State v. Holmes

• Decision Date: 03 May 1989
• Docket Number: No. 880168-CA,880168-CA
• Citation: 774 P.2d 506
• Parties: STATE of Utah, Plaintiff and Respondent, v. Charlene Anne HOLMES, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 506

774 P.2d 506

STATE of Utah, Plaintiff and Respondent, v. Charlene Anne HOLMES, Defendant and Appellant.

No. 880168-CA.

Court of Appeals of Utah.

May 3, 1989.

James C. Bradshaw and Joan C. Watt, Salt Lake City, for defendant and appellant.

David L. Wilkinson and Charlene Barlow, Salt Lake City, for plaintiff and respondent.

Before BENCH, BILLINGS and GREENWOOD, JJ.

BENCH, Judge:

Defendant appeals her conviction for attempted unlawful possession of a controlled substance, a class A misdemeanor, in violation of Utah Code Ann. § 58-37-8 (Supp.1988). Defendant argues on appeal that the evidence against her should have been suppressed on two grounds. First, she claims that the police lacked reasonable suspicion to stop the vehicle in which she was a passenger. Second, she argues that even if the motor vehicle stop was valid, the officers unconstitutionally seized evidence that was subsequently used against her. Although we conclude that the police had reasonable suspicion to stop the vehicle, the seizure of evidence was improper. We, therefore, reverse and remand.

FACTS

Defendant Charlene Anne Holmes was arrested in Salt Lake City shortly after 8:30 p.m. on Thursday, September 17, 1987. The events that led to her arrest were described by two plainclothes police officers at a hearing on defendant's motion to suppress evidence. The officers testified that they first observed the defendant standing on the sidewalk near 1200 South State Street, talking to the male occupant of a pickup truck. After a short conversation, defendant began "strolling" south on State Street, turning occasionally to look back at traffic. In the next two blocks, she was observed having brief conversations with the male drivers of two other vehicles. She then met again with the driver of the second vehicle, conversed briefly, and got into the vehicle.

Suspecting that the occupants of the vehicle had made a "prostitution deal," the officers followed the vehicle as it proceeded south on State Street, turned east, and briefly entered and exited two South High School parking lots. The vehicle eventually turned back in the direction of its point of origin.

Based on this "somewhat evasive" driving pattern, the officers surmised that the occupants had realized that the police were following. The officers decided to stop and question them. While one officer approached the driver and requested him to step to the rear of the car, the other officer stood on the passenger side of the car and watched defendant. The officer testified that the defendant looked back over her left shoulder at the other officer, then moved her purse from her lap to the floor. He continued to watch as she removed a roll of paper towels from the purse and attempted to stuff it down between the car seat and the console.

The officer opened the car door and asked for the roll of towels. After defendant denied it was hers, the officer reached in, removed the roll, and unrolled it. Inside, he found two syringes, a spoon, and two small packets of mayonnaise. The syringes contained cocaine. Although defendant was arrested on this narcotics violation, neither she nor the driver was charged with a sexual offense.

Defendant's pretrial motion to suppress the narcotics evidence was denied. Although it is unclear from the record as to the timing and reasons therefor, an amended information was filed which reduced the charge from a third degree felony for possession of a controlled substance to a class A misdemeanor for attempted possession. The defendant submitted the case to the court for disposition after the suppression hearing without further testimony. On the basis of that evidence, defendant was convicted.

THE MOTOR VEHICLE STOP

"Any time a police officer stops an automobile the stop necessarily involves detention and therefore is [an] encounter requiring reasonable, articulable suspicion." State v. Baird, 763 P.2d 1214, 1216 (Utah App.1988). See also Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). This constitutionally mandated standard has been codified in Utah Code Ann. § 77-7-15 (1982):

A peace officer may stop any person in a public place when he has reasonable suspicion to believe he has committed or is A brief investigatory stop must be based on "objective facts" that the "individual is involved in criminal activity." State v. Swanigan, 699 P.2d 718, 719 (Utah 1985) (quoting Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640-41, 61 L.Ed.2d 357 (1979)). Whether there are objective facts to justify such a stop depends on the "totality of the circumstances." State v. Mendoza, 748 P.2d 181, 183 (Utah 1987); State v. Sierra, 754 P.2d 972, 977 (Utah App.1988). However, there is no "bright line delineating what is or is not reasonable." Baird, 763 P.2d at 1216.

in the act of committing or is attempting to commit a public offense and may demand his name, address and an explanation of his actions.

