City of St. George v. Carter, 960704-CA

• Citation: 945 P.2d 165
• Decision Date: 11 September 1997
• Docket Number: No. 960704-CA,960704-CA
• Parties: CITY OF ST. GEORGE, Plaintiff and Appellant, v. Steven Reese CARTER, Defendant and Appellee.
• Court: Utah Court of Appeals

Page 165

945 P.2d 165

CITY OF ST. GEORGE, Plaintiff and Appellant, v. Steven Reese CARTER, Defendant and Appellee.

No. 960704-CA.

Court of Appeals of Utah.

Sept. 11, 1997.

Gary G. Kuhlmann and Paul E. Dame, St. George, for Plaintiff and Appellant.

Gary W. Pendleton, St. George, for Defendant and Appellee.

Before BENCH, BILLINGS and GREENWOOD, JJ.

OPINION

BENCH, Judge:

The City of St. George (the City) appeals the trial court's order granting defendant's motion to suppress. We reverse.

BACKGROUND

Defendant was a drive-through customer at an Arby's restaurant in St. George. Rick Hafen, an Arby's employee, noticed a can of Keystone beer in defendant's lap when he collected defendant's money, and later saw him drink from the can. Based on how far defendant tipped the can when drinking, Hafen estimated that the can was approximately half full. Hafen called and informed police dispatch that a driver with an open container in a small white Dodge pickup with a camper shell had just gone through Arby's drive-through window. Hafen's description included the license plate number as well as the make and model of defendant's vehicle. Hafen also informed dispatch that there was a passenger in the vehicle. Approximately two minutes later, police dispatch called Hafen back to find out where the vehicle went. Hafen maintained visual contact with defendant's vehicle while it exited Arby's and parked on a nearby street. Hafen did not see defendant discard the Keystone beer can before he left Arby's property.

Officer Jason Whipple of the St. George City Police Department was informed by dispatch that an Arby's employee had seen an open container in a vehicle at a drive-through window. Dispatch relayed the description of a white compact vehicle with a camper shell and two occupants. Officer Whipple located defendant's vehicle parked near Arby's. Officer Whipple drove past the vehicle and saw defendant and another occupant eating sandwiches. Officer Whipple then parked behind defendant's vehicle and activated the overhead lights on the patrol car. Upon approaching the vehicle, Officer Whipple informed defendant that his vehicle matched the description of a vehicle reported to have an open container inside. Defendant denied having any open containers of alcohol in the vehicle and denied drinking any alcohol. Officer Whipple did not see any open containers through the window, and a warrants check came back negative.

Officer Whipple testified that he was unable to detect the smell of alcohol because of the odor of food inside the vehicle. Upon returning to the vehicle after the warrants check, Officer Whipple asked defendant to exit the vehicle without his food. His reason for doing so was to try to detect the smell of alcohol without it being masked by the odor of the food. Upon talking with defendant outside his vehicle and away from the food, Officer Whipple detected the smell of alcohol on defendant's breath. He thereupon asked for, and received, defendant's consent to search the vehicle for open containers. The search yielded eight empty beer cans, one partially full beer can under the front seat, a baggie of marijuana, and a marijuana pipe. Officer Whipple then conducted field sobriety tests and placed defendant under arrest.

Defendant was charged with DUI, possession of a controlled substance (marijuana), open container violation, and possession of paraphernalia. Defendant moved to suppress all the evidence, claiming it was obtained by an unreasonable search and seizure. The trial court granted defendant's motion to suppress based on the conclusion that, although Officer Whipple had reasonable suspicion to stop defendant, he exceeded the scope of the stop when he asked defendant to exit the vehicle. The trial court therefore granted defendant's motion to suppress the evidence obtained after defendant exited the vehicle as it was the product of an unreasonable search and seizure. The City appeals.

ISSUES AND STANDARD OF REVIEW

The City contends the trial court erroneously concluded that Officer Whipple had no legal basis to ask defendant to exit the vehicle for further investigation and, therefore, the seized evidence should not have been suppressed.

" '[W]e review the factual findings underlying the trial court's decision to grant or deny a motion to suppress evidence using a clearly erroneous standard.' " State v. Pena, 869 P.2d 932, 939 n. 4 (Utah 1994) (quoting State v. Brown, 853 P.2d 851, 854 (Utah 1992)). "[W]hether a specific set of facts gives rise to reasonable suspicion is a determination of law and is reviewable nondeferentially for correctness ... [with] a measure of discretion to the trial judge when applying that standard to a given set of facts." Id. at 939.

