State v. Robinson
| Citation | 797 P.2d 431 |
| Decision Date | 18 July 1990 |
| Docket Number | No. 890053-CA,890053-CA |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Kim Alexander P. ROBINSON and Francis Xavier Towers, Defendants and Appellants. |
| Court | Court of Appeals of Utah |
Stephen R. McCaughey and Patricia Geary, Salt Lake City, for defendant and appellant Towers.
Michael Stepanian and Zadick Shapiro, argued, San Francisco, Cal., for defendant and appellant Robinson.
R. Paul Van Dam, Wendy Hufnagel and William J. Albright, Asst. Atty. Gen., argued, Salt Lake City, for plaintiff and appellee.
Before DAVIDSON, BILLINGS and JACKSON, JJ.
Defendants Kim Alexander P. Robinson and Francis Xavier Towers appeal their third-degree felony convictions of unlawful possession of a controlled substance, in violation of Utah Code Ann. § 58-37-8 (1990) and possession of a controlled substance without tax stamps affixed, in violation of Utah Code Ann. § 59-19-106 (Supp.1990). On appeal, they challenge the trial court's denial of their motion to suppress and they assert that the Illegal Drug Tax Stamp Act, sections 59-19-101 to -107, violates several provisions of the United States Constitution. We reverse.
In mid-morning on April 12, 1988, Utah Highway Patrol Trooper Anthony Garcia was travelling on the outskirts of Salt Lake City in the left-hand eastbound lane of the interstate to Cheyenne, Wyoming. He intended to stop for a stint of traffic enforcement with Trooper Lane Ogden, who was following close behind in a separate patrol car. As Garcia started to pass an eastbound grey van with California license plates, it abruptly swerved into his lane. Garcia had to slam on his brakes to avoid a collision. With lights flashing, the trooper pulled the van over to find out if there were any problems with the operation of the van and to issue a warning citation.
Garcia spoke first with the driver of the van, defendant Towers, and asked for his driver's license and the vehicle registration. Towers, who appeared very nervous and looked straight ahead, handed over his valid California license but did not immediately produce the registration. Defendant Robinson, who was riding in the passenger seat of the van, took a valid California registration from the visor and passed it to the trooper. The registration listed the van owner as Paul Jarred. Garcia asked Robinson if he was Jarred, and Robinson identified himself and handed over his own California driver's license. He said that Jarred, his boss at a floor covering business, had allowed them to take the work van on a two-week trip to the Wind Rivers area of Wyoming to visit a friend and do some fishing. He explained that they had stopped overnight in Salt Lake en route from California because of some engine troubles. When Garcia asked how the owner could be contacted to verify their permissive use of the van, Robinson pulled out and showed him a sign for his boss's company, Shamrock Floor Covering, on which there was a business telephone number. He verbally provided Garcia with another telephone number, apparently that of Robinson's own residence.
During this period of questioning, Trooper Ogden had arrived and positioned himself at the passenger window. Both officers observed that a homemade bed, two feet high, filled the back of the vehicle. They also saw two small gym bags and a fishing pole.
Garcia took Towers back to the patrol car, while Ogden stayed and talked to Robinson, who appeared nervous and told him of their vacation plans and the mechanical troubles they had had the day before. When Ogden asked why he didn't have written permission from the owner to use the van, Robinson replied that he didn't think he needed it. In the meantime, Garcia had checked with the National Crime Information Center (NCIC) for a stolen vehicle report, and had the police dispatcher call one or both of the telephone numbers Robinson had provided. The van had not been reported to NCIC as stolen, and the dispatcher could not reach anyone to verify that the owner had allowed defendants to use his van. 1 Garcia wrote out a warning citation to Towers for crossing into his lane of traffic and gave it to Towers, who returned to the van.
After directing both defendants to wait there until he returned, Garcia conversed with the other trooper at his patrol car. Meanwhile, Robinson and Towers continued standing by the side of the van. According to Ogden, the defendants were not free to go at that time. Based on what they had observed, the troopers determined to ask for consent to search the vehicle. They returned to where the men were standing by the side of the van and Garcia asked both men if they were carrying any weapons, large sums of money, or narcotics; both said "No." Garcia then asked them if they could make a search of the vehicle. According to the troopers, Robinson verbally agreed to this request. After Garcia told him to open the rear doors, Robinson got the keys from the cab and opened the doors, after moving the fishing pole out of the way. 2
Through the open rear doors, both troopers saw that the bed was carpeted and that its near end was covered by a piece of plywood. Garcia touched the carpeted bed with his hands; Ogden "sniffed" near the bed. They saw five marijuana seeds in the rear corner of the van. Garcia asked Robinson what was under the bed, and Robinson told him his boss's personal belongings were in there. When Ogden then asked how to gain access to the under-bed compartment, Robinson replied that it was through the side door. When Garcia asked if they could open the side door and look under the bed, Robinson told him the side door was jammed. Garcia asked if he could try to open it anyway, which he did with no trouble after Robinson unlocked it. Garcia removed some automobile maintenance equipment next to the bed and saw fresh wood shavings and carpet fibers in the plywood on that side of the bed. He asked Robinson if he could remove some screws with the two screwdrivers he had and look underneath the bed, but Robinson said no.
