis yielded the facts he relied on Cloud’s these conclusions typical parallel a following frequently occurring the characteristics listed in about the shared profile. enlightening drug characteristics, A useful courier profile similar to seven the facts analysis drug empirical profile courier char- by in enumerated the State the case before us: Cloud, appears in Search and (1) acteristics Seizure Drug City" from or Travel to "Source Arrival by Drug the Numbers: The Courier City”: Drug or results Profile "Use The indicate the Formulas, Investigative Review Judicial drug cities of arrival or destination of couriers (1985). The B.U.L.Rev. 843 ninety author selected (for before those defendants arrested their reported opinions from state different flights completed) dispersed through- were are appellate involving 103 courts de- federal country. every out at 901. "[I]f the Id. area opinions by The were issued fendants. twenty-seven studied location], drug suspect the is use [as nation during period the different courts every potentially suspect is then air traveller December, August, through 1983. Id. traveling merely by virtue between two loca- employed designed at The methods were 888. Furthermore, “drug at tions.” Id 900. traffick- yield providing insight to fact-based information any city may Suspi- in ers travel the nation. drug profile into the use of the courier and its surely simply attach to traveler cion cannot impact judicial decision-making. study The on going is Id. at because he somewhere.” 902. comprehensive presents a overview unavailable (2) Nervousness: reviewing to courts the of individual cases According police to the of the ... 50.5% profile scrutiny of the and calls additional pre-contact defendants exhibited nervousness. systematic using other methods: Although nearly one-half of the defendants drug profile never been The courier has characteristic], to [this did not conform subjected process of validation. The [a] signifi- suggest it is one of the most data any systematic government not conducted has police. to the cant characteristics Unfortu- drug profile study to determine whether the subjective nately, is the most it also Indeed, validity. only predictive has profiles. comprising the formal characteristics generally of its effectiveness has evidence Id. at 903. agents testimony of who utilize the been the (3) drug Using Telephone Upon Arrival: More profile testimony typical- in the field. This is telephone calls than did. couriers did make ly agents even deficient because "were only by of defend- Phone calls were made 19.4% having recognized stops as made in substan- in the studied cases. Id. at 906. ants past where their sus- tial number picions proved instances (4) Itinerary: Place-to-place travel Unusual [there no] to be correct terminal, (not itinerary an unusual within the as as instances in evidence to the number of time, rapid Sery), is a with such as turnaround passengers subject- been which innocent drug pro- standard courier characteristic one investigatory stops.” ed them to only defendants file. Yet 17.5% studied govern- In the rare instances where ... traveling a fast with turn- were described provided evidence ment has non-anecdotal around time. Id. at 909. profile’s validity, purporting to establish (5) of an of an Alias: Police learned alias Use facially been deficient. the information has making investigative only contact before 3.9% particular, data fails account for all during Officers learned of defendants. profile-related police with air trav- encounters suspects 21.4% the initial contact that indicating provides elers and no evidence aliases, investiga- using yet continued their drug accurately distinguishes profile cour- tions. Id at’ 905-06. passengers. iers from innocent Telephone Number with False Callback Left Place, (quoting Id. United at 875-76 States Leaving suspi- false number Airline: (2d Cir.1981), aff’d, 48-49 F.2d no record for use in cious because it leaves (1983)). L.Ed.2d 110 We only tracing suspects, yet it was attributed concerns the reliance share the author's about reliability of this 11% of the defendants. by police reviewing profiles courier doubtful, since substantial characteristic is record-keeping litmus-paper can determine courts. No test problems exist that increase the police possessed sufficient facts whether Any possibility report. error of a false number pro- justify person’s seizure. Id. at 857. airline, reciting or (a) accept number is a test. If courts file formula such receiving, recording retrieving, or profile accurately, airline by premise that the works (or dialing) doing i.e., (b) government the same identifies couriers incorrectly investigators to conclude agent could lead trained has conformed travel- shows a reviewing left a fake number. Id. profile, that the traveler had er the courts’ function agent’s virtually eliminated. Id The behav- 944 Here, attempt by there

