State v. Sykes

investigation, Belgard part of his door as the trial court’s challenge

fails there Belgard opened the door when leading to exigent circumstances

existed gun. He also fails of the

the seizure handgun that the admission

show of his prejudiced the outcome

into evidence

case. Belgard’s convic- therefore affirm

We

tion. ORME, JJ., concur. and

GREENWOOD Utah, Appellee, Plaintiff and

STATE SYKES, Appellant. Defendant and

Lisa

No. 910554-CA. Appeals of

Court of Utah. Joan Roger K. and C. Watt Scowcroft 19, 1992. Oct. Ass’n, Legal (argued), Salt Lake Defender City, appel- Lake for defendant and Salt lant. Gen., Dam, Atty. Todd

R. Paul Van Utzinger, Atty. (argued), Gen. Salt A. Asst. plaintiff appellee. City, for Lake P.J., BENCH, Before JACKSON, JJ. GREENWOOD OPINION GREENWOOD, Judge: appeals her convic- Sykes Defendant Lisa sub- a controlled possession tion felony, in stance, degree violation a third section 58-37- Annotated Code claiming that the 8(2)(a)(i)(Supp.1991), sup- her denying motion erred We reverse. press.

FACTS involving facts appeal we state On in detail seizure evidence offer, presented Stephens stating is fact sensitive. refused the the issue he Marshall, (Utah App.), 791 P.2d could not trust her. He then summoned a (Utah 1990). denied, 800 P.2d cert. arresting vice officer to assist defendant impounding Deputy her vehicle. Ste- night Dep- of November On phens searched defendant’s car and found uty Stephens Keith of the Salt Lake Coun- grocery receipt under store the front watching a house ty Sheriffs Office was receipt seat. Inside the folded was a small at 855 South 1500 West Salt located paper powdery that contained a white sub- conduct- City. Deputy Stephens was Lake Through Deputy stance. a field-test Ste- (1) neigh- the surveillance because phens powder suspicious determined the was cocaine. complaints regarding activ- bors’ house; (2) laboratory information from a The state later confirmed ities informant; (3) Deputy Ste- confidential identification. purchase cocaine in an undercov- phens’s suppress Defendant moved all evi capacity general in the area. That er grounds dence seized from her car on the night, Deputy Stephens after had been the detention and search of her vehicle min- watching the house for about fifteen rights violated her under the Fourth utes, up, parked, defendant drove and en- Amendment to the United States Constitu min- Approximately tered the house. three Deputy Stephens only per tion. was the later, returned to her car utes defendant testify suppression hearing. son to at the and drove off. The trial court denied the motion without Deputy Stephens followed her his car. comment. Defendant entered a conditional distance, traveling defendant After some contendere, plea preserving of nolo her pulled Deputy Stephens ap- over right appeal the court’s denial of her proached her.1 He identified himself and suppress, pursuant motion to to State v. identification and the asked defendant for Sery, App. 758 P.2d 937-40 registration.

vehicle’s Defendant had nei- 1988). ther, gave Deputy Stephens her name but Deputy Stephens and date of birth. then ISSUES checked

