State v. Marshall

• Decision Date: 18 April 1990
• Docket Number: No. 890121-CA,890121-CA
• Citation: 791 P.2d 880
• Parties: STATE of Utah, Plaintiff and Appellee, v. Gregory MARSHALL, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 880

791 P.2d 880

STATE of Utah, Plaintiff and Appellee, v.Gregory MARSHALL, Defendant and Appellant.

No. 890121-CA.

Court of Appeals of Utah.

April 18, 1990.

Jerold D. McPhee and Kristine K. Smith, Salt Lake City, for defendant and appellant.

R. Paul Van Dam and Christine F. Soltis, Salt Lake City, for plaintiff and appellee.

Before DAVIDSON, BILLINGS and JACKSON, JJ.

AMENDED OPINION^*

BILLINGS, Judge:

The appellant, Gregory J. Marshall("Mr. Marshall"), was charged with possession of a controlled substance with the intent to distribute for value, a second degree felony, in violation of Utah Code Ann. § 58-37-8(1989).Mr. Marshall filed a pretrial motion to suppress the 140 pounds of marijuana seized from the rental car he was driving when he was arrested.The trial court denied Mr. Marshall's motion and he filed this interlocutory appeal.We reverse and remand for further proceedings consistent with this opinion.

We recite the facts surrounding the seizure of the contraband in detail as the legal issues presented are fact sensitive.State v. Sierra, 754 P.2d 972, 973(Utah Ct.App.1988).Utah Highway Patrol Trooper Denis Avery("Trooper Avery") was driving on Interstate 70 near Salina, Utah.He noticed Mr. Marshall's vehicle in the left-hand lane passing a motor home.Trooper Avery observed that Mr. Marshall's turn signal remained blinking for approximately two miles after he passed the motor home.Not knowing whether Mr. Marshall's signal was malfunctioning or whether Mr. Marshall had negligently left the signal on, Trooper Avery pulled the vehicle over to inform Mr. Marshall of the problem and to give him a warning ticket.Trooper Avery had issued similar warning citations for turn signal violations approximately five to ten times in the previous six-month period.

Prior to stopping Mr. Marshall, Trooper Avery noticed the vehicle had California license plates.He approached Mr. Marshall's vehicle and informed Mr. Marshall of the turn signal problem.Mr. Marshall responded that he had been having "a hard time keeping the thing turned off."

Trooper Avery asked Mr. Marshall for his driver's license and vehicle registration.Mr. Marshall produced a New York driver's license and a California rental agreement for the vehicle.Mr. Marshall said he was going skiing in Denver and planned to return the car to San Diego, California.However, the rental agreement indicated that the car would be returned in New York in five days.

Trooper Avery acknowledged he became suspicious that Mr. Marshall might be transporting drugs.Trooper Avery asked Mr. Marshall to return with him to his patrol car where he issued a warning citation for "Lights, head, tail, other."Trooper Avery then returned Mr. Marshall's driver's license and the rental agreement.

Trooper Avery next asked Mr. Marshall if he was carrying alcohol, drugs or firearms.Mr. Marshall stated he was not.Trooper Avery then asked Mr. Marshall if he could "look inside the vehicle."Mr. Marshall responded, "Go ahead."Trooper Avery and Mr. Marshall walked back to Mr. Marshall's vehicle.The passenger door was locked and Mr. Marshall reached in on the driver's side to open the door.Trooper Avery noticed a small red bag on the floor of the vehicle and asked if he could open it.Mr. Marshall agreed.No contraband was found inside the bag or the passenger compartment of the vehicle.

Trooper Avery then asked if Mr. Marshall had a key to the trunk and if Mr. Marshall would open the trunk.Mr. Marshall attempted to open the trunk, but was shaking so badly that Trooper Avery had to assist him by holding the key latch cover up while Mr. Marshall inserted the key.Trooper Avery saw four padlocked suitcases when Mr. Marshall opened the trunk.Trooper Avery asked Mr. Marshall what the suitcases contained and Mr. Marshall responded "clothes."Trooper Avery then asked if he could look in the suitcases.Mr. Marshall immediately reversed his statement and responded that the suitcases were not his and must have already been in the trunk when he rented the vehicle.Trooper Avery testified there was some play in the zipper of one bag and he unzipped it far enough to see a green leafy substance.Trooper Avery then arrested Mr. Marshall for possession of a controlled substance.

Mr. Marshall did not testify or present any evidence to contradict Trooper Avery's testimony during the hearing below.

