State of Utah v. HARKER

• Decision Date: 28 September 2010
• Docket Number: No. 20090125.,20090125.
• Citation: 240 P.3d 780,2010 UT 56
• Parties: STATE of Utah, Plaintiff and Respondent, v. Jeff Brian HARKER, Defendant and Petitioner.
• Court: Utah Supreme Court

240 P.3d 780
2010 UT 56

STATE of Utah, Plaintiff and Respondent,
v.
Jeff Brian HARKER, Defendant and Petitioner.

No. 20090125.

Supreme Court of Utah.

Sept. 28, 2010.

Mark L. Shurtleff, Att'y Gen., Kenneth A. Bronston, Asst. Att'y Gen., Salt Lake City, for plaintiff.

Scott L. Wiggins, Salt Lake City, for defendant.

On Certiorari to the Utah Court of Appeals

DURRANT, Associate Chief Justice:

INTRODUCTION

¶ 1 This case is before us on writ of certiorari to the court of appeals and requires us to determine the meaning of “in the presence” as that phrase is set forth in section 77-7-2(1) of the Utah Code, which allows an officer to make an arrest for a class B misdemeanor only if the offense was committed “in the presence” of an officer. ¹ In addition, this case requires us to determine whether evidence must be excluded if it is obtained in a search incident to an arrest that is supported by probable cause but is not supported by

240 P.3d 782

statutory authority. We determine that the “in the presence” language of Utah Code section 77-7-2(1) requires officers to have experienced, firsthand through one of their physical senses, all of the elements of the offense in order to have statutory authority to make an arrest for a class B misdemeanor. But we hold, following the United States Supreme Court's recent holding in Virginia v. Moore, ² that even when officers do not have statutory authority, a warrantless arrest based on probable cause does not violate the Fourth Amendment and, therefore, evidence seized in a search incident to such an arrest need not be excluded.

BACKGROUND

¶ 2 On the afternoon of May 30, 2006, Jeff Brian Harker was traveling north on Highway 89 and, in the process of attempting to turn left, collided with an oncoming vehicle. Thereafter, North Salt Lake Police Officer Adam Osoro appeared at the scene. Officer Osoro obtained driver licenses and vehicle registration and insurance information from both Mr. Harker and the driver of the other vehicle. The dates on Mr. Harker's insurance card indicated that the insurance was currently effective, but when Officer Osoro ran a computer check, the insurance on Mr. Harker's car was “not found.” Assisting Officer Gwillam told Officer Osoro that Mr. Harker had a history with the North Salt Lake Police Department, so Officer Osoro decided to further investigate Mr. Harker's insurance. Officer Gwillam called Mr. Harker's insurance company and was informed that Mr. Harker's insurance had been canceled and told this to Officer Osoro. When asked about the insurance, Mr. Harker explained that the policy had been canceled because he had failed to make his payments. Officer Osoro then arrested Mr. Harker for operating a motor vehicle without owner's or operator's security (insurance) and for providing false evidence of owner's or operator's security.

¶ 3 Officer Osoro proceeded to search Mr. Harker incident to this arrest and found a substance in Mr. Harker's pocket that field tested positively for methamphetamine, which the Davis County Crime Laboratory later confirmed. In addition, Officer Osoro's search revealed Mr. Harker to be in possession of cash, Lortab pills, and a residue-tainted piece of glass pipe, which Officer Osoro recognized as drug paraphernalia.

¶ 4 The State charged Mr. Harker with possession or use of a controlled substance (methamphetamine), possession or use of a controlled substance (Lortab), possession of drug paraphernalia, having no evidence of security, making an illegal turn, and failure to yield.

¶ 5 Mr. Harker initially pleaded not guilty to the charges. At a preliminary hearing, he was bound over on all charges. Mr. Harker then moved to suppress the evidence that was found during the search incident to his arrest. After hearing argument on the motion to suppress the evidence, the court denied the motion because it determined that Officer Osoro “had probable cause to arrest [Mr. Harker], and that probable cause is based upon the Officer's knowledge and his hearing and other senses.” Mr. Harker then pleaded no contest to possession of methamphetamine and possession of drug paraphernalia, and the remaining charges were dismissed. Pursuant to the plea, Mr. Harker preserved his right to appeal the district court's denial of the motion to suppress. The district court sentenced Mr. Harker to zero to five years in prison on his conviction for possession of methamphetamine and 180 days in jail on his conviction for possession of drug paraphernalia. The court suspended the prison and jail terms conditioned upon Mr. Harker's serving one year in the Davis County Jail and three years probation and participating in the RSAT drug program.

