State v. Arroyo, No. 890128

CourtSupreme Court of Utah
Writing for the CourtSTEWART; HOWE; HALL
Citation796 P.2d 684
Decision Date28 June 1990
Docket NumberNo. 890128
PartiesSTATE of Utah, Plaintiff and Respondent, v. Jose Francisco ARROYO, Defendant and Petitioner.

Page 684

796 P.2d 684
STATE of Utah, Plaintiff and Respondent,
v.
Jose Francisco ARROYO, Defendant and Petitioner.
No. 890128.
Supreme Court of Utah.
June 28, 1990.

Page 685

Walter F. Bugden, Salt Lake City, for defendant and petitioner.

R. Paul Van Dam and Sandra L. Sjogren, Salt Lake City, for plaintiff and respondent.

STEWART, Justice:

This case is here on a writ of certiorari to review a decision of the court of appeals. The case presents important issues concerning the effect of consent searches and pretextual traffic stops under the Fourth Amendment to the United States Constitution.

I. FACTS

On September 15, 1987, at about 4 p.m., Utah Highway Patrol Trooper Paul Mangelson was driving southbound on Interstate 15 near Nephi, Utah. Mangelson had completed his shift an hour earlier and was driving home when he observed a northbound pickup-camper on the opposite side of the freeway. Mangelson made a U-turn through the freeway's median strip and quickly caught up with the pickup which was the last vehicle in a group of two or three cars. Mangelson followed the pickup and then pulled beside it to observe its occupants and gauge its speed. The pickup's two occupants were both Hispanic, and the truck had out-of-state license plates. Mangelson stopped the pickup and cited Arroyo, the driver, for following too close and driving with an expired license.

Mangelson asked Arroyo's consent to search the truck, and Arroyo agreed. 1 The search uncovered approximately one kilogram of cocaine inside the passenger-side door panel of the pickup. Arroyo was arrested and charged with possession of a controlled substance with intent to distribute, a second degree felony, in violation of Utah Code Ann. § 58-37-8(1)(a)(i) (1986).

Arroyo moved to suppress the evidence on the ground that the traffic stop was a pretext for searching the truck for evidence of a more serious crime. The trial court found that the testimony at the suppression hearing "established the probability that no [traffic] violation occurred, and that the alleged violation was only a pretext asserted by the trooper to justify his stop of a vehicle with out-of-state license plates and with occupants of Latin origin." The trial court also ruled that the "[d]efendant consented to the search of the vehicle." Nevertheless, the court granted Arroyo's motion and ordered suppression of the evidence. The State filed an interlocutory appeal in the court of appeals challenging the suppression order.

II. THE COURT OF APPEALS DECISION AND THE SUPPRESSION HEARING

The court of appeals held that the traffic stop was "an unconstitutional pretext." State v. Arroyo, 770 P.2d 153, 155 (Utah Ct.App.1989). The court stated, "We are persuaded that a reasonable officer would not have stopped Arroyo and cited him for 'following too closely' except for some unarticulated suspicion of more serious criminal activity." 770 P.2d at 155.

In addressing the issue of consent raised by the prosecution, the court of appeals found that defense counsel had blocked the prosecution's efforts to establish that Arroyo had consented to the search and had "[misled] the State and the [trial] court by stipulating that consent was given," thereby preventing the prosecution from exploring the voluntariness of the consent. The

Page 686

court of appeals concluded that Arroyo had consented to the search and that the "consent" was "voluntary" and reversed the trial court's suppression order. 770 P.2d at 156.

Two paragraphs of the court of appeals' opinion are the crux of its resolution of this case:

In this regard, we note Arroyo did not contest the State's argument at the suppression hearing that he voluntarily consented to the search of his truck. Arroyo, through his counsel[,] stipulated that he consented to the search. Arroyo's counsel objected when the State attempted to offer evidence to establish Arroyo's consent was voluntary, claiming it was not relevant as the only issue was whether the original stop was a pretext. As a result, the trial court limited testimony concerning the circumstances surrounding Arroyo's consent. The trial judge specifically found that Arroyo consented to the search of his truck, and there is nothing in the record to contradict this finding.

