State v. Eastmond, 12789
| Decision Date | 11 July 1972 |
| Docket Number | No. 12789,12789 |
| Citation | 28 Utah 2d 129,499 P.2d 276 |
| Parties | d 129 STATE of Utah, Plaintiff and Respondent, v. Rondo EASTMOND, Defendant and Appellant. |
| Court | Utah Supreme Court |
Gary D. Stott, Provo, for defendant-appellant.
Vernon B. Romney, Atty. Gen., David S. Young, Chief Asst. Atty. Gen., William T. Evans, David R. Irvine, Asst. Attys. Gen., Salt Lake City, for plaintiff-respondent.
This is an appeal from an order of the juvenile court committing defendant, Rondo Eastmond, age 17, to the Utah State Industrial School for an offense which if committed by an adult would be second degree burglary. 1 Defendant charges the trial court with error for admitting evidence obtained by an allegedly illegal search and seizure, and for its finding that he was in joint possession of stolen property.
At approximately 3:00 o'clock a.m. on November 2, 1971, Richard Murdock, a Payson City police officer, observed the lights of a car flash on and the car pull away from the Nebo Medical Clinic in Payson. He followed and stopped the car, a 1964 blue and white Ford. There were three teenage boys in the front seat, defendant in the center. Response to the officer's questions revealed that they were from Orem, a few miles away. Upon their 'explanation' as to their presence in Payson at the late hour, they were allowed to proceed. Within a few minutes the officer in checking the Medical Clinic discovered a broken window and an unlocked door. He radioed a request to have the Ford car stopped. This was soon done near Provo by other officers.
After Officer Murdock arrived, he talked to the occupants, ordered defendant and the other juvenile, Mark Simmons, to get into another police car, and told the driver, David Groneman, age 18, that he was under arrest. In the car there were visible to the officer one flashlight on the seat, another on the floorboards, a small black leather bag of a kind used by doctors, and also a plastic bottle of a type used in doctors' offices, with the word 'alcohol' printed thereon. Dr. Mangelson of the Clinic later made positive identification of the black bad and one of the flashlights as belonging to him.
Defendant and the other juvenile, Mark Simmons, was taken into custody and were duly advised of their constitutional rights, and that they were being held for the burglary of the Nebo Medical Clinic. Later that day, in making an inventory of the Ford automobile, the officer found a hypodermic syringe and four $5 bills and four $1 bills which corresponded in amount to $24 missing from Dr. Mangelson's office.
In regard to the contention that it was error to admit the items mentioned above in evidence because they were taken by an illegal search and seizure, the prosecution has a 'two strings to its bow' justification: (a) that whatever search was made was incident to a lawful arrest, 2 and (b) that the essential part of the incriminating evidence was 'a plan view discovery' which did not require any search as such. 3
Defendant contends that Officer Murdock did not have 'reasonable cause' to make an arrest, and that there was no justification for the search and seizure of the evidence. Our statute, Section 77--13--3, U.C.A.1953, states:
. . . A peace officer may . . . without a warrant, arrest a person:
(3) When he has reasonable cause for believing the person to have committed a public offense, although not in his presence, and there is reasonable cause for believing that such person before a warrant can be obtained and served may:
(a) Flee the jurisdiction or conceal himself to avoid arrest, or
(b) Destroy or conceal evidence of the commission of the offense, . . .
(4) When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.
(6) At night, when there is reasonable cause to believe that he has committed a felony.
In performing his duties as authorized by this statute, a police officer is not required to meet any such standard of perfection as to demand an absolutely certain judgment before he may act. 4 The test to be applied is one which is reasonable and practical under the circumstances: whether a reasonable and prudent man in his position would be justified in believing facts which would warrant making the arrest. 5 In ruling on the admissibility of evidence so obtained, the questions as to the validity of the arrest and the justification for any search made in connection therewith are primarily for the trial court to determine; and on appeal we respect that prerogative and do not upset his determination unless it clearly appears that he was in error. Applying the rules just stated to the factual situation shown in this case, we see no reason to disagree with the view taken by the trial court that there was justification both for the arrest, and for such search as was made in connection therewith. This is particularly so in view of the practical necessity of indulging greater liberality as to the reasonableness of making a search of an automobile (or other mobile things) than such permanently placed things as a home or other building. 6
Because of what has been said above and the conclusion just stated, it is unnecessary to go into any extensive detail or discussion as to justification of the officer's obtaining the evidence under the 'observation in plain sight rule.' 7
Nevertheless, it seems appropriate to make these further observations: The physician's-type bag, the alcohol bottle, and the presence of two flashlights would seem to rpovide a reasonable basis for the officer to connect the defendants with the burglary he had just discovered at the Medical Clinic. In such circumstances, where the officer observes some property in plain sight which he has good reason to believe is stolen, the protection against unreasonable searches does not prevent him...
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...it appears that the trial court clearly erred. State v. Torres, 29 Utah 2d 269, 271, 508 P.2d 534, 536 (1973); State v. Eastmond, 28 Utah 2d 129, 132, 499 P.2d 276, 278 (1972); State v. Criscola, 21 Utah 2d 272, 275, 444 P.2d 517, 519 (1968). In making a probable cause determination, a poli......
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...required to meet any such standard of perfection as to demand an absolutely certain judgment before he may act." State v. Eastmond, 28 Utah 2d 129, 132, 499 P.2d 276, 278 (1972) (footnote In this case, the purported probable cause is based on tips from two informants and independent corrobo......
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