State v. Alverez

• Decision Date: 20 October 2006
• Docket Number: No. 20050468.,20050468.
• Citation: 2006 UT 61,147 P.3d 425
• Parties: STATE of Utah, Plaintiff and Respondent, v. Ernesto ALVEREZ, Defendant and Petitioner.
• Court: Utah Supreme Court

147 P.3d 425

2006 UT 61

STATE of Utah, Plaintiff and Respondent, v. Ernesto ALVEREZ, Defendant and Petitioner.

No. 20050468.

Supreme Court of Utah.

October 20, 2006.

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Mark L. Shurtleff, Att'y Gen., Jeffrey S. Gray, Asst. Att'y Gen., for plaintiff.

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

On Certiorari to the Utah Court of Appeals

DURHAM, Chief Justice:

INTRODUCTION

¶ 1 Defendant Ernesto Alverez was convicted of two counts of possession of a controlled substance with intent to distribute. Before trial, he moved to suppress the admission of the drugs into evidence, arguing the police actions that led to the discovery of the drugs constituted an unreasonable search and seizure in violation of the Fourth Amendment to the United States Constitution. The district court denied his motion and the court of appeals affirmed. We granted certiorari to review the decision of the court of appeals and now affirm.

FACTS

¶ 2 "The legal analysis of search and seizure cases is highly fact dependent." State v. Brake, 2004 UT 95, ¶ 2, 103 P.3d 699 (citing State v. Hansen, 2002 UT 125, ¶ 5, 63 P.3d 650). Therefore, we give a detailed recitation of the facts.

¶ 3 On June 23, 2003, Officer Don Wahlin of the Salt Lake City Police Department and another officer were conducting surveillance on a condominium complex located in South Salt Lake City. According to Officer Wahlin's suppression hearing testimony, he had "heard there was dealings" in that area. The record does not reveal the source of the tip or how it came to Officer Wahlin's attention. While observing the condominiums, the officers saw a vehicle pull into the complex. Officer Wahlin recognized the vehicle as the same vehicle reportedly involved in drug sales near an unknown informant's residence located nearly 20 blocks away. Officer Wahlin received this information from the Salt Lake City Police Department's Narcotics Unit. Defendant, who was the car's driver and only occupant, got out of the vehicle and walked to an unknown location in the complex. He returned about five minutes later and drove away. Officer Wahlin ran a computer check on the vehicle and discovered that it was uninsured. Due to a department policy, the officers did not stop the car for lack of insurance at that time.

¶ 4 The next day, Officer Wahlin and Officer Chad Steed returned to the condominium complex. According to Officer Wahlin, they did so because it was their experience that drug dealers typically return to the same location around the same time of day. As they expected, the vehicle returned, and Defendant got out and again walked to an unknown location in the complex. At this point, the officers moved their unmarked car closer to the vehicle in question, got out, and waited behind a van parked next to Defendant's car. While they were waiting, Officer Steed looked into the driver's area of the vehicle and saw a representation of Jesus Malverde.¹ He also noticed a small bottle of water, which in his experience is frequently used by individuals involved in the drug trade to swallow drugs that they have hidden in their mouths. When Defendant returned to his car less than five minutes later, just as he had done the day before, Officers Wahlin and Steed approached him from behind the van.

¶ 5 Officer Wahlin first asked Defendant whether he knew that his vehicle was uninsured, to which Defendant replied, "How'd you know that?" Officer Wahlin then explained to Defendant that the vehicle was suspected of being connected to drug dealing. Defendant denied any knowledge of drug dealing. Officer Wahlin then asked Defendant whether he had any drugs on him, and Defendant responded in the negative. Finally, Officer Wahlin asked Defendant to open his mouth to show the officers whether he was hiding any drugs. Officer Wahlin testified that, up until this point, he had not had any difficulty understanding Defendant's speech nor had he noticed objects in his mouth. However, upon asking Defendant to open his mouth, Officer Wahlin noticed that Defendant appeared nervous. Moreover, both officers saw Defendant making strange motions with his tongue and mouth, as well as a swallowing motion.