For the first time on appeal, counsel now argues that Arroyo's consent was not voluntary as there was no "break in the causal connection between the illegality and the evidence thereby obtained." United States v. Recalde, 761 F.2d 1448, 1458 (10th Cir.1985). However, this argument should have been made below. A defendant cannot mislead the State and the court by stipulating that consent was given, thus preventing the State from exploring the circumstances of the consent, and then argue for the first time on appeal that the consent given was not voluntary. Based on these circumstances, we conclude that defendant's stipulation included that the consent was given voluntarily.

770 P.2d at 156.

The court of appeals misconstrued the record. The only time consent was mentioned at the suppression hearing occurred during the testimony of Trooper Mangelson:

Q. [by the prosecutor, Mr. Eyre]: Upon the vehicle stopping, what did you immediately do then?

A. I approached the vehicle. I asked for a driver's license. I made as many observations about the vehicle as I could.

Q. Describe what you observed.

A. I observed--

MR. BUGDEN [defense counsel]: Your Honor, for the record I think I would object to any further inquiry at this point. My motion only goes to the propriety and the lawfulness of the stop. And I think if that is what--

THE COURT: Was this a consent search?

MR. EYRE: Yes, Sir.

THE COURT: I think that is true, Counsel. It goes strictly to the stop.

MR. EYRE: Okay.

Q. Anything else about the stop that you recall that you have not previously testified to?

A. I don't believe so.

The court of appeals' opinion states, "Arroyo's counsel objected when the State attempted to offer evidence to establish Arroyo's consent was voluntary...." 770 P.2d at 156. The transcript of the suppression hearing reveals that prior to the objection by Arroyo's counsel, no mention had been made of consent and that the objection was made to a question concerning what observations Trooper Mangelson made as he approached Arroyo's vehicle. Defense counsel did not utter a word about voluntary consent during the course of the proceedings. Furthermore, as the court of appeals' opinion correctly states, it was the trial judge, not defense counsel, who "limited testimony concerning the circumstances surrounding" the issue of consent. 770 P.2d at 156.

The court of appeals stated that the trial court found that "Arroyo consented to the search of the truck, and there is nothing in the record to contradict this finding." 770 P.2d at 156. Finding No. 18 in the trial court's findings and conclusions does state, "The Trooper requested permission to search the Defendant's vehicle, and

Page 687

the Defendant consented to the search of the vehicle." However, the court of appeals applied the wrong standard of review in evaluating this finding. The standard of review for a trial court's finding of fact is that a finding shall not be set aside unless it is clearly erroneous. Utah R.Civ.P. 52(a); State v. Walker, 743 P.2d 191, 193 (Utah 1987); 9 C. Wright & A. Miller, Federal Practice and Procedure § 2573, at 689 (1971); see also State v. Maurer, 770 P.2d 981, 983 (Utah 1989). A finding not supported by substantial, competent evidence must be rejected. 50 W. Broadway Assoc. v. Redevelopment Agency, 784 P.2d 1162, 1171 (Utah 1989).

The only "evidence" anywhere in this record which supports the finding of consent is the prosecutor's response to the judge's question about consent. 2 However, a prosecutor's assertion that consent was given is not evidence and cannot support a finding of consent. See, e.g., Stading v. Equilease Corp., 471 So.2d 1379, 1379 (Fla.Dist.Ct.App.1985); Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So.2d 1015, 1017 (Fla.Dist.Ct.App.1982) ("[Attorneys'] unsworn statements do not establish facts in the absence of stipulation. Trial judges cannot rely upon these unsworn statements as the basis for making factual determinations...."); see also Caperon v. Tuttle, 100 Utah 476, 484, 116 P.2d 402, 405-06 (1941); see generally 88 C.J.S. Trial § 181a, at 355 (1955). It follows that the trial court's finding of consent is clearly erroneous. The court of appeals' conclusion about consent is also erroneous.

In short, the record simply does not support the court of appeals' conclusion about the issue of consent. The record contains no suggestion that defense counsel "[misled] the State and the court" on the issue of consent and the record reveals no evidence concerning consent and no stipulation regarding consent. Consent should have been explored at the suppression hearing, but it was the trial court, not defense counsel, who preempted the prosecution's efforts to reach the issue. Therefore, the court of appeals was wrong in reversing the trial court's suppression order. Instead, the case should be remanded for an evidentiary hearing on the issue of consent.

