State v. Menke

• Decision Date: 15 February 1990
• Docket Number: No. 880475-CA,880475-CA
• Citation: 787 P.2d 537
• Parties: STATE of Utah, Plaintiff and Respondent, v. Richard James MENKE, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 537

787 P.2d 537

STATE of Utah, Plaintiff and Respondent, v. Richard James MENKE, Defendant and Appellant.

No. 880475-CA.

Court of Appeals of Utah.

Feb. 15, 1990.

Mark R. Moffat, Salt Lake City, for defendant and appellant.

John Spikes and Thomas A. Blakely (on special motion), Salt Lake City, for plaintiff and respondent.

Before BENCH, BILLINGS and ORME, JJ.

ORME, Judge:

Defendant appeals his conviction for retail theft, a class A misdemeanor, in violation of Utah Code Ann. § 76-6-602(1) (1989). The conviction was based on defendant's conditional guilty plea, entered after he unsuccessfully sought to suppress critical evidence. Defendant argues on appeal that the police officers who arrested him did not have an articulable suspicion to stop him or probable cause to search and

seize property in his possession. We affirm.

STANDARD OF REVIEW

We begin by recognizing that "[b]ecause of the trial court's advantageous position in determining the factual basis for a motion to suppress," its underlying factual findings should not be upset unless clearly erroneous. State v. Holmes, 774 P.2d 506, 509 (Utah Ct.App.1989). See also State v. Mendoza, 748 P.2d 181, 183 (Utah 1987). Moreover, the findings are not clearly erroneous unless they "are against the clear weight of the evidence, or [unless] the appellate court otherwise reaches a definite and firm conviction that a mistake has been made." State v. Walker, 743 P.2d 191, 193 (Utah 1987). Accord State v. Sery, 758 P.2d 935, 942 (Utah Ct.App.1988).

The trial court heard the testimony of the arresting officers and defendant and determined, on several points, that the officers' testimony was more credible than that of defendant. Nothing in the record convinces us that the trial court made a mistake in evaluating the evidence. We therefore summarize the facts as found by the trial court.

FACTS

On August 26, 1988, at approximately 7:30 p.m., Sergeant Gilles and Officer Dalling, both Salt Lake City police officers, were patrolling the Crossroads Mall area of Salt Lake City. The officers were not on duty, but rather were moonlighting as "control officers" for Job Corps, a federal agency. The officers were traveling eastbound on First South between West Temple and Main Street. Defendant was approximately 100 feet from one of the Crossroads Mall entrances when Sergeant Gilles saw him remove a small item in a gray box from under his shirt. Sergeant Gilles thought it was a video cassette tape because of its size. Defendant paused to examine the item and then placed it in a McDonald's sack which he then placed in an Albertson's grocery bag.

After noticing defendant's actions, the officers made a U-turn to investigate. Although they had heard no reports of any theft in the area, Sergeant Gilles suspected that defendant had shoplifted the item which he removed from under his shirt.

The officers exited their vehicle, identified themselves as police officers, and questioned defendant about his identity and his behavior. Defendant was uncooperative and refused to tell the officers what he had placed in the bag. During questioning, Sergeant Gilles asked defendant if the item in the bag was a videotape and defendant responded "yeah, it's videotapes." During this exchange, Officer Dalling was able to see into the bag and recognized that the item was not "videotapes." ¹ At this point in time, Officer Dalling believed that he had probable cause to seize defendant's bag and inspect the contents, and he did so.

Officer Dalling discovered an electric razor in the gray box which had been placed in the bag. The officers questioned defendant about when and where he had acquired the razor. Defendant was unresponsive. Recognizing from the price tag that the razor was from Weinstock's, Sergeant Gilles inquired at Weinstock's whether the clerks had sold the razor to defendant. Upon receiving an answer in the negative, the officers determined that the razor had been stolen, handcuffed defendant, and transported him to jail.

