State v. Leonard

• Decision Date: 05 December 1991
• Docket Number: No. 900560-CA,900560-CA
• Citation: 825 P.2d 664
• Parties: STATE of Utah, Plaintiff and Appellee, v. Foster LEONARD, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 664

825 P.2d 664

STATE of Utah, Plaintiff and Appellee, v. Foster LEONARD, Defendant and Appellant.

No. 900560-CA.

Court of Appeals of Utah.

Dec. 5, 1991.

Certiorari Denied Oct. 28, 1992.

Jay Fitt, Orem, for defendant and appellant.

R. Paul Van Dam and Marian Decker, Salt Lake City, for plaintiff and appellee.

Before JACKSON, ORME and RUSSON, JJ.

OPINION

JACKSON, Judge:

Defendant Foster Leonard appeals from his conviction for possession of equipment with intent to manufacture a controlled substance, a third degree felony, in violation of Utah Code Ann. § 58-37C-8 (1990), and for conspiracy to manufacture a controlled substance, a third degree felony, in violation of Utah Code Ann. §§ 76-4-201 (1990) and 58-37-8 (1990). We affirm.

BACKGROUND

From approximately May 1, 1989, to when the present facts occurred, law enforcement agencies had been conducting surveillance at Intertech Chemical in Orem, Utah. The surveillance had resulted in several arrests and convictions relating to the possession and manufacture of controlled substances, specifically methamphetamine. On July 20, 1989, Police Officer Terry Fox was conducting surveillance at Intertech. He noticed defendant and April Garza in the parking lot. Both were dressed in clothing "not typical of business [people]," and looked nervous. Defendant went into Intertech and came out carrying a box of what appeared to be glassware and chemicals. Defendant loaded the box into a Ford Bronco, and drove away from the parking lot with Garza. Fox decided to follow the vehicle in order to identify its owner.

As Fox proceeded out of the parking lot in his unmarked vehicle, a Datsun truck swerved in front of him. Fox testified that he thought the driver of the Datsun was trying to block him from pursuing defendant's vehicle. Fox continued to follow defendant, who drove recklessly onto the freeway. Defendant's vehicle accelerated to over seventy miles per hour and made several illegal lane changes, according to Fox. Fox also observed defendant putting bandanna-type flags out both windows of the Bronco, apparently to signal the occupants of the Datsun. Fox attempted to find out who owned the vehicle he was pursuing, but the police dispatcher found no owner registered for the license plates on defendant's vehicle. The Datsun similarly had no registered owner.

Fox testified that he decided to stop defendant for the traffic violations he had witnessed. Thinking that he might be in danger, Fox called for assistance. Three other police officers eventually assisted Fox in stopping defendant. One of those, Detective Gary Caldwell, learned from Intertech that defendant and his companion had purchased glassware and a chemical. None of the items purchased were controlled substances, but all were commonly used in the manufacture of methamphetamine. Caldwell testified that he made the decision to stop the vehicle based on his belief that defendant was in possession of drug paraphernalia and controlled substances.

When defendant's vehicle was pulled over, the officers had defendant and Garza get out of the vehicle and kneel down on the side of the freeway. Under Caldwell's direction, Officer Sean Greening placed Garza in his vehicle and asked her name, address, and birthdate. Garza produced an Oregon driver's license. Greening testified that he also advised Garza she did not have to answer his questions. Garza asked why she was being stopped, to which Greening replied "for possession of drug paraphernalia." Garza then explained to Greening that someone had paid her and defendant to purchase the items, and that they were to deliver the items to a motel room.

Meanwhile, Caldwell asked defendant for a driver's license and vehicle registration. Defendant had no identification and told Caldwell the vehicle belonged to Garza. Defendant then gave Caldwell the name "Scott Leonard" and a birthdate which was later determined to be false. Caldwell testified he advised defendant of his constitutional rights and defendant consented to answering some questions. Caldwell then proceeded to question defendant as to what he was doing in Utah County. Defendant told Caldwell that he had come to Utah County to purchase the items for someone, and that he could not tell Caldwell who that was, because defendant would get in trouble. Caldwell also testified that he could see a box in the back of the Bronco, and that the box contained the items Intertech had told him defendant had purchased.

