State v. Warren

• Decision Date: 16 November 2001
• Docket Number: No. 20000495-CA.,20000495-CA.
• Citation: 2001 UT App 346,37 P.3d 270
• Parties: STATE of Utah, Plaintiff and Appellee, v. Eric Jarvis WARREN, Defendant and Appellant.
• Court: Utah Court of Appeals

37 P.3d 270

2001 UT App 346

STATE of Utah, Plaintiff and Appellee, v. Eric Jarvis WARREN, Defendant and Appellant.

No. 20000495-CA.

Court of Appeals of Utah.

November 16, 2001.

Catherine E. Lilly, Otis Sterling, III, and Heather Johnson, Salt Lake City, for Appellant.

Mark L. Shurtleff, Atty. Gen., and Marian Decker, Asst. Atty. Gen., Salt Lake City, for Appellee.

Before JACKSON, Associate P.J., and ORME and THORNE, Jr., JJ.

OPINION

ORME, Judge:

¶ 1 Appellant Eric Jarvis Warren seeks to overturn his conviction for possession of a controlled substance, a third degree felony, in violation of Utah Code Ann. § 58-37-8(2)(a)(i) (Supp.1999). Specifically, he contends the trial court erred in denying his motion to suppress evidence he alleges was seized in violation of his Fourth Amendment rights. Warren argues that the evidence obtained from the police officer's search should have been suppressed because, inter alia, he was illegally frisked. The State counters with, among other things, the claim that the evidence would inevitably have been discovered. We reverse.

BACKGROUND

¶ 2 "Because a determination of the reasonableness of . . . police conduct is highly factual in nature, we review the facts in detail." State v. Trujillo, 739 P.2d 85, 86 (Utah Ct.App.1987). On November 28, 1999, at approximately 4:45 a.m., Officer Nathan Swensen observed a grey Cadillac pulled over to the side of the road near the intersection of 200 South and 200 East streets in downtown Salt Lake City. Occupying the driver's seat of that vehicle was appellant Warren, a thirty-eight year old African-American male. Officer Swensen also observed another unidentified individual leaning into the front passenger's side door of Warren's car.

¶ 3 Officer Swensen observed this activity for less than a minute, did not hear any of the conversation that took place, could not tell what the two people were doing, and did not recognize the vehicle or individuals from prior encounters. Nonetheless, Officer Swensen assumed that Warren and the unidentified individual were engaged in a transaction involving either drugs or prostitution. Officer Swensen testified that he based his suspicion on the fact that it was early in the morning and there were no open businesses or residences in the vicinity. Despite his suspicions, Officer Swensen did not then approach Warren's vehicle or the unidentified man, who departed on foot.

¶ 4 Officer Swensen then observed Warren pull away from the curb and make a left turn onto 200 South, followed by a lane change, without signaling. Officer Swensen pulled Warren over after observing the traffic violation. He requested Warren's driver's license and vehicle registration. Warren readily provided the requested materials. Officer Swensen noticed that the license had expired in 1995. Warren explained that he had a current license, but that it had been stolen.

¶ 5 Officer Swensen then set about to ascertain why Warren was out at that time of night and what he had been doing with the unidentified man. He asked questions regarding who the unidentified man was, what they were doing, and whether Warren had dropped the man off or just met him. Warren responded by telling Officer Swensen that his mother and the man's mother were acquaintances and that he dropped the man off after they had been together at someone's house. Warren also indicated that he had been looking for packing boxes for his sister, who was moving. Officer Swensen's questioning lasted approximately two minutes. Officer Swensen conceded at the suppression hearing that these questions were unrelated to and unnecessary for the proper effectuation of the traffic stop. ¶ 6 Officer Swensen returned to his patrol car, checked Warren's license, and learned that it was otherwise current but had been suspended for failure to pay reinstatement fees. Officer Swensen then decided to impound Warren's car. He asked Warren to get out of the car to sign citations for failure to signal and for driving without a valid license. Officer Swensen testified he did not intend to arrest Warren and only had him exit the vehicle to inform him about the impound and to sign the citations.

¶ 7 When Warren was out of the car, Officer Swensen frisked him. He did not believe that Warren was armed or dangerous, but frisked him as a matter of routine.¹ A white plastic "twist," later identified as cocaine, fell from Warren's waist during the frisk, whereupon Warren was arrested. An inventory search of Warren's car uncovered a knife concealed under the armrest, and a more in-depth search of Warren's person, incident to arrest, led to the discovery of more cocaine and a glass pipe.