Although government may present was observations, lengthy objective list of detailed articulate fact any specific under- duty conclusion, relieved of not their lying subjective the courts are other than critically the list and decide say “looking around,”11 to review that Sery was particular cited whether each observation something many passengers they do when something actually contributes gate, especially first reach if the arrival is, picture” whether “whole they expect by and to met someone that be —that particular any bears reason- observation person readily is seen. Pearson did to a that the able correlation “looking that around” Sery’s claim person engaged presently is in criminal way arriving passen- any unusual for an activity. ger. No of observations “nervousness” Sokolow, Sery 831 first ap- F.2d made were either when Cir.1987). (9th by proached questioned and identified officers or later when was detained. Mendoza, (Utah In P.2d 181 responses His calm and indicate deliberate 1987), the Utah Court reviewed agitation appre- rather and behavior validity investigato- of an the constitutional Sery hensiveness. The fact still ry stop preceding search vehicle waiting at after airport being an hour There, yielded marijuana. seven gate and followed from the arrival then by support the officers in were articulated questioned by police belies nervous la- suspicion: of their of the reasonableness flight or (1) bel. did not take behave appeared to Latin occupants be of avoiding apprehension, as travel; if he was would descent; (2) (3) of route of time suspect. expected truly (5) nervous day; (4) year; California license time of driving pattern; plates; (6) an erratic subjective most Nervousness is the comparative nervous behavior. Cloud, relied on here. characteristics illuminating. is We analysis with Mendoza the Numbers: Search Seizure “nervousness,” begin the second Drug and Judicial Courier Re Profile fact and the last Mendoza fact. Formulas, 65 B.U. Investigative view of A. “Nervousness” L.Rev. If the officer can not articulate the unusual mannerisms or Mendoza, In the officers’ conclusion led to a actions the defendant that con part of car occu- on the nervousness nervousness, impossible “white-knuckled,” clusion it is for pants on a was based determine, any after reviewing court to rigid eye make failure to contact. look and fact, person’s apparent whether the nerv descriptions given were not Those any different from that determining if the ousness was ob weight by the court served travelers —or to con- countless officers had a id. stop. nervousness existed at all.12 See investigatory Id. at 184. duct an Sery’s Sery”s description did not describe 11. nervousness nervousness. Pearson looking Pearson’s nervous; by drug agents remarkably unusually used similar to that around as use of the behavior the defendants describe pre this human characteristic must rest Mendenhall, n. stopped in at 547 couriers, sumption afraid of dis (deplaning “ap- n. 1 S.Ct. at 1873 covery, differently act from innocent travelers very "completely peared to be nervous" and increasingly behavior and exhibit watched, nervous agents] where [the the whole area scanned standing"), questioned. The approached, or ne Royer, 460 U.S. n. at 493 cessity on-the-spot for to make an the officer (defendant "appeared pale n. 2 S.Ct. at 1322 person’s psychological por state evaluation of a nervous, looking people”). at other around subjective potential abuse. tends enormous agents ease illustrate the with which These cases frequently travel involves events and human Air feelings subjective assertion make an after-the-fact perhaps spawn nervous "sus criminality. fitting suspect a mode into examples fright picious" are: behavior. Some cancelled, delayed flights; ening, missed con or Sanford, 658 United States v. F.2d nections; appoint causing missed late arrivals denied, (5th Cir.1981), cert. ments; baggage; and lost dashed ex tickets (1982), the famous S.Ct 71 L.Ed.2d To pectations someone. met drug agent could Markonni had asserted he traumas, quotidian we would add: list of travel distinguish nervousness criminal innocent Sery’s fact, that behavior The officers testified in Mendoza Pearson testified that i.e., they driving relied unusual, on “erratic” behavior in different than that no was yield lane, change the form of failure to passengers. The offi deplaning of other lane, rapid deceleration; court, regarding conclusion defend cer’s mere however, how could not see this behavior nervousness, unsupported by relevant ant’s reasonably give suspicion could rise to a facts, weight in de objective can have no occupants engaged that the car were termining if he had a reasonable Here, illegal activity. Id. at 184. Pearson Dorsey, activity. of criminal Cf. significance Sery attached the fact that to 1986) (officer’s (Utah phone sat down in a booth and twice stood probable justifying cause determination up dividing partition. and looked over the must a vehicle search be evalu warrantless see, say, to We fail and Pearson experience his her light ated in or how this behavior varies from that of training objective are facts to “where there arriving passenger keeps other who look- conclusion”). justify the around terminal area whoever Itinerary B. supposed meet him or her at the was gate, or looks around in search Mendoza, arrival who occupants’ route of the car might willing provide of someone who be plates license and California travel change necessary complete the tele- probative value in de- found to have little Reid, phone call. See 448 U.S. at a rea- termining whether the officers had (all S.Ct. at 2754 but one characteris- stop of the justifying the sonable detaining upon by the officers tics relied Mendoza, 748 P.2d at 183. Those car. large very category presum- “describe a Sery are to the fact that came similar travelers”). ably innocent flight originating to Utah on Delta Florida, “strange” probative little also found it that which likewise has Pearson phone clearly Sery left bank of booths The record does not show value. path way entered different city Sery in Florida which from came. it, hallway the main testified, rejoining concourse generally, very that Mia- Pearson “beyond” point Pearson and the that was mi supply is a known source of the but, presumably, along further trainees testified drugs for the west coast. He also This Sery’s the concourse. route down watching Sery’s flight was asserted, strange, path Pearson be- was trainees is a known because “Florida way Sery edged “kind of between cause of, marijua- specifically, source cocaine and pay phones.” glassed-in wall area na United to the western and northwestern asked trial court nor counsel Neither the testimony There States.” diagram the scene or add flesh Pearson (some- particular Sery’s route of travel by giving the actual cursory account to his Lake where in Florida to Atlanta Salt space or layout and dimensions flight City) frequently used The record shows of the officers. location illegal Utah, transport drugs to while booth, that, inwas while Mendoza the officers testified Interstate surveilling with- trainees were some of the frequently by illegal aliens from used path him. The chosen feet of five City major Mexico. See id. Salt Lake avail- have the one most Sery could been many flights for airline to and hub blocking officers were him the able to Mendoza, places. considered the court by which he had come. route transporters unlikely illegal it alien Discrepancy Name C. comprised significant portion of 1-15 traf- articulate, unlikely Furthermore, equally fic. It seems did not meaning comprise significant portion discern, any special couriers cannot we error given to the through Salt Lake Interna- the travelers that should in the name flights the airline made claimed Airport, tional even of those whose fact is This they issued ticket. originated in Florida. followed, watched, persons reasons. for unknown un known or accosted by (and, in its transformed the State brief initial encounter with defendant the offi- by at notably, suppression Pearson the cers obtained additional facts hearing) into that Sery the “fact” was trav caused them to believe defendant was com- name,” eling an under “assumed one mitting a Respondent crime.” Brief for at the United facts States Court has added). (emphasis 14 could, suggested in tandem with other rele only investigation The further Pearson facts, justify investigative vant an deten did after the first encounter towas obtain passenger luggage. tion of his Roy Sery the call callback number had left er, 502, 103 460 U.S. at S.Ct. at 1326. the only with airline The reservationist. that, testified after Sery Pearson told “additional fact” Pearson learned was that appeared him his name was not what changed nonpublished had been to a “[i]t ticket,13 Sery ask did not for his nothing meaningful number.” This added Sery correct name and did not offer it. probative or already to that which he had Although Sery produce Pearson asked observed and evaluated. Pearson stated at ticket, some identification than his other hearing Sery he did not know when had Sery replied that he had none.14 The offi made his or reservation when the number nothing cer had thus with which he could changed nonpublished called been to a compare the name on the ticket. Pearson this, Despite number. both Pearson and stated he did not know real defendant’s respondent twist this into the “fact” name until after Sery was arrested Sery “nonworking” that left a number with He, therefore, Whittaker. did not know bought the airline when he his ticket. The and could not known until have after fact that a number left with an using seizure whether defendant was (on date) airline some unknown name, opposed misspelled assumed as to a (on changed to an number some unlisted agent name on ticket due to travel date) light unknown not—in could all the