State v. Kitchen

• Decision Date: 28 March 1991
• Docket Number: No. 900307-CA,900307-CA
• Citation: 808 P.2d 1127
• Parties: STATE of Utah, Plaintiff and Appellee, v. Donald KITCHEN, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 1127

808 P.2d 1127

STATE of Utah, Plaintiff and Appellee, v. Donald KITCHEN, Defendant and Appellant.

No. 900307-CA.

Court of Appeals of Utah.

March 28, 1991.

John D. O'Connell (argued), Salt Lake City, for defendant-appellant.

R. Paul Van Dam, State Atty. Gen., David B. Thompson (argued), Asst. Atty. Gen., for plaintiff-appellee.

Before GREENWOOD, JACKSON and RUSSON, JJ.

RUSSON, Judge:

Donald Kitchen appeals his conviction of unlawful possession of cocaine, a controlled substance, with intent to distribute, a second degree felony, in violation of Utah Code Ann. § 58-37-8(1)(a)(iv) (Supp.1990). We reverse and remand for a new trial.

The constitutionality of a police stop of a person under the fourth amendment of the U.S. Constitution hinges upon the facts of each case. Therefore, we review the facts in detail. State v. Steward, 806 P.2d 213, 214 (Utah Ct.App.1991) (citing State v. Sierra, 754 P.2d 972, 973 (Utah Ct.App.1988)).

On May 17, 1989, approximately thirty-five officers from the Pleasant Grove, American Fork, Alpine, and Orem Police Departments, and the Utah County and Juab County Sheriff's Departments participated in a roadblock, which was conducted in conjunction with classroom training on criminal interdiction. The roadblock was conducted on Interstate 15, south of Nephi in Juab County, which is a major route linking Salt Lake City, Utah and Los Angeles, California. The purpose of the roadblock was to check for driver's licenses, registration, liability insurance, and auto safety, as well as to observe any violations of the criminal law, including alcohol and drug violations. The roadblock was planned and conducted under the direction of Utah Highway Patrol Sergeant Paul Mangelson, with the approval of his supervisor, Lieutenant Jim Uttley.

Notice of the roadblock was published approximately two weeks earlier in the Provo Daily Herald and the Nephi Times News. On the day of the roadblock, four orange signs, giving notice of the roadblock, were placed in each direction and spread over a distance of approximately one quarter mile from the checkpoint. In order to avoid hazardous traffic congestion, only automobiles and light trucks were stopped, while large trucks and buses were allowed to pass. Sergeant Mangelson instructed officers to check driver's licenses and registrations for all stopped vehicles, and to be alert for anything which would indicate the presence of contraband. If further investigation was necessary, the vehicle was to be ordered to the side of the road.

At approximately 11:00 a.m., Kitchen's vehicle, a Chevy Blazer, was stopped at the roadblock. Kitchen and one passenger, Daniel Burke, were in the vehicle. Officer John Lloyd approached the driver's side and asked Kitchen for his driver's license and car registration, which Kitchen produced. Sergeant Mangelson testified that he was directly behind Officer Lloyd and that he could smell a strong odor of burnt marijuana coming from the vehicle. Sergeant Mangelson moved closer to the vehicle to verify the smell. He then moved to the passenger side and asked Kitchen and Burke whether there was marijuana in the vehicle, and both responded "no." Sergeant Mangelson asked if he could search the vehicle, and such permission was denied. He then directed Kitchen to pull the vehicle off to the side of the road.

Sergeant Mangelson told Kitchen and Burke that they might as well give him the marijuana because he could smell it and knew it was there, whereupon Kitchen gave him two baggies containing a green, leafy substance, later determined to be marijuana. He also observed a bulge in Kitchen's pocket which contents, at his request, were produced and found to be cash in excess of $2,000. He then searched the interior of the vehicle and found a vial containing a white powder, later determined to be cocaine. Kitchen and Burke were placed under arrest and read their Miranda rights.

Sergeant Mangelson continued his search of the vehicle and found a suitcase containing what was later determined to be twenty-seven ounces of cocaine. During a later inventory search, he also found a small vial containing several marijuana roaches.

Prior to trial, Kitchen filed a motion to suppress all evidence seized from his vehicle as a result of the roadblock stop on the ground that this stop was unconstitutional. Following an evidentiary hearing, the motion was denied. The parties then stipulated that the trial court could decide the case on the evidence submitted at the suppression hearing. The trial court found Kitchen guilty of possession of cocaine, a controlled substance, with intent to distribute.

Defendant raises the following issue on appeal: did the roadblock in the present case violate the fourth amendment of the U.S. Constitution? ¹

As a preliminary matter, we address the State's argument that this issue was not properly preserved for appeal. The State argues that the unconstitutionality of the roadblock in question was not briefed with sufficient specificity before the trial court to preserve the issue for appeal. The State correctly cites State v. Carter, 707 P.2d 656 (Utah 1985), for the rule that when a defendant fails to assert a particular ground for suppression of evidence before the trial court, such will not be considered on appeal. Id. at 660-61. However, the constitutionality of the roadblock in question was precisely the ground raised below, and although defendant's argument emphasized a statutory argument, the constitutionality of this roadblock was also adequately briefed and presented. Moreover, the constitutionality question was the precise basis of the trial court's ruling. Accordingly, we proceed by reviewing the trial court's determination that this roadblock did not violate the fourth amendment of the U.S. Constitution.

We will not disturb the factual findings of the trial court unless such findings are clearly erroneous. State v. Hargraves, 806 P.2d 228, 229 (Utah Ct.App.1991) (citations omitted). However, conclusions of law arising from those factual determinations are reviewed under a "correction of error" standard. Id.

The fourth amendment provides that "[t]he right of 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.

In Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), the United States Supreme Court held that under the fourth amendment, warrantless seizures, if not based upon individualized reasonable suspicion of criminal activity, "must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers," which serves a vital public interest without undue interference with individual liberty. Id. at 51, 99 S.Ct. at 2640. The Court's central concern in so holding was "to assure that an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field." Id. (citations omitted). The Court therein developed a three-pronged balancing test applicable to all warrantless seizures lacking individualized reasonable suspicion. This balancing test requires a court to weigh: (1) the gravity of the public concerns served by the seizure, (2) the degree to which the seizure advances the public interest, and (3) the severity of the interference with individual liberty. Id. at 50-51, 99 S.Ct. at 2640-41.

Subsequently, in Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), the United States Supreme Court held that although a roadblock stop constitutes a "seizure" under the fourth amendment, brief roadblock detentions, even if lacking individualized reasonable suspicion of criminal activity, are constitutionally permissible...