State v. Strickling

GARFF, ORME, Before JACKSON and JJ.

OPINION ORME, Judge: appeals the district court’s de- suppress motion to evidence nial of his arguments on the based stop had no officer articulable ensuing car and that the inven- defendant’s tory illegal. search of his vehicle was We affirm.

STANDARD OF REVIEW to the trial This court defers findings accordingly factual court’s findings only they if are will disturb those Bobo, 803 clearly erroneous. See State v. (Utah App.1990); P.2d State Elder, (Utah App. P.2d 1991). v. Kordo See also United States (7th Cir.1989) (dis F.2d sky, 878 finding trict court’s that an conducted in accordance with search was procedures reviewed under clear standard standard). Findings are clear ly erroneous ly they against if “are erroneous evidence, ap if weight clear or reaches a definite pellate court otherwise firm conviction that a mistake has been Walker, 743 P.2d made.” State (Utah 1987). reviewing legal conclu facts, underlying we sions based on apply the correction of error standard. See 1299-1300 Vigil, Thus, find App.1991). the factual decision ings supporting the trial court’s stop that the and search were conducted constitutionally permissible manner are “clearly erroneous” reviewed under the standard, legal determi while the ultimate comported nation that the and search Amendment is reviewed with the Fourth P.2d at Vigil, 815 for correctness. See Watt, (voluntariness for Steele, Paul M. of consent L. Joan C. Robert and fact Grant, Fujino (argued), question Salt is mixed of law Ronald S. Ass’n, City, weighed against clear predicate Lake facts Legal Defender Salt Lake resulting standard and the ly erroneous appellant. for correctness). legal conclusions reviewed Dam, Atty. Gen. and R. Paul Van chal- (ar- the defendant Atty. In the Murphy, Asst. Gen. Kevin J. court’s factual lenges several of the district City, appellee. Lake gued), Salt findings. arresting defendant, The court Strickling. believed Phillip assistance, waiting to be a and there- While he was officer credible witness Offi- findings exclusively approached nearby fore almost cer Buckmiller tree based time, findings for cover. At this testimony. on his None of these noticed occupants seat, reach against weight under but he appear the clear they could not determine following state- whether were Accordingly, evidence. something under, placing removing largely of facts is from the ment taken under, something from He or- findings court’s fact. the seat. district occupants place dered the hands on FACTS backup dashboard. Police arrived few minutes later. occupants motorcycle patrol approxi- While on then ordered to stand car behind the with 3,May 1:45 a.m. mately Officer police another officer. Officer Buckmiller Buckmiller, police University a of of- Utah the looked under seat where two had the ficer, stopped in saw a red Monte Carlo component reached and removed a stereo parking alley Sigma area next to the Nu frayed with wires attached. Buck- Officer fraternity University house at the of Utah. impounded miller the car for registration open lights The car’s doors were its and and violation conducted an out. people Two the Monte exited time, search. At that he more discovered Carlo, car, approached nearby and equipment. police stereo After the verified pressed against their faces the windows stolen, equipment they the stereo was cupped hands with their around faces. passenger. arrested the defendant and approached, As the officer two ran these away on foot. plea The defendant entered a conditional of to guilty by theft receiving, a class A in evening, Earlier the Buckmil- Officer misdemeanor, explicitly reserving right his young ler had encountered the men two appeal to the trial court’s denial of the a block and a half the fraterni- about from suppress motion to the evidence seized dur- they ty house asked if had been them ing the search. See Sery, State v. 758 P.2d hopping.” Although “car the officer had (Utah App.1988) (conditional pleas 939 nothing they burglary, mentioned about an- suppression reserving permissible issue are they swered that had to do with nothing Utah). “breaking into cars.” Based on his famil- iarity with the fraternity, the addresses briefed, While several issues are two as- given the young two men at the time of significance. pivotal First, sume was the encounter, apparent the earlier and their stop initial officer’s of defendant based on ages, Officer Buckmiller did believe the articulable, not suspicion? Second, reasonable fraternity. be two to members of the He did the of the search exceed the university experi- that the had knew area permissible constitutional limits? and, burglaries enced number of car LEGALITY OF THE

fact, STOP he had overheard conversations con- cerning burglaries night two car over stops Automobile fall the within am his radio. bit of Fourth the Amendment to the United States Constitution “because stopping young

At the same time the two men detaining fled, occupants automobile con departed, throwing the Monte Carlo ” Prouse, stitutes a ‘seizure.’ Delaware v. gravel as it left he the scene. As followed car, Officer li- Buckmiller noticed the (1979). L.Ed.2d The stop in this case registration plate expired cense had sticker constitutionally justified can and, in either of activating flashing stopped his lights, ways: two car, As approached the car.