Mendenhall, airline error. atU.S. Cf. objective circumstances and facts (defendant 100 S.Ct. at 1874 voluntar a reason- known him—lead ily drug agents a showed driver’s license activity. able of criminal Sylvia the name of Mendenhall and a ticket Conclusion Ford). issued in the name of Annette recognize We that trained law enforce- Unpublished D. Phone Number perceive officer ment be able appeal, even State concedes given meaning articulate conduct which that Pearson lacked sufficient articulable wholly innocent would to the untrained objective support facts to sus- reasonable Mendenhall, observer. at U.S. picion activity Sery up of criminal Texas, (quoting at 1882 S.Ct. Brown point through Sery when Pearson told 52 n. 99 S.Ct. 2641 n. i.e., leave, asking he was free to him after (1979)); 61 L.Ed.2d 357 Trujillo, questions some refused consent Brignoni-Ponce, P.2d at 88. See also Sery’s to search bag. Pearson also must at U.S. at 2582. If Pearson concluded, drawing years have on his nine perceived any meaning Sery’s such ac- experience in drug interception, courier tions, meaning he did not articulate that perceived up the actions he had the trial court. not, point together, provide even taken legal objective upon by him relied Pear- Sery basis to detain involun- But, tarily. argues, support son do not “[a]fter arousing reporter suppression hearing reasonably suspi 13. The court a ticket is a fact drug agent. first transcribed the stated name on the airline Espinosa-Guer in a trained cion ra, Thereafter, “Sid however, ticket as Sellow." it was vari- defendant's claim that Sedsel, ously transcribed as Sidsel and Sutcel. sig carrying no identification assumed unusual along objective other facts artic nificance— Respondent Espinosa- cites United States v. investigating drug agent ulated — because Guerra, (11th Cir.1986), sup F.2d traveling long did not he was distance and port passenger’s for the notion that an airline speak English. at 1508. Id. carrying claim to not be other identification Mark engaged activity. in criminal Whittaker the Utah State Nar- Liquor Law Bu- court’s determination cotics and Enforcement hold that trial We clearly reau. contrary was erroneous. Be- bag the seizure of cause The officers saw defendant leave air- defendant’s canine sniff violated vinyl carrying craft suitcase. rights, the evidence fourth amendment “stopped Pearson testified that defendant should in the search have found around, momentarily, nervously looked suppressed. order the trial been waited there for several minutes while oth- denying suppression mo- court defendant’s passengers passed him, er and then contin- reversed, is remanded and the case tion up Agent on ued concourse.” Whittak- proceedings district court for further “appeared er testified that defendant to be opinion. this consistent with that, very deplaned he nervous” when and passengers past other while the walked ORME, J., concurs. him, looking “kept defendant around nerv- Referring defendant, DAVIDSON, Judge (dissenting). ously.” Sergeant Whittaker, Agent Pearson indicated to I respectfully I dissent because believe or, “Let’s take a look at him” “Let’s follow affirming majority the trial erred him.” acceptance of a no contest con- court’s proceeded up right appeal Defendant the concourse ditioned defendant’s shop after he I the ma- until he entered a coffee suppress. motion to also believe again.” nervously Upon incorrectly the motion to “looked around jority decided that exiting shop, proceed- granted. the coffee defendant suppress should have been directly telephones separat- ed to a bank of point weaknesses Rather than out and by partitions. Defendant sat down ed facts, I offer majority’s recitation of picked up telephone receiver but did complete I consider to be a factual what place any money in the machine. Defend- high- the case one which statement of but ear, he “put the receiver to his ant then aspects. ap- At lights important certain around, up, looked sat back down.” stood May proximately 11:05 a.m. on re- defendant Agent testified Whittaker 565, originating in Flight Delta Airlines No. times peated his behavior two three Florida, passengers at the began deplaning inserting any coins into the ever without Airport. Lake International Observ- Salt de- Sergeant testified telephone. Pearson several law enforcement officers were partition on two up above the fendant stood training Approxi- seminar. involved in a Fur- in his direction. occasions and looked police different mately members of indi- by Agent Whittaker testimony ther agencies training airport in at the Sergeant were about Pearson and cated groups. Conducting training several up picked then away. five feet Defendant Sergeant William Pearson of the Met- but, taking the rather than his suitcase Miami, Department, ro Police Florida. Dade area, he telephone route from the normal Sergeant Pearson, a veteran of over glass edged way wall between years police spent had years work tele- allowing him to leave the telephones enforcing Subsequent to narcotics laws. officers were beyond where the area surveillance, training extensive in narcotics standing. enforcement, investigation, Sergeant Pearson, Agent point, Sergeant supervised At this interdic- Pearson has ap- Whittaker, officer unit, one other primarily tion concerned with the Mia- identified them- proached defendant and Airport, years. nine mi International Sergeant police Pearson time, officers. During Sergeant Pearson has selves mo- speak “for a defendant taught colleges and other asked to specialty agreed. When defendant departments throughout ment” to which the United Sergeant asked, Denver, showed including Angeles, defendant Los States name which was Gainesville, his airline ticket Among those at the Florida. asked “Mr. Sergeant Pearson then Agent airport Sergeant Sidsel. Pearson was Sidsel” for some identification bags which de- other in the Delta baggage Airlines replied fendant that his name area, Sid- makeup approximately 10 to 15 min- sel, mistake, airline had made a utes after Officer Plotnik’s arrival. The and that he did not have identification. drug dog gave positive detection alert to Defendant did not offer his correct name. Sergeant defendant’s suitcase. Pearson re- When asked if he “any objections layed Agent this information to Whittaker giving [Sergeant a consent to Pearson] who informed defendant of the results of suitcase,” replied search the lineup, placed arrest, him under Sergeant would rather not. Pearson then rights. informed him of his A search war- thanked defendant and informed him he rant, based on Pearson’s affida- Agent was “free to leave.” Whittaker tes- vit, subsequent was obtained. A search of officers, tified leaving that after de- defendant’s bags suitcase revealed three proceeded fendant further down the con- Agent cocaine. report Whittaker’s indi- course to telephone another area and made cates defendant was p.m. arrested at 12:25 calls. Defendant then baggage went to the Defendant also testified elapsed 20 minutes claim area via the escalator. He waited between the time he was detained and minutes, that area for several walked placed when he was under arrest. terminal, around downstairs of area pre-trial Defendant’s suppress motion to and went outside on at least one occasion. July was heard on 1986. When asked Meanwhile, Sergeant Pearson determined what actions of the defendant aroused his from Delta Airlines that defendant had ar- suspicions, Sergeant replied: Pearson Lauderdale, rived from Ft. Florida and also The ones I have testified to earlier. given obtained the “call-back number” one, apparent Number his nervous look- when Sidsel’s ticket Upon was reserved. got about when he plane. off the checking telephone number, Sergeant The fact that he waited there at the discovered, Pearson longer was no a “[I]t deplaning proceeded area before he on to working changed number. It had been to a the concourse to going wherever he was nonpublished Sergeant number.” Pearson go. looking His nervous about requested before Agent then Whittaker to obtain he went into what I shop. call the coffee drug a dog. detection phone bank, When I went pay to the noon, At approximately Officer Brook three, was, number the fact he I would Plotnik, dog a handler with the West Val- guess, making phone a kept call. But he ley City Department, Police arrived with a popping up concerned my about where- drug dog. briefing trained After Officer Agent abouts and Whittaker’s where- Plotnik, Sergeant Agent Pearson and Whit- abouts, opposed as concentrating his approached taker defendant who was seat- conversation try- with whomever he was ed outside the terminal his suitcase. ing to call. strange This what I find a From the first conversation with way exiting of phone in- enclosure Pearson approach until this second going stead of open out with officers, ease into an no law enforcement officer had area to walk between approached enclosures and a or talked to defendant. Ser- phone side geant hole next to a enclosure and a Pearson if asked defendant he would windowed area to the submit his concourse. The by drug “to a sniff a detec- left, fact that dog.” give tion after he refused to Again, us defendant answered a consent that “he to search and would rather not.” was allowed to Defendant go way, on his by Sergeant popping was then told Pearson constant that he and out of walking and his suitcase were detained and terminal and he, around. presented lineup suitcase would be And the fact a that the dog. Depending gave detection number that he to the air- happened what lineup, number, at the lines was working defendant not a would be informed of step “the next in the would mean the airline could never call procedure.” Sergeant placed him flight de- and tell him had been fendant’s lineup cancelled, suitcase delayed with four or whatever. speak- plea effect things, accumulatively guilty imposition as a of