returned to his vehicle where he license status and ran defendant’s driver’s appeal argues On defendant a warrants check. The warrants check re- denying sup- court erred in her motion to vealed that defendant had several out- (1) press Deputy Stephens had no standing warrants. justify reasonable articulable Stephens Deputy her; had defendant accom- stopping (2) scope of the de- pany questioned him to his car he where permitted by tention exceeded that law. drug activity her about at the house she just having had left. Defendant denied STANDARD OF REVIEW any knowledge trafficking narcotics about Mendoza, Deputy Stephens at the home. then in- (Utah 1987), the court stated that a formed defendant she was under arrest for trial court’s determination of reasonable outstanding point, warrants. At that suspicion should divulge any defendant offered to informa- not be overturned unless house, Deputy tion she had about the it is erroneous.2 reliability.” Similarly, 1. The record indicates and the State concedes in sufficient to demonstrate brief, Deputy Stephens stopped its defen- panels some of this court have held that ulti dant. prelimi mate conclusions of fact drawn from nary subject are to a "correction 2. But see State v. involving of error” standard of review in cases (Utah 1991), supreme sug in which the consent, voluntary panels while other have held gests two-step process analysis reviewing "clearly that a erroneous” standard should be evidence, admissibility where the Carter, applied. In State v. 468-69 fact-finding court will “defer to the trial court’s (Utah App.1991), n. 8 cert. 836 P.2d 1383 by viewing light role the facts in the most favor Supreme we invited the Utah Court and then re able to the trial court’s decision” clarify among panels division different view for correctness "whether these facts are against judged objective ANALYSIS standard.... Anything less would invite intrusions stops officer a vehic aWhen guaranteed rights upon constitutionally occurs, le, giving rise to Fourth a “seizure” nothing based on more substantial than Holmes, protections. State v. Amendment hunches, a inarticulate result this Court 506, (Utah App.1989). The P.2d 507 774 consistently has refused to sanction. encounter, a as agree that level two parties Deitman, in v. described State requirement suspicion of reasonable 1987), in 616, (Utah occurred this 617-18 in has also been codified Utah Code Anno- case, suspicion. Deit- requiring reasonable (1990). tated section 77-7-15 levels of described three encounters man may A peace stop person officer as follows: police and citizens between public place he when has reasonable (1) approach a may citizen an officer suspicion to he committed or believe has long so anytime pose questions [sic] committing attempt- is in the act of or is against is his as citizen not detained public may to commit a offense and will; (2) may person if an officer seize a name, expla- his demand address and an suspicion” an “articulable the officer has nation of his actions. has committed or is person section, police may this officer Under however, crime; about commit if he or she has an detain individual temporary must and last “detention suspicion activity that criminal articulable necessary to longer is effectuate no than occurring. Deitman, is has occurred or (3) stop”; an officer purpose 739 P.2d at 617-18. courts have ac may suspect if the officer has arrest officers, knowledged police virtue has probable cause to believe an offense specialized experience, their can some being is been committed or committed. recognize illegal activity where ordi times Merritt, Id., (quoting v. 736 United States Miller, nary citizens would not. v. State 223, (5th Cir.1984), denied, F.2d 230 cert. (Utah 1363, App.), 1366 n. 2 cert. 1142, States, v. 476 U.S. Hartsel United (Utah 1987). denied, 765 P.2d 1277 (1986)). 90 L.Ed.2d 696 106 S.Ct. bright There no line test for what pass To muster under the Fourth suspicion. constitutes reasonable v. Amendment, the seizure must be based on Steward, App. which, together specific facts articulable 1991). totality engage in a Courts will them, drawn from with rational inferences analysis circumstances to determine person conclude would lead a reasonable suspicion whether there was a reasonable committed or defendant had was about Id.; v. of criminal conduct. United States Trujillo, a crime. v. commit Sokolow, 109 S.Ct. 490 U.S. (Utah App.1987). analysis That 104 L.Ed.2d 1, 21-22, Ohio, Terry 392 U.S. upon all the circumstances “must be based 1868, 1880, (1968), 20 L.Ed.2d 889 S.Ct. partic suspicion ‘raise a that the and must Court stated: engaged in being stopped is ular individual particular justifying the intrusion [I]n ” Steward, wrongdoing.’ P.2d at 215 point to police officer must be able to Cortez, 449 U.S. (quoting United States specific and articulable facts which taken 690, 695, 66 L.Ed.2d 621 together inferences from with rational (1981)). facts, reasonably that in- those warrant trusion_ not en Although trial court did making that assess- [I]n and conclusions imperative ter written of fact that the facts be ment here, appropriate involving particularly where this court in cases voluntariness fact, consent, underlying findings but did suspicion, and when a court made reasonable sei suspicion. How supreme explicitly reasonable find zure occurs. While the thus comment, ever, pre erroneous standard would we utilize far the author declined case, throughout Mendo apply two-step analysis as described fer to pro Carter, supreme most recent is the court’s to the issue of whether za suspicion. addressing suspicion reasonable existed in this case. It nouncement reasonable activity, despite he in criminal law, a de facto was involved there was hour, high-crime inherent in the court’s lateness of the suspicion area, suppress. There- subsequent of the motion to factor in the and the ner- denial fore, facts we look to other cases with behavior of defendant after he was vous us, involving the those similar to before stopped. Trujillo, 739 P.2d at 89-90. De- crimi- question of reasonable fendant’s reaction was “consistent with in- activity detention. nal behavior,” nocent as well as with criminal contemporary there was no criminal activi- Carter, 812 P.2d area, ty objec- no articulation (Utah App.1991), cert. supporting the officer’s “hunch” tive facts (Utah 1992), narcotics officers ob activity. of criminal flight deplaning defendant from a served Angeles, acting in a arriving from Los State, Finally, in Lemon v. 580 So.2d 292 drug thought to indicative of a manner officer, police pa- (Fla.App.1991), a while defendant, stopped carrier. The officers area, high trolling a crime observed a ear themselves, and asked to exam identified stop apartment complex in of an front bag pat-down and to conduct a ine his drug activity. known for He watched the person. defendant’s This court search of complex, after a driver enter the return a level two held that the encounter became interlude, and then leave in the car. brief sooner, point, if and seizure at this not The court held that these circumstances agreed with the trial court’s that justify stopping the were insufficient to suspicion no of crimi there was reasonable driver, “they amount no than as to more a activity. nal The trial court noted that suspicion illegal activity.” at bare Id. bulge clothing at waist under defendant’s did not 293. Those circumstances likewise produce and his failure to identifica level justify pat-down weapons for af- search inadequate for the tion were circumstances stopped. ter the defendant was to have formed a articu- officers reasonable cases, Applying these the trial court suspicion. Id. at 466-67. lable denying sup- erred in the motion to Steward, team In a S.W.A.T. press, support the facts do not stopped entering and searched vehicle suspicion that defendant was reasonable police executing cul-de-sac where the were activity. engaged in criminal Al- on three houses. search warrants by Deputy Stephens facts articulated were up truck though defendant had backed his (1) neighbors complained that had tried to leave after the S.W.A.T. team and entering leaving about individuals him, initially attempted detain had hours; (2) Deputy Stephens at all house totality court held the of the circumstances in previously purchased had cocaine give suspicion rise to a did not reasonable area; (3) in- general unspecified there was in that the driver of the truck was involved informant; formation from a confidential Steward, activity. P.2d at criminal (4) ongoing investigation there was noting In that the officers addition house; (5) up drove defendant uniformed, emphasized not the court were house, shortly it and left there- entered partic- link that there were no facts to this factors, singly None of these either after. person suspected illegal to the activi- ular aggregate, necessarily or in the indicate targeted pres- ties in the houses. His mere wrongdoing opposed as to innocent actions support area insufficient to ence was by defendant. suspicion. Id. a reasonable arrest, any connection At the time of the Trujillo, defendant was ob- illegal activity was high carrying area a between defendant and served crime police did not purely speculation. The nylon bag in what the officer de- identity of either the owner “suspicious” as a manner. Exam- know the scribed circumstances, house, they did not ining totality occupants this point, they had defendant. At that found that defendant’s detention was know linking the house to upon positive no evidence not based a reasonable so, Further, opinion mere 2 of main illegal activity.3 defendant’s footnote states apply it is preferable two-step suspected in an area harbor presence a. approach suggested by give rise to Ramirez. Because activity not reason- drug does recently the bifurcated engaged she suspicion that was able proper caused much concern over the Texas, stan- activity. 443 U.S. Brown v. such applied dard review be to issues 2637, 2641, 99 S.Ct. L.Ed.2d evidence, admission of voluntariness con- single visit does not Defendant’s suspicion, sent reasonableness of it is drug She could link her to dealers. appropriate that be addressed easily at the house to visit have as been time. there, left who and so someone was fact, Stephen’s

quickly. Deputy testi- A. POLICY CONCERNS told him she mony indicates that defendant boyfriend. looking her reaching Before opinion,