Garcia then told the defendants that his normal practice was to impound the van as a possible stolen vehicle if he could not verify who the owner was. According to Garcia, he told defendants, "If there's nothing under that [bed] like you say, if we was [sic] to look under there, I would see what's under there and you could be on your way." After another discussion with Ogden, Garcia told defendants he would attempt to get a search warrant and he returned to his patrol car. Meanwhile, Ogden asked Robinson, "Since you won't let us take the plywood panel off the van to look under the bed, would it be all right if we let a dog go through the vehicle?" According to Ogden, Robinson replied, "Yes," then asked something to the effect of "Does this mean I am giving consent to the search?" Ogden said, "Yes," and Robinson shook his head affirmatively. 3
The dog arrived with its handler fifteen to twenty minutes later. Defendants were arrested after the dog gave a positive alert at the rear of the bed and the troopers located eight duffel bags of marijuana in the space under the bed's platform.
Defendants filed a motion to suppress the marijuana found under the bed, contending that the search of the van was the product of an illegal detention and that no actual consent to search was given. In opposition, the State argued that (1) the detention after the valid stop was not illegal because it was based on a reasonable, articulable suspicion of criminal activity, and (2) Robinson gave valid consent to the search of the van. In denying the defendants' motion, the trial court found that: Garcia had probable cause to initially stop the vehicle; during the stop and the "routine procedure of attempted identifying and verification," the troopers developed "further articulable facts which gave rise to a reasonable suspicion sufficient to seek and obtain consent for the search of the van"; and "Robinson consented to the search of the van." The trial court also found that thirty-eight minutes elapsed from the time of the traffic stop until the arrest.
Defendants were tried without a jury on the testimony elicited at the motion to suppress, and this appeal ensued.
Defendants first contend that the stop of the van for a lane violation and their initial detention for that purpose violated their fourth amendment rights because the stop was a pretext to search for evidence of a more serious crime. See State v. Marshall, 791 P.2d 880, 882-83 (Utah Ct.App.), petition for cert. filed, 135 Utah Adv.Rep. 78 (1990). However, it is clear from the record that this issue was not raised, argued, or ruled upon in the trial court as a ground for defendants' motion to suppress. Absent a showing of special circumstances or plain error, we decline to consider the constitutionality of the traffic stop because defendants have raised it for the first time on appeal. State v. Carter, 707 P.2d 656, 660 (Utah 1985); State v. Webb, 790 P.2d 65, 77-78 (Utah Ct.App.1990).
We turn next to defendants' claim that, even if the stop was lawful at its inception, their continuing detention for questioning after Towers was given a warning citation constituted a seizure that violated their fourth amendment rights. They contend that the purpose for the traffic stop was then complete and that, at that point, the troopers lacked any reasonable suspicion of criminal activity sufficient to detain them further.
"[I]n determining whether the seizure and search were 'unreasonable' our inquiry is a dual one--whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified it in the first place." Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1878-79, 20 L.Ed.2d 889 (1968).
An officer conducting a routine traffic stop may request a driver's license and vehicle registration, conduct a computer check, and issue a citation. United States v. Guzman, 864 F.2d...
To continue reading
Request your trial
-
State v. Sykes
...(appellate courts should apply clearly erroneous standard to review determination that reasonable suspicion existed); State v. Robinson, 797 P.2d 431, 433 (Utah App.1990) (whether the requisite reasonable suspicion is present to support an investigatory detention presents a question of fact......
-
City of Orem v. Henrie
...to exigent circumstances are not in dispute. As such, we need not remand for the entry of factual findings. See State v. Robinson, 797 P.2d 431, 437 (Utah App.1990) (declining to remand where relevant facts were undisputed and record provided for meaningful review).8 Similarly, some courts ......
-
State v. Lopez
...be allowed to proceed on his way, without being subjected to further delay by police for additional questioning." State v. Robinson, 797 P.2d 431, 435 (Utah Ct.App.1990) (quoting United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir.1988)). Investigative questioning that further detains th......
-
State v. Hansen
...a reasonable suspicion of a further illegality. State v. Godina-Luna, 826 P.2d 652, 655 (Utah Ct. App.1992) (quoting State v. Robinson, 797 P.2d 431, 435 (Utah Ct.App.1990)); see also Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (stating that a traffic stop "mu......
-
Utah Standards of Appellate Review
...approach. See e.g.. State v. Leonard, 825 P.2d 664, 667-68 (Utah App. 1991), cert, denied, 843 P.2d 1042 (Utah 1992); State v. Robinson, 797 P.2d 431, 435 (Utah App. 1990); State v. Talbot, 792 P.2d 489, 493 (Utah App. 1990). However, the supreme court in Pena clarified the matter by determ......
-
Utah Standards of Appellate Review – Revised [1]
...appellate decisions followed this approach. See, e.g., State v. Leonard, 825 P.2d 664, 667-68 (Utah Ct. App. 1991); State v. Robinson, 797 P.2d 431, 435 (Utah Ct. App. 1990); State v. Talbot, 792 P.2d 489, 493 (Utah Ct. App. 1990). However, the supreme court in Pena clarified the matter by ......
-
Investigatory Stops Revisited [1]
...long enough to request a license from the driver, conduct a computer check, and, if appropriate, issue a citation. State v. Robinson, 797 P.2d 431, 435 (Utah App. 1990). "Any further temporary detention for investigative questioning after the fulfillment of the purpose for the initial traff......
-
Utah Standards of Appellate Review - Third Edition
...Many appellate decisions followed this approach.See, e.g., State v. Leonard, 825 P.2d 664, 667-68 (Utah Ct. App.1991); State v. Robinson, 797 P.2d 431, 435 (Utah Ct. App. 1990);State v. Talbot, 792 P.2d 489, 493 (Utah Ct. App. 1990). However,the supreme court in Pena clarified the matter by......