78 P.3d 590 (Utah 2003), 20020002, State v. Warren

Docket Nº:20020002.
Citation:78 P.3d 590, 2003 UT 36
Opinion Judge:DURRANT, Associate Chief Justice:
Party Name:STATE of Utah, Plaintiff and Petitioner, v. Eric Jarvis WARREN, Defendant and Respondent.
Attorney:Mark L. Shurtleff, Att'y Gen., Marian Decker, Asst. Att'y Gen., Matthew G. Nielsen, Serena Wissler, Salt Lake City, for plaintiff. Heather Johnson, Catherine E. Lilly, Salt Lake City, for defendant.
Case Date:September 12, 2003
Court:Supreme Court of Utah

Page 590

78 P.3d 590 (Utah 2003)

2003 UT 36

STATE of Utah, Plaintiff and Petitioner,


Eric Jarvis WARREN, Defendant and Respondent.

No. 20020002.

Supreme Court of Utah

September 12, 2003.

Page 591

[Copyrighted Material Omitted]

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Mark L. Shurtleff, Att'y Gen., Marian Decker, Asst. Att'y Gen., Matthew G. Nielsen, Serena Wissler, Salt Lake City, for plaintiff.

Heather Johnson, Catherine E. Lilly, Salt Lake City, for defendant.

On Certiorari to the Utah Court of Appeals

DURRANT, Associate Chief Justice:

¶ 1 This case concerns the standard for determining the reasonableness of a protective frisk ("Terry frisk") for weapons. At trial, the defendant, Eric Jarvis Warren, filed a motion to suppress evidence obtained in a Terry frisk performed during a routine traffic stop. Although the officer who performed the frisk testified that he had no reason to believe Warren was armed and dangerous, the trial court denied the motion, finding that a reasonable person facing the same circumstances could objectively conclude that Warren was armed and dangerous. On appeal, the court of appeals reversed the trial court's decision, relying on the officer's lack of subjective belief and finding the frisk to be objectively unreasonable. We affirm the decision of the court of appeals, but clarify that an objective standard must be applied to determine the reasonableness of a Terry frisk under the totality of the circumstances. The officer's subjective belief may nevertheless be factored into the objective analysis, though it is never alone determinative. Likewise, we clarify that all traffic stops are inherently dangerous, a fact that should also be included in the totality of the circumstances analysis. However, any reduction in this danger resulting from ordering the person out of the vehicle before performing the frisk should also be factored into the analysis. Based on an objective evaluation of the totality of the circumstances present in this case, we conclude that the Terry frisk in question violated Warren's Fourth Amendment rights.


¶ 2 We recite the facts in detail because the legal analysis in a search and seizure case is highly fact dependent. State v. Hansen, 2002 UT 125, ¶ 5, 63 P.3d 650 (citations omitted). In order to provide a thorough recitation of the facts, we supplement the trial court's findings of fact with relevant testimony given by Officer Nathan Swensen during an evidentiary hearing held on February 18, 2000.

¶ 3 At approximately 4:45 a.m. on November 28, 1999, Officer Swensen observed an unidentified male leaning into an open passenger door of a parked car near the intersection of 200 South and 200 East in downtown Salt Lake City. Warren was seated in the driver's seat. Officer Swensen turned his vehicle around and stopped at the intersection to investigate. He did not recognize the car or know either Warren or the person leaning into the vehicle. He was also unable to tell what they were doing or hear their conversation. Officer Swensen suspected drug activity or prostitution based on the hour of the day and the deserted downtown location. 1 After watching the proceedings for less than a minute, Officer Swensen observed the person who was leaning into the passenger door shut the door and leave on foot.

¶ 4 Warren pulled away from the curb and turned left at the intersection without signaling and then made a lane change without signaling. Officer Swensen pulled Warren's car over for failure to signal. He asked Warren for his driver's license, vehicle registration, and proof of insurance. Warren provided the vehicle registration and a driver's license that had expired in 1995, claiming that he had a current license but that it had been stolen. Officer Swensen then asked Warren several questions regarding his activities with the man leaning into the car. Warren responded that he had just dropped off a friend and was looking for boxes to help

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his sister move. These additional questions extended the stop approximately a minute or two.

