State v. Bello

• Decision Date: 15 March 1994
• Docket Number: No. 920830-CA,920830-CA
• Citation: 871 P.2d 584
• Parties: STATE of Utah, Plaintiff and Appellee, v. James Ronald BELLO, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 584

871 P.2d 584

STATE of Utah, Plaintiff and Appellee, v. James Ronald BELLO, Defendant and Appellant.

No. 920830-CA.

Court of Appeals of Utah.

March 15, 1994.

Certiorari Denied Aug. 24, 1994.

Ronald J. Yengich and Hakeem Ishola, Salt Lake City, for defendant and appellant.

Jan Graham and Marian Decker, Salt Lake City, for plaintiff and appellee.

Before BILLINGS, DAVIS and GREENWOOD, JJ.

OPINION

GREENWOOD, Judge:

James Ronald Bello appeals his conviction for possession of a controlled substance, a second degree felony, in violation of Utah Code Ann. § 58-37-8(2)(a)(i) (1990). We reverse the trial court's denial of Bello's motion to suppress the evidence and remand for further proceedings.

FACTS

On March 15, 1991, at approximately 11:15 a.m., Deputy Phil Barney was traveling west on I-70 when he noticed Bello's eastbound pickup truck temporarily drift so that it straddled both eastbound lanes of traffic. Barney turned his vehicle around, activated his video recorder, and pursued the truck in order to stop it and determine whether the driver of the vehicle was under the influence of alcohol, drowsy, or otherwise impaired. For the approximately two miles that Barney followed the truck, he observed no further problems that might indicate an impaired driver, and he stated at the hearing on the motion to suppress that there were extreme wind conditions that day that might account for the temporary drifting of the truck into the other lane.

After pulling him over, Barney informed Bello that he had been driving outside the regular lane of traffic. Bello acknowledged that this may have occurred, but stated that he was having difficulties controlling the vehicle due to the wind. Barney noted during this initial conversation that the vehicle's front windshield was cracked and requested to see his driver's license and registration, both of which Bello produced. The car was registered to Bobby Randall of Arcadia, California.

Barney testified at the suppression hearing that he smelled raw marijuana when he first approached the truck, and again when he passed by the camper portion of the pickup on his way back to his vehicle to issue a warning citation for the cracked windshield and weaving. Barney requested that the dispatcher attempt to contact the owner of the vehicle, but the dispatcher informed him that there was no telephone listing for that individual.

When Barney returned to the truck with the citation he again smelled marijuana and asked Bello if he could look in the vehicle. Bello responded, "Yes, sir." After looking through the cab area of the truck, Barney moved to the rear of the vehicle and pointed to the lock on the camper shell. Bello asked if Barney wanted the key and when Barney said that he did, Bello retrieved the key from the ignition. When Barney inspected the camper area of the truck he found more than 100 pounds of marijuana.

Bello was arrested and charged with possession of marijuana. He later filed a motion to suppress the evidence seized as a result of the warrantless search of his vehicle. The trial court denied the motion, ruling that the initial traffic stop was pursuant to a legitimate law enforcement function, and that the officer "upon smelling the odor of raw marijuana had probable cause to believe the Defendant was engaged in possession of controlled substances." The trial court denied Bello's motion for reconsideration.

Following a bench trial on April 29, 1992, Bello was convicted as charged. On November 24, 1992, the trial court reduced Bello's conviction one degree pursuant to Utah Code Ann. § 76-3-402(1) (Supp.1993) and sentenced him to zero to five years in the Utah State Prison.

ISSUES ON APPEAL

Bello raises seven issues on appeal: (1) Was the initial stop lawful? (2) Was the officer justified in detaining Bello further after determining that Bello was not impaired in any way? (3) Did Bello consent to the search? (4) Was Bello's consent invalid because it was not sufficiently attenuated from the allegedly unlawful stop? (5) Did the search conducted by Barney exceed the scope of Bello's consent? (6) Did the warrantless vehicle search violate the Utah Constitution? and (7) Are the district court's factual findings and conclusions of law insufficiently detailed? Our determinations with respect to the lawfulness of the initial stop and attenuation of consent render consideration of the remaining issues unnecessary, and accordingly, we do not reach them.