P.2d 774 and the main underpinnings I want to visit stan- CONCLUSION dards trial court clear error court committed 24(a)(5) rulings. April Since Rule Stephens Deputy had articulat- Appellate the Utah Rules of Procedure has ed facts which would required parties the to include their engaged in suspicion that defendant was a briefs statement of the review standard Therefore, activity. de- criminal because for each issue raised. The review standard unconstitutional, fendant’s detention was appellate process to is vital the because it to denying the erred in her motion court power appellate limits and focuses the the procured as suppress the evidence a result may exercise over trial court. At illegal detention. time, the the same standard limits or ex- we reverse on the basis that the Because Thus, pands power of trial court. illegal, was we do not reach the detention underlying policy considerations standards scope issue of whether the of detention proper of review include: is the what bal- permissible. levels, power of ance between two court judicial and how will resources be affect- proceedings and remanded for Reversed ed.1 opinion. with this consistent ideas, initially policy I I As address some JACKSON, Judge (concurring): Carrington’s D. agree with Paul Professor observation— join opinion I the main in its conclusion debate, After millennia of inconclusive that the officer did reasonable none of us is entitled to be a zealot. On defendant, stop on based hand, made; the other decisions must be objective suggesting defen- facts that the on; carry practices their will courts must activity. might dant be involved in criminal changed time evolve and will be Leonard, See State Inevitably, practices time. decisions and (Utah App.1991). separately I write to ad- shaky assumptions. must on some rest con- appellate standard of review dress prac- surely better and Decisions will posed by cerns will sounder if their creators are tices 1991), and footnote 2 of main underpinnings. mindful the frail of though opinion. opinion Even the main Carrington, D. The Power District correctly applies erroneous stan- Paul of suspicion Judges Responsibility of Courts dard to the issue (1969). Appeals, do 528-29 overwhelming precedent Ga.L.Rev. later, challenge posed by scope. Approximately week and their standards, 3. obtained house, largely properly apply on search warrant for define review, from defendant. equally the evidence seized right applies judges. lawyers and appellate acquire successful advocate will understanding of the standards of review clear so, Carrington considering agrees Even with Profes- the last above. The Wright, appellate sor Charles A. that some fact-law relationship distinction and (mainly Federal courts Circuit Courts perplexed Supreme the United States Court Appeals) aggressive too have been since 1944 when noted that the distinc it. at 527. Charles have overdone See “vexing” problem. tion created a Baum Wright, A. Omniscience Doubtful of gartner v. United States U.S. Courts, 41 Appellate Minn.L.Rev. 751 88 L.Ed. 1525 Commen (1957); Nangle, F. The Ever John Widen- tators have lamented the fact that lit no Ap- ing Scope Fact Review in Federal deciding giv mus test exists for whether a pellate “Clearly Courts—Is The Errone- properly en determination is Being Rule” Avoided? 59 Wash. ous fact or a conclusion law. (1981)(the author, U.L.Q. federal My research reveals judge, pleads that his col- judges have resolved standard of review leagues consequences “consider disputes by resorting either to labels or increasing their in the involvement picking precedents that contain no ratio- court”). finding domain of the trial Each methodology may judicial nale. This save person day is entitled to his her court. (as resources in But, the short-term the most this means one trial because hand) way efficient there the facts are determined the fact- decide the case at finder, judge’s may the trial discretion is exer- system long burden the in the run. rulings pro- cised and on the law are following policy believe the considerations nounced. ignored: proper should not be balance power judicial

These initial determinations for the most of and the use of best part binding, irrespective are final system, including bench, concerns of the briefs, impressive appellate thick vol- public. bar and eloquent arguments. umes of records or Ap Federal Ninth Circuit Court of reality judicial process This of the is an peals only opinion issued the I have located aspect upon layper- of the law lost most attempt that reflects a serious to address many lawyers. sons and systemic policy considerations. The Ninth Aldisert, Ruggero Opinion Writing J. 54 Circuit heard McConney, United States v. (1990). (9th Cir.1984), 728 F.2d cert. appellate process court consists of denied, 469 U.S. 105 S.Ct. three basic considerations: (1984), very L.Ed.2d 46 en banc for the sufficiency 1. of Review the of the evi- purpose resolving disputes of over the dence: does evidence the tri- proper questions standards of review for of findings al court’s fact? fact, law, and questions. mixed On the judge’s 2. of the trial Review exercise perplexing questions, issue of mixed judge of discretion: did the trial abuse or McConney pivotal question identifies the misuse discretion? judicial as: do the concerns of administra judge’s of the Review trial use of they tion favor the trial court or do favor law: appellate put court? To it another a. choice of law—was the correct le- way efficiency, accuracy prece- —if gal rule selected? weight appropriate dential make it more interpretation b. law—was the judge for a trial to determine whether es meaning correctly of the rule under- legal tablished facts fall within the relevant stood? definition, However, if we should defer. application c. of facts to law or law to appellate the same concerns favor the legal facts—was the relevant standard court, we should not defer. Id. I do not satisfied? necessarily McConney, concur with all of nationwide, recognizing but commend it for and ad Appellate judges state and federal, expressed dressing legitimate underlying policy difficulty select con proper standard of review when cerns. always THE law and is reviewed under BIFURCATED a cor-

