State v. Worwood
127 P.3d 1265
Utah Ct. App.
2005
Check Treatment

*1 mary judgment ruling in words favor of the Defen- such that “the group the must be personal proper. have reasonably dants be understood any member application to reference and ¶ 25 Affirmed. it, an individual.” he is defamed as so that

§Id. emt. b. 564A ¶ 26 WE CONCUR: JUDITH M.

¶23 case, nature instant the In the BILLINGS, Presiding Judge and RUSSELL to, the groups cir- size of the referred BENCH, Presiding Judge. W. Associate publication, not lend them- cumstances of do understanding any selves to application

they personal to the Pratts. jury argue Pratts it is for

While the be connected to

decide whether can group the or

Defendants’ statements about mentioned, the

groups we conclude that trial on properly court the issue sum- resolved App mary Indeed, judgment. nothing there is Utah, Appellee, Plaintiff and STATE us, Kingston the other than the record before Complaint, that makes a connection between group groups the or identified Pratts WORWOOD, Mitchell There was the Defendants’ statements. Appellant. dispute only general of fact that refer- No. 20040701-CA. press ences made at the conference to were never groups and that the Pratts were men- Appeals of Court of Utah. name, nothing in the by tioned Dec. any sort rise to of reasonable under- standing that the were included Pratts groups.

extrajudicial references to these We prop- trial court

therefore conclude summary

erly disposed judg- of this on issue

ment.

CONCLUSION

¶24 do not reach the merits challenge against on appeal trial

Pratts’ application judicial proceeding

court’s Kingston

privilege Complaint, in the any

the Pratts invited error trial result, ruling. As a we affirm the ruling dismissing the

trial court’s Pratts’ upon their names

claims that founded Kingston Complaint.

appearing Con- rely Pratts on

sequently, cannot Kingston them Com-

references

plaint support their claims based state- press at the

ments the Defendants made The

conference. Defendants’ statements therefore,

cannot, reasonably understood Pratts the aid of

to refer to the without

Kingston Complaint. only other state- defamatory larg- alleged to be refer

ments amorphous groups

er are not actionable Thus, trial court’s sum- the Pratts. *2 Gowans,

Scott P. Fill- Card Jennifer LLC, Provo, Spencer Appellant. more for Shurtleff, Gen., Atty. Mark L. J. Fred- Jr., Atty. Gen., eric Voros Asst. Lake Salt City, Appellee. DAVIS, McHUGH, Judges
Before THORNE.

OPINION DAVIS, Judge: ¶ 1 appeals Mitchell district ruling denying suppress his motion to during sobriety evidence taken tests. We affirm.

BACKGROUND 20, 2003, Korey Wright, On June Highway trooper, Utah Patrol friend, Skyler Fautin, driving were Wright’s pickup truck and horse trailer on a Deep Canyon dirt road out Juab encountered a truck white parked in middle of At the road. time, Worwood, truck, the driver of the exited the but soon reentered and drove it to side of the allow road to pass. and his truck to Trooper spot large noticed a wet can, road, a beer and later an cooler ice apparently recently emptied. had been ¶ Trooper Wright pulled his vehicle alongside speak Dur- to him. conversation, ing Trooper Wright noted Worwood, sitting in the rate test The trial court denied the driver’s results.” motion, seat, eyes speech. concluding that circum- and slurred under these had bloodshot exited his vehicle to continue stances had a reasonable that he and testified smelled execute level-two the conversation All of alcohol breath.1 these detention and that on Worwood’s *3 Trooper house signs Trooper Wright Wright’s to believe was a reasonable led agree and could and intoxicated not extension of that detention. We Worwood was Trooper Wright safely operate a vehicle. affirm. him

