State v. Bowdrey, 011019 UTCA, 20170033-CA

Docket Nº:20170033-CA
Opinion Judge:MORTENSEN, JUDGE
Party Name:State of Utah, Appellee, v. Kenneth Morris Bowdrey, Appellant.
Attorney:Teresa L. Welch, Brenda M. Viera, and Tessa Hansen, Attorneys for Appellant Sean D. Reyes and Jonathan S. Bauer, Attorneys for Appellee
Judge Panel:Judge David N. Mortensen authored this Opinion, in which Judges Gregory K. Orme and Kate Appleby concurred.
Case Date:January 10, 2019
Court:Court of Appeals of Utah
 
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2019 UT App 3

State of Utah, Appellee,

v.

Kenneth Morris Bowdrey, Appellant.

No. 20170033-CA

Court of Appeals of Utah

January 10, 2019

Third District Court, Salt Lake Department The Honorable Mark S. Kouris No. 161905902

Teresa L. Welch, Brenda M. Viera, and Tessa Hansen, Attorneys for Appellant

Sean D. Reyes and Jonathan S. Bauer, Attorneys for Appellee

Judge David N. Mortensen authored this Opinion, in which Judges Gregory K. Orme and Kate Appleby concurred.

MORTENSEN, JUDGE

¶1 In short, this is not a Long case.[1] A police officer (Officer), using a spotting scope in a surveillance operation to detect drug dealing, directed other officers (the Arrest Team) via police radio to detain Kenneth Bowdrey. Officer then joined the Arrest Team and confirmed that his colleagues had apprehended the correct suspect. Bowdrey argued that Officer's post-surveillance confirmation entitled him to a cautionary jury instruction-a Long instruction-about the limitations of eyewitness identification. The trial court denied his request. Bowdrey now appeals his conviction for drug distribution. We affirm.

BACKGROUND

The Arrest

¶2 Around 10:00 p.m. on May 27, 2016, Officer was conducting surveillance of possible drug dealing near Salt Lake City's homeless shelter. In a concealed location about one hundred yards away, Officer used a spotting scope to observe the area near the shelter. The scope was not equipped with a recorder or night vision, but Officer reported he could see the area "very well" because he had an unobstructed view and the area around the shelter was "very well-lit . . . even at nighttime." His view of the area was interrupted only by the passing of an occasional light rail commuter train. Officer was accompanied by a new recruit, whom he was training. The recruit used her own spotting scope, and she and Officer discussed their observations.

¶3 After watching the area through his scope for about thirty minutes, Officer observed three men conducting what appeared to be drug transactions. Two of the men (the Sellers) spit items out of their mouths after people gave them cash. Officer observed the Sellers conduct about ten such transactions each. Officer stated that the Sellers' behavior was consistent with his knowledge of drug dealing practice. Officer explained that after a buyer gives a seller cash, the seller proceeds to spit twists[2] and hands over the drugs to the buyer. Drug sellers often work with a "holder." According to Officer, a holder stays at a distance from the sellers and retains the bulk of the drug inventory, while the sellers conceal small quantities of twists in their mouths as they conduct sales. Officer explained that sellers use this method so that they can swallow or spit out the drugs if approached by police officers.

¶4 Officer observed the Sellers approach a holder two times each between sales. Officer reported that the holder would take a pill bottle out of his jacket; the Sellers would receive the bottle, transfer its contents to their mouths, and then continue selling drugs. Officer noted that the holder appeared to be smoking a crack pipe when he was not resupplying the Sellers. Officer described the holder as a "tall black male approximately 50 years old who was wearing a red backpack."

¶5 Officer radioed the Arrest Team to stop the three men he had been observing, namely the Sellers and the holder. The Sellers ran when the Arrest Team approached them, but they were...

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