State v. Carter

• Decision Date: 28 May 1991
• Docket Number: No. 900303-CA,900303-CA
• Citation: 812 P.2d 460
• Parties: STATE of Utah, Plaintiff and Appellee, v. Rodney Donald CARTER, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 460

812 P.2d 460

STATE of Utah, Plaintiff and Appellee, v. Rodney Donald CARTER, Defendant and Appellant.

No. 900303-CA.

Court of Appeals of Utah.

May 28, 1991.

Ronald J. Yengich (argued), Yengich, Rich, Xaiz & Metos, Salt Lake City, for defendant and appellant.

R. Paul Van Dam, State Atty. Gen., Judith S. H. Atherton (argued), Salt Lake City, for plaintiff and appellee.

AMENDED OPINION ^*

Before BILLINGS, GARFF and ORME, JJ.

BILLINGS, Judge:

Defendant Rodney Donald Carter appeals his conviction of possession of a controlled substance with intent to distribute, a second degree felony, in violation of Utah Code Ann. § 58-37-8(1)(iv) (1990). Defendant filed a pretrial motion to suppress cocaine seized from his person, claiming narcotics agents had violated his rights under article I, section 14 of the Utah Constitution and the fourth amendment of the United States Constitution. The trial court denied the motion and defendant was convicted following a bench trial. We reverse.

Because the legal issues surrounding the seizure of contraband are highly fact sensitive, we recite the facts in detail. State v. Marshall, 791 P.2d 880 (Utah Ct.App.), cert. denied, 800 P.2d 1105 (Utah 1990). On July 17, 1989, at approximately 5:15 p.m., Detective Bart Palmer (Palmer) of the Salt Lake County Sheriff's Office and Lieutenant Dave Fullmer (Fullmer) of the Utah State Narcotics Agency, dressed in street clothes, were observing passengers deplaning from an America West flight arriving from Los Angeles via Las Vegas, in an effort to locate drug couriers. The officers noticed defendant as he carried a duffel bag and scanned the area but did not appear to be looking for anyone in particular or reading signs for directions. As defendant walked up the concourse, he looked back in the direction of the officers three times. The officers continued to observe defendant, losing visual contact briefly, but then noticing him enter a bank of pay telephones. Palmer entered the cubicle next to defendant, but was unable to hear defendant speak during the short time defendant was in the telephone area.

After hanging up the telephone, defendant walked to the escalator and then quickened his pace, walking past other people, as he rode down to the main level of the airport. Maintaining his fast pace, defendant exited the terminal and went to the cab stand just outside the main doors. While Fullmer exited through another set of doors, Palmer followed defendant and approached defendant after he had placed his bag in a taxi and was about to enter the taxi.

Palmer identified himself as a police officer and asked if defendant would talk with him. Defendant agreed and removed his bag from the taxi. Palmer and defendant moved to a public area outside the airport terminal about twenty feet from where the taxi had been parked. Palmer then asked to see defendant's airplane ticket and defendant indicated he thought he had left it on the airplane, but produced his recent ticket from Salt Lake to Las Vegas for Palmer to examine. Palmer examined the ticket and returned it.

Fullmer arrived near the scene as Palmer was asking defendant for identification. Defendant indicated he did not have any, but proceeded to look in his bag for identification pursuant to Palmer's request. As he bent over to look in his bag, Fullmer noticed a line protruding through defendant's shirt. Palmer then indicated he was a narcotics officer and asked defendant if he could search his bag. Defendant agreed. As Palmer began searching defendant's bag, Fullmer asked defendant if he could search his person. Defendant responded "go ahead" and turned his back to Fullmer.

During a pat-down search, Fullmer detected two bulges in defendant's lower abdominal area and asked what they were. Defendant did not answer. Fullmer asked if he could see the bulges and again defendant did not respond verbally, but this time he lifted his shirt revealing masking tape around his midsection going down into his pants. When asked the purpose of the tape, defendant indicated he had injured his ribs.

The tape was below defendant's ribs starting near his waistline and continuing into his pants. Fullmer testified he then asked defendant if he could see the rest of the tape, and defendant responded that he could, but stated he would rather not do so in the public area of the airport. Fullmer suggested going to the airport office just inside the terminal doors. Defendant agreed and the three proceeded inside.