STANDARD OF REVIEW

"[W]e will not disturb the trial court's factual evaluation underlying its decision to grant or deny a motion to suppress unless it is clearly erroneous."State v. Sierra, 754 P.2d 972, 974(Utah Ct.App.1988).See alsoState v. Walker, 743 P.2d 191, 193(Utah1987);State v. Johnson, 771 P.2d 326, 327(Utah Ct.App.1989).Further, "[t]he trial court's finding is clearly erroneous only if it is against the clear weight of the evidence or if [the appellate court] reach[es] a definite and firm conviction that a mistake has been made."State v. Sery, 758 P.2d 935, 942(Utah Ct.App.1988).

Utah Rule of Criminal Procedure 12(c) requires the trial court to state its findings on the record "[w]here factual issues are involved in determining a motion."Those findings must be sufficiently detailed in order to allow us the opportunity to adequately review the decision below.¹

PRETEXT STOP

Initially, Mr. Marshall contends Trooper Avery used the fact that his turn signal was malfunctioning as a pretext to stop his vehicle to search for evidence of drug trafficking.

The protective shield of the fourth amendment applies when an officer stops an automobile on the highway and detains its occupants.State v. Sierra, 754 P.2d 972, 975(Utah Ct.App.1988).A police officer may constitutionally stop a citizen on two alternative grounds.First, the stop "could be based on specific, articulable facts which, together with rational inferences drawn from those facts, would lead a reasonable person to conclude [defendant] had committed or was about to commit a crime."Id.(citingTerry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889(1968);State v. Christensen, 676 P.2d 408, 412(Utah1984);State v. Trujillo, 739 P.2d 85, 88(Utah Ct.App.1987)).Second, the police officer can "stop an automobile for a traffic violation committed in the officer's presence."Sierra, 754 P.2d at 977.However, an officer may not use a traffic violation stop as a pretext to search for evidence of a more serious crime.Id.

To determine if Trooper Avery stopped Mr. Marshall's vehicle to investigate his hunch that Mr. Marshall's vehicle was involved in drug trafficking, we determine whether a hypothetical reasonable officer, in view of the totality of the circumstances confronting him or her, would have stopped Mr. Marshall to issue a warning for failing to terminate a turn signal.Id. at 978.

Mr. Marshall claims Trooper Avery's stop of his vehicle is similar to the stop we found unconstitutional in Sierra.We disagree.In Sierra, the basis articulated for the stop was that the driver remained in the left lane too long after passing a car.In this case, Trooper Avery perceived an equipment problem with Mr. Marshall's car.Either his turn signal was malfunctioning or he had negligently failed to turn it off.²Courts consistently have held that a police officer can stop a vehicle when he or she believes the vehicle's safety equipment is not functioning properly.³

Furthermore, unlike the officer in Sierra, Trooper Avery was not suspicious of Mr. Marshall for other reasons before the stop, had not followed him in order to find some reason to pull him over, and, before the alleged violation occurred, had not radioed for help thereby indicating he intended to stop the vehicle.

In conclusion, we find Trooper Avery's stop of Mr. Marshall's vehicle was not a pretext, but was a valid exercise of police authority to make certain Mr. Marshall's vehicle was functioning properly.

UNREASONABLE DETENTION

Next, Mr. Marshall complains that the extent of his detention and the scope of Trooper Avery's investigation exceeded constitutional limits.⁴

"[I]n determining whether the seizure and search were 'unreasonable' our inquiry is a dual one--whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place."Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889(1968).

We have previously found that Trooper Avery's traffic stop of Mr. Marshall was justified.The remaining question is whether Trooper Avery's subsequent detention and questioning of Mr. Marshall was reasonably related to the initial traffic stop or was justified because Trooper Avery had a reasonable suspicion to believe Mr. Marshall was engaged in a more serious crime.United States v. Guzman, 864 F.2d 1512, 1519(10th Cir.1988).

The United States Supreme Court has not chosen to define a bright-line rule as to the acceptable length of a detention because "common sense and ordinary human experience must govern over rigid criteria."United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605(1985).The Court has chosen to focus, not on the length of the detention alone, but on "whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant."Id. at 686, 105 S.Ct. at 1575.

Trooper Avery wrote out the warning citation within ten minutes of stopping Mr. Marshall and then returned Mr. Marshall's driver's license and the vehicle rental agreement.Trooper Avery claims that as a result of his examination of Mr. Marshall's driver's license and the vehicle rental agreement and his brief conversation with Mr. Marshall, he became suspicious that Mr. Marshall was involved in drug trafficking.Specifically, Trooper Avery points to the fact that Mr. Marshall produced a New York...