passenger, First, who the officer had twice be- could be specific, it based on artic- arrested, which, stepped together fore out. The officer or- ulable facts rational passenger facts, the car dered back into inferences drawn from those backup. called for person The driver car a reasonable to would lead con- dant, poor had committed would have been elude ‘[i]t [the detainee] Second, a crime. about to commit work indeed for an officer ... have a lawful incident investigate could be failed to this behavior further.” violation.... Terry, traffic citation 392 U.S. at 88 S.Ct. at 1881. [a] Cf. Ballenberger, P.2d Sierra, State (Utah 1982) (lateness hour, of officer’s (citations omitted). The facts of App.1988) knowledge high burglary rate stop. justify a warrantless case area, factors, along justified with other fur- ef spends much The defendant Ramirez, investigation); ther confronted dissecting fort the facts that App.1991) 1134 n. 1 night arrest Officer Buckmiller the (flight, coupled facts of the with other support argues these facts fail among is factors determine considered to activity. criminal suspicion articulable probable arrest). Thus, cause for under all isolation, as Looking fact in defen each circumstances, Officer Buckmiller was does, rely proper. not We instead dant justified stopping the defendant based upon totality a test that “consider[s] on articulable that a crime was to determine whether circumstances about to be committed.1 ‘specific the officer had and articulable ” support suspicion. facts’ Munsen, 13, (Utah LEGALITY OF THE SEARCH App.1991) 821 P.2d 15 Ohio, 1, 21, Terry v. (quoting 392 88 U.S. Weapons A. Search (1968)), S.Ct. stop justi Because the initial was 1992). 843 P.2d 516 fied, we must now ascertain whether the 22, Terry, 392 U.S. at at See also 88 S.Ct. “reasonably officer’s search was in related (defendant’s actions, of which each scope justified to the circumstances which innocent, together when taken war was Robinson, in place.” it the first Here, investigation). the ranted further 431, (Utah App.1990). 435 As facts, argues following to the taken above, discussed Officer Buckmiller’s rea gether, supported suspicion: the officer’s activities, suspicion of sonable criminal hour, (2) (1) early burgla morning car the namely burglary, justified auto the initial night in the immedi ries had occurred that stop. argues The State the officers were area, (3) alley in parked a car was ate searching in justified under the front seat fraternity next a house parking area the car in defendant’s order to search lights (4) open, off and door near with weapons. for on It bases its assertion the men, young two who the that car were stopped fact that after he the defendant’s reasonably belong not believed did officer car, Officer Buckmiller observed the occu peering parked fraternity, into a car the and he pants reach under the seat that hands, was (5) cupped these same window legitimately therefore concerned for his upon approach po men young fled safety. lice, (6) sped the car off when the approached.

officer Long, Michigan v. In 463 U.S. 103 (1983), 77 S.Ct. L.Ed.2d 1201 Unit- suspicion required level of “[T]he ed States Court ruled that if a Terry stop obviously demanding is less specific police officer has articulable facts United probable that cause.” than Sokolow, reasonably which warrant the officer to States 109 S.Ct. U.S. (1989). light suspect dangerous 104 L.Ed.2d In believe confronting gain weapons, immediate control may Buck- of all the facts Officer suspect first the officer can search the miller when he encountered defen- registration stopped he violation also 1. Buckmiller testified that address whether Officer suspicion permitted stop argu- about or defendant’s related the vehicle both because his activity process was in and because the ment that insofar as the based criminal pretex- expired. expired registration impermissibly registration we it was vehicle’s had Lopez, concluded his reasonable was tual under State v. have stop, App.1992). adequate for the we have no need to basis may nearby weapon those areas where a be related to justifying of circumstances 1049-50, original at stop). hidden. Id. at 3481. The further held that items are with- Court In the instant Officer Buckmiller person in of a de- the immediate control absolutely did not have to be certain the by police tained when located in “the rela- manipulating defendant was in weapons tively compass passenger narrow Instead, car. we consider “wheth- compartment” of an automobile because reasonably prudent er a man in [these] generally, such items “are in fact even if circumstances would be warranted in the inevitably, not within ‘the area into which safety danger.” belief his ... was in grab in might an arrestee reach order to Terry, 392 U.S. at at S.Ct. weapon.’ at Id. S.Ct. 3480 Because the suspected officer this case (quoting California, 395 Chimel v. occupants burglary were involved in a 2034, 2040, 23 L.Ed.2d seat, and also saw them reach under the he (1969)). justified, circumstances, was under all the trial court found case in believing potential danger. he inwas that Officer Buckmiller took several rea- argues Defendant further that even if precautions safety sonable for his own justified, the officer’s belief was the search occupants that he feared the of the Monte illegal was occupants because the did not might reaching weapon. Carlo for a have immediate access to the car at the The officer safety stated feared for his time of the search. While Officer Buckmil- occupants even before he observed the search, ler conducted the the driver and time, During reach under the seat. this he passenger standing at the back of the moving toward tree for cover and car with Officer per Johnson. are not We trying dispatcher reach backup. his argument suaded defendant’s because appear prudent light These actions weapons passenger compart hidden the fact that Officer Buckmiller observed might ment of a car still danger be a even passengers engaged in activities that when the occupants temporarily have been likely precursors burglary. were to a detained outside the car. See United The Utah Court has held that a Maestas, 273, States v. 941 F.2d n. 4 277 police may legally burglary officer frisk a — (5th Cir.1991), denied, U.S. -, cert. suspect because reasonable for “[i]t 909, (1992). 112 S.Ct. 116 L.Ed.2d 809 burglar may officer to believe that a be Long, police officers confronted the weapons.” Carter, armed with State v. defendant they outside his car after ob- 656, (Utah 1985). 707 P.2d 660 erratically served him drive and swerve argues in this case the Carter court based into a ditch. As the defendant walked back holding on the fact that the defendant in car, to his police noticed a knife on the large bulge that case had a pocket. his floor of the car. With the at defendant Although this was one factor the officer in officer, rear of the car with one other frisk, justify relied on to Carter officer looked into the car flashlight with a Supreme Court further relied on the com marijuana thereafter found and other mon sense awareness that is not un “[i]t drug contraband. 463 Long, See U.S. at likely person engaged that a in stealing 1032, 103 S.Ct. at 3471. In finding the person’s property another would arm him search constitutionally permissible, against possibility self that another placed great significance Court on the fact person appear unexpectedly will object suspect that a in the position defendant’s strenuously.” (quoting People Id. might away police “break from control and

