State v. Figueroa-Solorio, FIGUEROA-SOLORI

• Decision Date: 25 March 1992
• Docket Number: No. 910170-CA,FIGUEROA-SOLORI,D,910170-CA
• Parties: STATE of Utah, Plaintiff and Appellee, v. Jorgeefendant and Appellant.
• Court: Utah Court of Appeals

Page 276

830 P.2d 276

STATE of Utah, Plaintiff and Appellee, v. Jorge FIGUEROA-SOLORIO, Defendant and Appellant.

No. 910170-CA.

Court of Appeals of Utah.

March 25, 1992.

Richard G. Uday, Salt Lake City, for defendant and appellant.

R. Paul Van Dam and David B. Thompson, Salt Lake City, for plaintiff and appellee.

Before BILLINGS, ORME and RUSSON, JJ.

AMENDED OPINION ¹

RUSSON, Judge:

Defendant Jorge Figueroa-Solorio appeals his conviction of possession of a controlled substance, a third degree felony, in violation of Utah Code Ann. § 58-37-8(2)(a)(i) (1990).

FACTS

On January 1, 1991, Salt Lake City Police Officers B.L. Smith and Louis Jones observed defendant cross State Street at approximately 916 South in Salt Lake City. There is no crosswalk or traffic light at that location. Accordingly, the officers decided to issue a jaywalking citation to defendant, pursuant to Utah Code Ann. § 41-6-79 (1988) of the Motor Vehicle Act.

Officers Smith and Jones approached defendant, who had gotten into a parked car. They asked defendant to get out of the car and then asked for identification. The defendant said that he did not have any I.D., but wrote his name in Officer Smith's notebook when requested to do so. Officer Smith went to his patrol car to check his warrants book for any outstanding warrants for defendant's arrest. Having found an outstanding warrant for defendant's arrest listed in the warrants book, Officer Smith then verified the existence of the warrant with a computer check. The detention lasted a total of two to three minutes.

Defendant was placed under arrest based on the outstanding warrant, and a search incident to arrest revealed a controlled substance on his person. Defendant was charged with possession of a controlled substance with the intent to distribute, a second degree felony, in violation of Utah Code Ann. § 58-37-8(1)(a)(iv) (1990). Defendant moved to suppress evidence of the controlled substance found during the search incident to his arrest, which motion was denied. Defendant then entered a plea of guilty to a reduced charge of possession of a controlled substance, a third degree felony, in violation of Utah Code Ann. § 58-37-8(2)(a)(i) (1990), conditional upon preserving the right to appeal the denial of his motion to suppress. See State v. Sery, 758 P.2d 935, 938 (Utah App.1988).

The issues presented on appeal are whether the trial court erred in denying defendant's motion to suppress (1) on the basis of the trial court's conclusion that the stop of defendant was not a pretext stop, and (2) on the basis of the trial court's determination that the police officer's actions did not exceed the scope of the purpose of the original stop.

I. PRETEXT STOP ANALYSIS ²

As a preliminary matter, defendant's argument that the test for pretext established in State v. Sierra, 754 P.2d 972 (Utah App.1988), disavowed on other grounds, State v. Arroyo, 796 P.2d 684, 689-92 (Utah 1990), should be applied to the facts in this case must be addressed. The Sierra test is derived from the following language in Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978): "would the facts available to the officer at the moment of the seizure or the search 'warrant [an officer] of reasonable caution in the belief' that the action taken was appropriate?" Sierra, 754 P.2d 972 at 977-78 (quoting Scott, 436 U.S. at 137, 98 S.Ct. at 1723). Thus, the Sierra court reasoned that in traffic stop cases the "focus [is] on whether a hypothetical reasonable officer, in view of the totality of the circumstances confronting him or her, would have stopped [the defendant] to issue a [citation]." Sierra, 754 P.2d at 978 (emphasis in original).

Sierra is inapplicable to the facts in this case for several reasons. First, the fact that the Scott test focuses on whether an officer's suspicion of criminal activity is reasonable raises serious questions as to its applicability in traffic stop cases. The result in Scott focused on the determination of whether the officer had a reasonable suspicion of criminal activity in light of the facts known to him at that time. Put differently, did the circumstances, viewed objectively, justify the action taken? Scott, 436 U.S. at 137-38, 98 S.Ct. at 1723.