¶ 6 Mr. Harker timely appealed, claiming that the district court should have suppressed the evidence obtained in the search incident to his arrest on the ground “that his arrest for operating a vehicle without insurance and for providing false evidence of insurance was not supported by probable cause because he did not commit the offenses in the presence of the arresting officer.”

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³ The court of appeals held that Mr. Harker's arrest for driving without insurance was supported by probable cause and statutory authority and affirmed Mr. Harker's convictions. ⁴

¶ 7 Mr. Harker petitioned this court for certiorari review, which we granted to determine whether the court of appeals erred when it held there was probable cause and statutory authority to arrest Mr. Harker. We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(a).

STANDARD OF REVIEW

¶ 8 “On certiorari, we review the decision of the court of appeals, not the decision of the trial court.” ⁵ We review the court of appeals' decision for correctness, “giving no deference to its conclusions of law.” ⁶ Further, issues regarding the constitutionality of arrests and searches present questions of law that we review for correctness. ⁷

ANALYSIS

¶ 9 We granted certiorari to determine whether there was statutory authority and probable cause to arrest Mr. Harker. We begin our analysis by assessing whether Mr. Harker's arrest was supported by statutory authority. The answer depends on the meaning of the requirement set out in Utah Code section 77-7-2(1) that certain public offenses occur in the presence of an officer in order for the officer to have authority to make an arrest. We conclude that this statute requires an officer to have experienced, firsthand through one of the officer's physical senses, all of the elements of the offense. We further conclude that an admission of having committed a public offense does not satisfy the “in the presence” requirement set out in section 77-7-2(1). Thus, because an officer did not perceive Mr. Harker driving without insurance firsthand, we conclude that Mr. Harker's arrest was not supported by statutory authority.

¶ 10 But the real dispute in this case centers around whether the evidence obtained in the search incident to Mr. Harker's arrest is admissible. Whether the evidence is admissible depends upon whether the arrest violated the Fourth Amendment of the United States Constitution. ⁸ An arrest violates the Fourth Amendment when it is unsupported by probable cause. ⁹ Here we must assess the admissibility of evidence seized during a search incident to a warrantless arrest that is supported by probable cause but not authorized by statute. Pursuant to the United States Supreme Court's recent holding in Virginia v. Moore, ¹⁰ we conclude that, under the Fourth Amendment, courts need not exclude evidence if it is uncovered in a search incident to a constitutionally permissible arrest, even if the arrest is not authorized by statute, and that an arrest is constitutionally permissible if it is based on probable cause. We conclude that Mr. Harker's arrest was constitutional under the Fourth Amendment because it was based on probable cause. Accordingly, the evidence

240 P.3d 784

seized in the search incident to Mr. Harker's arrest is admissible regardless of the arresting officer's lack of statutory authority.

I. MR. HARKER'S ARREST FOR DRIVING WITHOUT INSURANCE WAS NOT AUTHORIZED BY STATUTE BECAUSE HE DID NOT DRIVE “IN THE PRESENCE” OF AN OFFICER

¶ 11 There was no statutory authority to arrest Mr. Harker for driving without insurance because all of the elements of the offense did not actually occur in the presence of a peace officer. Utah Code section 77-7-2(1) permits an officer to arrest a person for “public offense[s],” which include class B misdemeanors like driving without insurance, only if the offense was committed “in the presence” of the officer. Determining what “in the presence” means in the context of this provision is an issue of statutory interpretation.

¶ 12 Our “ ‘primary objective’ ” when interpreting statutes “ ‘is to give effect to the legislature's intent.’ ” ¹¹ “To discern legislative intent, ‘we look first to the statute's plain language.’ ” ¹² Also, when interpreting statutes, “ ‘[w]e presume that the legislature used each word advisedly’ and read ‘each term according to its ordinary and accepted meaning.’ ” ¹³ Additionally, “ ‘[w]e read the plain language of [a] statute as a whole and interpret its provisions in harmony with other statutes in the same chapter and related chapters.’ ” ¹⁴ Furthermore, if “the plain meaning of the statute can be discerned from its language, no other interpretive tools are needed.” ¹⁵ Here, the plain meaning of the statute can clearly be discerned from its language.

¶ 13 Section 77-7-2 explicitly states that “[a] peace officer ... may, without warrant, arrest a person ... for any public offense committed or attempted in the presence of any peace officer.” ¹⁶ In addition, the statute explicitly defines what “presence” means: “ ‘presence’ includes all of the physical senses or any device that enhances the acuity, sensitivity, or range of any physical sense, or records the observations of any of the physical senses.” ¹⁷ The meaning of...