McGowan, 73, 733, 736, 12 69 Ill.2d Ill.Dec. weapon retrieve a from his automobile.” 537, (1977), 370 N.E.2d 540 1052, 463 U.S. at 103 S.Ct. at 3482. 975, 1624, 435 U.S. 56 L.Ed.2d 69 (1978)). Walker, courts, See also Federal as well United States v. as other state 1, (1st Cir.1991)(officer’s courts, 4 experi ample 924 F.2d had have occasion to review burglars carry weapons ence that often similar cases and have rather consistently and elusive conduct supported police justified of defendant determined to making be safety; reasonably concern for frisk weapons was searches which extend to the inte-

985 effects, persons, houses, detainees papers automobiles even when rior of being against searched. unreasonable and sei- the vehicle searches are outside zures, Maestas, (police According 941 277 shall not be violated.” to See, F.2d at e.g., doctrine, judicial right conducting search well established justified Terry were governmental to be free from unreasonable compartment while defendant passenger intrusion exists company “whenever individual standing at rear of truck was may ‘expectation harbor a officer); reasonable Lego, of another United States ” 9, (8th privacy.’ Terry, 392 at 88 S.Ct. at 542, Cir.1988)(reason U.S. 855 F.2d (quoting States, Katz v. 389 United to de able for officers search truck while S.Ct. 19 L.Ed.2d confined car tainee was to before (1967) (Harlan, J., concurring)). car); allowing him to return to United requires Fourth Amendment further that a Tan, F.Supp. Ray States v. search conducted pursuant be to a warrant (E.D.N.Y.1988) (because un driver reached are, probable based on cause. There how- seat, passenger compartment der search of ever, exceptions several narrow the war- justified even detainee was was when requirement including, rant not but limited guarded agents); outside the car several to, arrest, incident to an a search 221, 225-26 People Melgosa, 753 P.2d probable of an automobile cause based (Colo.1988)(search justified after occu contraband, that it contains and seizure of pants placed in police car because plain evidence in the view of one who is during passenger had reached under seat lawfully place in the from where the evi- stop). Encounters between is seen. Hygh, dence 711 P.2d during espe a road can detainees (Utah 1985). The State the bur- bears cially Long, volatile. 463 U.S. showing den of that the circumstances of imprudent at 3480. It S.Ct. would be exception the seizure constitute an to the ability restrict law enforcement officers’ requirement. warrant Chimel v. simply defuse such encounters because Califor- nia, 395 U.S. temporarily they have a situa stabilized (1969); v. Christen- Accordingly, tion. we conclude that sen, (Utah 1984). weapons search in the justified, and prop case was the trial court the Fourth applies While Amendment suppress erly compo refused to the stereo automobiles, traditionally uphold courts discovered in of that nent the course warrantless searches of automobiles where search. similar searches in a home would be consid- ered unconstitutional.2 See South Dakota Inventory