All these suspicious. ing, very may I felt of sentence in the rendered same plea manner as of guilty had been motion, pled Upon denial of his entered. con- possession of a no contest unlawful plea Defendant’s substance. trolled Utah Code also as: couched states, plea may “A of no contest be en- Honor, in view Your Counsel]: [Defense only upon approval tered the accused ruling, prepared at of that we’re only the court and after due consideration plea no time to enter a conditional parties of the of the views and the interest charges. contest public in the effective administration opportunity to like to have the I would justice.” motion, [prosecutor] appeal plea no contest is treated the decided, in Su- I view Utah plea guilty; knowingly same once in the decision preme Court’s [latest] entered, voluntarily there are issues (Utah Kay Kay, P.2d [State Yeck, remaining for trial. State v. 1986)] they did case where allow (Utah 1977). In State v. P.2d enter pleas, Mr. can conditional Beck, (Utah 1978), plea on condition that should wrote, “By guilty Court de- find this motion should fendant claim of error on be- waived granted, he can withdraw have been saying officer in that he had half plea. as the murderer.” de- been identified do, thing to I think this be a new guilty or no contest fendant cannot enter probably help judicial I think but it would objections plea appeal and on then base an go- There’s no sense administration. entering plea, By such to the evidence. through this ing on facts such as a trial objections all such are waived. along go and would ask the Court [sic] explained Sery, I in footnote 4 that the majority it. it to Mr. The states with have it, like to Utah Code and would in Utah R.Crim.P. understands absence (1988), pleas process wait get on with the rather than Ann. of conditional 77-35-11 § pleas. around for a trial. such is not an affirmative bar Kay, cites majority also correct, your Honor. That’s [Prosecutor]: (Utah 1986), authority for P.2d 1294 plea accepted and he was Defendant’s In pleas. This is irrelevant. conditional subsequently sentenced to the Utah State accepted guilty plea Kay, the trial court five period Prison for not to exceed in ex- capital of homicide to three counts years. prison stayed sentence promise defendant change for probation for a placed defendant on The trial sentenced to death. not be would period stayed of 18 months. Probation was impose statutory of agreed to one court of pending a certificate the issuance of charged and for the crimes punishments signed Sep- probable on cause which was strings at- pled guilty “with no defendant tember 1986. plea no conditioned There was tached.” PLEA NO CONTEST CONDITIONAL ability to concerning the state’s appeal an (1982) guilt. What underlying ex- prove Kay’s 77-13-2 Utah Code § is criminal plea1 to an plains majority of a no contest fails to understand effect such, it 77- As or information. Subsection statute. indictment law is established 13-2(3) the statu- strictly within states: construed must be trial court and the tory bounds. Counsel the ac- pleaA no contest indicates agreement plea by a new may not invent charges in challenge the cused does not agree to add or they can if ac- more or indictment and

