State v. Jackson, 890546-CA

• Decision Date: 11 December 1990
• Docket Number: No. 890546-CA,890546-CA
• Citation: 805 P.2d 765
• Parties: STATE of Utah, Plaintiff and Appellee, v. LeRoy Raymond JACKSON, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 765

805 P.2d 765

STATE of Utah, Plaintiff and Appellee, v. LeRoy Raymond JACKSON, Defendant and Appellant.

No. 890546-CA.

Court of Appeals of Utah.

Dec. 11, 1990.

Rehearing Denied Jan. 16, 1991.

Karen Stam, Ronald S. Fujino (argued), Salt Lake Legal Defender Asso., Salt Lake City, for defendant and appellant.

R. Paul Van Dam, Atty. Gen., Dan R. Larsen (argued), Asst. Atty. Gen., Salt Lake City, for plaintiff and appellee.

Before BENCH, GARFF and JACKSON, JJ.

OPINION

GARFF, Judge:

Leroy Jackson appeals his conviction of unlawful possession of a controlled substance, a third degree felony, in violation of Utah Code Ann. § 58-37-8(2)(a)(i) (Supp.1990), and possession of a controlled substance, a class B misdemeanor, in violation of Utah Code Ann. § 58-37-8(2)(a)(i) (Supp.1990). Defendant contends that, when the officer stopped his patrol car in front of defendant's parked vehicle, thus blocking it, his fourth amendment right to protection against unreasonable search and seizure was violated. Alternatively, defendant argues that, when the officer asked for his identification and driver's license, he was unlawfully seized. Defendant seeks reversal of the trial court's refusal to suppress the evidence seized as a result of the stop. We affirm.

We will not disturb the trial court's factual determinations underlying its decision to grant or deny a motion to suppress unless they are clearly erroneous. State v. Smith, 781 P.2d 879, 881 (Utah Ct.App.1989); see State v. Walker, 743 P.2d 191, 193 (Utah 1987). A finding is clearly erroneous if it is without adequate evidentiary support or is induced by an erroneous view of the law. Hoth v. White, 799 P.2d 213, 215 (Utah Ct.App.1990). We give due regard to the trial court's ability to observe the demeanor and judge the credibility of the witnesses. Id; Utah R.Civ.P. 52(a).

A fourth amendment analysis of police conduct is fact sensitive; thus, we review the facts in detail. Smith, 781 P.2d at 880. On May 24, 1989, Officer Hurst of the Salt Lake City Police Department observed defendant's vehicle traveling westbound on 1700 South in Salt Lake City. Suspecting that defendant's vehicle matched the description of a vehicle involved in a robbery, Hurst made a U-turn and followed defendant's vehicle for the purpose of running a license plate check. Hurst made no attempt to stop defendant's vehicle. Before a license plate check could be performed, defendant pulled into a parking lot adjacent to the Foxy Lady Bar. Hurst followed defendant's vehicle into the parking lot. After parking his vehicle, defendant exited and approached Hurst's vehicle while it was still moving. Hurst then stopped his vehicle behind defendant's car, exited, and walked toward defendant. Hurst recognized defendant from a previous encounter and called defendant by his last name, but could not remember his first name. Upon Hurst's request for identification, defendant produced a Checkmart identification card with his name and picture on it. Because Hurst had often found Checkmart identification cards to be false, and because defendant had just been driving a vehicle, he asked defendant for his driver's license. Defendant responded that it had been taken. Hurst then asked for a vehicle registration. Defendant stated that he did not have it because he had only recently purchased the vehicle. After running a license plate and driver's license check, Hurst discovered that the license plate on defendant's vehicle was stolen and his driver's license had been suspended. Hurst placed defendant under arrest for possession of stolen property and driving on a suspended license. A subsequent search of defendant's person revealed two small tin foil bindles of cocaine and a marijuana cigarette.

SEIZURE

The central inquiry of this case is whether defendant was seized before an articulable suspicion of criminal activity existed.