B. Search Opperman, 428 U.S. The (1976). Fourth Amendment to the Courts provides United States that Constitution approach base differential to cars right of the in people upon to be secure several factors: the automobile’s mo- “[t]he Supreme appears opinion’s 2. The Utah Court to have rec- Justice Stewart condemns lead reli- ognized greater degree protection auto- of analysis ance on state constitutional because I, 14, under article section of the Utah law’’); mobiles illegal “the roadblock under federal [was] provided by than that Constitution the Fourth Larocco, State v. 742 P.2d 101-02 to the Amendment United States Constitution. J., (Billings, App.1987) concurring part and Larocco, State v. 794 P.2d See 465-71 alia, dissenting part) (arguing, inter that New 1990). precedential The value of the Larocco Class, York v. 475 U.S. unclear, however, rationale is somewhat be- alone, (1986), justify L.Ed.2d 81 would a hold- reasoning joined by cause Justice Durham’s ing question search was unconstitu- only Justice con- Zimmerman. Justice Stewart tional). result, insight provided in the but curred no into largely upon relies Larocco for his his rationale. Because he concurred in the argument. state constitutional He asserts that result, and because arrived at Justice Durham inventory illegal searches are because under by using analysis, result state constitutional Larocco, an officer have a warrant must or possible it is that Justice arrived at his Stewart any probable pur- cause to a vehicle for strictly through conclusion a Fourth Amend- Furthermore, inventory pose. argues approach. v. Utah State Tax ment Sims Cf. Comm’n, J., (Utah 1992) (Stewart, probable involve cause nor 841 P.2d searches neither exi- case, (in result) concurring gent excep- in the roadblock circumstances and therefore are not bility exigency, possessed proper justifica- the likelihood of and “reasonable expectation privacy concerning lower impound tion” to the defendant’s vehicle car, pervasive government regu- one’s through explicit statutory “either authori- resulting lation of automobiles likeli- by surrounding zation or the circumstances police, hood encounters with stop.” Hygh, the initial 711 P.2d at 268. Id. public nature of automobile travel. Here, impounded Buckmiller Officer pursuant Ann. 41-1- car to Utah Code impound § Inventory searches of (Supp.1991),3 provided, perti- which excep ed vehicles’ contents constitute part, nent as follows: requirement tion to the because warrant such a search is not conducted to investi (1) officer, department any peace gate activity and no variant of criminal warrant, may without a seize and take necessary per individualized possession any vehicle: Instead, police mit one. conduct such in (a) being operated which is with im- ventory protect property searches to in the proper registration.... car, protect police against the claim of theft, protect police potential and to from Because the Motor Act authorized Vehicle danger. Opperman, at impound Officer Buckmiller the defen- Romero, 3097; S.Ct. vehicle, prong dant’s the alternative under (Utah 1981). caretaking These Hygh, whether “the circumstances sur- functions, against when the citi balanced rounding stop,” the initial 711 P.2d at privacy zen’s in the interest automobile impoundment, warranted need not be ex- contents, justify inventory searches of im has, therefore, plored.4 The State met its pounded performed vehicles when in accor showing burden of that a reasonable See procedures. dance with standardized proper justification existed for the im- 378-381, Opperman, 428 U.S. at 96 S.Ct. at poundment of defendant’s vehicle.5 J., (Powell, concurring). Claim Pretext Impoundment

