State v. Lloyd

• Decision Date: 22 September 2011
• Docket Number: No. 20090920–CA.,20090920–CA.
• Citation: 263 P.3d 557,2011 UT App 323,691 Utah Adv. Rep. 19
• Parties: STATE of Utah, Plaintiff and Appellee,v.Allen Smith LLOYD, Defendant and Appellant.
• Court: Utah Court of Appeals

263 P.3d 557

691 Utah Adv. Rep. 19

2011 UT App 323

STATE of Utah, Plaintiff and Appellee,

v.Allen Smith LLOYD, Defendant and Appellant.

No. 20090920–CA.

Court of Appeals of Utah.

Sept. 22, 2011.

Brittany R. Brown and Randall W. Richards, Ogden, for Appellant.Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee.Before Judges ORME, ROTH, and CHRISTIANSEN.

OPINION

ORME, Judge:

¶ 1 Defendant Allen Smith Lloyd appeals his conviction for possession of a controlled substance, a third-degree felony, see Utah Code Ann. § 58–37–8(2)(a)(i) (Supp.2011), claiming that the district court erred in denying his motion to suppress. The suppression motion challenged the reliability of a citizen informant's report and the viability of odor evidence in the context of evaluating reasonable suspicion and probable cause. We affirm.

BACKGROUND

¶ 2 At 9:19 p.m. on March 8, 2008, the Ogden City Police Department received a report from a woman that there were three people in a small, green car parked behind the building in which she resided. She indicated that she could see and smell the individuals inside the vehicle “smoking drugs.” The informant identified herself as Stacy. It is unclear whether officers knew her last name or exact address. Nevertheless, Stacy was possibly familiar to the police because she had previously been in contact with the Weber–Morgan Narcotics Strike Force.

¶ 3 Two police officers, Officers Powers and Harris, arrived on the scene. Just as Stacy described, the officers saw a small, green car parked behind Stacy's building. As the officers approached the car, they confirmed that there were three individuals in the vehicle. Approximately ten feet from the vehicle, the officers detected a “cat urine” odor emanating from the vehicle that they both associated with a burning narcotic. Officer Powers testified that he specifically distinguished the odor to be “crack cocaine.” The officers did not see any illegal items or activity as they neared the vehicle.

¶ 4 Once at the car, Officer Powers approached the driver's side of the vehicle and spoke with Defendant, who was sitting in the driver's seat. At the same time, Officer Harris approached the passenger side of the vehicle to speak with the two female passengers. Immediately upon reaching the vehicle, Officer Powers asked Defendant whether he had any weapons or drugs in the car. Defendant responded that he had a gun under his seat and began to retrieve it. Officer Powers told Defendant not to get the gun and asked him to step out of the car. After Defendant exited the car, Officer Powers placed him in handcuffs. Officer Powers then pulled a black bag from underneath the driver's seat. Officer Powers opened the bag and found that it contained a .45 caliber handgun. Officer Powers also opened a small brown eyeglass case that was in the black bag and discovered used syringes. Officer Powers asked Defendant if he had a medical condition requiring him to have syringes. Defendant indicated that he did not. Officer Powers then placed Defendant under arrest. In searching Defendant incident to arrest, Officer Powers found a small bag of methamphetamine and clean syringes.

¶ 5 Meanwhile, while speaking with the two female passengers, Officer Harris discovered that one of the women had several outstanding warrants. Accordingly, Officer Harris placed the woman under arrest and searched her, finding a crack cocaine rock and a pipe containing crack cocaine. The pipe appeared to have been recently used as it had “fresh burn markings.” The officers also thwarted an attempt by the other female passenger to swallow drugs.

¶ 6 Defendant was subsequently charged with possession of a controlled substance, possession of a firearm by a restricted person, and possession of drug paraphernalia. Defendant filed a motion to suppress, arguing that the investigating police officer did not have reasonable suspicion to detain Defendant and search his vehicle for weapons. Specifically, Defendant argued that the informant was unreliable as she was anonymous and lacked the ability to distinguish between individuals “smoking drugs” and individuals smoking legal tobacco. Defendant also presented testimony from a drug expert, who testified that cocaine, even when heated or vaporized, has no odor. The district court denied Defendant's motion, finding that Officer Powers's actions were reasonable. Defendant subsequently entered a conditional guilty plea to a charge of possession of a controlled substance, contingent on his right to appeal the district court's decision denying his motion to suppress.