told that he would not allow to by he had been checked out a drive until ISSUES AND STANDARD OF REVIEW police appeared recog- officer. Worwood ¶5 appeal, On Worwood claims Wright Trooper was a law enforce- nize that denying trial court motion to erred complied request. and with the ment officer (1) Trooper suppress Wright did not Wright a Trooper not have tele- Because did suspicion have a to ef sufficient communication, phone means of or other (2) investigatory fect an detention and when Fautin to drive instructed Trooper drove him to dairy nearby and call for an officer to perform sobriety house to the field respond Trooper Wright’s Trooper house. test, the arrest encounter became a de facto accompany Wright asked Worwood to then probable for which was no there cause. there, agreed, him to which Worwood and legal deny review the trial court’s basis approximately drove him a ing Worwood’s motion for correctness with There, they mile to his and a half house. trial application out deference to the court’s on-duty trooper performed a met an Brake, law to the facts. See v. State test, there determined ¶95, 15, 103 P.3d 2004 UT 699. arrest, probable and cause to the Juab Jail where ANALYSIS further revealed a alcohol con- breath centration of .248.2 6 Worwood first contends

¶4 trial, sup- Trooper Wright did not sufficient Before Worwood moved press grounds from the deten the evidence obtained sobri- execute test, ety claiming police tion. law officer “[I]t was obtained means is settled that ‘a illegal question seizure. The trial court held an detain and individual reasonable, evidentiary hearing Trooper suspi and the officer found has articulable been, is, Wright signs early had noticed of intoxication cion that the has or is about ” encounter, including eyes, activity.’ engaged bloodshot criminal Markland, 26, talking 10, speech, slurred with Mr. 2005 112 P.3d 507 “[a]fter UT 446, Chapman, proximity, Trooper (quoting Worwood at a closer 450 (Utah 1996)). Wright Although suspi also smelled the odor of alcohol.” officer’s “ testing ‘specific The trial court also found that cion must on and articula- Wor- be based ” necessary inferences,’ wood at another location was ble facts rational it need be- by probable cause more fair supported “it was to the defendant to not be cause or even preponderance (quoting in a conduct the field test location of the evidence. Id. Werking, that would allow the officer to obtain accu- F.2d United States appeal Trooper on clear Worwood claims trial court committed and marshals error Wright smelled alcohol Worwood's breath support against all the evidence in only Trooper after Worwood was seated in finding). truck, challenge but fails to finding Trooper trial smelled arresting 2. that Worwood officer testified of alcohol on Worwood’s breath ''[a]fter odor liters,” blood alcohol content of ".248 talking proximity" with Mr. Worwood at a closer grams presumably means a of .248 level asking but him with him in before to ride per 210 breath. Code Ann. liters of See Utah ¶1, 67, Arguelles, truck. See State v. 41-6-44(2)(c) (renumbered (Supp.2002) § (noting finding P.3d 731 court's trial (2005)). § Utah Code Ann. 41-6a-502 appellant proves fact is conclusive unless (10th Cir.1990)). reviewing In an offi- ceive of less intrusive to resolve a means Amendment, suspicion conduct under the Fourth not cer’s does alone render officer’s totality we consider the facts efforts resolve unreasonable. “ ‘judge light conduct in of com- Sharpe, officer’s U.S. United States v. 686- ordinary experience (1985) sense human mon 105 S.Ct. 84 L.Ed.2d 605 omitted). (citation to an Rather, and ... accord deference officer’s abili- we consider ty distinguish suspi- between innocent pursue the officer’s failure to such whether ” (alteration in origi- cious actions.’ Id. at other means was unreasonable. See id. nal) Williams, (quoting States v. United appreciate expressed 9 We the concerns (10th Cir.2001)). F.3d by our colleague his dissent note that ¶ Here, effected level- Trooper investigation Wright’s mode of *4 investigative seeing an two detention after permissible be in the rarest would of can, empty large spot, and beer a wet later ultimately that circumstances and this case empty signs an cooler. He also noticed that unique presents, it turns on the set of facts intoxicated, including Worwood was blood- sparse Upon on a albeit record. review of eyes, speech, shot slurred and the odor of facts, the known we cannot conclude that an indicators, alcohol his breath. These com- off-duty law enforcement officer exceeds the apparently with the bined fact that Worwood permissible scope deten- driving, justify to the rea- intended continue transports suspects when a he tion he driver and common sense that sonable inference a short from an to intoxicated distance had been or was to drive a Worwood about on-duty uninhabited to meet an area officer motor vehicle while intoxicated. investigation. Trooper Wright for further ¶ Second, returning Worwood contends that was from testified he horse- a riding when drove him to another back in with an truck at- trailer, sobriety perform to a field test location he tached horse had no means of com- munication, investigative exceeded the of the de was not to equipped make a a de tention effected facto arrest. After formal arrest. indicated to detention, commencing investigative offi temporary Worwood that the detention was “1 “dilligently [pursue] investigatory purposes by cers must a means of and for explaining investigation to [is] confirm or that he could not allow him “until to drive he suspicions quickly, during their dispel been checked out an officer.” Al- necessary though it Trooper Wright may [is] time detain the defen have been able ’” Lopez, perform sobriety dant.” 1132 to a sufficient field test on (Utah 1994) (alterations (citations in original) point Worwood at the of the initial encounter omitted). correctly Deep Canyon possibly observes that to Jail, investigative a detention become de