B. Ramirez: Ramirez, rectness standard. APPROACH n. up following 3. Ramirez sets State step approach reviewing two admissibili- 1991), supports two-step or bifurcated ty questions: of evidence review, the same and raises reviewing court’s decision to As foot concerns discussed above. policy admit, which includes the determina- states, opinion this stan note of the main believe, tion which version of facts by espoused and embraced dard been we for review correctness. But a cor- my colleagues only some necessarily incorporates rectness review evidence, v. Gonza of admission review of trial court’s resolution of lez, (Utah App.1991), questions and the associated de- of consent and also for “voluntariness” but credibility may termination under- cases, suspicion” Two “reasonable issues. subsidiary lie This the decision admit. (Utah App. 815 P.2d 1296 Vigil, determination will if be overturned 1991), Carter, clearly erroneous. (Utah App.1991), cert. added). (emphasis prior opin summarize the Thus, suggests appellate panels differ ions of of this court that on courts, reviewing a decision to admit questions. these standard of review re (1) “subsidiary” evidence: review the factu- conflicting panel mind the reader that deci under findings al trial court expected to and contem sions were occur standard; (2) erroneous review both creating statute this court. plated admit the decision to and the determination Code Ann. 78-2a-1 to -5 § legal of which facts believe as conclu- judges prohibited of the court are standard, (i.e., sions under “correctness” sitting panel en are to banc and decisions review). de novo Under Supreme the Utah Court.2 be reviewed required label urged panel of this court our Carter question as a mixed admission evidence matter, supreme court to resolve the labeling This and law. denied. certiorari was compels not only under Ramirez allows but I now turn to examination fac- court to first review the approach suggested by Ramirez bifurcated tual of the trial court under proper standard of review to and then review erroneous standard following by to applied the issues affected any again un- the facts and “conclusions” in 2 of the main Ramirez as noted footnote der a standard. This redun- correctness evidence, admissibility opinion: of volun- two-step approach, dant wasteful al- consent, and tariness of reasonableness of lowing giving the court to avoid suspicion. fact, findings any weight to trial of court Ramirez, opens alarming in of Pursuant to footnote 3 the the door erosion question admissibility of evidence is a of trial court discretion.3 minority opinion, rehearing Report the Task on able will tend 2. of Governor’s Force issue, complicate to further Moreover, the resolve it. Article stated as follows: the Judicial likely appealed such case will prohibited by appeals The court of should be supreme in event. the the court Since legislation sitting rehearing banc. A en supreme court is available to resolve such rehearing by en banc is a the entire court of a matters, it is far better to use that resource in by panel disposition court. Such ex- instance and save the time and first rehearings typically are used conform in- appeals pense rehearing by of a of panels or consistent decisions to re- en banc. panel verse a decision of the that does not Article, Task Governor’s Force on Judicial It have of the whole court. is the 9, 1985, pp. October 66-67. rehearings of the task force that conclusion accomplish goals. attorney argued Recently, en banc do not er, these Rath- 3. the State’s for defer- suspicion" complicated or if the issue is so controver- ential review of "reasonable Otherwise, sial, policy principle rulings. view was or the of law so unsettled as to the State’s hearings system suppression generate panel decisions a siz- that a new of inconsistent interrelationship prelimi- Admissibility of Evidence. because of of questions, relevancy nary and discretion. attempts to convert the “admis- Ramirez proffered item of can No evidence be ad- standard from the sibility of evidence” requirement mitted unless satisfies standard, of discretion” State v. “abuse relevancy, and determinations of rele- (Utah 1990); 801 P.2d 938 Iorg, vancy feature the exercise of and review Griffiths, 752 P.2d 104(a) “[pre- discretion. Rule states that discretion, trial court to a which defers to liminary questions concerning ... the ad- under the correction expansive more missibility of evidence shall be determined which standard. The dicta court, subject provisions to the the standard of review for ad- addresses (b) [relevancy subdivision conditioned on evidence, holding in became the mission determination, making its it is fact]. Hamilton, except not bound the rules of evidence 1992): precisely, the matter more “To state respect privileges.” those with of discretion we abuse standard] [than 104(a). R.Evid. ruling review the trial court’s admis- [on sion of as a matter law....” [Contemporary legal experts generally evidence] added). (emphasis Wigmore’s share view of discretion that] large ‘finality’ measure of must be dicta, Through subsequent- Ramirez and given judge’s findings to the trial with ly rulings to hold that all Hamilton seem regard preliminary questions and to regarding ques- admission of evidence are application rules evidence to tions of law and must be reviewed for particular An ap- situations: case, If is the I correctness.4 this believe pellate give judge court must a trial “a seriously eroding we are the discretion trial right wrong,” limited to be at least in judges traditionally exercised regard relevancy problems.... [I]n conduct of trials because evidence is the observers, questions the view of modern every essence of trial. If relevancy preeminently are those premise on the the Utah Rules of that should be remitted to the discre- (1983) absorbed all discretion the Evidence tionary determination the trial previously trial courts then exercised and judge. released back to them some discretion specifically Rules, Wigmore, Wigmore when stated in the then 1 J. on Evidence 16§ (Tillers added).5 say rev.1983) (emphasis I believe Ramirez is in error. developed judge judge should be where the trial sim- Discretion means that a trial evidence, ply takes makes scope of fact and "wide for decision" in situations where automatically appel- then sends case to an unpredictable, unique and incalculable fac- panel late to assess the "reasonableness” of the determining relevancy tors are at work. suspicion. expressed officer’s The State con- particular, judge gener- the trial that a cern bifurcated review standard will cre- ally weighing accorded "broad discretion" in type system. ate this Further concern was many figure factors into the decision. expressed two-step review standard assessing A flexible these factors would cause misallocation of the defense bar. yield apt is more to a sensible result than the is, lawyers That if criminal defense know that a application of a mechanical rule. suppression ruling on reasonable is Margaret Berger, 1 Jack B. Weinstein & A. going ap- to be reviewed without deference on Evidence, (1992) (cita- para. Weinstein’s 401[01] peal, performance it be would deficient of coun- 401, omitted). by furnishing tions Rule no stan- "appellate" sel not to file an to obtain appeal relevancy, dards for the determination of im- hearing. suppression plicitly recognizes questions relevancy that legal cannot be resolved mechanical resort to appellate panels applied 4. Some Utah have the Accordingly, Weinstein-Berger formulae. Id. espoused by E.g., State v. Ramirez. power conclude that our of review on admissi- Gonzalez, (Utah App.1991) 822 P.2d 1216 bility rulings "relatively should be limited” be- relevant, (whether certain evidence is and there- cause the trial court has "wide” discretion in admissible, law, question fore which we this area: standard). review under a correction of error implies only grant Discretion not of a characterizing evidentiary scope judge, 5. The reasons for rul- "wide of discretion” to a trial but ings “discretionary" type rulings appellate as are also awareness that on review the by Weinstein-Berger: judge summarized court will accord the trial “a limited

