State v. Harmon, 930414

Citation910 P.2d 1196
Decision Date14 December 1995
Docket NumberNo. 930414,930414
PartiesSTATE of Utah, Plaintiff and Respondent, v. Julie HARMON, Defendant and Petitioner.
CourtSupreme Court of Utah

Jan Graham, Atty. Gen. and J. Kevin Murphy, Asst. Att'y Gen., Salt Lake City, for plaintiff.

Joan C. Watt, Mark R. Moffat, and Robert K. Heineman, Salt Lake City, for defendant.

ON CERTIORARI TO THE UTAH COURT OF APPEALS

HOWE, Justice:

We granted certiorari to review the court of appeals' decision in this case. State v. Harmon, 854 P.2d 1037 (Ct.App.), cert. granted, 868 P.2d 95 (Utah 1993). Defendant Julie Harmon entered a conditional guilty plea to possession of a controlled substance, a third degree felony, while reserving her right to appeal the trial court's denial of her pretrial motion to suppress evidence. The court of appeals affirmed her conviction. Id. at 1041.

I. FACTS

On November 19, 1991, Detective Robert Russo, an eight-year deputy county sheriff assigned to the Metro Narcotics Task Force, received a tip from an informant that Harmon was distributing narcotics from her home in Magna. At approximately 6:00 that evening, Russo went to her home to ask her for information confirming or rebutting the accusations. When he arrived, Harmon was in her car backing out of her driveway. Russo approached her, identified himself, told her about the tip, and asked if he could search her home. She denied the accusations and refused to allow the search, stating that she was on her way to visit her father, who had recently suffered a heart attack and was returning home from the hospital.

Russo advised Harmon that if she refused to consent, he "could come back at a later time with a [search] warrant," which, he warned, was an "unpleasant experience." 1 She again declined to allow an immediate search. Russo testified that Harmon said she would allow him to search upon her return. However, Harmon testified that she told him that if he wanted to "hang around," she would talk to him when she returned.

Harmon then drove to her parents' home. As she drove away, Russo called to check on Harmon's driver's license and was informed that it had been suspended. He decided he would arrest her for driving with a suspended driver's license ("driving on suspension"). Seeing Harmon drive by shortly thereafter, Russo called for an assisting officer in a marked patrol car, and together they stopped her in a parking lot two blocks from her home. Russo placed her under arrest for driving on suspension, and she was handcuffed by an assisting officer. The testimony differs at this point, 2 but both parties agree that Harmon informed Russo that he would need a warrant if he wanted to search her home.

Russo searched her person incident to the arrest and found pills in a prescription vial with its label scratched off. 3 He also confiscated $285 found in Harmon's purse. Russo placed her in his car, advised her of her Miranda rights, and proceeded to take her to the Salt Lake County jail. The other officers stayed behind to impound her car.

Harmon testified that on the way to jail, Russo told her that he knew she had drugs in her home, that he would have to get a warrant, and that they would "tear my house apart." Russo did not recall making these statements. Harmon admitted to Russo that she had been afraid to let him into her home because at one time she had sold drugs and the home contained drug paraphernalia but that she was trying to clean up her act. She told him that if he drove her back to her home, she would sign a search consent form and let him in so that he could retrieve those items. Russo did not promise her any benefit for permitting a search of her home and told her that she would probably go to jail anyway. When Harmon again told Russo she would consent to the search of her home, Russo turned his car around, started back to her home, and called for assistance. On their arrival, Russo again advised her of her Miranda rights and read her a written consent form which she signed. Harmon's dog was in the home. Harmon indicated that the dog may try to bite the officers. Russo told her that he would have to shoot her dog if it attacked the officers. After some discussion, the officers permitted Harmon to go into the home alone to take the dog out into the back yard.

Russo and several back-up officers proceeded inside. Harmon, who was friendly and cooperative during the search, assisted the officers by pulling various items of drug paraphernalia and illegal drugs out from underneath a sofa in the living room. She was permitted to telephone her brother--who is a police officer--to seek advice. When the search concluded, Russo permitted Harmon to stay at her home with instructions to phone him the following morning. She was not cited for driving on suspension but was later charged with possession of a controlled substance.

