State v. Aquilar
| Decision Date | 19 July 1988 |
| Docket Number | No. 870327-CA,870327-CA |
| Citation | 758 P.2d 457 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Jorge Francis AQUILAR, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Claudia Laycock, Aldrich, Nelson, Weight & Esplin, Provo, for defendant and appellant.
David L. Wilkinson, State Atty. Gen., Earl F. Dorius, Asst. Atty. Gen., Governmental Affairs Div., for plaintiff and respondent.
Before GREENWOOD, GARFF and BENCH, JJ.
Jorge Aquilar appeals from his conviction of possession of a controlled substance with intent to distribute for value, a third degree felony in violation of Utah Code Ann. § 58-37-8(1)(a)(ii) (1987). Aquilar contends that the stop and subsequent search and seizure of his vehicle violated his fourth amendment rights. We affirm.
On March 14, 1987 at about 8:30 a.m., Officer Paul Mangleson observed Aquilar walking on the highway near Nephi, Utah carrying a gasoline can. Officer Mangleson made a U-turn and approached Aquilar at four or five miles per hour to offer him a ride. Aquilar did not make eye contact, and the officer believed Aquilar was avoiding him. The officer parked his car and after twenty minutes did not see Aquilar return for more gasoline. Another officer stopped to talk to Officer Mangelson and, when asked, advised Officer Mangelson he had seen a person put gas in a blue and white van and then drive northbound. Officer Mangelson radioed dispatch to have another officer take a closer look at the van. Officer Doug Rawlinson heard Officer Mangelson's radio dispatch and several minutes later saw the van coming from the south on the opposite side of the freeway. Officer Rawlinson testified that two cars were in front of the van and estimated that the cars were traveling about 55 to 60 miles per hour. Officer Rawlinson also stated that the van was about two car lengths behind the second vehicle, which the officer thought was too close. Officer Rawlinson pulled a U-turn on the freeway and caught up with the van. He testified that when he caught up with the vehicle it was on the white line which marks the emergency lane. He then noticed the vehicle several times drift from its lane to the white emergency lane line. The officer activated his overhead lights and pulled Aquilar over because he thought Aquilar was a drunk driver.
After the stop, the officer did not smell alcohol on Aquilar's breath, did not require Aquilar to perform field sobriety tests and determined that Aquilar was not intoxicated. Aquilar gave the officer his California driver's license, but stated that he did not have the vehicle's registration. The officer invited Aquilar to his patrol car after Aquilar was unable to produce the registration for the van or to name the owner of the van. When Aquilar went to the patrol car, he gave the officer his written consent to search the van. A search of the van revealed 383 pounds of marijuana.
Aquilar filed a motion to suppress the evidence seized in the search of the van. At the suppression hearing, Aquilar testified that he did not recall driving in any manner which would have justified a stop by the highway patrol. He also testified that he voluntarily consented to the search of the van. The court found that "Officer Rawlinson did have cause to pull the defendant over and question" and denied the motion to suppress.
On appeal, Aquilar claims that the stop of his vehicle was not based upon a reasonable suspicion that Aquilar had committed or was about to commit a crime, and, consequently, that the subsequent search of his vehicle violated his fourth amendment rights. 1 The State contends that Aquilar failed to preserve his objection to the admission of the seized evidence at trial, and that even if the stop was illegal, the evidence seized from Aquilar's vehicle was properly admitted because Aquilar consented to the search of the vehicle.
We first consider whether Aquilar preserved his objection at trial to the admissibility of the evidence seized. This Court and the Utah Supreme Court have held that a defendant's failure to object to the admissibility of evidence at trial does not constitute a waiver of his fourth amendment claim to the admissibility of that evidence if the same judge presided at the suppression hearing and at trial. State v. Johnson, 748 P.2d 1069, 1071-72 (Utah 1987); State v. Griffin, 754 P.2d 965, 967 (Utah Ct.App.1988).
In this case, defendant did not provide this Court with a copy of the trial transcript. Consequently, we cannot determine whether defendant objected to the admissibility of the evidence again at trial. However, the same judge presided at the suppression hearing and at trial. Accordingly, even if defendant failed to object at trial, that failure would not constitute a waiver. Therefore, we hold that defendant did not fail to preserve his objection to the admissibility of the evidence seized during the search of the van.
We next consider whether Aquilar's consent to the search of the van was sufficient to purge the stop of any taint. For purposes of discussion of this issue, we will assume that the initial stop was illegal.
In determining if consent is sufficient to purge the taint of a prior illegal stop, the court must consider whether the evidence was "come at by exploitation of [the prior] illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). It is well-settled that under the fourth amendment a search pursuant to voluntary consent is valid. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973); State v. Sierra, 754 P.2d 972, 980 (Utah Ct.App.1988). Further, to justify a search of an individual based on consent, the State must demonstrate that "the consent was in fact voluntarily given and not the result of duress or coercion, express or implied." Schnecklot...
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