State v. Dorsey

• Decision Date: 31 December 1986
• Docket Number: No. 20124,20124
• Parties: The STATE of Utah, Plaintiff and Respondent, v. Joseph P. DORSEY, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1085

731 P.2d 1085

The STATE of Utah, Plaintiff and Respondent, v. Joseph P. DORSEY, Defendant and Appellant.

No. 20124.

Supreme Court of Utah.

Dec. 31, 1986.

G. Fred Metos, Salt Lake City, for defendant and appellant.

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

STEWART, Associate Chief Justice:

Defendant Joseph P. Dorsey appeals his conviction of possession of cocaine with intent to distribute for value in violation of U.C.A., 1953, § 58-37-8. On appeal, he argues that the trial court erred in not excluding from evidence cocaine found during a warrantless search of his truck. We affirm.

Late on March 6 or early on March 7, 1983, Detective Russell Adair of the Metro Narcotics Strike Force made a warrantless search of Dorsey's truck and found one pound of cocaine packaged in sixteen one-ounce packages. The events leading up to that search were as follows.

In late February, 1983, Detective Charlie Hafen of the Metro Narcotics Strike Force met with informant John McGraw and Brian Schiell. Hafen sought to purchase a large amount of cocaine from Schiell, who indicated that he could obtain the cocaine for Hafen. When Hafen and Schiell met several days later, Schiell told Hafen that the suppliers would be driving from California and would be in town within several days. Hafen understood from Schiell that the suppliers were male and that more than one person would make the delivery. On March 6, 1983, Schiell informed Hafen that the suppliers were in town with the cocaine and wanted to complete the transaction that night.

At a briefing that night of other Metro Narcotics Strike Force officers, Hafen informed them that he believed the deal was going to take place that night at the La Quinta Motel. He also informed them that he had $32,000 in marked police money with which to purchase one pound of cocaine from someone driving from California, that he was not sure whether the transaction would be face-to-face or whether it would take place through go-betweens, and that Brian Schiell and possibly Schiell's contact with the supplier, Scott Vaughn, would be there. Adair attended that briefing.

Hafen was then equipped with a body microphone, and transmitter, which made it possible for two other officers equipped with a receiver to hear everything that Hafen said. The officers with the receiver were the only officers who could hear Hafen's transmissions.

Hafen and John McGraw picked up Schiell and met Schiell's contact with the supplier, Scott Vaughn. They drove to the La Quinta Motel where protracted negotiations ensued with Schiell and Vaughn acting as go-betweens between Hafen, who was sitting in his car in the parking lot of the motel, and the people inside the motel with the cocaine, over whether the money or the cocaine would be turned over first. Several strike force detectives were in automobiles surrounding the motel, and one detective was on the second floor inside the motel. At one point during the negotiations, when both Schiell and Vaughn were out of the car, Hafen transmitted a description of them, stating that one of them was wearing a dark leather jacket. The officers who received that transmission then rebroadcast it to the other officers surrounding the motel, but did not mention that the person wearing the dark leather jacket was either Schiell or Vaughn. ¹ Adair, who was in a parked car to the northwest of the motel, heard that broadcast.

Shortly thereafter, the detective inside the motel broadcast that there was a person in a leather jacket who seemed to be involved in the transaction moving around in the parking lot. Adair heard that broadcast. The same detective also broadcast, after conferring with the motel managers, that Rooms 131 and 137 appeared to be the rooms involved in the transaction. The next transmission Adair heard was from two other detectives located in the parking lot, who observed a man in a dark leather jacket walk to a pickup truck located in the motel parking lot, get in and out of the truck, and then walk back toward the motel. They described the truck as a silver, recent-model Chevrolet S-10 with California plates with the numbers 3535. They said the man, who was looking around the parking lot, then walked over to and stood behind a dumpster and continued to observe the parking lot. At that point, Adair drove through the parking lot and observed a white male, who was wearing a dark leather jacket, standing behind the dumpster. At trial, he identified Dorsey as the man he saw.

