State v. Carter

• Decision Date: 27 September 1985
• Docket Number: No. 19522,19522
• Citation: 707 P.2d 656
• Parties: The STATE of Utah, Plaintiff and Respondent, v. Tommy Lynn CARTER, Defendant and Appellant.
• Court: Utah Supreme Court

Page 656

707 P.2d 656

The STATE of Utah, Plaintiff and Respondent, v. Tommy Lynn CARTER, Defendant and Appellant.

No. 19522.

Supreme Court of Utah.

Sept. 27, 1985.

Nancy Bergeson, Curt Nesset, Salt Lake City, for defendant and appellant.

David L. Wilkinson, Earl F. Dorius, Salt Lake City, for plaintiff and respondent.

STEWART, Justice:

The defendant was convicted on two counts of vehicle burglary and two counts of theft, one a third degree felony for theft of a camera, and one a class B misdemeanor for theft of a purse. We affirm the convictions, except for the third degree felony theft conviction, which must be reduced to a misdemeanor.

On February 5, 1983, at approximately 9:30 p.m., Officer Roger Winkler of the Salt Lake City police department was informed by radio of a vehicle burglary at Third East and Third South in downtown Salt Lake City. The burglary suspect was described as a black male with a blue backpack. At approximately 10:00 p.m., Officer Winkler observed the defendant, Tommy Lynn Carter, walking in a downtown alley approximately one block away from the burglary. Officer Winkler decided that the defendant matched the broadcast description.

Winkler stopped the defendant, asked his name, and frisked him. Winkler found a screwdriver and a flashlight in defendant's front pocket. Winkler informed the defendant that he was under arrest for carrying a concealed weapon and for loitering. The officer then removed the defendant's backpack and placed it on the hood of his police car.

By this time a backup officer, James Alcock, had arrived. The defendant was placed in the back of Alcock's patrol car and belted in. The officers opened the defendant's backpack and found a camera and a purse, which later proved to be stolen.

Prior to trial, the defendant filed a motion to suppress all evidence seized in violation of the Fourth Amendment. At the suppression hearing, defendant's counsel argued that the search of the defendant's backpack was illegal because (1) there were no "articulable facts" upon which the police officer could validly frisk the defendant see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and because (2) there was no probable cause to arrest. On that basis, defense counsel moved to suppress the contents of the backpack, and the motion was denied.

At trial, a Mr. McGlothlin testified for the State that his car was burglarized and that shortly afterwards he saw the defendant walk by his car. The defendant moved for a mistrial because the prosecutor failed to inform defendant's counsel before trial that McGlothlin was an eyewitness. The court denied the motion.

A third degree felony requires proof of theft of an item having a value in excess of $250.00. See U.C.A., 1953, § 76-6-412(b)(i). The camera that was stolen in Salt Lake City was purchased by McGlothlin in Price, Utah. The defendant introduced the testimony of a Salt Lake camera dealer that the value was only $177.00. The prosecution introduced testimony of a camera dealer from Price that the value of the camera was about $490.00. The jury was instructed to value the camera at the time and place where the crime occurred.

On appeal, the defendant argues that the trial court violated the Fourth Amendment to the United States Constitution by failing to suppress the contents of the backpack because (1) the frisk was unlawful and (2) the warrantless search of the backpack was unlawful. In addition, the defendant argues (3) that the trial court erred by failing to grant his motion for a mistrial since the State failed to inform him that an eyewitness was able to connect him to the scene of the crime, and (4) that the evidence is insufficient to support his conviction.

I.

The defendant contends that the police had no reason to frisk him and that all evidence produced from that illegal action should have been suppressed. The defendant concedes that the officer's investigatory stop was valid.

Both the defendant and the State rely on Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry, the Supreme Court established a narrowly drawn exception to the Fourth Amendment requirement that police obtain a warrant for all searches. Where a police officer validly stops an individual for investigatory or other purposes and reasonably believes that the individual may be armed and dangerous, the officer may conduct a "frisk" or "pat-down" search of the individual to discover weapons that might be used against him. "The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." 392 U.S. at 27, 88 S.Ct. at 1883. See also Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); State v. Cole, Utah, 674 P.2d 119 (1983); State v. Rocha, Utah, 600 P.2d 543 (1979); State v. Lopes, Utah, 552 P.2d 120 (1976).