833 Ramirez characterization evidentiary- Voluntariness of Consent all to rulings matters law be reviewed as finding The watershed case the determi- with the virtually novo seems odds de voluntary nation of consent a mixed ques- foregoing. tion of law and fact to be reviewed under Ramirez State v. approach two-step event, traditional In believe the Vigil, (Utah App.1991). P.2d 1296 815 standard of review “abuse of discretion” Vigil, panel precedent of this court used evidentiary retained for most should be why but offered little rationale toas volun- Iorg, (Utah v. State rulings. 801 P.2d 938 question tariness of consent is a mixed v. Griffiths, State 1990); 752 P.2d opposed simply law and fact as to 1988) (it (Utah settled that the trial well did, however, panel of fact. The offer an admissibility of rulings court on the evi- analysis why as to a determination of vol- not to be in the ab- dence are overturned untary consent should be reviewed under State discretion); of a clear abuse of sence espoused the new bifurcated standard Gray, State v. (Utah 1986); P.2d Ramirez dicta. greater I find that Harrison, (Utah v. App.1991). 805 P.2d 769 weight precedent and sounder rationale the conclusion that voluntariness though the decision deals Even is a consent should eyewitness identification and two- with be reviewed under erroneous step suggested in footnote approach standard. admissibility of deals with the evi- dence, panels some Utah court v. State Footnote 8 of the decision Carter, two-step ap- attempted apply to (Utah App.1991), only to cert. denied 836 P.2d 1383 proach admissibility (Utah not of evidence 1992), also to search and seizure question, precedential history details the stan including voluntary and issues consent rea- dard of review for voluntariness of con sent. clear from this suspicion.6 sonable It is United Mendoza, right wrong,” and these limits erroneous. State v. 748 P.2d to within determination, (Utah 1987). judge’s will reverse the disagrees ruling. ap- even it with the if two-step One of the first cases use this power relatively pellate court’s of review is approach Arroyo, apply, test forced since it limited. The it is (Utah rev'd, App.1989), 796 P.2d 684 154-55 trial, normally present was not at the will (Utah 1990). Arroyo panel determined require probative it to assume the maximum findings underlying that a trial court’s factual jury might and force a reasonable assess grant deny sup- a motion to its decision reasonably expect- prejudice to be minimum they press be disturbed unless are should not major ed. factors ... account for this Two panel then stated that in erroneous. First, recognition by ap- limited review: reviewing legal court’s conclusions trial fully pellate court the cold record cannot findings, no upon "we afford defer- based those convey atmosphere and that trial’s apply error a correction of standard.” ence judge intangi- —attuned .nuances Chavez, panel Id. Oates v. cited reviewing is deaf—is bles to which the proposition position cognizance in a to take better legal upon those are conclusions second, result; just factors crucial to a However, case is the Oates a civil conclusions. may recognition court that action, having dealing quiet title case with difficult determine whether con- so suppress nothing to do a motion to evi- with appreciably trary ruling would have led to an dence. that in the interests of better overall result panels applied Subsequent have also the two- morale, finality economy, judicial the tri- step reviewing suppress. motions judge’s had be left un- al determination best Hunter, (Utah App. disturbed. Steward, 1992); (citations omitted). labelling sup App.1991). of motions to This questions press law and fact is as mixed appellate panels 6. Some Utah have also labeled ap problematic. such an and Under overbroad suppress questions mixed of law motions to as proach, underlying raised in the mo all issues applied two-step approach a and fact and motions, suppress, as reasonable such reviewing tion despite the fact such that consent, traditionally voluntary is factual traditionally and sues, Supreme treat- the Utah Court legal purely conclusions suppress as could considered ed the of motions issues, clearly of error standard. under a correction reversed if found reviewed Court, Court, 101, (1984). finding, L.Ed.2d Supreme Tenth Circuit In so States Supreme Court of Pullman-Stan Court Utah the Ninth Circuit cited the cases, weight Appeals that the clear dard case in the trial court which had to authority holding that voluntariness favors legal if the determine facts met the stan question consent is a of fact to be re dard of “actual motive.” Id. The appel using a erroneous standard. viewed expressly late court found that the determi nation of actual motive was not a mixed Vigil offers little rationale why as question pure ques of law and fact but a a mixed voluntariness of consent should be Pullman-Standard tion of fact. U.S. opinion question of law and fact. The sim- 289, appellate at at 1790. The ply “labelling” technique as the uses applied “clearly a erroneous” stan apply means to a bifurcated standard of review, clearly suggesting ap dard of First, opinion review. uses the labels legal plying findings standard to of fact “subsidiary” findings and “ultimate” con- question does not turn a fact into a sup- Those labels are deemed to clusions. question mixed of law and fact. port question the final label that question is a “mixed of law “voluntariness” panel in Vigil The offered four reasons Thus, legal component and fact.” finding for its that voluntariness of consent question justi- now as “mixed” labelled the Ramirez two- using should be reviewed fies the new standard of review. Although step approach. panel first looked to principle there is no “rule or that will un- appellate the functions of the trial and erringly distinguish finding a factual panel court. The reasoned that the func- conclusion,” Pullman-Standard legal tion of the trial court is “the establishment 1781, Swint 456 U.S. 102 S.Ct. predicate emerge of the facts which after a 1790, (1982), 72 L.Ed.2d 66 a factual conclu- testimony all consideration of and the legal by sion does not become conclusion credibility.” Vigil, weighing 815 P.2d at saying subsidiary there are facts ulti- panel appellate reasoned that Likewise, mate facts. Rule 52 “does not courts, hand, on the other “take the facts categories; particular, divide facts into by square as found the trial court and them does not divide of fact into those law, developing with the sometimes that deal with ‘ultimate’ and those that deal Id. process.” contours of the in the law It 287, Id. ‘subsidiary’ with facts.” development went on to find that this S.Ct. at 1789. by appellate undertaken better courts. The rationale behind that volun- question of consent is of fact tariness agree I that the trial court is While bet- inquiry voluntariness into involves ter situated to establish the facts or that United States person’s state of mind. position court is in a better Fouche, (9th Cir.1985); 776 F.2d law, develop disagree the contours of the Sprouse Jager, development by occur should App.1991). person’s It is a of the squaring the facts with the law. It is the “non-technical, and intent actual intent being shaped developed. law that v. Du Commissioner inquiry.” pliable. The law is what is The law should berstein, 363 U.S. 80 S.Ct. facts, squared way to the other legal 4 L.Ed.2d 1218 No anal facts, around. The as delivered the trial person’s ysis can determine whether a con rigid court are unless erroneous. It voluntary person’s sent was or coerced. A court to is not the function of mind is decided extrinsic evi state reshape precisely my the facts. This is legal might dence no matter what the Ramirez adopting two-step ap- fear in applied later be to that evidence. The Circuit, banc, proach. states that sitting Ninth en found that reviewing the court’s decision to essentially inquiries state of>mind are fac “[i]n admit, which includes the determination of tual determinations. United States v. Cir.1984), believe, (9th McConney, 728 F.2d which version'of facts to we review rt. State v. 469 U.S. 105 S.Ct. for correctness.” ce (Utah 1991). given is not the this area to 782 n. 3 It must the conclu- P.2d appellate court “to ... sions the trier fact. sub- function court in the determina- stitute for the trial Duberstein, U.S. at 80 S.Ct. at Snyder, factual issues.” tion of Sabol panel, The Vigil invoking 1198. the con- (10th Cir.1975). If F.2d ventional that two wisdom heads are better appellate court is allowed re- one, than or appel- stated three more evidence, sufficiency of facts for view judges heavy late court without calen- believe, facts to to determine which also dars judge trial court and with the vestige.7 the trial court becomes useless fully time to each deliberate issue could better review “ultimate” facts under a cor- using for rationale Vigil’s second Vigil, rection of error standard. bifurcated to review at 1299. But the voluntariness of consent voluntary whether consent is was based on intent, is an issue of a factual issue that consistency. panel “[a]p- found that nuances, requires judge to absorb subtle- pellate legal conclusions and ‘ulti- review ties, and combinations of factual elements. mate facts’ under correction of error judges, All seven court even if promotes applica- consistent standard they time, had free calendars and cannot legal Vigil, tion 815 P.2d at principles.” necessarily make factual determinations application Consistency 1299. present judge better than one who is when important principle law serves the of mak- the evidence taken. predictable law and correction of Vigil’s using third rationale for the Ra- pro- legal conclusions error standard two-step approach mirez to review volun- consistency. I agree, motes do not howev- by deferring tariness of consent er, that courts should review “ultimate judge’s trial ultimate factual conclu- kind of such facts” other fact as sion, underlying there no need for would be anything voluntariness of consent under simply detailed conclusions. This is not the standard. The trial but a erroneous supreme case. court of state dealt position is in determine court the best very Dalton, with this issue. In Rucker v. especially This is true deter- facts. when supreme voluntary. mining whether consent is “importance complete, noted court judge may able to A not be articu- findings accurate and of fact.” consistent exactly prompted the determi- late what Id. at 1338. The court found that Rucker voluntary one consent was nation that sufficiently findings of “should be de- coerced, judge another was but the while subsidiary enough tailed and include facts knows or senses the difference after steps the ultimate disclose the which hearing testimony first-hand the offered on each factual issue was conclusion perceiving the nuances and subtle- noted unless reached.” court Id. testimony. of that ties occurred, application of the process such a Carter, n. proper rule of law would be difficult. App.1991), cert. important It to note that in at 1339. (Utah 1992). The Duberstein Court Rucker, existed in apparent inconsistencies explained why used erroneous fact, findings of but the the trial court’s questions intent: trying to re- court refrained Rucker so, To nature of the those inconsistencies. do nontechnical statuto- solve [T]he found, standard, to make its own relationship of it to court would be ry close went on to state that practical experience, findings. human The court the data of “it is not the function of multiplicity and the of relevant elements, it does not to make of fact because with their various combina- tions, advantage seeing hearing necessity ascribing have the creating the each, (citing testify.” Id. at 1338 proper confirm us in the witnesses force Roland, 487, 243 P. primary weight in our conclusion that the Mendelson supra, 4. See note 836 (1926)). only analytically way to final The re- Deference factual de- sound