¶ 8 Warren moved to suppress the cocaine and pipe as evidence, claiming (1) that the scope of the detention and questioning went beyond the purpose of the traffic stop and (2) that the frisk was not justified by a reasonable suspicion that he was armed. The trial court denied the motion, concluding that the questioning was reasonable given the officer's personal observations and resulting suspicion. The court also ruled that the frisk was justified by the officer's legitimate concern for his safety.

ISSUES AND STANDARDS OF REVIEW

¶ 9 The issues presented in this appeal are whether the trial court, in denying appellant's motion to suppress, correctly determined that (1) Officer Swensen properly extended the scope of the traffic stop beyond its original purpose and (2) the officer's search of Warren did not violate the Fourth Amendment.

¶ 10 "The factual findings underlying a trial court's decision to grant or deny a motion to suppress evidence are reviewed under the deferential clearly-erroneous standard, and the legal conclusions are reviewed for correctness, with a measure of discretion given to the trial judge's application of the legal standard to the facts." State v. Moreno, 910 P.2d 1245, 1247 (Utah Ct.App.), cert. denied, 916 P.2d 909 (Utah 1996).

¶ 11 The State argues that even if the actions of Officer Swensen violated Warren's Fourth Amendment rights, the case should be remanded to the trial court to determine if the evidence acquired from the investigation should nonetheless be admitted because it would inevitably have been discovered.

I. LEGALITY OF FRISK

¶ 12 Warren argues that the evidence obtained from his person was inadmissible at trial because he was frisked absent any reasonable suspicion that he was armed. He points out that at the suppression hearing Officer Swensen testified he did not believe Warren to be armed at the time he decided to frisk him. The State insists that Officer Swensen's search of Warren was objectively reasonable under the Supreme Court's decision in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), "[g]iven the circumstances of the traffic stop, including the deserted downtown area at an unusually early hour, defendant's lie about the validity of his license, and recognition that traffic stops are inherently dangerous."²

¶ 13 The State's argument reflects a fundamental misunderstanding of the Terry holding, which is not nearly as open-ended as the State seems to suggest.

In Terry, the Supreme Court established a narrowly drawn exception to the Fourth Amendment requirement that police obtain a warrant for all searches. Where a police officer validly stops an individual for investigatory or other purposes and reasonably believes that the individual may be armed and dangerous, the officer may conduct a "frisk" or "pat-down" search of the individual to discover weapons that might be used against him.

State v. Carter, 707 P.2d 656, 659 (Utah 1985) (emphasis added).

¶ 14 Although "[i]t is not essential that an officer actually have been in fear" to perform a Terry frisk, the State must present articulable facts that would reasonably lead an objective officer to conclude that the suspect may be armed. Id. "A mere unparticularized suspicion or hunch is not sufficient." Id.

¶ 15 Two basic scenarios may warrant a Terry frisk. In the first, facts and circumstances unique to the particular suspect and/or factual context may give rise to a reasonable suspicion the suspect may be armed, such as a suspect with a bulge in his clothing that appears to be a weapon or a suspect who is hesitant in denying that he is armed and aggressively approaches the officer immediately upon being stopped. See State v. Rochell, 850 P.2d 480, 483 (Utah Ct.App.1993)

; Wayne R. LaFave, 4 Search and Seizure, § 9.5(a), at 252, 257 (3rd ed.1996). In the second scenario, it is not so much the peculiarities of the suspect and circumstances as it is the inherent nature of the crime being investigated that leads to the reasonable suspicion that the suspect may be armed. The leading treatise on Fourth Amendment jurisprudence explains that while it may be reasonable for an officer to frisk a suspect who has been stopped based upon a suspicion that he is engaging in criminal activity for which an offender would likely be armed, it does not follow that officers are free to frisk any individual suspected of any crime.³

See Wayne R. LaFave, 4 Search and Seizure, § 9.5(a), at 254-59 (3rd ed.1996). Crimes that, by their nature, suggest the presence of weapons include: "robbery, burglary, rape, assault with weapons, homicide, and dealing in large quantities of narcotics." Id. at 255-56 (footnotes omitted). "But for other types of crimes, such as trafficking in small quantities of narcotics, possession of marijuana, illegal possession of liquor, prostitution, bookmaking, shoplifting, underage drinking, driving under the influence and lesser traffic offenses, minor assault without weapons, or vagrancy," there must be particular facts which lead the officer to believe that a suspect is armed. Id. at 256-57 (footnotes omitted).

¶ 16 Beyond his supposition that Warren and his unidentified companion were engaging in a transaction for either prostitution or drugs, Officer Swensen did not provide the trial...