State v. Cole
| Decision Date | 17 November 1983 |
| Docket Number | No. 18819,18819 |
| Citation | 674 P.2d 119 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Don Wesley COLE, Defendant and Appellant. |
| Court | Utah Supreme Court |
Robert M. McRae, Leon Dever, Vernal, for defendant and appellant.
David L. Wilkinson, Atty. Gen., Robert N. Parrish, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.
Defendant appeals his convictions of possession of controlled substances with intent to distribute 1 and possession of a dangerous weapon by a convicted felon, 2 alleging as error the denial of his motion to suppress evidence seized before and after his arrest.
On December 28, 1980, an employee of the local Safeway Store called Vernal city police and reported that a person she considered suspicious had just left the store after exchanging $1,000 worth of small denomination bills for $100 and $50 bills. She reported that the person had departed in a pickup truck with no visible license plates or registration. The Vernal police located the described vehicle outside a local restaurant and determined that a person resembling the "suspicious" person was eating inside with a companion. Police then staked out the restaurant. After approximately 30 minutes, during which time defendant came out to the vehicle at least once and returned to the restaurant, defendant Cole and his companion, Herbie Bell, exited the restaurant, got into the vehicle and drove away. Police stopped the vehicle for a moving traffic violation almost immediately and asked the occupants to get out. One officer gave Miranda warnings to the passenger Bell and began questioning him about the currency exchange. Another officer, Officer Free, questioned the defendant concerning the lack of registration or plates on the vehicle. Defendant was not given a Miranda warning at that time.
Free advised Cole that he intended to impound the vehicle because of the lack of valid registration and that, pursuant to departmental policy, an inventory would be taken of the contents of the vehicle. Cole offered to waive, in writing, the officers' liability for the contents of the truck. Free refused, but told defendant that he and Bell could remove any of their personal belongings that they did not want impounded with the vehicle. Cole removed some clothing and other personal articles from the truck and handed them to Bell.
Apparently simultaneously, the officers began their inventory. At some point during that process, an officer discovered a marijuana bong under the seat of the vehicle. The bong had marijuana residue on it. Free told defendant that if he would turn over any marijuana he had he would not be arrested for a controlled substances violation. Cole subsequently turned over 12 bags of marijuana to Free and was not arrested.
As defendant was removing personal items from the truck, Free twice asked him if there were any firearms in the truck; Cole twice replied no. Free subsequently spotted a leather pistol case half concealed in some clothing that defendant was removing. At that time, the other officers were inventorying the vehicle and had their backs to Cole. Free, concerned for the other officers' safety and suspicious because of defendant's apparent lies concerning firearms, took the case from defendant, opened it and found a 9mm Colt pistol with eight rounds in the magazine. Free then asked Cole if he had ever been convicted of a felony. Cole replied that he had. Cole claims that he also told Officer Free that the conviction for burglary was as a juvenile and therefore not a felony. Free claims that Cole did not tell him that fact until later, but he didn't recall exactly when Cole so informed him.
In any event, Free arrested Cole for being a convicted felon in possession of a firearm and for possession of marijuana seeds, found during the vehicle inventory, that had not been surrendered to the police. Another officer retrieved Cole's knapsack and men's purse from Bell, saying that Cole's personal items would have to accompany him to jail. At the jail, pursuant to departmental policy, the bags were inventoried and found to contain, among other things, marijuana, hashish, LSD and cocaine. Defendant was then charged with four counts of possessing controlled substances with the intent to distribute for value, in addition to the weapons violation.
Defendant made several motions to dismiss and to suppress all evidence seized prior to (firearm) or after (drugs) defendant's arrest, all of which were denied. Defendant then stipulated to the fact that the evidence had been taken from a search of his vehicle and his person. Defendant did not stipulate to the disputed facts upon which his motions to suppress were premised. The judge thereafter found defendant guilty of both the weapons violation and the controlled substances violations and sentenced him.
On appeal, defendant claims that the trial court erred in denying his motions to suppress both the gun and the controlled substances in violation of his Fourth and Fourteenth Amendment rights because: (1) the traffic stop was a pretext to search for evidence of a crime; (2) the warrantless seizure of the firearm was not justified; (3) there was not sufficient probable cause to arrest defendant for being a felon in possession of a firearm; (4) there was no justification for police repossession of defendant's personal items after his arrest.
It is important to note at the outset that this Court will not disturb the ruling of a trial court on questions of admissibility of evidence or on issues of fact relevant to that admissibility unless it clearly appears that the lower court was in error. 3
Defendant first contends that the traffic stop was a pretext to search for evidence of a crime. The facts do not bear this out.
The police, after being informed that a vehicle was being operated without registration or plates, properly sought out the vehicle and waited to determine who the driver was. When defendant got in and drove the vehicle away, police stopped it. 4
Stopping a vehicle and detaining its occupants constitute a seizure within the meaning of the Fourth and Fourteenth Amendments. 5 However, a stop of a vehicle for lack of registration does not constitute an unreasonable seizure under the strictures of the Fourth Amendment if there is at least an articulable and reasonable suspicion that the vehicle is not registered. 6 Here there was clear probable cause to stop the vehicle that defendant was driving since there was no visible registration or plates. The police not only had a right to make the stop, they had a duty to do so.
Once the vehicle had been stopped, the police questioned defendant to ascertain whether the vehicle was properly registered. When defendant could not produce valid registration, the police properly impounded the vehicle. 7 The police did not arrest defendant at that time nor did they attempt to search the person of defendant or the vehicle. In fact, after informing defendant that the vehicle was going to be impounded and that an inventory search of the vehicle would be done pursuant to departmental policy, 8 the police allowed Cole to take any personal items he chose from the vehicle prior to the inventory. Had the police been searching for evidence of a crime, there is no rationale that could explain this police behavior. In addition, during the inventory, evidence of a controlled substance violation was observed in the form of a bong with marijuana residue. The police not only did not use this evidence to justify a further search, they did not then arrest defendant. Had the police stopped the vehicle as a pretext to search for evidence of a crime, there is no logical explanation for the officers' declining to arrest defendant when clear evidence of a crime manifested itself during a proper inventory search.
The trial judge clearly had substantial evidence before him to justify his refusal to suppress evidence on the basis of pretext and we will not disturb that ruling.
Defendant next contends that the warrantless seizure of the gun was not justified by any exception to the warrant requirement.
Warrantless seizures and searches are per se unreasonable unless the exigencies of the situation justify an exception. 9 However, objects within the plain view of an officer from a position where he is entitled to be are not the subject of an unlawful search. 10 In this case, Officer Free was clearly where he had a right to be. He was standing on a public street following a rightful traffic stop waiting for the inventory of the vehicle to be completed. Defendant himself put the gun case within the view of the officer when he removed the gun from the vehicle. Although it appears that defendant was attempting to conceal the gun, he did not succeed and an officer is not required to avert his eyes from that which is put before him. 11
The subsequent seizure of the gun case from defendant was reasonable under the Terry 12 standard. In Terry, it was said that the test of the reasonableness of a particular warrantless search for or seizure of a weapon was an objective one: "[W]ould the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?" 13 The Court went on to say that if an officer believes himself or others to be in danger, he can take necessary measures to neutralize that threat of harm, including seizing a weapon.
Here the officer clearly had reason to be suspicious of defendant. The officer had asked defendant twice if there were any firearms in the vehicle and defendant had said no. Defendant then removed a gun case from the vehicle, apparently attempting to conceal it. Officer Free testified that at that point he feared for the safety of the other officers who were inventorying the vehicle's contents and whose backs were to defendant. Therefore, he seized the gun case. Under the Terry standard, the...
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