869 P.2d 932 (Utah 1994), 930101, State v. Pena

Docket Nº:930101.
Citation:869 P.2d 932
Opinion Judge:ZIMMERMAN, Chief Justice:
Party Name:STATE of Utah, Plaintiff and Appellee, v. Jose Carlos PENA, Defendant and Appellant.
Attorney:R. Paul Van Dam, Atty. Gen. and David B. Thompson, Asst. Atty. Gen., Salt Lake City, for plaintiff. Lisa J. Remal and Ronald S. Fujino, Salt Lake City, for defendant.
Case Date:February 15, 1994
Court:Supreme Court of Utah

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869 P.2d 932 (Utah 1994)

STATE of Utah, Plaintiff and Appellee,


Jose Carlos PENA, Defendant and Appellant.

No. 930101.

Supreme Court of Utah.

February 15, 1994

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[Copyrighted Material Omitted]

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R. Paul Van Dam, Atty. Gen. and David B. Thompson, Asst. Atty. Gen., Salt Lake City, for plaintiff.

Lisa J. Remal and Ronald S. Fujino, Salt Lake City, for defendant.

ZIMMERMAN, Chief Justice:

Jose Carlos Pena appeals the trial court's denial of several motions to suppress evidence prior to his guilty plea for attempted unlawful possession of a controlled substance, a class A misdemeanor. Utah Code Ann. § 58-37-8(2)(a)(i), (7). Pena raises four claims of error regarding the trial court's evidentiary rulings: (i) The initial stop by police was not supported by reasonable suspicion; (ii) Pena did not voluntarily waive his Miranda rights; (iii) the misdemeanor arrest was a pretext for the strip search; and (iv) the strip search that produced the critical evidence was unlawful. This case was certified to this court by the Utah Court of Appeals under rule 43 of the Utah Rules of Appellate Procedure. We affirm.

On April 10, 1991, the Salt Lake City Police Department received a call from a 7-Eleven clerk reporting a theft of prophylactics by a Hispanic male. A description of the suspect and the vehicle in which he was riding, including the license number, was broadcast. Shortly thereafter, Officer Dale Bench sighted the suspect vehicle and pulled it over. The vehicle contained the driver and one passenger. The passenger was later identified as defendant Pena.

A second officer, Officer Buckholts, arrived to assist Officer Bench, and the suspects were then asked to step out of the car. Pena apparently matched the description of the theft suspect. A third officer, Officer Stevens, arrived and recognized Pena as having recently been arrested for a drug offense. Officer Stevens could not remember Pena's name. Pena, who had no identification, told police his name was Marcello Flores. However, on two occasions, he was unable to spell the last name correctly, giving police the spelling M-a-r-c-e-l-l-o F-o-s-e-s.

Pena's inability to spell "Flores" led police to suspect that he was lying about his identity. Officer Buckholts, who knew that the prior drug arrest would be entered on the police computer, requested that a dispatcher search the records for the arrest under the name Marcello Flores. No record was found. The officers then arrested Pena for giving false personal information to an officer, a misdemeanor. 1 See Utah Code Ann. § 76-8-507.

While transporting Pena to jail, Officer Buckholts saw Pena "moving around quite a bit in the seat, ... putting his [handcuffed] hands down the back of his pants ..., [and] trying to move them around to the front." These actions led Buckholts to believe that Pena was concealing narcotics. When they arrived at the jail, Buckholts requested that Pena be strip searched. During that search, jail personnel discovered cocaine.

Pena was charged with unlawful possession of a controlled substance, a third degree felony under section 58-37-8(2)(a)(i), and with giving false personal information to a peace officer, a class C misdemeanor under section 76-8-507. Pena moved to suppress statements he made prior to the arrest as well as to suppress the cocaine. He argued that the police violated his rights under the Fourth and Fifth Amendments to the United States Constitution and article 1, sections 12 and 14 of the Utah Constitution. The trial court denied the motions. Pena then entered, and the court accepted, a conditional guilty plea to the lesser offense of attempted unlawful possession of a controlled substance, a class A misdemeanor. The conditional plea preserved Pena's right to appeal the suppression ruling. He appealed to the Utah Court of Appeals, and the matter was argued to a panel of the court. That court certified the case to us before decision, pursuant to rule 43 of the Utah Rules of Appellate Procedure.