798 voluntary view whether consent is is under court of the trial under a terminations clearly erroneous standard. A determi- not elimi- clearly erroneous standard does voluntary by nation of consent is made findings the need of fact. nate for detailed looking totality at the of the circumstances. findings help appellate the court Detailed Bustamonte, Schneckloth v. 412 U.S. of under both conclusions law the review 854 S.Ct. L.Ed.2d sufficiency and correction of error standard (1973). by looking It is made the not at clearly the findings factual under erro- of individually. totality circumstances The neous standard. clearly suggests test that the whole is Vigil Finally, panel felt it would be the greater parts. of The than the sum its voluntary analytically deficient review judge only judge position trial is the in a finding under the clear consent as a of fact judge present see “the The trial whole.” is panel’s ly erroneous standard. main and the absorb the subtleties nuances of could be “a cata- argument was that there given judge trial testimony. The can best suggests logue ‘findings’ of that coercion aspects determine the of evi- relational the part the on officers followed dence and his make inferences based on voluntary finding consent factual perceptions. appellate [that] court cannot anomalous, leaving appellate would pick nuances, subtleties, up relationships or weigh prioritize court somehow It from the record. cannot view the cir- ” ‘findings.’ Vigil, totality. inconsistent 815 P.2d at cumstances in their what exactly applying 1301. This is entirely expect, It seems reasonable to clearly therefore, erroneous standard of review to a appellate judges that con- will judgment of voluntariness of consent avoids. tinue to defer to the of trial findings” judges ‘on the this “catalogue suggests If who are scene’ in area, they inexorably and will inconsistency, court not appellate can re reach the same conclusion on a cold rec- mand to the trial court for additional find stage they ord appellate at Rucker. The trial ings as was done sitting might anyone if them had been court is the better forum to resolve judge. as a trial inconsistency. appellate court does retry disput sit “to on cases submitted Oregon v. Kennedy, U.S. [They] give great facts. ed deference to 2090 n. L.Ed.2d 416 findings, especially trial court’s when if Even one calls the issue of voluntari- are live they testimony.” on question ness of consent a mixed of law Sprouse, likely, 222. More fact, analy- adopt this should court however, if catalogue McConney. espoused classify- sis When inconsistent, underlying evidence will questions mixed of law and fact not be sufficient to the inconsisten purposes, adopt review “we a functional appellate cy properly court can on the nature analysis focuses inconsistency under the resolve inquiry required apply when we the rele- erroneous standard. If voluntariness of vant rule law as estab- facts is labelled a mixed of law consent (em- McConney, lished.” 728 F.2d at fact, it is a simply final factual added). phasis consistently This determination, and the two-step presented held that the issues in search applied, appellate sensitive, court will highly and seizure cases are Lovegren, State v. be able determine “which version of the to believe.” 817 P.2d at App.1990), facts these stated, consent, already issues, n. 3. including For the reasons voluntariness demanding determination the function of the is a inquiry court, not the court. erroneous standard review.8 also, Commissioner, factually Love Box more based and concerns factors more 8. See Co. (10th Cir.1988) (a clearly court). appropriately F.2d erro- decided the trial applied standard is the issue tends to neous if Furthermore, application the of the the The result of Ra- Utah Court of Appeals generally clearly also follows the two-step to voluntariness erroneous mirez Leonard, standard of review. v. 825 expan- a more consent determinations is 664, (Utah (the App.1991) 668 trial of re- sive “correction of error” standard court’s requisite determination that the rea- by simply is view. This result achieved suspicion clearly sonable existed was not labelling the issue at hand as “mixed” erroneous); Grovier, 133, State v. 808 P.2d Thus, question Vigil of law fact. (Utah App.1991) 137 n. (appellate 1 courts is made to convert the attempt the “volun- clearly apply should erroneous standard to tariness” standard the review determination suspi- that reasonable standard, “clearly which erroneous” defers existed); Robinson, cion State v. 797 P.2d judge, legalistic the to the correc- to (Utah (whether App.1990) req- 433 the of error standard. tion present uisite suspicion reasonable is to presents investigatory an detention Suspicion 3. Reasonable fact); question Sery, v. 758 (Utah App.1988) (reasonable 935 suspicion opinion questions the main standard under a clearly reviewed erroneous stan- applied suspi- of review to to reasonable dard). I emphasize cion. the traditional clearly erroneous standard of review en- though Even the opinion correctly main applied question dures as to the of reason- applies clearly erroneous suspicion. able suspicion the issue of reasonable overwhelming precedent so, to do foot consistently The Tenth Circuit has deter 2 opinion note the main states that it question mined that the of reasonable sus “prefer” would follow bifurcated question picion a factual reviewed under approach suggested Ramirez, clearly erroneous standard. United 1991) (Utah n. 817 P.2d 781 3 Preciado, (10th 966 F.2d 597 States Carter, State v. n. 6 Cir.1992)(the district court’s of rea denied, App.1991), cert. clearly suspicion sonable not errone 1383 wheth ous); Ward, United States v. 961 F.2d er suspicion reasonable exists. (10th Cir.1992) (we n. apply 3 Carter, an filed prior case clearly to the erroneous standard issue Ramirez, panel acknowledged pri- suspicion); of reasonable United States v. authority, as substantial as well Cir.1991), Walker, (10th 941 F.2d authority jur- from other and federal state — U.S.-, rt. S.Ct. ce isdictions, suspi- have treated reasonable (1992) (the question L.Ed.2d cion re- as a factual determination suspicion should reasonable be reviewed clearly viewed under a erroneous standard. clearly standard). under the erroneous However, despite prev- 464 n. 3. Supreme The Utah has also Court consis- panel authority, alent stated that it was tently applied erroneous stan- ap- puzzled by of review to what standard Mendoza, dard. State v. reviewing ply in a trial court’s determina- (Utah 1987)(the reviewing court should not suspicion. tion Id. at 464 n. of reasonable overturn the trial court’s determination of 3, panel concluded that “ana- n. 6. suspicion unless it is er- they were lytically,” inclined label roneous). supreme holding suspicion No sub- determination of reasonable as 465, n. sequent to Mendoza modifies this standard. conclusion of law. Id. at 6.9 2) justified inception; It be noted that the ultimate action was at its should determi reasonably nation under the action was related in of reasonableness Fourth whether justified very scope that first Amendment is different from determi to the circumstances Guzman, suspicion. nation United 864 F.2d of reasonable Fourth interference. States (10th 1988) (quoting Terry v. protects against Amendment unreasonable Cir. 1868, 1878-79, Ohio, 1, 19-20, determining searches and seizures. the rea U.S. seizure, (1968)). Appellate courts should of a search and the court 20 L.Ed.2d 889 sonableness employs 1) suspicion, inquiry: the issue of reasonable a dual whether officer’s confuse by replacing highly defer- suggested by termination Car- Using the “rationale” “clearly erroneous” standard with the main ential and the footnote ter Appellate should the new Ramirez standard. Utah courts suggests that opinion not confuse the issue of rea- to reasonable courts should two-step approach apply the two-step suspicion with the Fourth Amend- sonable This use suspicion issues. reasonableness. the Ra- ment determination misapplied because approach is purely footnote, to search and Reasonable respect with mirez dicta, consistently issue that has been reviewed issues, considered can seizure clearly unsupported under the erroneous standard. This Further, despite the best. rely in for fol- court should not on footnote dicta by Carter suggested “rationale” Utah case Ramirez to eviscerate the trial court’s dis- approach, lowing the bifurcated cretionary powers regarding that rea- reasonable consistently determined law suspicion under determinations. reviewed is to be suspicion sonable v. standard. State clearly erroneous clearly Under the erroneous standard we 181, (Utah 1987). Mendoza, 183 finding the court’s on the must reverse clearly us as erroneous. two-step approach to the before Misapplying suspicion, have reasonable ap- would allow order to suspicion issue reasonable must, detaining officer based on the totali conveniently label the courts to pellate circumstances, particular suspicion “legal ty as a of the finding reasonable objective suspecting for conclusion,” a factual issue. ized and basis rather than activity by particular person criminal then enable This label would Cortez, detained. v. 449 legal conclu- United States to review not courts 694-95, 411, 417-18, 690, 101 66 sions, factual of U.S. also all the (1981); novo, thus, Swanigan, 699 rendering the L.Ed.2d 621 State v. de the trial court 718, (Utah 1985); Sery, v. meaningless. 