Salt Lake City v. Bench

• Decision Date: 25 January 2008
• Docket Number: No. 20060929.,20060929.
• Parties: SALT LAKE CITY, Plaintiff and Appellant, v. Tim Kelly BENCH, Defendant and Appellee.
• Court: Utah Court of Appeals

177 P.3d 655

2008 UT App 30

SALT LAKE CITY, Plaintiff and Appellant, v. Tim Kelly BENCH, Defendant and Appellee.

No. 20060929.

Court of Appeals of Utah.

January 25, 2008.

Aaron W. Flater and Bernadette M. Gomez, Salt Lake City, for Appellant.

Jason A. Schatz, Salt Lake City, for Appellee.

Before DAVIS, ORME, JJ., and THORNE, Associate P.J.

OPINION

ORME, Judge:

¶ 1 Salt Lake' City appeals the trial court's order granting Defendant Tim Kelly Bench's motion to suppress evidence obtained following a traffic stop, which led to his arrest for driving while intoxicated. The City argues that there was reasonable, articulable suspicion to justify the stop based on Bench's ex-wife's telephoned report and on a police officer's observation of Bench's cautious driving. Additionally, the City essentially argues that the legal standards for establishing reasonable suspicion are lessened in a drunk driving case because of public safety concerns. We affirm the trial court's decision.

BACKGROUND¹

¶ 2 On April 12, 2005, Officer Hudson heard via a dispatch report over his police radio that Bench's ex-wife had called 911 and reported that Bench, who had just dropped off their children at her home in Salt. Lake City's Rose Park area, had transported the children in his vehicle while intoxicated. The dispatcher relayed the above information, described Bench's vehicle, identified its license plate number, and gave Bench's home address.

¶ 3 While patrolling in the Glendale area approximately thirty blocks away, Officer Hudson saw a vehicle that matched the dispatcher's description. He made a U-turn and began following the vehicle, which he identified as Bench's because the license plate number matched the one reported. While following Bench, Officer Hudson observed that Bench slowed his vehicle to approximately 25 miles per hour, about 10 miles per hour below the posted speed limit, and signaled for some five seconds before changing lanes. Officer Hudson observed no driving or equipment infractions before initiating a traffic stop two blocks later.

¶ 4 After further investigation, Officer Hudson arrested Bench for driving while intoxicated, a violation of Utah Code" section 41-6a-502. See Utah Code Ann. § 41-6a-502 (2005). Bench moved to suppress all evidence obtained as a result of the stop, arguing that Officer Hudson did not have the requisite reasonable, articulable suspicion to justify stopping him. The trial court agreed, granted the motion,² and later dismissed the case for lack of evidence. The City appealed. See id. § 77-18a-1(3)(b) (Supp.2007) (allowing prosecution to appeal in such circumstances).

ISSUE AND STANDARD OF REVIEW

¶ 5 The sole issue presented for our review is whether Officer Hudson, given only the information radioed by the 911 dispatcher and his own observations of Bench's cautious driving, had reasonable, articulable suspicion of criminal wrongdoing sufficient to justify stopping Bench. In an appeal from a trial court's denial of a motion to suppress evidence, "we review the trial court's factual findings for clear error[,] and we review its conclusions of law for correctness." State v. Tiedemann, 2007 UT 49, ¶ 11, 162 P.3d 1106. "In search and seizure cases, no deference is granted to ... the [trial] court regarding the application of law to underlying factual findings." State v. Alverez, 2006 UT 61, ¶ 8, 147 P.3d 425. See State v. Brake, 2004 UT 95, ¶ 15, 103 P.3d 699 ("We abandon the standard which extended `some deference' to the application of law to the underlying factual findings in search and seizure cases in favor of non-deferential review.").

ANALYSIS

¶ 6 On appeal, the City argues that there was reasonable suspicion to justify the stop based on the dispatch report describing Bench's ex-wife's complaint and on Officer Hudson's observation of Bench's cautious driving. The City also argues that the legal standards for establishing reasonable suspicion are lessened in drunk driving cases as a matter of public policy, and that in cases like this one, a concern for public safety mandates a stop when officers receive a report of a potentially intoxicated driver. We address each argument in turn.