On appeal, defendant argues that the initial stop of the motor vehicle in which she was riding was unreasonable. ¹ Defendant bases this argument on the premise that any suspicion of criminal activity should have dissipated once the police surmised that the participants had aborted the alleged "prostitution deal." Thus, defendant contends that the purpose of the vehicle stop must have been improper, i.e., to harass or seek an incriminating admission from the occupants. Defendant also questions the adequacy of the articulated factors upon which the state relied in stopping the vehicle. She argues that her "strolling," her brief conversations with men, the evasive driving pattern, and the fact that the area is known for its high level of prostitution activity are insufficient to establish reasonable, articulable suspicion. ²

We are unpersuaded by these arguments. Section 77-7-15 permits an officer to stop an individual who has committed, is committing, or is attempting to commit an offense. In the case of prostitution, the offense is complete once there is an offer or agreement to engage in sexual activity for a fee; it is unnecessary to actually engage in the sexual activity. Utah Code Ann. § 76-10-1302 (1978). The officers testified that they believed that a "deal" had been made, i.e., an offense had occurred, and stated the reasons for that belief. Section 77-7-15 clearly permitted the officers to more fully investigate by interviewing the occupants of the vehicle.

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders.... A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information may be most reasonable in light of the facts known to the officer at the time.

Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972).

Defendant's assertion of an improper purpose on the part of the police further ignores the inference of criminal activity. "When a police officer sees or hears conduct which gives rise to suspicion of crime, he has not only the right but the duty to make observations and investigations to determine whether the law is being violated; and if so, to take such measures as are necessary in the enforcement of the law." State v. Folkes, 565 P.2d 1125, 1127 (Utah 1977), cert. denied, 434 U.S. 971, 98 S.Ct. 523, 54 L.Ed.2d 461 (1977). We thus reject defendant's claim of improper purpose.

With respect to the adequacy of the factors articulated by the police as a basis for the stop, we note at the outset that the These principles have particular significance in examining the defendant's actions shortly before her arrest. The officers' testimony made plain that the defendant's actions did not constitute the insouciant wandering she would have us believe. The vice officer distinguished defendant's actions from that of other foot traffic in the area:

                officers were "entitled to assess the facts in light of [their] experience."  Brignoni-Ponce, 422 U.S. at 885, 95 S.Ct. at 2582.   The two officers involved in this case had between them over 34 years of police experience, including four years of vice enforcement.  Such experienced officers may be "able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer."  Brown, 443 U.S. at 52 n. 2, 99 S.Ct. at 2641 n. 2.   See also State v. Baumgaertel, 762 P.2d 2, 4 (Utah App.1988).  The officers' actions are to be objectively assessed in light of all the facts and circumstances confronting the officers at the time.  Scott v. United States, 436 U.S. 128, 137, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978);  Sierra, 754 P.2d at 977. 3
                

People who are walking along State Street don't normally stroll at an extremely [s]low pace if they are walking to get somewhere. Hookers often stroll, walking very slowly, looking back towards traffic. This is the type of thing that she was doing.

According to the testimony, defendant had done nothing to initiate the brief conversations she had with male occupants of various motor vehicles, yet those other individuals also appear to have detected something in her behavior which prompted them to pull over and converse with her.

We agree with defendant's assertion that an area's reputation for criminal activity should not be imputed to an individual. We reject, however, the analogy between this case and the cases that find the "high crime area" factor insufficient to constitute reasonable suspicion. This is not a situation where the police allege that an individual was doing "something" in the wrong place and at the wrong time. Rather, the police suspected a prostitution deal in an area known for prostitution activity. The officers observed a particular type of behavior which was consistent not only with criminal...