ANALYSIS

" '[S]topping an automobile and detaining its occupants constitute a "seizure" within the meaning of [the Fourth and Fourteenth] Amendments, even though the purpose of the stop is limited and the resulting detention quite brief.' " State v. Case, 884 P.2d 1274, 1276 (Utah Ct.App.1994) (alterations in original) (quoting Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979)). "A limited crime investigation stop, as defined by Terry v. Ohio and its progeny, must meet a two-prong test to overcome the Fourth Amendment's prohibition against unreasonable seizures. First, the officer's initial stop must be justified; second, subsequent actions must be within the scope of the circumstances justifying the stop." Id. (citing Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968)).

Reasonable Suspicion

We first examine whether Officer Whipple had reasonable suspicion to justify detaining defendant. "While the required level of suspicion is lower than the standard required for probable cause to arrest, the same totality of facts and circumstances approach is used to determine if there are sufficient 'specific and articulable facts' to support reasonable suspicion." Id. (quoting Terry, 392 U.S. at 21, 88 S.Ct. at 1880). "[A]n officer may stop and question a person 'when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity.' " Pena, 869 P.2d at 940 (quoting United States v. Place, 462 U.S. 696, 702-03, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983)). ¹ The facts supporting reasonable suspicion may come from the officer's own observation as well as "information, bulletins, or flyers received from other law enforcement sources." Case, 884 P.2d at 1276-77; see also Pena, 869 P.2d at 940 ("In determining whether such reasonable suspicion exists, we have indicated that under certain circumstances, police officers can rely on a dispatched report in making an investigatory stop."). A Terry stop made in objective reliance upon a flyer or bulletin is proper "if the police who issued the flyer or bulletin possessed a reasonable suspicion justifying a stop." United States v. Hensley, 469 U.S. 221, 233, 105 S.Ct. 675, 682, 83 L.Ed.2d 604 (1985). Stated another way, "the legality of a stop based on information imparted by another will depend on the sufficiency of the articulable facts known to the [officer] originating the information or bulletin subsequently received and acted upon by the investigating officer." Case, 884 P.2d at 1277. However, the investigating officer need not be actually informed of all the underlying facts known to the originating officer that establish reasonable suspicion. See Case, 884 P.2d at 1277 n. 5 (citing Hensley, 469 U.S. at 232, 105 S.Ct. at 682); see also State v. Bruce, 779 P.2d 646, 649-51 (Utah 1989); State v. Seel, 827 P.2d 954, 960 (Utah Ct.App.), cert. denied, 836 P.2d 1383 (Utah 1992); 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.4(i), at 233-35 (1996).

In Case, this court concluded that there was no factual basis for reasonable suspicion to dispatch an officer by radio to a suspected car prowl or vehicle burglary at the University of Utah around midnight. See Case, 884 P.2d at 1278-80. In that case, the officer was given only the description of a suspect and the location of the suspected crime. It was unknown who reported the suspected crime and what information was provided. See id. at 1278. This court held, "[m]erely providing descriptive information to an officer about whom to stop, by itself, is not enough to justify the stop if there are no articulable facts pointed to which establish why a stop was to be made." Id.

This court has recently held that an informant's tip constitutes reasonable suspicion to justify a detention or seizure of a vehicle and its driver if the information is reliable, provides sufficient detail of criminal activity, and is confirmed by the investigating officer. See Kaysville City v. Mulcahy, 943 P.2d 231, 234 (Utah Ct.App.1997). A tip from a citizen informant who gives his or her name is highly reliable because the police may verify the information and it subjects the informant to penalty if the information is false. See id. Furthermore, unlike a paid police informant, the uncompensated citizen-informer's motive is community concern rather than self interest. See id. In Mulcahy, as in the instant case, the informant was an identified citizen-informer who gave police his name and address along with a description of the suspected vehicle. See id.

The second factor addresses whether the informant provides enough detail about the criminal activity, i.e., illegal activity observed, description of the vehicle, license number, and location to support reasonable suspicion. See id. In Mulcahy, the informant timely reported personally observing a drunk individual leaving his residence in a white, possibly Toyota, car heading in a particular direction. See id. 943 P.2d at 237.

The third factor is whether the investigating officer is able to verify the information provided by the informant. See id. This...