STANDARD OF REVIEW

The Utah Supreme Court recently clarified the standard of review applicable to reasonable suspicion determinations in the context of an investigatory stop. State v. Pena, 869 P.2d 932 (Utah 1994). The court reiterated that the factual findings underlying the trial court's decision with respect to a motion to suppress the evidence are reviewed under the deferential "clearly erroneous" standard. Id. at 939 n. 4; accord State v. Thurman, 846 P.2d 1256, 1272 (Utah 1993). Furthermore, the "determination of whether a specific set of facts gives rise to reasonable suspicion is a determination of law and is reviewable nondeferentially for correctness." ¹ Pena, at 939; Thurman, 846 P.2d at 1272. After concluding that the question of reasonable suspicion is essentially a determination of law, the court further stated that "the reasonable-suspicion legal standard is one that conveys a measure of discretion to the trial judge when applying that standard to a given set of facts. Precisely how much discretion we cannot say...." Pena, at 939.

ANALYSIS

Initial Stop

It is by now well established that the Fourth Amendment applies to investigatory stops of vehicles "regardless of the reason for the stop or the brevity of the detention." State v. Talbot, 792 P.2d 489, 491 (Utah App.1990) (citing Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1395, 59 L.Ed.2d 660 (1979)); accord State v. Sierra, 754 P.2d 972, 975 (Utah App.1988), overruled in part on other grounds by State v. Arroyo, 796 P.2d 684 (Utah 1990). In order to comply with the Fourth Amendment's prohibition against unreasonable searches and seizures, the State must establish that the stop in question was either (1) incident to a traffic violation committed in the officer's presence, or (2) based on specific, articulable facts and reasonable inferences derived from these facts that would lead a reasonable officer to conclude that the occupant of the vehicle had committed, or was about to commit a crime. State v. Lopez, 831 P.2d 1040, 1043 (Utah App.), cert. granted, 843 P.2d 1042 (Utah 1992); Talbot, 792 P.2d at 491; Sierra, 754 P.2d at 975.

In the instant case, the State contends that both grounds for constitutionally stopping a vehicle are present. The State claims that when Bello's truck briefly crossed the center line of the eastbound lanes, he violated a statute requiring that a vehicle be operated "as nearly as practical entirely within a single lane ..." Utah Code Ann. § 41-6-61(1) (1993). Next, the State argues that Bello's weaving provided Deputy Barney with reasonable suspicion that Bello was driving while impaired by drugs or alcohol.

With respect to the argument that Bello could be legitimately stopped for violating section 41-6-61(1), we note that the statute requires only that a vehicle remain entirely in a single lane "as nearly as practical." It was extremely windy on the morning in question and Bello's truck had a camper shell that caused it to catch the wind more easily than other vehicles. These facts, in combination with the fact that in the two miles that Barney followed Bello he observed no further weaving, lead us to conclude that the single instance of weaving seen by Barney could not constitute a violation of section 41-6-61(1) and therefore cannot serve as the constitutional basis for stopping Bello's truck.

The State's second argument in justification of the stop relies upon the existence of reasonable suspicion that Bello was involved in criminal activity--driving while under the influence of drugs or alcohol. In determining whether reasonable suspicion exists, this court looks to the totality of the circumstances present at the time the officer decided to stop the vehicle. Sierra, 754 P.2d at 975. The officer must be able to articulate facts and inferences from these facts that would " 'warrant a [person] of reasonable caution in the belief' that the action taken was appropriate. Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction." State v. Trujillo, 739 P.2d 85, 88 (Utah App.1987) (quoting Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968)). This standard is an objective one--"simple ' "good faith on the part of the arresting officer is not enough." ' " Terry, 392 U.S. at 22, 88 S.Ct. at 1880 (quoting Beck v. Ohio, 379 U.S. 89, 97, 85 S.Ct. 223, 229, 13 L.Ed.2d 142 (1964) (quoting Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959))).

The State bases its claim of reasonable suspicion of criminal activity on the single incident of weaving witnessed by Barney. In light of the totality of circumstances, this fact is inadequate to justify the stop of Bello's vehicle. Barney's initial suspicion, triggered by a minor driving aberration, was not corroborated in any way during the ensuing pursuit. The extreme wind conditions, the type of vehicle driven by Bello, and the complete absence of any further traffic violations or any other indicia of impairment during the two miles Barney pursued Bello persuade this court that the trial court erred in concluding from those sparse facts that there was reasonable suspicion to justify the traffic stop. As the Tenth Circuit recently noted, "[I]f failure to follow a perfect vector down the highway ... were sufficient reason[ ] to suspect a person of driving while impaired, a...