719 role trial court’s 935, (Utah App.1988). At the 941 C. CONCLUSION stop, objective the sole fact the time of regarding defendant’s behavior officer had adoption proposed of the entered a house for three was that she had review, allowing bifurcated only suspicion minutes. His of defendant determine which trial appellate court to subjective particular in was based on a believe, seriously will erode court facts to assumption that her conduct “fell into a contrary power of the trial court and general pattern” drug common to traffick policy. prof- precedent judicial No But, stop, time of the ing. at the can admitted fered item of evidence proof drug trafficking had no that officer rele- requirement it satisfies the unless actually taking place at the house. relevancy fea- vancy, and determinations adequate objec His hunch was not an bare of and review of discre- ture the exercise for a reasonable articula- tive factual basis approach would abolish tion. The Ramirez in suspicion that defendant’s otherwise ble long standing “abuse of discretion” entering promptly act of leav nocent evidentiary rulings. Volun- standard for activity. criminal ing a house constituted highly of consent is a factual de- tariness finding Accordingly, the trial court’s by looking totality at the termination made suspicion was the officer had reasonable totality the circumstances. The of cir- clearly erroneous. subtleties and rela- cumstances includes record. The tionships not found a cold BENCH, Presiding Judge (dissenting): only judge position in a judge is the majority’s respectfully dissent from the make this determination. finding that the de- reversal of the trial court’s attempt not to make this court'should Pena, (1992); issue, v. L.Ed.2d 414 United States purely with the ultimate determi 117 1509, (10th Cir.1990), cert. F.2d under the Fourth 1513-14 nation of reasonableness — -, Amendment, denied, U.S. 111 S.Ct. de novo. United which is reviewed Cir.1991), McKinnell, (1991); Walker, (10th L.Ed.2d United States F.2d States v. — (10th Cir.1989). U.S.-, 112 S.Ct. 888 F.2d rt. ce (Utah 1987) curiam) (per (quot- suspicion of 617-18 reasonable officer had a Merritt, ex- My colleagues nevér activity. 736 F.2d criminal United States finding of a why Cir.1984)). trial court’s (5th plain While the officer in this case is suspicion reasonable likely probable this case did not have cause Instead, summarily con- they erroneous. Sykes purchasing drugs arrest be- support a rea- the facts do not clude that her, stopped he had articula- fore he that defendant was en- sonable suspicions activity ble of criminal that war- activity. gaged criminal investigation.1 further ranted See State Menke, App.1990) guiding legal principles One court must follow (ability the trial of officer to articulate facts indi- requirement suspicion is suspi- on operated cates he “articulable totality of the circum it consider the “hunch”). cion” and not a mere It is readi- facing the officer. v. Mendo stances ly apparent that the officer in this case was (Utah 1987). za, acting on a mere hunch. traditionally held that a trial courts have explained The officer that he observed making its has broad discretion objectively ap Sykes participating what utilizing totality of the findings when drug purchase peared to be a at a house approach. v. circumstances State Stew dealing suspected. The drug where was 213, (Utah ard, App.1991); cf. house under surveillance because Hansen, 732 P.2d 128-29 v. State frequent neighbors reported had brief vis 1987) mag (Utah (giving great deference house, activity to the which is indicative its cause finding probable based istrate’s drug trafficking. A confidential infor circumstances); v. upon totality of provided police to the infor mant had also (Utah App. Stromberg, 783 P.2d drug regarding mation activities at 1989)(same). articulated rea Absent some personally The officer had ob house.2 upon by relied soning why as to the facts frequent and short visits of oth served finding trial court do not law, personally He was also ers to the house. suspicion as a matter simply substituting judg drugs its in the area majority aware that were available trial court. If the ment for that of the under previously he had made an because truly ap were clearly erroneous standard neighborhood. purchase cover in the same case, finding plied in this court’s experience,3 Sykes’s In actions the officer’s would be affirmed. briefly leav entering the home and then purchase. drug indicative of a were asserts that the officer Defendant Griffin, 909 F.2d United v. See States stopped he unreasonably seized her when (8th Cir.1990) (officers had rea essence, argument is that car. her her it left stop a vehicle as sonable suspicious enough to conduct was not her house); v. suspected drug United States stop Sykes, stop. In order to justify (8th Buchannon, Cir. 878 F.2d needed an “articulable sus- the officer drug 1989) (a suspected visit to a in criminal brief that she was involved picion” Deitman, patterns “conformed to the 739 P.2d house activity. See State tips may Anonymous be suffi- stop Sykes or confidential with less than 1.The officer could suspicion war- cient to establish a reasonable probable her. cause to arrest investigation. generally ranting See further require does not The Fourth Amendment Velasquez, precise policeman level of in- who lacks the 1983). necessary probable cause to for formation shrug simply his shoulders.... A arrest deputy sheriff for over been a 3. The officer had individual, suspicious stop in order brief of a divi- years of the narcotics nine and a member identity or to maintain the determine his had received narcotics 1987. He sion since momentarily obtaining quo Drug more training while Enforce- status information, the United States Investiga- light may Agency, be most reasonable Federal Bureau of ment tion, Angeles Department narcot- the time. Police known to the officer at the Los of the facts 143, 145-46, division, Williams, Police Utah Division of and the 407 U.S. ics Adams v. Training. Standards and Officer 32 L.Ed.2d totality of the circumstances trade”); Biegel, 57 Wash. When drug considered, present the officer case is rev. App. to sus- certainly had an articulable reason (1990) P.2d 1156 115 Wash.2d Sykes in criminal pect that was involved suspicion even (police had reasonable activity on her own actions. Her what occurred though they did not know with a particular conduct was consistent a short visit to defendant made inside when a house under surveil- drug purchase at house). drug suspected drug dealing. The trial court’s lance for objective, articulable all of these When finding appears on its face to be therefore facts, along their reasonable inferenc- with acceptable. perfectly combined, es, could ra- are the trial court majority’s holding The thrust of had an articu- tionally find that the officer might inno- simply that there have been an Sykes stopped at the suspicion that lable explanation Sykes’s conduct. The cent purchase drugs. The in order to house speculates Sykes might majority however,' finding says this majority, somebody was not at stopped to visit who ever clearly erroneous. It does so without quickly. left This the house and therefore why it was unreasonable for explaining legally upset speculation is insufficient stop Sykes inquire about police officer to finding the trial court’s does not house. suspected criminal activities suspicion. preclude of reasonable short, majority does not set forth Supreme acknowledged Court precludes the trial any applicable law that may per- “able to experienced officers appears finding which to have court’s meaning given con- ceive and articulate basis law. solid wholly duct which would be innocent to Texas, untrained Brown v. observer.” Holmes, 506, 509 47, 52, 2, 2641 n. U.S. n. 99 S.Ct. finding (Utah App.1989), affirmed a we (1979). L.Ed.2d 357 It is well-settled ba,sedupon cir suspicion similar reasonable may suspicion that a reasonable regarding suspi an individual’s cumstances though the defendant’s conduct found even crime was activity in an area where cious activity. innocent was consistent with suspected. We held that the defendant’s (Utah Davis, App. “high in a crime area” alone was presence 1991) may (“although there be a host of suspi to constitute reasonable insufficient the officer explanations,” innocent other upheld the trial cion. We nevertheless Menke, 787 suspicion); had reasonable finding suspicion court’s of reasonable be (defendant’s actions which were P.2d at 541 the officers observed the defendant cause activity were also consistent with innocent conducting particular type activity “a shoplifting). A trial court indicative of criminal ac was ... consistent with which demanding find- may even make the more tivity....” Sykes’s own conduct linked ing probable despite cause the existence illegal at a suspected her activities with explanations innocent for the conduct. contemporaneous under surveillance house Weaver, short, drug dealing. frequent vis (innocent App.1991) explanations do house, personally, wit by its others to the cause); preclude finding probable officer, by the constituted an out nessed Holmes, (“the law does not 774 P.2d at 509 probably that this was a ward indication explanations for require that ‘all innocent provided the officer with drug house and person’s before those ac- actions be absent complaints objective confirmation of provide probable cause for an tions can Sykes there neighbors. was made States, ”) (quoting v. United arrest’ Wood just in an area where the officer fore not (D.C.1985)). A.2d 1140 These cases available; drugs were she entered knew that a trial court is not establish drug dealing law, was very house where from precluded, as a matter of suspected, particular upon suspicious in a manner suspicion and acted might have an inno- indicating very activity criminal conduct under otherwise explanation. cent investigation. active standard, clearly erroneous Under the trial court how majority must show finding a reasonable precluded relied reviewing the facts explaining why, as by the officer