him to the Juab was not requiring probable facto arrest him cause when unreasonable for drive to a police transport nearby a location. permit new location in the town to an on- See, York, e.g., duty Dunaway sobriety New officer a perform U.S. field test and, necessary, if S.Ct. L.Ed.2d 824 effect a formal arrest. (1979). However, Further, acknowledge while courts the trial court found conduct- precise at point investiga ing sobriety that the which an test town would “allow the tive detention becomes de facto arrest is officer to obtain accurate results.” test Wor- clear, important determining challenged finding not factor in wood has not this and has alleged an arrest occurred has is whether the not that the results degree “reasonably not substantially intrusion is related been test different facts Finally, and circumstances at hand.” if conducted minutes earlier. there (Utah Leonard, P.2d change 669-70 is evidence that of location “ encounter, Ct.App.1991). recognize ‘important significantly extended the and the graduate need to allow authorities to no indication that under these responses any particular unique to the demands circumstances ” situation,’ by any purpose quickly and the fact that con- than we could motivated other custody into after observ- resolving took Worwood effectively eyes speech. ing his bloodshot and slurred intoxicated. Worwood was perform than tests on Rather ¶ Accordingly, we affirm. scene, however, Wright Wright’s private him B. CAROLYN CONCUR: canyon, highway, out of the onto the state McHUGH, Judge. Levan, Wright’s private residence2 in THORNE, Judge (dissenting): Utah, and a a distance “about a mile half.” majori- respectfully 12 I dissent from the Wright testified he believed Wor- merely presents ease ty’s that this officer. conclusion wood knew he was law enforcement scope and a level of reasonable two entrusted Worwood’s vehicle to passenger, passenger duration. drove dairy vehicle to local to call for assis- foremost, I believe First tance, and then to residence. a de Trooper Wright made facto arrest physical custody of he took Worwood when represent significant actions 15 These the can- transported him from Worwood and seizure of Worwood and his yon initial encounter occurred where the position three Wright’s private residence. As a level interpreted actions as an would have these *5 encounter, illegal this arrest was Accordingly, hold arrest. I would by probable supported was not cause. See Wright a level arrest as soon effected three ¶ 36, Hansen, as became aware that he was in Worwood (“A 650 level three encounter involves police custody, that his been arrest, as a has been characterized seized, going that he was trans- lengthy highly or detention intrusive ported significant purpose distance for (alterations requires cause.” omit- probable being of off to handed another officer. See omitted)). ted) (quotations and citations (Utah Leonard, 825 674 P.2d However, Wright’s created even if actions (“The (Orme, J., Ct.App.1991) dissenting) ac- encounter, only deten- a level two Worwood’s might is that what have other- cepted rule scope tion was unreasonable both its stop a level-two evolves into a wise been Ray, Lake 2000 City its duration. Salt See when, facto in view level-three de arrest of ¶ (“[A 55, 10, App P.2d two] UT 274 level circumstances, reasonable, innocent all the temporary ‘detention and last must be suspect’s place would believe longer necessary to is effectuate the than arrest.”); under see also himself to be Flori- (citation omitted)). purpose stop[.]’” of Royer, 103 S.Ct. da v. 460 U.S. Wright’s Amend- actions violated Fourth (1983) (characterizing 75 L.Ed.2d analysis, sup- I would ment under either inquiry as whether the the relevant of press all obtained as a result evidence detained). I being believed he was those actions. Wright’s of Wor- also hold observations only suspicion competent provided a reasonable only evidence of wood intoxicated, driving surrounding encounter that Worwood was while events probable required Wright’s testimony at the not the level of cause Wright with but Wright suppression hearing.1 make an arrest.3 testified detainee, formally particularly trooper cant cause for alarm the 1. The arrested night. hearing, at officer was an preliminary he of- if it occurred If the testified at the but grave testimony only hearsay imposter, escalate into the circum- discomfort could fered about danger. the sort trans- I do not believe that this is stances of Worwood’s initial detention and encourage by excusing port. that we wish to scenario this actions in case. transport Wor- 2. The fact that chose to only 3.Wright private additional testified evidence Wor- wood his residence me appear at of his initial de- does not have been wood's intoxication the time concern. While it case, eyes and slurred of a lone was his bloodshot a factor in this tention residence, only private speech. He that he smelled alcohol in an unmarked testified detainee to officer, signifi- were inside present Worwood once and Worwood car could clearly sus- routine “relocation” drunken justified pects jail police of Worwood fur- station envi- some detention or where However, sound, investigation. light, ther exceed- ronmental such as factors permissible scope footing ed the and duration could be controlled. detention when he reasons,51 18 For these would hold performance of field home for Wright’s actions constitute both a level three just easily tests that could have been cause, stop by probable unsupported conducted at the initial scene. “Officers impermissible departure from the allowable diligently pursue investiga- must means of scope legitimate of a two duration level dispel tion that is to confirm or stop. analysis, challenged Under either Chism, suspicions quickly[.]” State v. suppressed evidence must be and Worwood’s ¶41, 12, App (quotations UT 107 P.3d 706 Accordingly, conviction reversed. I dissent omitted). Wright and citation testified that opinion. majority from the performed