1. Justification argues In the instant this court must Defendant nonetheless first determine whether impoundment registration Officer Buckmiller for the violation requirement. Supreme tions to the warrant The defen- 266-67. The Utah Court held that the " ignores post-Larocco ‘inventory’ merely pretext dant court, decision this search was for a upheld validity which the constitutional warrantless search.” Id. at 270. inventory Sterger, of an search. See State v. places great emphasis Defendant in this case (Utah App.1991). P.2d 122 A fundamental de- Hygh on the fact that the court looked at the parture regarding from the well established law surrounding circumstances the search and stat- searches, which in case this would be purpose ed that if the true of the search was to Constitution, come, based on the Utah must if at caretaking purposes effectuate the of an inven- all, from the Utah Court. search, tory "an indicia that such is the real purpose of the search is to consult with the revision, legislative 3. Incident to Utah Code [concerning disposition] owner the of the vehic- appears Ann. 41-1-115 now as Utah Code § present impound." le when he is at the time of (Supp.1992). Ann. 41-la-1101 § Defendant, however, Id. at 269. misconstrues Hygh the context of the court’s remarks. The 4. argues Hygh controls this case only Court looked at the circumstances sur- inventory and that this court should rule the rounding the search to determine whether rea- pretext search here was a to conduct a criminal justification proper sonable and existed for the investigation. Hygh, police stopped In a officer impoundment statutory authority because no the defendant because he noticed that the car’s safety provide justification existed to the in that case. expired sticker had and also observed Id. at 268. description that the the a defendant fit rob- bery conducting suspect. Hygh, specifically After a warrants the Utah 5.In Court check, the officer arrested the defendant for mentioned the section of the Motor Vehicle Act outstanding warrants. He then that the misdemeanor relied on in the case as impounded example statutory authority provides the defendant's car and conducted an inventory proper justification an search. The a officer discovered reasonable and im- weapon apparently poundment. Hygh, (citing and clothes that had been See 711 P.2d at 268 41-1-1.15). robbery. Hygh, in a used recent 711 P.2d at Utah Code Ann. § pretext Focusing impound doc now on the decision impermissible under to was recognized by stop, this court. rather than the decision to recently State trine produced See, necessary threshold evidence e.g., Figueroa-Solorio, J., (Utah (Orme App.1992) when Officer Buckmiller testified that he P.2d 281-82 Marshall, concurring); expired 791 P.2d encountered vehicles with license State v. (Utah plate registrations App.), daily on a basis and that 882-83 Sierra, (Utah 1990); impounds sixty seventy-five percent 754 he P.2d 1105 Al App.1988). stops of the vehicles he for such violations.6 though pretext subjective wanting doctrine has heretofore His motivation in only in applied by this court search defendant’s vehicle for been evaluat evidence stop, ing legality burglary essentially of an initial we will is The de- irrelevant. decide, assume, although we do not that an terminative evidence here is what the offi- did, applies evaluating in equivalent actually regard cer without to his mo- .doctrine whether, case, stop, the in having particular made a lawful tives a when confronted impound registration further decision to vehicle was with violations. Officer Buck- though pre proper. testimony Even watershed miller’s unrefuted is that he im- case, Lopez, pounded great majority text P.2d 1040 of vehicles he stopped expired registrations. ini App.1992), addressed whether an Defen- stop showing tial for a minor traffic violation was dant made no that Officer Buck- investigation in impermissible pretext practice regard miller’s this was at odds activity, customarily of more serious criminal see id. at with what reasonable officers 1046-50, (after analysis applies equally Lopez, the basic do. See 831 P.2d at 1049-50 in apparently showing well the context of an lawful State meets initial burden of what allegedly im through search used as an reasonable officer would do testi- pretext investiga mony permissible particular concerning for criminal officer his practice, tion. normal burden shifts to defen- dant). not, impoundment there- Lopez, we ruled that an “officer’s fore, pretext, if unconstitutional even subjective motivation is not the relevant pretext analysis appropriately applied is determining stop inquiry” whether a impoundment. vehicle pretext traffic violation is a for an uncon- purpose. (emphasis Id. at 1047 stitutional Compliance 3. with Standardized Instead, original). inquiry our “must Procedures objective question turn of whether a on impoundment officer have reasonable would made the When of vehicle stop justified, ensuing under the same circumstances absent must be “con illegal (emphasis inventory purposes, legal motivation.” Id. in ducted for in a Moreover, manner, carry merely original). ‘fishing expe order to and not as a ” proving initial that a dition for Sterger, burden reasonable evidence.’ stopped would have the defendant’s as search warrants officer Just based vehicle, probable the State needs introduce the cause ensure that do not selecting testimony “justifi- arbitrarily persons involved officer’s of his act search, regularized proce places cations for the actual and the officer’s set of practices.” guards against normal Id. at 1049. dures arbitrariness when testimony concerning the of each case. In the instant the lateness of 6. Officer Buckmiller’s tags percentage expired of cars with that he impounding the hour is a rational basis for Nonetheless, confusing. impounds is somewhat every impound car even if the officer does not cross-examination, agreed during up to expired registration. car he discovers with an forty percent of the cars he encountered with Not does the officer have more time avail- expired tags impounded. were not Even with comparatively able to deal with this minor of- admission, majority ap- this peared a of encounters day, fense at busier times of the but the than impoundment. to result in Mere statis- vehicle, especially in area need to secure the necessarily dispositive are not in these fact- tics plagued by burglary, auto is much more com- objective intensive cases and determinations pelling. must be made on the basis of the factual milieu inventory- states, policy warrantless A: What our that the ve- police conduct LaFave, completely. hicle will searched Wayne R. The searches. See 3 Search 7.4(a) (2d 1987); search will include but not be limited to ed. at 109 and Seizure § trunk, vehicle, portions locked Shamblin, cases, locked et cetera. App.1988). police conduct an inven When tory parameters Q: you your of procedures search within the “stan Did follow for impounding? police department procedures, is dard there significant danger hindsight justification.” Yes, no A: sir. Opp erman, 428 U.S. at Q: you any Did deviate from them in (Powell, J., concurring). at 3104 Fur S.Ct. way? thermore, courts view inventories carried No, A: sir. procedures in accordance standard out Q: stereo, you After discovered the did tending as “a factor to ensure that you procedure? deviate or intrusion be limited in to the would stopped. A: It I was not continued the necessary carry extent out the caretak- procedure while Officer Johnston had ing function.” Id. at 96 S.Ct. at 3100. dispatch telephone make some calls.7 upheld “Inventories should not be under require gov- Numerous decisions that the Opperman government unless the shows ernment demonstrate the existence of stan- that there exists an established reasonable procedures regulate particular dardized procedure safeguarding impounded ve aspects during inventory conduct hicles and their contents and that the chal searches in order for such searches to sat- lenged police activity essentially in isfy See, the Fourth Amendment. e.g., procedure.” conformance with that Hygh, Wells, 1, 4, Florida v. 495 U.S. LaFave, (quoting 711 P.2d at 269 Search (where (1990) 109 L.Ed.2d no 7.4, (1978)). and Seizure 576-77 § policy regarding existed treatment during inventory closed containers pivotal determination with open suitcase); could not locked respect inventory to the search issue is Johnson, presented by the evidence whether 1987)(police justified looking were under suppression hearing State at the was suffi hood when such search was conducted support finding cient that Officer according police department procedures in compliance Buckmiller acted with estab vehicles); Shamblin, for all 763 P.2d at departmental procedures lished for con (“Fourth Amendment is violated if ducting inventory search. Evidence re opened during closed containers are a ve- garding procedures inventory hicle search in the absence of a solely searches in this case came from the standardized, specific procedure mandating testimony sup of Officer Buckmiller at the opening”) (emphasis original). Cf. pression hearing. direct On examination Bertine, 367, 375-76, Colorado 479 U.S. prosecutor, the officer testified as (1987) follows: (police impound could vehicle where stan- Q: your procedure And im- procedures what dardized allowed discretion be- pounds inventory— impounding tween parking locking or — cross-examination, indicated, normally, 7. On Officer Buckmiller re- A: As I I don’t do that so sponded questions No, to defense counsel’s on sever- why would I in this circumstance? I by referring al occasions to the fact that various would not. were actions not taken because of de- partment policy. example, For when defense But, though might Q: even there be an easier began inquiry counsel line to determine way property to deal with the and an individ- why Officer Buckmiller did not let the defen- property rights ual’s with the car— plans property dant make alternate car, in the indicated, practice. A: As I that’s not a normal following exchange occurred: But, is, Q: right? sometimes it Well, you allowing A: had no intention of No, sir, not, me, A: it is not with not with our car, dispose any property him to in that department. through inventory, right? other than an