Because the stories given by defendant and Garza were different, and because he knew what items defendant had purchased at Intertech, Caldwell arrested defendant and Garza. Defendant and Garza were transported to the American Fork Police Department and both were questioned by Caldwell. Eventually Caldwell determined the exact address of the apartment which defendant and Garza shared, and a search warrant of the premises was obtained, based on Caldwell's affidavit.

Defendant moved to suppress the evidence found in the warrantless search of the Bronco and in the warrant search of his apartment, claiming that the officers did not have probable cause to initiate the stop of his vehicle. The trial court denied his motion. Defendant then entered a conditional plea of guilty pursuant to this court's decision in State v. Sery, 758 P.2d 935, 938 (Utah App.1988), and this appeal followed.

Before this court, defendant appeals the denial of his motion to suppress, claiming that the evidence was illegally obtained. Specifically, defendant claims that his arrest was not based on probable cause; that the search of the Bronco was not based on probable cause; and that the search of his residence was tainted by the illegality of the arrest.

STANDARD OF REVIEW

Our review of findings of fact underlying a trial court's decision on a motion to suppress is governed by the "clearly erroneous" standard, State v. Grovier, 808 P.2d 133, 133 (Utah App.1991), because the trial court is in an advantageous position to determine the factual basis underlying such a motion. "The trial court's finding is clearly erroneous only if it is against the clear weight of the evidence...." State v. Sery, 758 P.2d 935, 942 (Utah App.1988).

LEGALITY OF THE INITIAL STOP

The Fourth Amendment to the United States Constitution requires that all seizures of an individual be based on probable cause. ¹ The United States Supreme Court first explicitly permitted a seizure of an individual upon less than probable cause in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Terry Court held that a police officer must be able to point to "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." 392 U.S. at 21, 88 S.Ct. at 1880. The reasonable suspicion standard is codified at Utah Code Ann. § 77-7-15 (1990):

A peace officer may stop any person in a public place when he has a reasonable suspicion to believe he has committed or is in the act of committing or attempting to commit a public offense and may demand his name, address and an explanation of his actions.

"Stressing that each case must be decided upon its own facts, the Terry court concluded that the limited stop and frisk was justified where 'a police officer observes unusual conduct which leads him reasonably to conclude in light of his [or her] experience that criminal activity is afoot....' " State v. Sery, 758 P.2d 935, 941 (Utah App.1988) (quoting Terry, 392 U.S. at 30, 88 S.Ct. at 1884). Thus, a temporary detention or seizure is justified when there is an articulable suspicion that an individual has committed or is about to commit a crime. ² See id. (quoting Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality opinion)). This court has further refined the Terry reasonable suspicion test, concluding that a "brief investigatory stop must be based on 'objective facts' that the 'individual is involved in criminal activity.' " State v. Holmes, 774 P.2d 506, 508 (Utah App.1989) (citations omitted).

The State argues that several facts support the conclusion that the officers in the present case had a reasonable suspicion that criminal activity was afoot, and that therefore the stop of defendant was justified. Intertech had been under surveillance for selling drug paraphernalia; defendant's behavior was suspiciously inconsistent with that of a legitimate businessman; defendant purchased several items from Intertech which are commonly used in the manufacture of methamphetamine; defendant left Intertech in an unregistered vehicle; some person in a Datsun tried to prevent the officers from pursuing defendant; defendant displayed bandannas from the windows of his vehicle in an apparent attempt to signal the occupants of the Datsun; and defendant drove erratically and illegally on the freeway, apparently engaging in evasive tactics. ³

We agree that there was an articulable suspicion which justified the stop of defendant's vehicle, and that therefore the level two seizure of defendant was reasonable. ⁴ While defendant contends that the officers had no evidence that a crime had been committed, we note that the officers were not only entitled, but probably required, to obtain more information when they reasonably suspected a crime had been committed. See State v. Folkes, 565 P.2d 1125, 1127 (Utah), cert. denied, 434 U.S. 971, 98 S.Ct. 523, 54 L.Ed.2d 461 (1977); Holmes, 774 P.2d at 508. We hold, therefore, that defendant was constitutionally stopped and briefly detained, and that the trial court's determination that the requisite reasonable suspicion existed was not clearly erroneous.

ARREST OF DEFENDANT AND SEARCH OF VEHICLE

Having determined that the initial seizure of defendant was lawful, we must determine if the subsequent arrest and search were lawful. Defendant argues that the police officers lacked probable cause to arrest him, or to conduct a warrantless search of...