State v. Alverez

• Decision Date: 24 March 2005
• Docket Number: No. 20040059-CA.,20040059-CA.
• Citation: 111 P.3d 808,2005 UT App 145
• Parties: STATE of Utah, Plaintiff and Appellee, v. Ernesto ALVEREZ, Defendant and Appellant.
• Court: Utah Court of Appeals

111 P.3d 808

2005 UT App 145

STATE of Utah, Plaintiff and Appellee, v. Ernesto ALVEREZ, Defendant and Appellant.

No. 20040059-CA.

Court of Appeals of Utah.

March 24, 2005.

Debra Meek Nelson and Steven G. Shapiro, Salt Lake City, for Appellant.

Mark L. Shurtleff, Atty. Gen., and Jeffrey S. Gray, Asst. Atty. Gen., Salt Lake City, for Appellee.

Before BILLINGS, P.J., DAVIS, and ORME, JJ.

OPINION

DAVIS, Judge:

¶ 1 Ernesto Alverez Defendant appeals his conviction of unlawful possession of a controlled substance with the intent to distribute. See Utah Code Ann. § 58-37-8(1)(a)(iii)(2002). We affirm.

BACKGROUND¹

¶ 2 On June 23, 2003, two Salt Lake City Police officers, one of whom was Officer Don Wahlin, were observing a condominium complex in Salt Lake City because, according to Wahlin, they had received information that drug transactions had been taking place in that area. While observing the condominium complex that day, Wahlin saw a vehicle (the vehicle) drive into the complex. Wahlin had previously received information from the narcotics division of the Salt Lake City Police Department that the vehicle had possibly been involved in drug transactions. Wahlin then saw Defendant get out of the vehicle, enter the condominium complex, return to the vehicle less than five minutes later, get back into the vehicle, and drive the vehicle out of the complex. Based upon the information he had previously received and his observation of Defendant that day, Wahlin believed that Defendant had been involved in a drug transaction. Wahlin testified that he believed Defendant's short visit to the complex was consistent with short-stay drug traffic. Although Wahlin discovered that day that the vehicle was uninsured, he and the other officer chose not to initiate a traffic stop on that basis.

¶ 3 Wahlin testified that because it was typical for drug dealers to frequent the same location, he and Salt Lake City Police Sergeant Chad Steed decided to return to the condominium complex the following day to see if the vehicle would return. While observing the complex, Wahlin and Steed saw Defendant drive the vehicle into the same area of the complex as he had the previous day, get out of the vehicle, and enter the complex. Wahlin and Steed then walked to the vehicle and waited for Defendant to return. Wahlin and Steed waited in an empty parking stall adjacent to the vehicle, behind a full-size van that was parked in the stall adjacent to the empty stall.

¶ 4 While waiting, Steed looked inside the vehicle and observed a facsimile of "Jesus Malverde," which Steed testified he was able to recognize through his training, interviews he had conducted, and his observation of known drug houses. Steed also testified that, according to interviews he had conducted, "Jesus Malverde" was the patron saint of drug dealing. In addition, Steed observed a small bottle of water in the console of the vehicle, which he testified he had seen suspected drug dealers use during traffic stops to swallow drugs concealed in their mouths. ¶ 5 Less than five minutes after entering the condominium complex, Defendant exited the complex and approached the vehicle. As Defendant came around the full-size van, Wahlin and Steed, who were both in uniform, approached Defendant "to talk with him." Wahlin first asked if Defendant knew that the vehicle was uninsured. According to Wahlin, Defendant's response was, "How [did] you know that?" Wahlin then explained to Defendant that the vehicle had been suspected of being involved in some drug transactions. According to Wahlin, Defendant denied having any knowledge of this information. Wahlin continued by asking Defendant if he had any drugs on his person, and Defendant responded that he did not. Wahlin also asked Defendant if he would open his mouth to demonstrate that he did not have any drugs in his mouth. Wahlin testified that he asked this question because, in his experience, drug dealers usually package drugs like cocaine and heroin in small balloons, which they carry in their mouths. Wahlin also testified that drug dealers do this so that they are able to swallow the balloons "before law enforcement can get to them." Prior to asking this question, Wahlin did not notice anything unusual about Defendant's mouth or any impediments to Defendant's speech. However, after asking this question, Wahlin noticed that Defendant became nervous and was using his tongue to move objects around in his mouth. In addition, both Wahlin and Steed observed Defendant making swallowing motions. Both Wahlin and Steed testified that, at this point, they believed that Defendant was trying to conceal evidence by swallowing it. Steed further testified that he believed that Defendant "had balloons in his mouth" and that Defendant "was going to swallow drugs." Immediately, both Wahlin and Steed grabbed Defendant's arms, placed him in a "wrist lock," and bent him forward. Wahlin testified that they bent Defendant forward because, based on Wahlin's experience, that made it harder for Defendant to swallow anything that might have been in his mouth. Wahlin then told Defendant to spit out what he had in his mouth. Defendant spit out fifteen balloons containing illegal narcotics. Wahlin testified that the amount of time that passed between him asking Defendant to open his mouth and Defendant spitting out the balloons was approximately five to ten seconds.