989 vehicle). point support to Here the defendant fails to the existence of standardized police policies much like any particular activity where the the record reflects in this proce- case. according to did not act standard dures, only asserts there was insuffi- but Kordosky, police In stopped and arrested proce- showing that such cient evidence defendant, investiga who had under been Thus, existed.8 we are left to deter- dures activities, drug-related tion for driving clearly mine whether the trial court without a license. United v. Kordo States finding erred in that Officer Buckmiller sky, 991, (7th Cir.1989). 878 F.2d 992 Dur according de- conducted the search to his arrest, ing police the drug para the noticed partment’s procedures.9 phernalia and then searched the car. After discovering material, more drug-related argue, nor does not police defendant was arrested and the govern precedent require, does seized the car for future civil forfeiture. procedures ment must submit written police discovered cocaine in a locked carry showing order to its burden compartment during ensuing inventory an agents in accordance stan acted with issues, Among search. other defendant procedures performing dardized when inventory claimed that had not search inventory impounded search of an automob been conducted in accordance with stan Kordosky, v. United States 921 ile.10 Id. at 993. departmental procedures. dard — denied, cert. (7th Cir.1991), F.2d 722 -, 112 During hearing U.S. S.Ct. 116 L.Ed.2d 66 sup- on a motion to (1992), Appeals, press, police the Court of at the near- officer who conducted the of a rather case conclusion convoluted hist search testified about his experi- extensive evidentiary showing ory,11 police department confronted an ence with the and then way (1990) 8. Defendant contends there was no for the 110 S.Ct. 109 L.Ed.2d 1 ("Florida inventory Highway policy court to determine whether the was Patrol had no whatev properly given respect opening conducted the dearth of testimo- er with to the of closed contain Salmon, ny concerning ers”); department’s proce- standard United States v. 944 F.2d (3rd Cir.1991) ("Because original dure and further asserts that the inven- 1121 the record con tory However, policy regarding sheet was never offered into evidence. tains no evidence of a search, argument scope inventory uphold the record reflects no at the we cannot denied, searches]’’), hearing by Washington defendant that the search was con- cert. [the —States, U.S. -, incorrectly, any objection ducted nor was there United 117 (1992). prosecution’s the defendant to the failure to L.Ed.2d 451 original inventory any argu- offer the sheet or particularly ment addressed to such failure. Appeals 11.The Court of first considered the Kordosky, case in United States v. (7th Cir.1989). 878 F.2d 991 today prejudge decision, 9. Our decision does not a case in In a memorandum police which defendant an assertion that makes United States Court vacated and re department policies prescribe scope fail to original Appeals manded the Court of decision inventory specific aspect. Wells, of an search in some light for reconsideration in Florida stronger evidentiary (1990). Previous cases indicate a U.S. 495 109 L.Ed.2d 1 showing required policies States, when the concern- Kordosky See v. United 495 U.S. ing (1990). remand, closed containers or the areas of the car to S.Ct. 109 L.Ed.2d 306 On Johnson, challenged. be searched are See Appeals the Court of directed the district court (inspecting P.2d at under the hood and in "your” proce to determine whether standard comports the trunk with Fourth Amendment department’s pro dure meant the standardized inventory according when conducted check- opposed cedures as to an individual officer’s Shamblin, list); (absence 763 P.2d at 427-28 practice policy police and whether the directed standardized, specific procedure requiring open all closed containers. United States v. opening sup- (7th Cir.1990). of all closed containers mandated Kordosky, 909 F.2d The case third, pression of contraband found in closed contain- Appeals came before the Court of search). during inventory final, er Kordosky, time United States — (7th Cir.1991), F.2d 722 U.S. -, (1992). ruling inventory 10. Courts searches were S.Ct. In its illegal disposition because the of searches was unlim- final the Seventh Circuit typically rulings testimony ited have based their on the held the of two officers was fact that no evidence existed to show sufficient to demonstrate that guide- according in accordance standardized acted conducted standardized See, Wells, e.g., procedures. Kordosky, Florida v. F.2d at lines. practice regard impoundments; departmental policy as to the standard that testified ing Id. Defen required inventory the seizure of automobiles. search of all im testimony only argued that es dant such pounded vehicles; such that searches were officer’s particular standard tablished vehicle, to extend to all of the areas includ remand to the procedure. Upon district ing containers; opening the locked of court, who conducted the both the officer procedures. that he followed these Fur in charge of the inventory and the officer thermore, responded ques to several drug investigation provided almost identi by referring tions on cross-examination concerning department’s the testimony cal departmental practice. normal His testi inventory policies. testimony Their mony more certain demonstrated knowl revealed that detectives “[n]either edge police procedures than that offered any great familiarity with the professed by the Kordosky. Although officers in which, Policy], according to Manual [of procedures departmental evidence of in the ” both, ‘continually changing.’ Kordo thin, admittedly case is it is no less sky, officers 921 F.2d at 723. The further probative policies of standardized than that Inter-County specific testified adduced in We therefore con Kordosky.12 had “no Narcotics and Vice Unit written clude findings the district court’s that there policies,” procedures but that list and/or procedures, were standardized and that the assigned officers to the unit were new inventory according was conducted to those procedures as to “the that have trained procedures, clearly standardized were not years throughout by followed been erroneous. appear unit.” Id. The officers to have cars testified that all seized should be CONCLUSION locked un inventoried and that all opened. locked containers must See id. reasons, For foregoing the trial Appeals The Court of reasoned that “noth denying court’s decision defendant’s motion Wells, Bertine, ing or remainder of suppress is affirmed. require[s] policy cases in this area writing.” to be reduced to Id. at 724. The GARFF, Judge (concurring): accepted then district court court’s I opinion. concur the main official, finding that “the had an Unit un I my position comment to make clear written, policy” comported standard the standard of review reasonable sus requirements the Fourth with Amendment picion. Carter, an inventory search. Id. Rabadi v. Cf. App.1991), State, (Ind.1989) 541 N.E.2d (Utah 1992), Judge I concurred (testimony police from a with a detective de division, opinion by Orme written partment’s upon Judge violent crime who Bill police department ings request from a different on this same standard of review. We days conducted a search three after said im- poundment, was insufficient evidence to puzzled we by are what standard re- prove inventory); a search a routine view we apply reviewing should a trial White, (Me.1978) 387 A.2d court’s determination of reasonable sus- (testimony police provided of two officers picion. The Utah Court has it evidence that was standard sufficient previously treated determination of police inventory