he could encounter, at initial the scene of the but personal

chose not to for the sole reason of resulting

convenience.4 The increase in both duration of Worwood’s unnecessary

detention were therefore legal

exceeded boundaries other- legitimate stop. wise level two See id. App UT (“Investigative acts that are not reason- RTC, L.L.C.; UINTAH D. MOUNTAIN ably dispelling resolving related to or Hancock; Ty- Hancock; Brad John D. grounds permissi- for the articulated Hancock; Hancock, son B. and Beau D. delay ble if not add to the do Appellants, Plaintiffs and *6 already rep- lawfully experienced and do not resent further intrusion on detain- [the (alteration rights.” original) (quota- ee’s] COUNTY, DUCHESNE omitted)).

tions and citation Appellee. majority suggests 17 The that Worwood’s No. 20050053-CA. transport justified by Wright’s was also mo- tive to obtain more accurate results from Appeals of Court of Utah. I unavailing, field find this tests. Dec. 2005. routinely performed roadside less than ideal conditions. Fur-

ther, justification permit such a Wright's Accordingly, vehicle. Worwood's arrest extended on basis of an officer's desire preceded Wright’s necessaiy responsibility observation of the avoid smell of otherwise alcohol, paperwork. evidence be cannot used legality bolster the of Worwood’s initial arrest. account, taking solely Even of alcohol into 5. I smell believe reversal is warranted on the however, only objec- I believe that could basis of of Worwood’s violations Fourth Amend- However, tively rights. looking had a help said to have ment I cannot beyond seeing of Worwood's intoxication. the immediate case and green majority opinion light for the routine Wright, duty, being transport suspects "mess[] off did not want to of drunken up night” by incurring responsibility my opinion, today's [his] flimsiest of In re- excuses. potential accompany- opens Worwood's arrest and its sult for all the door manners of avoidance Instead, ing paperwork. requirements he wanted to hand off of the Fourth Amendment. example, resulting ability the situation to a fellow officer. While I find this For to make understandable, Wright, inventory suspect's having pro- motivation cho- search of vehicle will power strong sen to exercise the of the State to investi- vide a for law incentive enforcement status, gate despite his owed "smell alcohol” and complement allowing the full of constitutional them to make an otherwise rights. rights permit impermissible I do that those not believe search vehicle for contra- of a or duration level two band.