Once in the airport office, defendant refused an invitation to sit and told the officers "you've got me, you might as well have this," revealing the packages on his lower abdomen which contained cocaine. Defendant was then arrested.

Defendant claims his rights under article I, section 14 of the Utah Constitution and the fourth and fourteenth amendments of the United States Constitution were violated. Defendant argues the police did not have a reasonable and articulable suspicion to detain him and that he did not voluntarily consent to the search of his person. ¹

Initially, the state responds that the exchange between the officers and defendant was a constitutionally permissible voluntary encounter. The state continues that when the encounter advanced to the point where defendant did not feel free to leave, at this point the trial court found reasonable suspicion to believe he was involved in transporting drugs, and that all searches were pursuant to defendant's voluntary consent. In order to resolve the legal issues presented in this appeal, we deal with whether there was reasonable suspicion to detain defendant and whether his consents to the curbside searches of his person were both voluntary and sufficiently attenuated from any prior illegality to justify the searches.

NATURE OF POLICE ENCOUNTER

In State v. Deitman, 739 P.2d 616 (Utah 1987), the Utah Supreme Court recognized three levels of police-citizen encounters and the circumstances under which they are constitutionally permissible.

(1) an officer may approach a citizen at anytime and pose questions so long as the citizen is not detained against his will; (2) an officer may seize a person if the officer has an "articulable suspicion" that the person has committed or is about to commit a crime; however, the detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop; (3) an officer may arrest a suspect if the officer has probable cause to believe an offense has been committed or is being committed.

Id. at 617-18 (quoting United States v. Merritt, 736 F.2d 223, 230 (5th Cir.1984)); see also State v. Jackson, 805 P.2d 765, 766-67 (Utah Ct.App.1990); State v. Smith, 781 P.2d 879, 881 (Utah Ct.App.1989).

The first level of encounter, a "level one" encounter, encompasses situations where an officer approaches an individual and poses questions to the individual, so long as the individual is not detained against his will. This court recently stated "[a]s long as the person 'remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification.' " Jackson, 805 P.2d at 767 (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980)).

In State v. Trujillo, 739 P.2d 85, 87 (Utah Ct.App.1987) (citing Mendenhall, 446 U.S. at 544, 100 S.Ct. at 1870), we noted that "when a reasonable person, based on the totality of the circumstances, remains, not in the spirit of cooperation with the officer's investigation, but because he believes he is not free to leave, a seizure occurs." See also State v. Smith, 781 P.2d 879, 881 (Utah Ct.App.1989) (quoting Trujillo, 739 P.2d at 87). In other words, a seizure occurs where an officer by show of authority or physical force in some way restricts the liberty of an individual. Trujillo, 739 P.2d at 87 (citing Mendenhall, 446 U.S. at 553, 100 S.Ct. at 1876).

Generally, a seizure does not occur where an officer simply approaches an individual in public, asks questions, and even requests identification. See, e.g., Deitman, 739 P.2d at 618; Jackson, 805 P.2d at 766-67; Trujillo, 739 P.2d at 88. Standing alone, the fact that an officer identifies himself as a police officer does not convert a consensual encounter into a seizure. See Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323, 75 L.Ed.2d 229 (1983).

This court has recognized circumstances that, when considered in light of all other circumstances, tend to indicate a seizure has occurred: (1) the presence of several uniformed officers; (2) the display of a weapon by an officer; (3) physical touching of the individual; and (4) the use of language or voice tone threatening to the individual. Jackson, 805 P.2d at 767, (citing Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1876).

Other courts have looked to additional factors in evaluating the nature of an encounter. These factors include the length of an interview, blocking an individual's path, retaining an individual's travel ticket, the removal of the defendant to a private area, statements by police that an investigation has focused on the individual, or searching the defendant's belongings or person. See United States v. Gonzales, 842 F.2d 748, 751-52 (5th Cir.1988), overruled on other grounds, 905 F.2d 74 (5th Cir.1990).

Utah cases are not dispositive on the issue of what constitutes a seizure for fourth amendment purposes in the context of an airport stop. We therefore review a number of insightful federal cases which have treated this topic. In Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), a plurality of the United States Supreme Court upheld the determination of the state appellate court that defendant was not free to leave where he was "confined" in a small area at an airport with two undercover narcotics agents who had indicated defendant was...