¶ 5 Officer Swensen returned to his police car to check the status of Warren's license. The search revealed that Warren did have a license that was valid until 2001, but that it was now invalid because of unpaid reinstatement fees. Officer Swensen decided to impound the vehicle and asked Warren to step out of his vehicle and over to the patrol car to sign the citation for failure to signal and for driving without a valid license. Officer Swensen testified that he did not intend to arrest Warren and that Warren would have been free to go after signing the citation.

¶ 6 After Warren exited the vehicle, Officer Swensen asked him if he had any weapons. Warren responded that he did not. Officer Swensen testified that he did not have any reason to believe that Warren was armed. He also testified that Warren did not do anything that caused him any concern. Nevertheless, Officer Swensen decided to perform a Terry frisk for weapons. He testified that to promote the safety of officers and others, he performs a Terry frisk as a matter of routine on anyone he orders out of a vehicle. Officer Swensen also testified that people involved in drug activity or prostitution are more likely to carry weapons.

¶ 7 During the frisk, a small white twist, later identified as cocaine, fell from underneath Warren's sweatshirt. Believing the twist to contain a controlled substance, Officer Swensen placed Warren under arrest. A more thorough search of Warren's person incident to his arrest revealed additional controlled substances and drug paraphernalia. A search of Warren's vehicle also revealed drug paraphernalia, as well as a knife concealed under the armrest of the front seat.


¶ 8 Based on these events, Warren was charged with unlawful possession of a controlled substance, carrying a concealed dangerous weapon, and unlawful possession of drug paraphernalia. Warren moved to suppress the evidence, claiming that the scope of the detention exceeded the purpose of the stop and that Officer Swensen did not have a reasonable belief on which to justify the frisk. Following an evidentiary hearing and oral argument, the trial court denied Warren's motion and entered Findings of Fact and Conclusions of Law. The trial court held that the additional questioning did not impermissibly extend the scope of the stop in violation of the Fourth Amendment. The trial court also held that the frisk for weapons did not violate the Fourth Amendment because it was objectively reasonable.

¶ 9 Warren entered a conditional guilty plea to the cocaine charge, while retaining the right to appeal the denial of his motion to suppress evidence. Upon the entry of this plea, the State, as agreed, dropped all other charges. On appeal, the court of appeals reversed the denial of the motion to suppress, holding that the frisk was unlawful because Officer Swensen "did not believe, and had no basis on which to reasonably conclude, that Warren might be armed" and dangerous. State v. Warren, 2001 UT App 346, ¶ 22, 37 P.3d 270. The court also held that the State failed to meet its burden of establishing the inevitable discovery of the evidence. Id. Having concluded that the frisk was unlawful, the court did not address whether Officer Swensen's additional questioning impermissibly extended the scope of the stop. Id. at ¶ 16 n. 5.

¶ 10 The State petitioned for certiorari review, which we granted on April 10, 2002. We have jurisdiction to hear this case pursuant to Utah Code Ann. § 78-2-2(3)(a) (2002).


¶ 11 The State argues that the court of appeals failed to perform a totality of the circumstances analysis, but instead evaluated the articulable facts independently. The State also argues that the court of appeals' failure to recognize the fact that all traffic stops are inherently dangerous sends a conflicting message to lower courts. Warren contends that the court of appeals' decision is proper based on both the officer's lack of subjective belief that Warren was armed and dangerous and the objective unreasonableness of the officer's decision to perform the frisk.

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¶ 12 "When exercising our certiorari jurisdiction, we review the decision of the court of appeals and not that of the trial court." State v. Hansen, 2002 UT 125, ¶ 25, 63 P.3d 650 (quotation and citation omitted). "We review the decision of the court of appeals for correctness." Id. (quotation and citation omitted). When a case involves the reasonableness of a search and seizure, "we afford little discretion to the district court because there must be state-wide standards that guide law enforcement and prosecutorial officials." Id. at ¶ 26 (quotation and citation omitted). "State-wide standards also help ensure different trial judges will reach the same legal conclusion in cases that have little factual difference." Id. (citation omitted).


¶ 13 In Terry v. Ohio, the United States Supreme Court held that an officer may perform a protective frisk...

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