III. ADMISSIBILITY OF EVIDENCE OBTAINED IN A CONSENT SEARCH

FOLLOWING POLICE ILLEGALITY

Since this case must be remanded for an evidentiary hearing, it is appropriate to define the parameters of the consent issue which should be explored by the trial court. See, e.g., State v. Tarafa, 720 P.2d 1368, 1370 (Utah 1986); Lopes v. Lopes, 30 Utah 2d 393, 395, 518 P.2d 687, 688 (1974).

A. Exceptions to Warrant Requirement

Searches conducted "outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967) (citations omitted); State v. Harris, 671 P.2d 175 (Utah 1983)....

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69 practice notes
  • People v. Miranda, No. H009669
    • United States
    • California Court of Appeals
    • August 4, 1993
    ...other hand, in State v. [17 Cal.App.4th 929] Arroyo (Utah Ct.App.1989) 770 P.2d 153 (revd. on other grounds in State v. Arroyo (Utah 1990) 796 P.2d 684), the court concluded that because the arresting officer was off duty, heading in the opposite direction, and rarely made stops for followi......
  • State v. Sprague, No. 02-028.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • February 21, 2003
    ...bears a heavy burden of demonstrating that consent given subsequent to an illegal detention was properly obtained."); State v. Arroyo, 796 P.2d 684, 687-88 (Utah 1990) ("When the prosecution attempts to prove voluntary consent after an illegal police action ... the prosecution `has a much h......
  • State v. Martinez-Castellanos, No. 20130432-CA
    • United States
    • Utah Court of Appeals
    • January 20, 2017
    ...Mangelson's stop of defendant for following too closely was illegal because it was pretext for a drug search), rev'd on other grounds , 796 P.2d 684, 692 (Utah 1990) ; State v. Baird , 763 P.2d 1214, 1217 (Utah Ct. App. 1988) (concluding that Sergeant Mangelson had no reasonable articulable......
  • State v. Thurman, No. 910494
    • United States
    • Supreme Court of Utah
    • January 7, 1993
    ...were voluntary under State v. Whittenback, 621 P.2d 103 (Utah 1980), and were not tainted by the illegal search under State v. Arroyo, 796 P.2d 684 (Utah 1990). On appeal, Thurman raises two claims. First, he argues that the trial court erred in finding the search warrant valid because the ......
  • Request a trial to view additional results
69 cases
  • People v. Miranda, No. H009669
    • United States
    • California Court of Appeals
    • August 4, 1993
    ...other hand, in State v. [17 Cal.App.4th 929] Arroyo (Utah Ct.App.1989) 770 P.2d 153 (revd. on other grounds in State v. Arroyo (Utah 1990) 796 P.2d 684), the court concluded that because the arresting officer was off duty, heading in the opposite direction, and rarely made stops for followi......
  • State v. Sprague, No. 02-028.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • February 21, 2003
    ...bears a heavy burden of demonstrating that consent given subsequent to an illegal detention was properly obtained."); State v. Arroyo, 796 P.2d 684, 687-88 (Utah 1990) ("When the prosecution attempts to prove voluntary consent after an illegal police action ... the prosecution `has a much h......
  • State v. Martinez-Castellanos, No. 20130432-CA
    • United States
    • Utah Court of Appeals
    • January 20, 2017
    ...Mangelson's stop of defendant for following too closely was illegal because it was pretext for a drug search), rev'd on other grounds , 796 P.2d 684, 692 (Utah 1990) ; State v. Baird , 763 P.2d 1214, 1217 (Utah Ct. App. 1988) (concluding that Sergeant Mangelson had no reasonable articulable......
  • State v. Thurman, No. 910494
    • United States
    • Supreme Court of Utah
    • January 7, 1993
    ...were voluntary under State v. Whittenback, 621 P.2d 103 (Utah 1980), and were not tainted by the illegal search under State v. Arroyo, 796 P.2d 684 (Utah 1990). On appeal, Thurman raises two claims. First, he argues that the trial court erred in finding the search warrant valid because the ......
  • Request a trial to view additional results

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