In State v. Deitman, 739 P.2d 616 (Utah 1987) (per curiam), the Utah Supreme Court acknowledged three levels of police encounters with the public that are constitutionally permissible:

(1) an officer may approach a citizen at anytime [sic] and pose questions so long as the citizen is not detained against his will; (2) an officer may seize a person if the officer has an "articulable suspicion" that the person has committed or is about to commit a crime; however, the "detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop"; (3) an officer may arrest a suspect if the officer has probable cause to believe an offense has been committed or is being committed.

Id. at 617-18 (quoting United States v. Merritt, 736 F.2d 223, 230 (5th Cir.1984)).

A first level stop, as described in Deitman, is a voluntary encounter where a citizen may respond to an officer's inquiries but is free to leave at any time. However, a seizure under the fourth amendment occurs when a reasonable person, in view of all the circumstances, would believe he or she is not free to leave. United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). In Mendenhall, the Supreme Court cited circumstances that could indicate a seizure: (1) the threatening presence of several officers; (2) the display of a weapon by an officer; (3) some physical touching of the person of the citizen; or (4) the use of language or tone of voice indicating that compliance with the officer's request might be compelled. Id. at 554, 100 S.Ct. at 1877. The Court acknowledged that the constitution does not prevent a police officer from addressing questions to anyone on the street. Id. at 553, 100 S.Ct. at 1876. As long as the person "remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification." Id. at 554, 100 S.Ct. at 1877. ¹

A. Blocked Vehicle

Defendant claims that, when Hurst parked directly behind his car, a seizure occurred because defendant believed he was not free to leave. Defendant cites State v. Smith, 781 P.2d 879 (Utah Ct.App.1989), where this court found that a seizure occurred when an officer followed Smith into a motel parking lot after Smith made a turn without signaling. The officer "blocked the defendant's car, got out of his marked police car to talk to defendant late at night, asked for defendant's license and registration, issued defendant a traffic citation and required defendant to remain while he did a warrants check and called a backup officer." Id. at 882. In Smith, this court noted that other jurisdictions have held that "when an officer blocks a defendant's vehicle, a seizure within the meaning of the fourth amendment has occurred even though the original stop was not initiated by the officer." Id. at 882 n. 3. See People v. Guy, 121 Mich.App. 592, 329 N.W.2d 435, 440 (1982) (although the initial stop of defendant's vehicle in a driveway was not the result of the officer's actions, his partial blockage of the driveway and subsequent visit to defendant's car clearly constituted a detention of the automobile and would be the equivalent of a police-initiated "stop"); United States v. Kerr, 817 F.2d 1384, 1386 (9th Cir.1987) (seizure occurred because it was not possible for defendant to drive around the officer's car and defendant stopped and exited his car primarily in response to the police officer's official appearance and conduct rather than of his own volition).

The above cases, holding that a police officer's blocking of another's vehicle constituted a seizure, are distinguishable from the case at hand. In the instant case, although the trial court found that Hurst had ultimately blocked defendant's car, the blocking did not occur until after defendant had exited his car of his own volition. Moreover, it was defendant's voluntary act that initiated the contact with Hurst, rather than Hurst's conduct. Defendant arrived at the parking lot to the Foxy Lady Bar not because Hurst was following him, but rather because he freely chose to go there.

Defendant exited his vehicle and approached Hurst's vehicle while it was still moving. Defendant was free to walk to the bar or wherever he chose; he voluntarily chose to confront Hurst. This factual situation is similar to that in Layton City v. Bennett, 741 P.2d 965, 967 (Utah Ct.App.1987), where a police officer followed defendant as he parked his truck at a construction site. Defendant exited his truck without any request by the officer, walked over to the police car as the officer was getting out, and freely initiated a conversation. We held it was a consensual, voluntary discussion and thus not a seizure subject to fourth amendment protection. Here, we also draw the same conclusion.

Defendant argues that it was Hurst's aggressive manner and show of authority that caused him to stop. Nothing in the record substantiates this argument. Hurst had not actuated his light bars, used his siren, nor had he driven in such a manner that would cause defendant to think he was required to pull over.

We agree with the trial court that, under the circumstances revealed in the record, a reasonable person would have believed that he or she was free to leave, notwithstanding the fact that his or her vehicle was blocked. Thus, we find no clear error in the trial court's finding that defendant's liberty was not restrained and that a seizure did not occur at this time.

B. Request for...