I. Reasonable Suspicion

¶ 7 Both the United States and Utah constitutions protect against "unreasonable searches and seizures." U.S. Const. amend. IV; Utah Const. art. 1, § 14, A traffic stop constitutes a "seizure" and must, therefore, be reasonable if it is to withstand a constitutional challenge. See State v. Case, 884 P.2d 1274, 1276 (Utah Ct.App.1994). A traffic stop is reasonable only if it is initially justified and does not exceed the scope of the circumstances that justified it. See id. (citing Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). It is initially justified if a police officer has a reasonable suspicion, prior to the stop, that a person is engaging in, or has engaged in, criminal behavior. See id.; Utah Code Ann. § 77-7-15 (2003) (codifying reasonable suspicion requirements). " TIlhe police officer must be able to point to specific and articulable facts which; taken together with rational inferences from those facts, reasonably warrant that intrusion.'" State v. Menke, 787 P.2d 537, 541 (Utah Ct.App.1990) (quoting Terry, 392 U.S. at 21, 88 S.Ct. 1868). "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." Case, 884 P.2d at 1276 (quoting Terry, 392 U.S. at 21 88 S.Ct. 1868). Furthermore, an officer's suspicion must be based on objective facts suggesting some sort of criminal conduct, see Menke, 787 P.2d at 541, and "is dependent upon both the content of information possessed by police and its degree of reliability," Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

¶ 8 "The articulable facts supporting reasonable suspicion are usually grounded in an officer's personal perceptions and inferences, but in some cases the officer may rely upon external information—e.g., an informant's tip via police dispatch" in concluding there is a legal basis for a stop. Kays-ville City v. Mulcahy, 943 P.2d 231, 234 (Utah Ct.App.), cert. denied, 953 P.2d 449 (Utah 1997). Accord State v. Pena, 869 P.2d 932, 940 (Utah 1994) ("[U]nder certain circumstances, police officers can rely on a dispatched report in making an investigatory stop."); Case, 884 P.2d at 1277 n. 5 (stating that an officer receiving a dispatched message "may take it at face value and act on it forthwith"); State v. Grovier, 808 P.2d 133, 135 (Utah. Ct.App.1991) ("A reasonable suspicion may be premised upon an informant's tip so long as it is sufficiently reliable."). If an officer does rely on such external information to justify stopping a suspect, but "cannot provide independent or corroborating information through his or her own observations," the legality of that stop will ultimately depend on "the sufficiency of the articulable facts known to the individual originating the information or bulletin subsequently received and acted upon by the investigating officer." Case, 884 P.2d at 1277 (emphasis in original). "[S]hould the _investigation end in arrest and the stop's legality be attacked, the [prosecution] must—`albeit after the fact'—establish that adequate articulable suspicion initially spurred the dispatch." Mulcahy, 943 P.2d at 234 (quoting Case, 884 P.2d at 1277 n. 5).

¶ 9 This case does not present the more familiar situation where a dispatcher simply broadcasts a "stop and investigate" directive, making it necessary for the prosecution to later reconstruct what the dispatcher actually knew in making her determination that there was reasonable suspicion on which to base a stop. Rather, the information broadcast by the dispatcher in this case was everything she knew—or so we infer from the City's decision not to call the dispatcher as a witness or introduce a tape recording of the 911 call, but instead to rely exclusively on Officer Hudson's testimony about the dispatch.

¶ 10 Accordingly, we must determine whether the information conveyed by Bench's ex-wife, as recounted by the dispatcher, together with the inferences that can be drawn therefrom, establish a reasonable suspicion that Bench was driving while intoxicated so as to justify Officer Hudson in stopping Bench—either on that basis alone or when coupled with his observations of Bench's cautious driving. We note that while the City argues on appeal that the information from the ex-wife was enough, Officer Hudson's conduct suggests he did not think so. Rather than immediately effecting a stop upon seeing Bench's vehicle, he instead followed behind, looking for signs of impairment. After following Bench for two blocks, he finally concluded that he saw such signs of impairment, namely slow driving and long signaling. We first consider whether Officer Hudson's observations provided corroboration of the unadorned claim of intoxication relayed by the dispatcher.

A. Cautious Driving

¶ 11 The City contends that "Officer Hudson personally observed a driving pattern that was consistent with impaired driving and that he considered to be suspicious." Like the trial court, we disagree that cautious driving is indicative of intoxication or other wrongdoing.

¶ 12 In following Bench, Officer Hudson did not observe any illegal activity. On the contrary, he observed only Bench's hyper-legal activity—driving well below the posted speed limit and signaling two seconds longer than legally required before changing lanes. See Utah Code Ann. § 41-6a-804(1)(b) (2005) (drivers must signal at least three seconds before changing lanes).³ From this, he says he became suspicious, testifying that "when I see somebody driving that carefully, and I'm already paying attention to them ... then that definitely indicates to me that...