practice contents suspicion finding, reasonable as a factual vehicles). impounded indicating that determinations of reason- above, able properly

As noted Buckmiller testi- are Officer reviewed experience significant appellate fied that he had a clearly courts under errone- possibility hearsay objection testimony We note the that the State could to an officer’s con- carry produce cerning objections policies. not its burden if it could not unwritten No such policy interposed in the face of a "best evidence" nor did written objection here defendant under- testimony concerning affirmatively to an officer’s take show that de- policies, produce supe- partment’s procedures it not written if could were not as they department in the in the riors face of a Officer Buckmiller claimed were.

991 Mendoza, law, picion is a conclusion of standard. State v. and therefore ous See 1987) (“In 181, (Utah deter- the standard of review 748 P.2d 183 should be correction support a rea- mining whether the facts of error. ..., must suspicion a trial court sonable JACKSON, Judge (concurring): totality the circumstances

consider the of reviewing facing the officers. The court I concur with the result by my reached the trial court’s de- should not overturn colleagues disagree but with the standard clearly errone- unless it is termination suspicion of review for reasonable which ous.”) ... Orme, they Although Judge have selected. however, we are inclined Analytically, writing panel for the Vigil, State v. 815 that a deter- agree the trial court with 1296, (Utah App.1991), P.2d ex suspicion more mination of reasonable pressed application concern for consistent logically falls into the conclusion of law of the law as manifested in the doctrine of State, Hayes category.... also v. See decisis, opinion ignores stare his here (Alaska Ct.App.1990) P.2d 36 785 important concept Judge of stare decisis. (reasonable question, suspicion is mixed concurring opinion Garff’s does likewise. findings upheld clearly unless er- factual Rather, prefer rely upon both court roneous, ultimate conclusion is sub- but appeals opinions such as 815 Vigil, State v. review). ject to de novo (Utah App.1991); P.2d 1296 State v. Car 466, n. Id. at 6. ter, (Utah App.1991), 812 P.2d 460 (Utah 1992), 836 P.2d 1383 and Munsen, v. 821 P.2d 13 State ignore by the rule of law declared the Utah opinion, I App.1991), authored an Supreme Court. The Utah Court Judge Judge concurring Russon Jack- consistently applied clearly has errone only,1 concurring result where we son ous standard of to the review issue of said: Mendoza, suspicion. reasonable challenge Munsen does not the court’s (Utah 1987) (the 748 P.2d 183 review challenges findings, Rather she ing court not overturn the trial should law to the application court’s find suspi court’s determination of reasonable ings. We “review the ultimate conclu erroneous). clearly cion it is unless To findings sions drawn from those as a date, supreme holding subsequent no court law, under a correction of er matter modified, disavowed, to Mendoza has standard, affording no deference to ror overruled this standard. Taylor, v. 818 the trial court.” State (Utah App.1991). 565 See Today’s decision should be controlled Mendoza, 748 P.2d by important doctrine of stare deci- 1987); Carter, sis, the means which we ensure that (Utah App.1991). n. See also merely change the law will not erratical- Hernandez-Alvarado, United States v. ly, develop principled in a but will (9th Cir.1989) (set 891 F.2d intelligible per- That fashion. doctrine generally held ting forth view society presume mits bedrock suspicion exists is a whether reasonable principles are founded in the law rather law, question mixed of fact and and the individuals, proclivities than in the regard trial court’s ultimate conclusion thereby integrity to the contributes suspicion legal is a conclu ing reasonable system government, our constitutional novo). sion which is reviewed de appearance and in fact. both at 14-15. Id. 254, 265-66, Vasquez Hillery, U.S. (1986) opinion I am still of the a mixed fact, (quoting the final conclu- Burnet v. Coronado Oil & Gas question of law and Co., sion as to whether there is reasonable sus- length concurring opinion, Judge thought Jackson of the detention In his agreed had justified by with the trial court that officer was not the circumstances. detention, justify reasonable but J., (Brandeis, dissenting)). (1932)

L.Ed. 815 doctrine, suspi reasonable

Pursuant to this clearly reviewed under

cion is to be princi review. The standard of

erroneous we “con requires that

ple of stare decisis supreme court our journey

tinue the until change course.”

chooses to Cannefax (Utah App. Clement, J., concurring),

1990) (Jackson, aff'd, 818 1991).

P.2d 546 Kyle

Jeff CHRISTENSEN Fausett, Plaintiffs

James Appellants, INTERNATIONAL SECURITY

BURNS Swenson, and Gloria

SERVICES Appellees.

Defendants No. 920172-CA. Harris, Harris, Lynn Carter & Harri- C. Appeals of Utah. son, Provo, Court of appellant-Christensen. for Patton, Aldrich, Nelson, Thomas R. Dec. Provo, Weight Esplin, appellant-Fau- & sett. (argued), Highland,

Vicki Rinne Mark J. Hanson, (argued), Epperson Williams & Smith, Smith, City, Stanley Lake R. Salt Associates, Whooton, & American Smith Fork, appellee Burns Sec. BENCH, ORME, Before BILLINGS and JJ.

OPINION BILLINGS, Presiding Judge: Associate (Christen- Appellants Christensen Jeff sen) (Fausett) Kyle James Fausett filed against negligence action Gloria Swenson (Swenson) employer, appellee and her Security Burns International Services (Burns), based on a traffic accident involv- Swenson, ing Christensen and Fausett. summary judg- Burns filed a motion ment, acting claiming was not Swenson

Case Details

Case Name: State v. Strickling

Court Name: Court of Appeals of Utah

Date Published: Dec 3, 1992

Citation: 844 P.2d 979

Docket Number: 910621-CA

Court Abbreviation: Utah Ct. App.