State v. Harmon, 920463-CA
| Decision Date | 14 June 1993 |
| Docket Number | No. 920463-CA,920463-CA |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Julie HARMON, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Mark R. Moffat and Elizabeth Holbrook, Salt Lake City, for defendant and appellant.
Jan Graham and J. Kevin Murphy, Salt Lake City, for plaintiff and appellee.
Before BENCH, GARFF and JACKSON, JJ.
Julie Harmon appeals from her conviction of possession of a controlled substance, a third degree felony, in violation of Utah Code Ann. § 58-37-8(2)(a)(i) (Supp.1992). We affirm.
On November 19, 1991, Detective Russo received a tip from an informant that Harmon was distributing narcotics from her home. That evening, Detective Russo went to Harmon's home and met Harmon as she was backing her car out of her driveway. Detective Russo informed Harmon about the informant's tip and asked if he could search her home. Harmon testified that she refused, claiming she was on her way to visit her father who had recently suffered a heart attack. Detective Russo testified that she stated she would allow him to search when she returned from visiting her father. He advised her that he could not search her home without her consent and he would have to get a search warrant if she did not consent to allow him to search. He testified that he told her he could come back at a later time with a search warrant and that warrants are an "unpleasant experience."
She then drove away and proceeded to circle the block a few times, passing Detective Russo in front of her home each time. Russo remained at Harmon's home and radioed in a routine warrants and driver's license check. Detective Russo received a report that Harmon's license was suspended, upon which he obtained assistance from other officers and stopped her a few blocks from her home. Detective Russo arrested Harmon for driving with a suspended license. He searched her incident to the arrest and found controlled substances that were mislabeled or not prescribed to Harmon. Detective Russo then gave Harmon her Miranda rights, handcuffed her, put her into his car, and began driving her to jail.
On the way to jail, Harmon admitted that she had sold drugs from her home in the past and that she was trying to clean up her act. She told Russo that she would allow him to search her home if he drove her back to her house. Detective Russo testified that he told Harmon it would be inappropriate to search based on her consent because it would appear that he was coercing her consent by arresting her and taking her to jail. She again agreed to allow him to search and offered to sign a consent form. Detective Russo testified that he told Harmon that he would prefer to apply for a search warrant and avoid the appearance of coercion. Harmon again stated she would consent to the search of her home.
Detective Russo then informed her that they would go over the consent form and if she still wanted to allow him to search, they would turn back and search the home. He testified that he did not promise her any benefit for permitting a search of her home. On the way back, Detective Russo called in for assistance to search her home. When they arrived at Harmon's home, Detective Russo again gave Harmon her Miranda rights and she signed a written consent to search her home. Detective Russo, along with other officers who had arrived on the scene, proceeded inside where Harmon showed them various items of drug paraphernalia and illegal drugs from underneath a sofa in the living room. Detective Russo and other officers testified that Harmon was friendly and cooperative during the search.
Harmon was later charged with three counts of possession of a controlled substance, two third degree felony counts and one class B misdemeanor count, relating to the drugs found in Harmon's home. The misdemeanor count was dismissed pursuant to Harmon's plea bargain. One of the felony counts was dismissed after the preliminary hearing. Harmon filed a motion to suppress evidence found at her home in violation of her constitutional rights. The trial court denied the motion and Harmon pleaded guilty to the remaining felony count, reserving her right to appeal the denial of her motion pursuant to State v. Sery, 758 P.2d 935 (Utah App.1988).
Harmon claims the trial court improperly found (1) the traffic stop was not a "pretext" stop; and (2) her consent for police to search her home was freely and voluntarily given.
Harmon claims that Detective Russo stopped her for driving with a suspended license as a pretext to search for evidence of a more serious crime. The trial court, in determining the detention was not pretextual, found that "a reasonable officer would have stopped and arrested this defendant." The test to determine whether a detention is pretextual is whether a reasonable officer, in view of the totality of the circumstances, would have detained the defendant for the traffic violation absent any unconstitutional motivation. State v. Lopez, 831 P.2d 1040, 1044 (Utah App.1992), cert. granted, 843 P.2d 1042 (Utah 1992). Detective Russo clearly had probable cause to stop and arrest Harmon for driving with a suspended license. See State v. Chapman, 841 P.2d 725, 728 (Utah App.1992). Further, Detective Russo testified that it was the usual practice for persons driving with a suspended license to be stopped and either arrested or issued a citation. Detective Russo did not deviate from that procedure when he stopped and arrested Harmon. Accordingly, we agree with the trial court that the stop and arrest were not unconstitutional.
Harmon also alleges the trial court incorrectly concluded that her consent to search her home was voluntary because the consent was not freely given but instead was a product of coercion and duress. Consent to search is valid under the Fourth Amendment if (1) the consent was voluntarily given, and (2) the consent was not obtained by police exploitation of the prior illegality. 1 State v. Thurman, 846 P.2d 1256, 1262 (Utah 1993); Sepulveda, 842 P.2d at 918. We apply a correction of error standard when a defendant challenges the "legal content" 2 of the trial court's ultimate conclusion that a consent was voluntary or involuntary. Thurman, 846 P.2d at 1271. The trial court's factual findings will not be set aside unless they are clearly erroneous. Id.; Barnhart, 850 P.2d at 476.
Whether consent to search was voluntarily given is determined from the totality of the circumstances surrounding the consent, including the characteristics of the accused and the details of the police conduct. Thurman, 846 P.2d at 1263; State v. Robinson, 797 P.2d 431, 437 (Utah App.1990). In order for consent to be voluntary, (1) there must be clear and positive testimony that the consent was unequivocal, specific, and freely and intelligently given; (2) the government must prove consent was given without duress or coercion, express or implied; and (3) the courts must indulge every reasonable presumption against the waiver of fundamental constitutional rights and there must be convincing evidence that such rights were waived. State v. Webb, 790 P.2d 65, 82 (Utah App.1990), aff'd, 853 P.2d 898 (1993).
The trial court properly determined Harmon's consent was voluntary. The record contains abundant evidence that Harmon freely gave her consent to the search and that the consent was not the product of duress or coercion. 3 The trial court found that after Harmon was arrested, Harmon informed Detective Russo that she would allow him to search her home. 4 Detective Russo informed Harmon on more than one occasion that without her consent he would have to obtain a search warrant to search her home. 5 Harmon also offered to sign a consent form to search her home. Later, she did, in fact, sign the consent form, which stated that she had the right not to have her home searched without a warrant and that she could refuse to consent to the search. 6 The trial court further found that Detective Russo did not promise Harmon any benefit for permitting him to search her home and informed her that she would probably go to jail for driving with a suspended license even if she consented to the search. 7
Under the totality of these circumstances, w...
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