¶ 6 Almost immediately, and without communicating with one another, both officers grabbed the wrists of Defendant and twisted his arms, which pushed his head and torso forward. The officers testified that they believed Defendant was trying to conceal or destroy evidence that he was hiding in his mouth. They also testified that they grabbed him and bent him forward to prevent him from swallowing the objects in his mouth. The officers ordered Defendant to spit out the objects in his mouth, and Defendant proceeded to spit out 15 balloons containing heroin and cocaine.

¶ 7 Defendant was arrested and charged with two counts of possession of a controlled substance with intent to distribute, a second degree felony. He filed a motion to suppress the drugs, alleging that the police had violated his Fourth Amendment right to be free from unreasonable searches and seizures.² The district court held a suppression hearing, following which it denied Defendant's motion, stating that under the totality of the circumstances the officers had a "reasonable basis to believe a crime was being committed in their presence." Defendant entered a conditional plea of guilty, reserving the right to appeal the denial of his motion to suppress pursuant to State v. Sery, 758 P.2d 935 (Utah Ct.App.1988). Defendant subsequently appealed his conviction to the Utah Court of Appeals, which affirmed in State v. Alverez, 2005 UT App 145, 111 P.3d 808. Defendant requested certiorari, which we granted. This court has jurisdiction under Utah Code section 78-2-2(5) (2002).

STANDARD OF REVIEW

¶ 8 "On certiorari, we review the decision of the court of appeals and not that of the district court." State v. Brake, 2004 UT 95, ¶ 11, 103 P.3d 699. The court of appeals' decision is reviewed for correctness. Id. In search and seizure cases, no deference is granted to either the court of appeals or the district court regarding the application of law to underlying factual findings. Id. ¶¶ 11, 15.

ANALYSIS

¶ 9 We granted certiorari on three issues: (1) "[w]hether the totality of the circumstances . . . created a reasonable [and] articulable suspicion" of criminal activity that justified the officers' detention of Defendant; (2) "[w]hether the totality of the circumstances at the time the police officers conducted their search demonstrated probable cause for that search"; and (3) "[w]hether the officers employed reasonable force to obtain evidence from [Defendant's] mouth." Before addressing these issues, we believe it necessary to address the level of the encounter that took place between Defendant and the police officers.

I. FOURTH AMENDMENT SEIZURE

¶ 10 The State of Utah recognizes three levels of constitutionally permissible encounters between police officers and citizens:

(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.

Salt Lake City v. Ray, 2000 UT App 55, ¶ 10, 998 P.2d 274 (quoting State v. Deitman, 739 P.2d 616, 617-18 (Utah 1987)). The State contends that the encounter between Defendant and Officers Wahlin and Steed was a level one encounter, which is a "consensual encounter wherein a citizen voluntarily responds to non-coercive questioning by an officer." State v. Hansen, 2002 UT 125, ¶ 34, 63 P.3d 650. Because such an encounter is consensual, there is no seizure under the Fourth Amendment. Id. However, a level two seizure, which involves "an investigative detention that is usually characterized as brief and non-intrusive," is a Fourth Amendment seizure and thus requires that police have a reasonable suspicion. Id. ¶ 35. The distinguishing feature between a level one encounter and a level two seizure is whether "in view of all of the circumstances ... a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

¶ 11 The court of appeals did not express its opinion on the level of the encounter in this case but rather presumed the encounter was a level two seizure, noting that the outcome of the appeal would have been the same regardless of its resolution of this issue. State v. Alverez, 2005 UT App 145, ¶ 10 n. 2, 111 P.3d 808. We conclude that this encounter was a level two seizure and therefore implicates the Fourth Amendment's protection against unreasonable search and seizure. Under the circumstances in this case, where two uniformed police officers waited for and then approached Defendant and accused him of not one, but two illegal acts—lack of car insurance and drug trafficking—a reasonable person would not have felt free to leave.

¶ 12 The State claims that the United States Supreme Court has held that questioning alone does not immediately turn an encounter from a level one consensual encounter into a level two seizure. That much is true. The Court has stated that "mere police questioning does not constitute a seizure," Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), and that "police officers can approach individuals ... and ask them potentially incriminating questions," id. at 439, 111 S.Ct. 2382. However, we think the manner of questioning, the content of the questions, and the context in which the questions are being asked can convert ...