¶ 6 On June 26, 2003, Defendant was charged with two counts of unlawful possession of a controlled substance with the intent to distribute. See Utah Code Ann. § 58-37-8(1)(a)(iii) (2002). On August 13, 2003, Defendant filed a motion to suppress the evidence obtained by Wahlin and Steed during their encounter with Defendant, arguing that their warrantless search was constitutionally impermissible. At the conclusion of the August 29, 2003 evidentiary hearing on Defendant's motion to suppress, the trial court denied Defendant's motion.

¶ 7 On October 17, 2003, Defendant filed a petition for interlocutory review of the trial court's denial of his motion to suppress. This court denied Defendant's motion in an order dated November 26, 2003. On January 5, 2004, pursuant to State v. Sery, 758 P.2d 935 (Utah Ct.App.1988), Defendant pleaded guilty to one count of unlawful possession of a controlled substance with the intent to distribute, see Utah Code Ann. § 58-37-8(1)(a)(iii), but preserved his right to appeal the trial court's denial of his motion to suppress. Defendant appeals.

ISSUE AND STANDARD OF REVIEW

¶ 8 Defendant argues that the trial court erred by denying his motion to suppress.

We review the factual findings underlying the trial court's decision to grant or deny a motion to suppress evidence using a clearly erroneous standard. However, we review the trial court's conclusions of law based on these findings for correctness, with a measure of discretion given to the trial judge's application of the legal standard to the facts.

State v. Veteto, 2000 UT 62, ¶ 8, 6 P.3d 1133 (quotations and citations omitted). "The measure of discretion afforded varies, however, according to the issue being reviewed." State v. Hansen, 2002 UT 125, ¶ 26, 63 P.3d 650. The Utah Supreme Court has stated that "[w]hen a case involves the reasonableness of a search and seizure, `we afford little discretion to the district court because there must be state-wide standards that guide law enforcement and prosecutorial officials.'" State v. Warren, 2003 UT 36, ¶ 12, 78 P.3d 590 (quoting Hansen, 2002 UT 125 at ¶ 26, 63 P.3d 650). More recently, the Utah Supreme Court "abandon[ed] 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." State v. Brake, 2004 UT 95, ¶ 15, 103 P.3d 699. Because this case involves a search and seizure, we do not extend any deference to the trial court in its application of the law to its factual findings. See id.

ANALYSIS

¶ 9 Defendant first argues that Wahlin and Steed unconstitutionally exceeded the scope of their initial encounter with Defendant when Wahlin, without reasonable suspicion to do so, questioned Defendant about drugs. Defendant also argues that even if Wahlin did have reasonable suspicion to ask Defendant about drugs, the State failed to demonstrate the lawfulness of Wahlin and Steed's subsequent warrantless search of Defendant. We will address each argument in turn.

I. Questioning About Drugs

¶ 10 Defendant asserts that when Wahlin began questioning Defendant about the uninsured status of the vehicle, he engaged Defendant in a valid, level two encounter,² which was limited to the potential insurance violation. See generally Salt Lake City v. Ray, 2000 UT App 55, ¶ 11, 998 P.2d 274

(explaining a level two encounter). Defendant then argues that Wahlin and Steed unconstitutionally exceeded the scope of this initial detention when Wahlin, without reasonable suspicion to do so, detained Defendant further to question him about drugs. We disagree with Defendant's argument and with his characterization of his detention as being initially limited to the potential insurance violation.

¶ 11 "[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." State v. Pena, 869 P.2d 932, 940 (Utah 1994) (quotations and citation omitted). In determining whether an officer has reasonable, articulable suspicion, we consider "the totality of the circumstances to determine whether the officer had specific and articulable facts which, taken together with rational inferences from those facts, warrant a detention." State v. Munsen, 821 P.2d 13, 15 (Utah Ct.App.1991) (quotations and citations omitted).

¶ 12 In an apparent attempt to limit the scope of his encounter with Wahlin and Steed, Defendant has mischaracterized the encounter as being limited to the uninsured...