ISSUE AND STANDARD OF REVIEW

¶ 7 Defendant argues that the district court erred in denying his motion to suppress. We review a trial court's decision to deny a defendant's motion to suppress for correctness. See State v. Richards, 2009 UT App 397, ¶ 7, 224 P.3d 733. Further, we give the trial court's application of the law to the facts no deference in search and seizure cases. See State v. Brake, 2004 UT 95, ¶ 15, 103 P.3d 699.

ANALYSIS

¶ 8 In appealing the district court's decision to deny his motion to suppress, Defendant argues that the Utah Constitution provides greater protection against police invasion of an individual's privacy than the Fourth Amendment to the federal constitution, suggesting that we should apply a higher degree of scrutiny under our own constitution when reviewing the investigating officers' actions in this case. While we acknowledge that “choosing to give the Utah Constitution a somewhat different construction may prove to be an appropriate method for insulating this state's citizens from the vagaries of inconsistent interpretations given to the fourth amendment by the federal courts,” State v. Watts, 750 P.2d 1219, 1221 n. 8 (Utah 1988), Defendant has not convinced us that deviating from the federal standard is appropriate in this case.

¶ 9 While Defendant cites to cases in which our courts have held that the Utah Constitution provides greater protection against police intrusion, he merely refers to these cases for the general propositions of law they contain. Defendant does not directly apply the general propositions to the facts of this case and, thus, fails to explain “how the court's analysis under the state constitution would differ from its consideration under the federal constitution,” State v. Van Dyke, 2009 UT App 369, ¶ 17 n. 4, 223 P.3d 465, cert. denied, 230 P.3d 127 (Utah 2010). Moreover, when specifically analyzing the facts of this case, Defendant cites only to cases interpreting the Fourth Amendment to the federal constitution. Therefore, “[i]n the absence of a separate and distinct argument under the Utah Constitution, we consider Defendant's claims only under the Federal Constitution.” State v. Despain, 2007 UT App 367, ¶ 12, 173 P.3d 213.

¶ 10 Defendant contends that the information available to the investigating officer was insufficient to give rise to reasonable suspicion—much less probable cause—that a crime had occurred. Accordingly, Defendant argues, the district court erroneously admitted all evidence flowing from the investigating officer's detention of Defendant and the accompanying search of Defendant's vehicle. We disagree. We conclude that the information available was sufficient to give the investigating officer reasonable suspicion to briefly detain Defendant and probable cause to search Defendant's vehicle. ¹

I. The Fourth Amendment

¶ 11 The Fourth Amendment to the United States Constitution protects citizens against “unreasonable searches and seizures.” U.S. Const. amend. IV. Under the Fourth Amendment, an officer has probable cause justifying an arrest when there are “facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.” Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979). Moreover, “[w]hether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004).

¶ 12 Although an officer may not arrest an individual absent probable cause, an officer may stop and briefly detain an individual if the officer has “reasonable suspicion to believe that criminal activity may be afoot.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (citation and internal quotation marks omitted). When determining whether reasonable suspicion exists, “reviewing courts ... must look at the ‘totality of the circumstances' of each case to see whether the detaining officer has a ‘particularized and objective basis' for suspecting legal wrongdoing.” Id. (citation omitted). The Supreme Court has indicated that “[t]his process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ ” Id. (citation omitted).

¶ 13 We also note that while a warrant is generally required before an officer may conduct a search, an officer may search a vehicle without a warrant if the vehicle is “readily mobile and probable cause exists to believe [the vehicle] contains contraband.” Maryland v. Dyson, 527 U.S. 465, 467, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999) (per curiam) (noting also that “the automobile exception does not have a separate exigency requirement”). Probable cause to search a vehicle requires only “ ‘a belief, reasonably arising out of the circumstances known to the seizing officer, that an automobile ... contains that which by law is subject to seizure and destruction.’ ” State v. Dorsey, 731 P.2d 1085, 1088 (Utah 1986) (quoting Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 69...