That question will always be answered in the affirmative in traffic stop cases because issuance of a citation is always justified when the officer observes a statute being violated. It is a police officer's sworn duty to enforce all laws passed by the legislature, including traffic laws. Utah Code Ann. § 41-1-17 (1988) of the Motor Vehicle Act provides:

The commission, and such officers and inspectors of the department as it shall designate, peace officers, state patrolmen, and others duly authorized by the department or by law shall have power and it shall be their duty:

(a) To enforce the provisions of this act and of all other laws regulating the registration or operation of vehicles or the use of the highways.

(b) To make arrests upon view and without warrant for any violation committed in their presence of any of the provisions of this act or other law regulating the operation of vehicles or the use of the highways.

(c) When on duty, upon reasonable belief that any vehicle is being operated in violation of any provision of this act or of any other law regulating the operation of vehicles to require the driver thereof to stop, exhibit his driver's license and the registration card issued for the vehicle and submit to an inspection of such vehicle, the registration plates and registration card thereon.

Id. (emphasis added). Thus, police officers have no discretion as to which laws would be reasonable to enforce. Such action is appropriate whenever an officer suspects that the driver is violating one of the applicable traffic regulations. State v. Marshall, 791 P.2d 880, 883 n. 3 (Utah App.), cert. denied, 800 P.2d 1105 (Utah 1990); State v. Talbot, 792 P.2d 489, 491 (Utah App.1990); accord State v. Sanders, 154 Ga.App. 305, 267 S.E.2d 906 (1980); Braxton v. State, 234 Md. 1, 197 A.2d 841 (1964); Anderson v. State, 444 P.2d 239 (Okla.Crim.1968).

Also, police officers cannot be expected, upon observing a violation of law, to make a legal determination as to whether or not a "reasonable officer" would arrest the violator. Even those cases in which the Sierra test has been successfully met do not establish a standard by which the State can prove that a hypothetical reasonable officer would stop the vehicle. See State v. Lovegren, 798 P.2d 767, 771 n. 10 (Utah App.1990) (the fact that the officer at hand often makes such arrests is the determining factor); Marshall, 791 P.2d at 883 (the fact that other jurisdictions had held under similar circumstances that a reasonable officer would make such stop is determinative); State v. Smith, 781 P.2d 879, 883 (Utah App.1989) (the trial court's decision that the violation in question "is the type of clear cut traffic violation for which officers routinely stop citizens and issue citations" is sufficient). Thus, it is simply unreasonable to expect the police to make on-the-spot judgments on this difficult legal question.

Additionally, the Sierra requirement that only those laws that "reasonable officers" would implement are enforceable impermissibly limits an officer's ability to perform his job:

[T]he enforceability of state laws [cannot] depend upon the diligence by which police officers usually enforce such laws. Otherwise, derelict officers would set the standard by which laws would be enforced and thus limit diligent officers in performing their duty.... To allow police officers to decide which laws should or should not be enforced would destroy the uniform application of laws throughout the state, since what might appear reasonable to officers in one part of the state might appear different to officers in other parts of the state. Accordingly while the stopping of a vehicle merely to confirm or deny a "hunch," see Talbot, 792 P.2d at 491-92 n. 6, cannot be condoned, neither can it be left to police officers to determine which traffic laws it would be reasonable to enforce.

State v. Lopez, 186 Utah Adv.Rep. 16, 25-26 (Utah App.1992) (Russon, J., concurring in part and dissenting in part).

Lastly, Sierra creates a separation of powers problem by permitting the police or the courts to decide what laws are reasonable enough to enforce. While

it is the judiciary's responsibility to determine the constitutionality of the laws, it is not within the province of the executive branch or judicial branch to say whether those laws are reasonable. Such is clearly an invasion of the legislature's jurisdiction. "[I]t is not our prerogative to question the wisdom, social desirability, or public policy underlying a given statute. Those are matters left exclusively to the legislature's judgment and determination."

Id. at 26 (quoting Condemarin v. University Hosp., 775 P.2d 348, 377 (Utah 1989) (Hall, J., dissenting)). See also Utah Manufacturers' Ass'n v. Stewart, 82 Utah 198, 23 P.2d 229, 232 (1933) ("fairly debatable questions as to reasonableness, wisdom, or propriety [of legislative action] are not for the courts, but for the Legislature"). Thus, the principle of separation of powers is clearly violated by allowing the police or the courts to determine whether it is reasonable to enforce any law duly passed by the legislature. Accordingly, Sierra should not be applied to cases such as this. ³

II. SCOPE ANALYSIS

The Fourth Amendment to the United States Constitution states that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." U.S. Const. amend. IV. It follows that "people are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalk." Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979) (citing ...