Harmon moved to suppress the evidence obtained during the search of her home. The trial court denied the motion, and she subsequently entered a conditional guilty plea and was placed on probation for eighteen months. The court of appeals affirmed the denial of her motion to suppress, holding that Harmon's stop and arrest were not unconstitutional and that her consent to search her home was freely and voluntarily given. Harmon, 854 P.2d at 1039-40.

II. ANALYSIS

We first clarify our standard of review. On certiorari, we review the decision of the court of appeals, not the decision of the trial court. Butterfield v. Okubo, 831 P.2d 97, 101 n. 2 (Utah 1992); see also Allen v. Utah Dep't of Health, 850 P.2d 1267, 1269 n. 4 (Utah 1993). In doing so, this court adopts the same standard of review used by the court of appeals: questions of law are reviewed for correctness, and the trial court's factual findings are reversed only if clearly erroneous. Landes v. Capital City Bank, 795 P.2d 1127, 1129 (Utah 1990); see also State v. Arroyo, 796 P.2d 684, 687 (Utah 1990). The issues presented in this case--whether Harmon's arrest was constitutional and whether her consent to search was voluntary--are questions of law that we review for correctness. See State v. Thurman, 846 P.2d 1256, 1271-72 (Utah 1993). The trial court's underlying factual findings will not be set aside unless they are found to be clearly erroneous. Id.

A. Validity of Harmon's Arrest

Harmon contends that the court of appeals erred in holding that her arrest for driving on suspension did not violate the Fourth Amendment of the United States Constitution or article I, section 14 of the Utah Constitution.

1. Statutory Authority to Arrest

Initially, we observe the fundamental rule that courts should avoid reaching constitutional issues if the case can be decided on other grounds. West v. Thomson Newspapers, 872 P.2d 999, 1004 (Utah 1994); Thurman, 846 P.2d at 1262. Thus, we begin by examining whether the arrest was valid under our state statutes. If it was not, then we need not go further.

When Harmon was arrested in November 1991, Utah's Motor Vehicle Act provided:

[P]eace officers, state patrolmen, and others duly authorized by the [motor vehicle] department or by law shall have the power and it shall be their duty:

....

(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.

Utah Code Ann. § 41-1-17 (1988) (emphasis added). 4 The State argues that the "shall" wording of this statute made it presumptively, if not conclusively, Russo's duty to take Harmon into custody for driving on suspension. This interpretation of the statute is not persuasive. Obviously, it is not police policy and practice to arrest all traffic offenders- --in fact, almost the exact opposite is true. The statute, originally passed in 1935, used the word "arrest" to mean a seizure or detention, not a formal, custodial arrest. "An arrest is an actual restraint of the person arrested or submission to custody." Utah Code Ann. § 77-7-1 (emphasis added). Under this definition, a traffic stop qualifies as an arrest because the alleged violator is not free to leave until he is satisfactorily identified and has signed a written promise to appear, even though the stop is a limited seizure more like an investigative detention than a custodial arrest. See State v. Parker, 834 P.2d 592, 594 (Utah Ct.App.1992); see also Utah Code Ann. § 41-6-167(d) (referring to "the arresting officer's" issuance of traffic citation to "the arrested person"). Thus, the proper interpretation of section 41-1-17 is that officers have the authority and duty to "arrest"--meaning stop or seize--traffic offenders. The section does not authorize or require officers to take all traffic offenders into custody. 5

Harmon asserts that police authority to arrest for a misdemeanor traffic violation, including driving on suspension, is limited by the following sections:

41-6-166. Appearance upon arrest for misdemeanor--Setting Bond

Whenever any person is arrested for any violation of this act punishable as a misdemeanor, the arrested person, for the purpose of setting bond, shall in the following cases, be taken without unnecessary delay before a magistrate within the county in which the offense charged is alleged to have been committed and who has jurisdiction of such offense and is nearest or most accessible with reference to the place where said arrest is made, in any of the following cases:

(1) When a person arrested demands an immediate appearance before a magistrate.

(2) When the person is arrested upon a charge of driving or being in actual physical control of a vehicle while under the influence of alcohol or any drug or combination thereof....

(3) When the person is arrested upon a charge of failure to stop in the event of an accident causing death, personal injuries, or damage to property.

(4) In any other event when the person arrested refuses to give his...

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