Provo City v. Warden

• Decision Date: 09 December 1992
• Docket Number: No. 910634-CA,910634-CA
• Parties: PROVO CITY, Plaintiff and Appellee, v. Brent Roland WARDEN, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 360

844 P.2d 360

PROVO CITY, Plaintiff and Appellee, v. Brent Roland WARDEN, Defendant and Appellant.

No. 910634-CA.

Court of Appeals of Utah.

Dec. 9, 1992.

Thomas H. Means (argued), Aldrich, Nelson, Weight & Esplin, Provo, for defendant and appellant.

Gary Gregerson, Provo City Atty., and Vernon F. (Rick) Romney, Deputy Provo City Atty. (argued), Provo, for plaintiff and appellee.

Before BILLINGS, GREENWOOD and ORME, JJ.

GREENWOOD, Judge:

Defendant Brent Warden appeals his conviction of driving under the influence of alcohol, a class B misdemeanor, in violation of Provo City Ordinance section 9/41-6-44. Warden challenges both the trial court's denial of his motion to suppress and its guilty verdict. We affirm.

BACKGROUND

At about 2:00 a.m. on the morning of May 9, 1991, Officer Jensen of the Provo City Police Department was on patrol. As he drove through a Denny's Restaurant parking lot, two men approached his car. They told the officer that a male had just asked them where he could buy some cocaine so he could "drive himself into a wall." The men described the car which the male was driving and supplied Officer Jensen with the license plate number. They also told him that the male was probably heading towards downtown Provo. The men then immediately returned to their car and drove away. Officer Jensen broadcast the vehicle description and plate number to all other units in an attempt to locate the male driver, and then left the parking lot to look for the driver himself. He drove towards downtown Provo and spotted the car on University Avenue. Officer Jensen made a U-turn to come in behind the vehicle and followed it for approximately a block and a half. The male driver made a left turn and traveled at a normal rate of speed. Officer Jensen flashed his lights and the car stopped.

After stopping the car, Officer Jensen approached Warden, the car's driver, and asked him for his driver's license and registration. After observing Warden, the officer noted that his breath smelled of alcohol and that he was unsteady on his feet. On that basis, Officer Jensen administered a standard battery of field sobriety tests. When Warden failed to satisfactorily complete the tests, Officer Jensen arrested him for driving under the influence. Officer Jensen transported Warden to the police station where an intoxilyzer test recorded a .08 percent blood alcohol content.

At trial, Officer Jensen testified that the only basis he had for the traffic stop was the information provided by the two unidentified men. According to the officer, he was concerned about the "person's mental stability and welfare on his own behalf." Upon the court's own questioning, the reason for the stop was further clarified:

The Court: Any other reason at all for the stop?

Officer Jensen: Basically, the stop--I was concerned for this person's welfare and mental stability.

The Court: It was a welfare stop in your view?

Officer Jensen: In my view, yes, it was a welfare stop for this person. It--at the time that I made the stop, I wasn't basing the stop on a DUI stop, that's what it later turned up to be; but I was basing the stop on a welfare check for this individual's wellbeing.

Although the court noted that there was no reasonable suspicion that Warden was

engaged in criminal activity when Officer Jensen stopped him, it denied Warden's motion to suppress the evidence seized as a result of the stop. The court ruled that when a police officer receives unverified information that a person is about to harm him or herself and makes a "welfare stop" based upon that information, the officer is entitled to proceed with an arrest based upon evidence of crimes discovered during the welfare stop. The court found Warden guilty and this appeal followed.

ISSUES

The central question presented on appeal is one of first impression in Utah: Are law enforcement officers authorized to make "welfare" stops of citizens? If so, under what circumstances will such stops be lawful? Warden also claims on appeal that the trial court erred in considering inadmissible hearsay evidence.

STANDARD OF REVIEW

"In absence of clear error, the trial court's findings of fact underlying its decision to grant or deny the suppression motion must be upheld." State v. Steward, 806 P.2d 213, 215 (Utah App.1991) (citation omitted); State v. Hunter, 831 P.2d 1033, 1033 (Utah App.1992), cert. denied, 843 P.2d 1042 (Utah 1992). "However, as for the trial court's legal conclusions in regards thereto, the correction of error standard applies." Steward, 806 P.2d at 215 (citation omitted).