We first address the proper standard of review for determinations of reasonable suspicion, which appears to be the reason for the

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court of appeals' certification of this case. 2 The State argues that we should apply the clearly erroneous standard because reasonable-suspicion determinations are fact intensive and clearly erroneous is the standard that we have suggested is appropriate for fact questions. Pena, on the other hand, argues that the standard of review should be correctness because reasonable suspicion is a legal conclusion. Both parties find support for their contentions in various of our opinions and those of the court of appeals.

We recognize that this court and the court of appeals have created some confusion with regard to standards of review, perhaps in part because this court has not focused much attention on the articulation of those standards until recently, when they assumed an increased level of importance. See State v. Thurman, 846 P.2d 1256, 1268-69 (Utah 1993). In State v. Mendoza, we reviewed a reasonable-suspicion determination regarding an investigatory stop under a clearly erroneous standard, upholding the trial court's ruling. 748 P.2d 181, 183 (Utah 1987). However, in State v. Ramirez, we suggested that all applications of law to findings of fact that produce conclusions of law are reviewed under a nondeferential standard, i.e., for correctness. 817 P.2d 774, 781-82 (Utah 1991). Until recently, the court of appeals tended to follow the language we used in Mendoza, concluding that the issue was one of fact, because the deferential standard of review had been used. 3 See State v. Leonard, 825 P.2d 664, 667-68 (Utah Ct.App.1991), cert. denied, 843 P.2d 1042 (Utah 1992); State v. Robinson, 797 P.2d 431, 435 (Utah Ct.App.1990); State v. Talbot, 792 P.2d 489, 493 (Utah Ct.App.1990); State v. Sery, 758 P.2d 935, 941-42 (Utah Ct.App.1988). In State v. Munsen, however, the court of appeals applied a correction-of-error standard in reviewing a reasonable-suspicion determination. 821 P.2d 13, 14-15 (Utah Ct.App.1991), cert. denied, 843 P.2d 516 (Utah 1992). We endeavored to clarify this matter generally in Thurman, but did not specifically address the standard of review for reasonable suspicion in that case. 846 P.2d at 1270 n. 11.

Determination of the proper standard of review requires a brief discussion which we hope will bring some clarity to discussions of the issue. At the most basic level, two different types of questions are presented to a trial court: questions of law and questions of fact. Factual questions are generally regarded as entailing the empirical, such as things, events, actions, or conditions happening, existing, or taking place, as well as the subjective, such as state of mind. See Ronald R. Hofer, Standards of Review--Looking Beyond the Labels, 74 Marq.L.Rev. 231, 236 (1991) [hereinafter Hofer]. Legal determinations, on the other hand, are defined as those which are not of fact but are essentially of rules or principles uniformly applied to persons of similar qualities and status in similar circumstances. Id.

Trial courts are given primary responsibility for making determinations of fact. Findings of fact are reviewed by an appellate court under the clearly erroneous standard. For a reviewing court to find clear error, it must decide that the factual

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findings made by the trial court are not adequately supported by the record, resolving all disputes in the evidence in a light most favorable to the trial court's determination. See Wessel v. Erickson Landscaping Co., 711 P.2d 250, 252 (Utah 1985); see also United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948). This standard is highly deferential to the trial court because it is before that court that the witnesses and parties appear and the evidence is adduced. The judge of that court is therefore considered to be in the best position to assess the credibility of witnesses and to derive a sense of the proceeding as a whole, something an appellate court cannot hope to garner from a cold record. In re J. Children, 664 P.2d 1158, 1161 (Utah 1983).

When it comes to reviewing trial court determinations of law, however, the standard of review is not phrased as "clearly erroneous." Rather, appellate review of a trial court's determination of the law is usually characterized by the term "correctness." Controlling Utah case law teaches that "correctness" means the appellate court decides the matter for itself and does not defer in any degree to the trial judge's determination of law. State v. Deli, 861 P.2d 431, 433 (Utah 1993); see Kennecott Corp. v. State Tax Comm'n, 858 P.2d 1381, 1383 (Utah 1993). This is because appellate courts have traditionally been seen as having the power and duty to say what the law is and to ensure that it is uniform throughout the jurisdiction...

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