the information a crime. an element of have same delete cepted by court shall insanity; guilty and guilty by reason of five not mentally lists Utah Code Ann. contest; guilty; ill. pleas: guilty; not kinds A further examination of Rule 11 in trial sub- court decided to appeal allow a direct (e) section reveals: to this prior Court without a trial. The accept plea request by The court refuse to defense counsel guilty or no contest shall not court appeal shows that this is an from the accept plea such a until the court has denial of the suppress motion to and noth- findings:

made the way more. There is no under the rules (4) That the defendant understands to make such a denial a final order without the nature and elements of the offense pleading guilty going through a entering plea; to which he is trial. Unless the majority has decided to upon prosecution trial would applications leave of the rules of this Court have proving the burden each to counsel and the appeal lower court such beyond those elements a improper. doubt; plea and that the is an admis- This case should be remanded and the sion all those (emphasis elements given defendant the opportunity to enter a added)[.] proper plea. Until that is done and the light impossible of this rule it is for procedures correct are bring followed to defendant plea to enter a no contest after appeal, the case on this Court has no busi- suppress denied, his motion to yet has been reviewing ness findings. factual How- appeal still base on that motion. ever, majority has chosen to render an effect, defendant told the trial court that advisory opinion. strongly Since I disagree guilty possession he was of a controlled conclusion, I am forced also to substance but that he intended to contest advisory opinion. write an his own appeal. admission on When the judge explained trial meaning of the no defendant, contest he stated that SEIZURE OF DEFENDANT right would still have the ap- disagree I majority with the that defend-