The reasonableness of a frisk for weapons is judged by an objective standard. ¹ It is not essential that an officer actually have been in fear. See United States v. Tharpe, 536 F.2d 1098, 1101 (5th Cir.1976). Since no one factor is determinative of reasonableness, a trial judge must determine the reasonableness of a frisk in light of all the facts. See State v. Houser, Utah, 669 P.2d 437, 439 (1983). There must, however, be some reasonable basis for both stopping and frisking; the officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." 392 U.S. at 21, 88 S.Ct. at 1879. A mere unparticularized suspicion or hunch is not sufficient. Id. at 27, 88 S.Ct. at 1883; State v. Swanigan, Utah, 699 P.2d 718, 719 (1985).

A number of courts have held, and we agree, that a police officer may lawfully frisk a burglary suspect. "It is reasonable for an officer to believe that a burglar may be armed with weapons, or tools such as knives and screwdrivers which could be used as weapons, and that a pat-down search is necessary for the officer's safety." People v. Myles, 50 Cal.App.3d 423, 430, 123 Cal.Rptr. 348, 352 (1975). "It is not unlikely that a person engaged in stealing another person's property would arm himself against the possibility that another person will appear unexpectedly and object strenuously." People v. McGowan, 69 Ill.2d 73, 12 Ill.Dec. 733, 736, 370 N.E.2d 537, 540 (1977). See also United States v. Stevens, 509 F.2d 683 (8th Cir.1975); People v. Martineau, 185 Colo. 194, 523 P.2d 126 (1974); State v. Flynn, 92 Wis.2d 427, 285 N.W.2d 710 (1979); 3 W. LaFave, Search & Seizure Law § 9.4 at 116 & n. 28 (1978).

In this case, Officer Winkler relied on the following facts to justify the frisk: 1) the defendant matched the radio dispatch describing the burglary suspect as a black male with a blue backpack; 2) Officer Winkler encountered the defendant within about one-half hour of the radio dispatch and less than a block away from the burglary scene; 3) the defendant had a large bulge in his front pocket; 4) the previous evening, Officer Winkler had arrested a female who told him that a Tommy Carter had given her stolen credit cards that he had gotten in the downtown Salt Lake area. She described Carter as having greasy hair and crooked front teeth. When Officer Winkler first stopped the defendant, the officer observed that the defendant's hair and front teeth matched the description, and the defendant identified himself as Tommy Carter; 5) the officer and the defendant were in a dark alley. On these facts, Officer Winkler, when he encountered the defendant, had some reason to believe that the defendant had committed a burglary and might be armed.

II.

The defendant also contends that the warrantless search of his backpack was unlawful because it was removed from the defendant's person and was in the officer's immediate control when the officers searched it. On the authority of United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), and Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), the defendant argues that such a search is not valid as a search incident to a lawful arrest. See also State v. Cole, Utah, 674 P.2d 119 (1983); State v. Griffin, Utah, 626 P.2d 478 (1981); State v. White, Utah, 577 P.2d 552 (1978); but see State v. Houser, Utah, 669 P.2d 437 (1983).

However, where a defendant fails to assert a particular ground for suppressing unlawfully obtained evidence in the trial court, an appellate court will not consider that ground on appeal. State v. Lee, Utah, 633 P.2d 48, 53 (1981); United States v. Hensel, 699 F.2d 18 (1st Cir.1983); United States v. Schwartz, 535 F.2d 160 (2d Cir.1976); United States v. Rollins, 522 F.2d 160 (2d Cir.1975); State v. Kremer, 307 Minn. 309, 239 N.W.2d 476 (1976); Writt v. State, Tex.Crim., 541 S.W.2d 424 (1976); 3 W. LaFave, Search & Seizure Law § 11.2(a) at 496 (1978). "[T]he failure to assert a particular ground in a pre-trial suppression motion operates as a waiver of the right to challenge the subsequent admission of evidence on that ground." United States v. Schwartz, 535 F.2d at 163.

In State v. Lee, Utah, 633 P.2d 48 (1981), the defendant argued in the suppression hearing that the initial viewing of stolen goods in a truck was an unlawful search. On appeal, the defendant made the additional argument that regardless of the lawfulness of the search, the seizure was by itself unlawful. We declined to address the unlawful seizure argument. We stated: "Generally, there is no justification for not presenting all available grounds in support of a motion to suppress, and in the absence of special circumstances, an appellate court will not rule on grounds not addressed in the trial court." Id. at 53. We pointed out that motions to suppress should be supported by precise...