Salt Lake City v. Ray
| Citation | 998 P.2d 274,2000 Utah Ct. App. 55 |
| Decision Date | 02 March 2000 |
| Docket Number | No. 990049-CA.,990049-CA. |
| Parties | SALT LAKE CITY, Plaintiff and Appellee, v. Carolyn L. RAY, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Jeffrey W. Hall, Salt Lake Legal Defender Association, and Jay T. Jorgensen, Stoel Rives, LLP, Salt Lake City, for Appellant.
Don M. Wrye, Salt Lake City Prosecutor's Office, Salt Lake City, for Appellee.
Before GREENWOOD, P.J., DAVIS, and ORME, JJ.
¶ 1 Defendant Carolyn L. Ray appeals the trial court's order denying her motion to suppress, arguing that the court erred in denying her motion because the police officers conducted a level two stop without the requisite reasonable suspicion. We reverse.
¶ 2 At approximately 6:30 or 7:00 on the morning of May 27, 1998, Ray visited a Salt Lake City convenience store that operated twenty-four hours a day. After making a purchase, Ray left the store to wait for a ride, which still had not arrived some two hours later. Although Ray was not causing any problems in front of the store and Rory Boehner, the manager, never asked her to leave, because of the duration of Ray's wait, Boehner eventually telephoned the police. During his call, Boehner did not advise of any suspicions he may have had that Ray had engaged in any illegal activity, instead informing the police only that she had been in front of the store for two hours.
¶ 3 In response, Officers Robert Eldard and Kevin Jones received a dispatch to investigate a "suspicious female" at the store. Eldard, who was driving a marked police car, arrived first at the store and found a woman, Ray, standing outside near a pay phone. Eldard correctly surmised this was the woman mentioned in the dispatch but, to quickly verify, Eldard "opened the door and poked [his] head in and asked the clerk who the problem person was." The clerk "pointed to Ms. Ray."
¶ 4 Officer Eldard, clad in his police uniform, with his "[b]adge, gun, [and] the whole works," approached Ray and began to question her regarding her presence at the store. Ray told Eldard that she had made an earlier purchase — which, according to Eldard, was confirmed by the container next to Ray — and that she was waiting for a ride to work. When asked how long she had been waiting, Ray responded that she had been there approximately thirty minutes. However, when Eldard poked his head back in the door, the manager stated that she had been there about two hours. As Eldard resumed questioning Ray, Officer Jones, who was similarly clad in his police uniform, arrived in his police cruiser, entered the store, and was advised by Boehner that he called the police because Ray had been standing outside for a couple of hours and that Boehner wanted the police to check it out. Jones joined Eldard and also asked Ray what she was doing and why she was there, to which Ray then replied that she had been waiting for two hours for a ride to work.
¶ 5 According to Officer Eldard, during the questioning Ray appeared nervous, although not agitated, and she talked fast and repeatedly shifted her weight from one foot to the other. Although neither Eldard nor Jones thought that Ray had committed any crime at that point, apparently Eldard's curiosity was sufficiently piqued that he asked defendant for her identification, whereupon she readily produced her state identification card. Rather than viewing the information and returning the card, Officer Eldard retained Ray's identification and stepped off to the side and away from Ray to check for warrants on his portable radio. The warrant check took approximately five minutes and revealed no outstanding warrants. At the hearing on Ray's motion to suppress, Officer Eldard testified that while he retained the identification and performed the warrant check, if Ray had taken the identification back and left, he would have let her go. Nonetheless, Eldard recognized "the fact that I had her I.D. might have caused her to wait," and never communicated to Ray that she was free to leave.
¶ 6 While Eldard conducted the warrant check, Officer Jones continued questioning Ray and asked Ray about the contents of her bag, namely whether she had "any drugs, knives, or any weapons or anything like that that [Jones] should know about." When Ray responded in the negative, Jones asked to search her bags anyway and Ray consented. Upon examining the contents of Ray's bags, Jones found a case for a compact disc player, which Ray later claimed belonged to her friends. Upon opening the case, however, Jones discovered not stereo equipment, but paraphernalia which, to his understanding based on his training and experience, were commonly used for taking illegal drugs. Officer Jones initially placed Ray in custody but then released her at the store with a citation.
¶ 7 The City charged Ray with use or possession of drug paraphernalia, a Class B misdemeanor, in violation of the Salt Lake City Code, section 11.20.040. Ray moved to suppress the evidence obtained during the search, arguing that it was obtained pursuant to an impermissible stop and detention not supported by a reasonable articulable suspicion that she had committed or was about to commit a crime. After a hearing on the motion, however, the trial court determined that "[t]he encounter between Officers Eldard and Jones could arguably be a level one stop" and that, under the totality of the circumstances, Ray's Fourth Amendment rights were not violated. Accordingly, the court denied Ray's motion to suppress. Ray entered a subsequent plea of no contest, reserving her right to appeal the trial court's denial of her motion to suppress and filed a timely notice of appeal. The court imposed a fine and suspended sentence and placed Ray on probation for two years.
¶ 8 On appeal, Ray argues the trial court erred in denying the motion to suppress and in concluding that she was not seized in violation of the Fourth Amendment at the time she consented to Jones searching her bags. On appeal from the denial of a motion to suppress, we review the trial court's factual findings for clear error. See State v. Preece, 971 P.2d 1, 4 (Utah Ct.App. 1998)
; State v. Case, 884 P.2d 1274, 1276 (Utah Ct.App.1994). However, because the determination of whether an encounter with law enforcement officers constitutes a seizure under the Fourth Amendment "`"calls for consistent application from one police encounter to the next, regardless of the particular individual's response to the actions of the police,"'" such determination is a legal conclusion that we review for correctness. State v. Carter, 812 P.2d 460, 465 n. 3 (Utah Ct.App.1991) (quoting United States v. Maragh, 894 F.2d 415, 417 (D.C.Cir.1990) (omitting citations)) (emphasis omitted); see State v. Bean, 869 P.2d 984, 985 & n. 2 (Utah Ct.App.1994). Likewise, "[a]lthough we afford some `"measure of discretion"' to the trial court's application of the standard, whether a set of facts supports a reasonable articulable suspicion is a question of law that we review for correctness." Preece, 971 P.2d at 4 (citations omitted); accord Case, 884 P.2d at 1276.
¶ 9 Our inquiry focuses first on whether Ray was seized for purposes of the Fourth Amendment during her encounter with Officers Eldard and Jones before the search of her bags. Ray argues that a seizure occurred both at the time Officer Eldard requested her identification, and when he retained the identification, stepped aside, and conducted the warrant check that lasted approximately five minutes. The City counters that Ray was not seized until after the incriminating evidence was found.
¶ 10 There are generally three levels of constitutionally permissible encounters between law enforcement officers and the public:
"(1) an officer may approach a citizen at anytime [sic] and pose questions so long as the citizen is not detained against his will; (2) an officer may seize a person if the officer has an `articulable suspicion' that the person has committed or is about to commit a crime; however, the `detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop'; (3) an officer may arrest a suspect if the officer has probable cause to believe an offense has been committed or is being committed."
State v. Deitman, 739 P.2d 616, 617-18 (Utah 1987) (per curiam) (citations omitted). Our analysis here turns on whether Ray's interchange with Officers Eldard and Jones was a level one encounter or level two stop.
100 S.Ct. at 1876 (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968))). Hence, a level one encounter becomes a level two stop and "a seizure under the fourth amendment occurs when a reasonable person, in view of all the circumstances, would believe he or she is not free to leave." Jackson, 805 P.2d at 767. This is...
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