upon law, improper to consid- it was matter of Mendoza, P.2d at See, e.g.,

er them. majority has failed

183-84. Since finding that possibility of a

foreclose articulable a reasonable officer had law, it errs matter of

suspicion as a for that of the

substituting judgment its essence, my colleagues court. subjec- that the officer have require

would dealing house drug at the proof of

tive suspi- find the officer’s they would

before Not reasonable. objectively

cion court’s reasoning ignore the trial such

does role, ignores the well-established

proper does not deal with process

rule that “[t]he certainties, probabilities.” with

hard Cortez, 449 U.S. States v.

United L.Ed.2d 621

101 S.Ct. court did not vio- as the trial

(cid:127)Inasmuch finding that the legal principle in

late suspi- had a reasonable articulable

officer find-

cion, trial court’s defer to the would respectfully dissent.

ing. I therefore Plaintiff, CHAMBERS,

Erin Jo

Appellant, and Cross-

Appellee, Defendant, CHAMBERS, D.

Thomas Cross-Appellant.

Appellee, and

No. 900631-CA. Utah. Appeals

Court 21, 1992.

Oct.

Case Details

Case Name: State v. Sykes

Court Name: Court of Appeals of Utah

Date Published: Oct 19, 1992

Citation: 840 P.2d 825

Docket Number: 910554-CA

Court Abbreviation: Utah Ct. App.