Adair later heard a transmission stating that the deal could not be put together and that it was therefore called off. Almost immediately thereafter, the detective located on the upper floor of the motel broadcast that the people in Rooms 131 and 137 were leaving the building. Within two minutes of that broadcast, one of the detectives in the parking lot broadcast that he saw two people, one of whom was wearing a dark leather jacket, leave the motel and get into the truck with California license plates and drive off. Adair pulled out behind the truck, got close enough to determine that it had California license plates with the numbers 3535, and followed the truck for approximately thirty blocks. When the truck began to make a U-turn, Adair pulled up on the driver's side of the vehicle, blocking the truck's further movement. Dorsey then rolled down his window. When Adair identified himself as a police officer, Dorsey rolled up the window, picked up something that was between the passenger and the driver, and stuffed it on the floor between his legs. Dorsey and his passenger got out of the truck, and Adair frisked Dorsey. The passenger was put under the control of one of several other detectives who had pulled up behind Adair. Adair searched the floor on the driver's side of the truck and found a paper bag containing sixteen one-ounce packages of cocaine. Adair then arrested both Dorsey and his passenger.

It has long been held that warrantless vehicle searches are not invalid under the Fourth Amendment if probable cause for a search exists. ² Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). See also United States v. Johns, 469 U.S. 478, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985); United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). The probable cause requirement is subject to a narrow exception for stops of moving vehicles where police officers have an articulable suspicion that the automobile's occupants are "involved in criminal activity." United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 679, 83 L.Ed.2d 604 (1985) and United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975), discussed infra.

The United States Supreme Court defined probable cause for a vehicle search as "a belief, reasonably arising out of the circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction." Carroll, 267 U.S. at 149, 45 S.Ct. at 284. See also Draper v. United States, 358 U.S. 307, 310, 79 S.Ct. 329, 331, 3 L.Ed.2d 327 (1959); Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949).

Probable cause exists where "the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that" an offense has been or is being committed.

Brinegar, 338 U.S. at 175-76, 69 S.Ct. at 1310-11 (quoting Carroll, 267 U.S. at 162, 45 S.Ct. at 288).

The validity of the probable cause determination is made from the objective standpoint of a "prudent, reasonable, cautious police officer ... guided by his experience and training." United States v. Davis, 458 F.2d 819, 821 (D.C.Cir.1972). See also Taylor v. Commonwealth, 222 Va. 816, 820-21, 284 S.E.2d 833, 836 (1981), cert. denied, 456 U.S. 906, 102 S.Ct. 1753, 72 L.Ed.2d 163 (1982). Police officers by virtue of their experience and training can sometimes recognize illegal activity where ordinary citizens would not. Some recognition should appropriately be given to that experience and training where there are objective facts to justify the ultimate conclusion. United States v. Ortiz, 422 U.S. 891, 897, 95 S.Ct. 2585, 2589, 45 L.Ed.2d 623 (1975); United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975); Terry v. Ohio, 392 U.S. 1, 23 (1968); 1 W. LaFave, Search and Seizure § 3.2 at 462 (1978).

In Brinegar, the Court emphasized that probable cause does not require more than a rationally based conclusion of probability:

In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of every day life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.

Brinegar, 338 U.S. at 175, 69 S.Ct. at 1310. See also Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983). The line between "mere suspicion and probable cause ... necessarily must be drawn by an act of judgment formed in the light of the particular situation and with account taken of all the circumstances." Brinegar, 338 U.S. at 176, 69 S.Ct. at 1311.

The determination of whether probable cause exists, therefore, depends upon an examination of all the information available to the searching officer in light of the circumstances as they existed at the time the search was made. Id. The trial court's findings as to the facts and circumstances pertaining to probable cause will not be overturned on appeal unless it appears that the trial court clearly erred. State v. Torres, 29 Utah 2d 269, 271, 508 P.2d...