peal “because stipulated rights ant’s fourth amendment were violat- particular instance here....” This does ed and that the evidence found in the comport requirements with the of Rule sup- search of his suitcase should be 11(e). Gibbons, See State v. pressed. (Utah 1987), interpretation a strict necessity comply 11(e). to argues with Rule Defendant first that his deten- tion, and that of his investiga- suitcase for INTERLOCUTORY APPEAL purposes, tive constituted an unlawful sei- When this stripped preten- case is of its zure because the officers lacked reasonable sions attempt we find an to circumvent the suspicion that he was involved in criminal appellate rules of procedure to force this Second, activity. defendant asserts that no Court to hear an interlocutory appeal. probable upon cause existed which to base justified This is approved by major- his arrest. ity in “pointless order to avoid a and waste- Deitman, 616, In State v. 739 P.2d ful exercise.” As I Ct.App. read R.Utah (Utah 1987),the Court cited United States 5(d), precisely is the reason for an Merritt, (5th Cir.1984), v. F.2d 223 cert. interlocutory However, appeal. R.Utah Ct. denied, 5(a) App. provides petition seeking that a (1986), L.Ed.2d 696 for the “three levels of permission appeal must be filed with the police public encounters with the which the may Court. The then decide to re- Court has held are court, view or not appellate review. The constitutionally permissible[.]” The Fifth counsel, court, not and not the lower is Circuit Court wrote: given opportunity to determine whether (1) appeal may approach an officer should taken a citizen at be and whether proceedings anytime pose questions long further so the trial level would [sic] “pointless be desirable or a against and wasteful as the citizen is not detained will; exercise.” this case counsel and the (2) may person if the been codified as Utah Code Ann. officer seize an (1982) which states: suspicion” has an “articulable