Defendant filed a motion to suppress all the evidence taken from him at the time of his arrest, arguing that his Fourth Amendment rights had been violated. Having heard testimony from the officers, defendant, and several other witnesses, the court denied defendant's motion to suppress the evidence. With agreement by the prosecution and approval by the court, defendant then entered a conditional plea of guilty, specifically preserving his right to appeal Three issues are presented in this appeal. First, the state argues that defendant's initial detention did not constitute a seizure within the meaning of the Fourth Amendment. Second, defendant argues that the police officers did not have an articulable suspicion to detain and question him. Finally, defendant argues that even if the police had an articulable suspicion to detain and question him, they did not have probable cause to search his belongings.

                the denial of his motion to suppress. 2  He was sentenced to serve nine months in the Salt Lake County Jail and to pay a fine of $2,000.  Sentence was stayed pending defendant's appeal of the trial court's ruling on the motion to suppress
                

CONSTITUTIONAL LIMITS ON POLICE INTRUSION

As with all Fourth Amendment cases, "we must weigh the competing and often conflicting interests between the rights of individuals to be free from unnecessary harassment or arbitrary interference from law officers, and the interest of the public in being protected from crime." State v. Trujillo, 739 P.2d 85, 87 (Utah Ct.App.1987). In this regard, the Utah Supreme Court has identified three distinct levels of police intrusion:

(1) an officer may approach a citizen at [any time] 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.

State v. Deitman, 739 P.2d 616, 617-18 (Utah 1987) (per curiam) (quoting United States v. Merritt, 736 F.2d 223, 230 (5th Cir.1984), cert. denied, 476 U.S. 1142, 106 S.Ct. 2250, 90 L.Ed.2d 696 (1986)). These demarcations are easy to list but often difficult to apply. Consequently, we must not only balance the competing interests of the individual and the State but also carefully consider the facts and circumstances of each particular case. Trujillo, 739 P.2d at 86.

A. SEIZURE

The state argues that an actual seizure of defendant did not occur in this case prior to his formal arrest. Seizure occurs "[w]hen a reasonable person, based on the totality of the circumstances, remains, not in the spirit of cooperation with the officer's investigation, but because he believes he is not free to leave." Trujillo, 739 P.2d at 87. The facts indicate that defendant was not in a cooperative spirit during the investigation. Moreover, it is clear that defendant did not consider himself free to leave, and in fact, was not free to leave under the circumstances. There is no merit to the argument that defendant was not "seized," prior to his arrest, within the meaning of the Fourth Amendment. On the contrary, defendant was seized from the very inception of his contact with the police officers.

B. ARTICULABLE SUSPICION TO DETAIN AND QUESTION

We now turn to the argument that no reasonable and articulable suspicion existed which would validate defendant's pre-arrest seizure.

The Utah Supreme Court has noted that

[w]hen a police officer sees or hears conduct which gives rise to suspicion of crime, he has not only the right but the duty to make observations and investigations to determine whether the law is being violated; and if so, to take such measures as are necessary in the enforcement of the law.

State v. Whittenback, 621 P.2d 103, 105 (Utah 1980) (quoting 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)).  This duty, however, must be carried out within the constitutional limits first spelled out in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).  In Terry, the United States Supreme Court recognized the constitutional viability of a non-consensual investigative stop, but emphasized that "the 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."  Id. at 21, 88 S.Ct. at 1880.   See United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989).  The Utah Legislature has codified this second level of police/citizen interaction
                

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 is attempting to commit a public offense and may demand his name, address and an explanation of his actions.

Utah Code Ann. § 77-7-15 (1982).

We have joined the Utah Supreme Court in emphasizing that the reasonable, articulable suspicion contemplated in § 77-7-15 must be based on objective facts suggesting that the individual may be involved in criminal activity. Trujillo, 739 P.2d at 88. See State v. Carpena, 714 P.2d 674, 675 (Utah 1986) (per curiam); State v. Swanigan, 699 P.2d 718, 719 (Utah 1985) (per curiam).

The trained law enforcement officer is in a different position than the average citizen in that he or she "may be able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer.... The officer is entitled to assess the facts in light of his experience." Trujillo, 739 P.2d at 88-89. See also State v. Sery, 758 P.2d 935, 946 (Utah Ct.App.1988). However, the officer must be able to articulate what it is about those facts...