ANALYSIS

Community Caretaker Stops

The Fourth Amendment to the United States Constitution protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. The right to be free from unreasonable searches and seizures extends to a person's automobile. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979); see also State v. Schlosser, 774 P.2d 1132, 1135 (Utah 1989) ("Although a person has a lesser expectation of privacy in a car than in his or her home, one does not lose the protection of the Fourth Amendment while in an automobile."). The Fourth Amendment is "implicated ... because stopping an automobile and detaining its occupants constitute a 'seizure' ... even though the purpose of the stop is limited and the resulting detention quite brief." Prouse, 440 U.S. at 653, 99 S.Ct. at 1396. "Thus, the Fourth Amendment prohibits police officers from randomly or arbitrarily stopping vehicles on the highway." State v. Lopez, 831 P.2d 1040, 1043 (Utah App.1992) (citing Prouse, 440 U.S. at 654-56, 99 S.Ct. at 1396-98), cert. granted, 843 P.2d 1042 (Utah 1992).

Specific situations in which police officers are justified in making stops of citizens in their vehicles include the following:

(1) When the officer observes the driver commit a traffic violation;

(2) when the officer has a reasonable articulable suspicion that the driver is committing a traffic offense, such as driving under the influence of alcohol or driving without a license; and

(3) when the officer has a reasonable articulable suspicion that the driver is engaged in more serious criminal activity, such as transporting drugs.

Lopez, 831 P.2d at 1043 (citations omitted); see also State v. Deitman, 739 P.2d 616, 617-18 (Utah 1987) (describing three levels of police-citizen encounters requiring different degrees of justification under the Fourth Amendment). An officer's reasonable articulable suspicion must be based upon objective facts apparent to the officer at the time of the stop. State v. Roth, 827 P.2d 255, 257 (Utah App.1992). "Whether there are objective facts to justify such a stop depends on the 'totality of the circumstances.' " State v. Holmes, 774 P.2d 506, 508 (Utah App.1989) (quoting State v. Mendoza, 748 P.2d 181, 183 (Utah 1987)).

Utah appellate case law has not yet addressed, however, the legitimacy of police vehicle stops unrelated to a penal or regulatory purpose. Therefore, the trial court's recognition of the stop of Warden's vehicle One of the first cases to enunciate a standard for police stops to assist motorists, unrelated to penal or regulatory purposes, was United States v. Dunbar, 470 F.Supp. 704 (D.Conn.), aff'd, 610 F.2d 807 (2nd Cir.1979). In this case, an officer stopped a motorist after observing that the license plate was from a neighboring state and deducing from the manner in which the driver was proceeding that he was lost.

as lawful because it was prompted by a concern for Warden's welfare, presents an issue of first impression in Utah. Because Utah law provides no guidance on the propriety of such stops, we look to other jurisdictions on this issue.

Preliminarily, the court noted that "there is no basis for resolving this dispute without reference to the standards of the Fourth Amendment." Id. at 706. The court determined that defendant was seized: "[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 is quite brief." Id. (quoting Prouse, 440 U.S. at 648, 99 S.Ct. at 1393). The Fourth Amendment's requirement of reasonableness is analyzed by weighing the individual's right to personal security against the public interest. Id.

In assessing the weight to be assigned the public interest, Dunbar discussed the privacy intrusions which police commit in furtherance of "community caretaking functions." Id. at 707. ¹ Dunbar applied the community caretaking concept to vehicle stops, reasoning that "[i]t would be too extravagant to contend that a benign purpose of rendering assistance could never justify the stop of a motorist." Id. at 707. The court ultimately held, however, that under the facts before it, the balancing between the legitimate governmental interest in aiding a motorist and an individual's right to be free from arbitrary interferences from law enforcement officers weighed in favor of the individual. "The Fourth Amendment stands against initiating a new line of cases in which the officer says, 'I thought he was lost.' " Id. at 708.

Other jurisdictions have utilized the balancing test set forth in Dunbar with varying results. None, however, has explicitly rejected the notion that community caretaker concerns can justify stops and seizures under appropriate circumstances. For example, some courts discuss the need for a specific set of circumstances which are "beyond the ordinary, though not necessarily criminally suspicious" to justify an officer's stop of a vehicle. State v. Goetaski, 209 N.J.Super. 362, 507 A.2d 751, 752-3 (1986), cert. denied, 104 N.J. 458, 517 A.2d 443 (1986) (driving slowly on the shoulder of the road at 4:00 a.m. with left-turn signal blinking, was unusual enough circumstance to warrant the stop,...