officer is person peace committed or may stop any person has officer in a crime; however, public place commit when he has a reasonable about temporary last or must be believe has committed “detention committing attempt- is in necessary the act of or is longer is to effectuate public may to commit a offense and stop”; purpose of name, expla- demand his address and an may suspect if the officer arrest an nation of actions. an probable has cause to believe officer Again, Terry majority, as noted is has or offense been committed judiéiary admonishes each to decide Royer, Florida v. committed. See police case on its own facts and that a 1319, 1324-25, 491, 498-99, 103 S.Ct. U.S. officer detain an individual for 229, 236-37 75 L.Ed.2d stop purposes of a he “ob Terry where Merritt, at 230. 736 F.2d serves unusual conduct which him leads Concerning first of the three levels reasonably light expe to conclude of his encounters, Trujillo, police State activity may rience that criminal be (Utah App.1987), this 87-88 afoot....” Id. at 88 S.Ct. at 1884. See Court wrote: Brignoni-Ponce, 422 also United States v. meaning seizure within [A] 45 L.Ed. S.Ct. occur fourth amendment does not when (1975)(In is 2d all situations the officer approaches indi- police merely officer an light of his to assess the facts entitled him, questions the street and vidual on detecting illegal entry and experience in However, willing to listen. person is Mendoza, P.2d smuggling.); required is person approached not (Utah 1987). The trial court questions, and the officer’s totality answer the circum “must consider questions the officer’s “re facing refusal listen and the the officers” stances them, more, without does viewing answer the trial court should overturn clearly grounds furnish for further it is reasonable determination unless court’s (footnote omitted). (citation and citations omit- The de detention Id. erroneous.” ted). experience cases taining in similar officer’s court must important factor trial brief, In their the state conceded the weigh determining if the officer they ini- lacked reasonable The factors suspicion. valid However, tially approached defendant. con suspicion must making up such provided by what little information defend- in a rather than total context sidered freely de- given ant and he was not I vacuum. believe clearly against his tained will. This clearly suspicion which have reasonable level one encounter. De hearing. suppression articulated at the encounter, From the of the initial time ap He initially appeared nervous. fendant a.m., shortly after 11:05 defendant wan- Sergeant Pearson peared to both nervous terminal area without restraint dered the The nervousness Agent Whittaker. dog at drug place until the detection con deplaning, was exhibited when point past noon. At that several minutes shop. entering course, coffee upon his suitcase was detained and reason prove alone does Nervousness lineup presented included in the taken to be such behavior suspicion because able dog. a level two encounter This was as crim innocent as well consistent with be requiring to have reasonable the officer 89. Trujillo, P.2d at inal conduct. suspicion. Defend to be considered. But it is a factor deplaning area while applicable to this waited The touchstone case ant also past him. Ohio, passengers walked Terry v. 392 U.S. other situation officer to a trained (1968). Again, to alert a factor 20 L.Ed.2d 889 S.Ct. further, duty of investigate Terry has the need proposition for which is known Houser, police. v. investigative detention must be tem- [A]n (Utah 1983). porary longer Defendant’s at behavior and last no than is neces- telephone inserting sary purpose and his not a coin in to effectuate the of the stop. Similarly, machine investigative is another factor. The initial meth- approach employed ods and contact was made after should be the least de intru- reasonably fendant sive means verify made his unusual exit from the available to area, dispel suspicion telephone officer’s in a short another factor. period of time. It is the State’s burden During stop, the initial the officers dis- to demonstrate that the seizure it seeks covered defendant’s ticket was in a written justify on the basis of a reasonable name denied defendant to be his and he sufficiently limited in identification, carried no two more factors scope and satisfy duration to the condi- Subsequent to be considered. to this valid investigative tions of an seizure. stop, Sergeant Pearson learned that Florida v. Royer, 491, 500, Lauderdale, flight originated in Ft. 1319, 1325, (1983) (ci S.Ct. 75 L.Ed.2d 229 telephone giv- Florida and that the number omitted). tations provided Guidance is reserving upon longer en the ticket was no determining what “sufficiently would be working changed and had been to a non- scope limited in and duration” the Court number, published additional factors. Place, in United 696, 103 States U.S. Agent Whittaker also knew defendant had (1983). There, S.Ct. 77 L.Ed.2d 110 telephone utilized another further down Place’s behavior aroused the totality concourse make calls. The law enforcement officers who were observ generate this behavior was sufficient to ing activity airport. Ultimately, at an request drug dog. for the detection Be- luggage presented drug Place’s to a request tween the time of the and the dog positively detection which reacted dog, of the arrival defendant's “constant one which was found to contain co popping in and out of the terminal and caine. The Second Circuit Court reversed walking around” added further fuel to Ser- Place’s conviction and the United States geant suspicions. Pearson’s Defendant Supreme Although Court affirmed. was not detained until such time as Ser- approvingly Court wrote of the use of a geant abundant, Pearson had articulable dog in luggage suspect the examination of suspicion.2 and reasonable Id. at containing drugs, 707, 103 ed of S.Ct. 2644, it held: DETENTION OF DEFENDANT Although the 90-minute detention of I now address whether defendant’s de- luggage is sufficient to render [Place’s] proper. primary tention was concern unreasonable, the seizure the violation length is whether of the detention was exacerbated the failure of the Terry stop transformed it from a into a de agents accurately inform [Place] Sharpe, facto arrest. place they transport- to which luggage, S.Ct. 84 L.Ed.2d length of time he might The United States dispossessed, and of what ar- Court has stated: rangements would be made for return of factors, majority acknowledged multiplicity In footnote exhibits ant significance of these percentages Pearson “disclaimed use of a fades. The bias profile" most, stops courier in his of defendant. in the footnote should also be noted. In However, majority great percentage the just then discusses at small is stated to show how length primarily percentage suspects a law review article concerned small the exhibited the profile. with the Several discrete behavioral characteristic. In the use of an alias the use of truth, drug analyzed percentage factors relative to couriers are the suspects is reversed. 78.6% and, possible, percentage using Sery. where is stated. The aliases as was While percentage drug majority relates to those courier defend- the claims the officers did not know alias, particular using ants who exhibited the The factor. was himself told them damning results are not when an individual the ticket was not in his name and that he However, factor is examined. when defend- carried no identification. arranged, dog detection dispelled the was intro- investigation luggage if the

the lineup, Agent the Whittaker suspicion. duced to the lineup out of the back area walked at 2646. 103 S.Ct. Id. at I defendant was seated. believe the where held a Supreme Court The United States investigative employed by po- methods unlawful when detention to be defendant’s during minimally lice the detention were “large in confined defendant was that the duration limited intrusive and was approx- storage with a detective for closet” necessary purpose to that to effectuate another detective imately 15 minutes while detention. of the luggage, brought it retrieved defendant’s confinement, opened the place of brief, In his initial defendant claims the 507-08, 460 U.S. at Royer, suitcases. two probable did not have cause to officers Conversely, the Court at 1329. 103 S.Ct. argument him. His centers on a arrest during which detention upheld a 20-minute suspicion and that the lack of reasonable in con- expeditiously police proceeded scope Terry exceeded detention defendant was firming suspicion that their already issues stop. I discussed these have Sharpe, 470 activity. in criminal involved rest, only I lay the matter to need but to The 687-88, at 1576. Agent testimony of Whittaker restate the “impose rigid its cases stated that concerning dog’s reaction when con- empha- stops,” Terry on time limitation He stat- by defendant’s suitcase. fronted enforce- the law the need “to consider sized Sery’s ed, dog jump on Mr. “I observed stop by the purposes to served ment be it, scratching was it bag, attempt to bite to ef- reasonably needed as the time well I that was very excited.” submit and was purposes,” and that there those fectuate convincing very nature. cause of a probable sense “bright line” rule. Common was no provide majority opinion fails The experience must take ordinary human community of Utah enforcement law rigid criteria. Id. at precedence over some the officers should guidance as to what any 685, 105 S.Ct. at 1575. correct. obvi- to have been have done hearing transcript indicates defend- is to leave message to law enforcement ous being taken his suitcase was ant was told probable cause unless people alone (the Delta airport security area into the case disagree. This strongly I present. area), baggage makeup into which Airlines proper a model stand as should security appropriate those without step and a demonstration procedure allowed, that the suit- clearance were not suspi- development of by step lineup, included in the case would be cion. step depended happened on the next what event, denying in lineup. any it correct at the would court was The lower Sergeant explained to defendant. It error suppress. further was motion to that, dog had not I plea. if the entry Pearson testified of an invalid allowing the suitcase, wrong it would have been alerted case is majority this believe have and he “would returned to defendant both issues. During period allowed leave.” been taken, no£ was the suitcase was Agent Whittaker

confined manner. lineup that, departed he

testified when alert, positive area after told out at one of chairs

defendant “was seated claims Defendant area.” the concourse the time elapsed between

20 minutes placed un-

was detained During period,

der arrest. concern- explanation rendered defendant, the suitcase area, lineup lineup into the taken

Case Details

Case Name: State v. Sery

Court Name: Court of Appeals of Utah

Date Published: Jul 27, 1988

Citation: 758 P.2d 935

Docket Number: 860333-CA

Court Abbreviation: Utah Ct. App.