State v. Miller, 013119 UTCA, 20170084-CA

• Opinion Judge: HAGEN, JUDGE.
• Party Name: State of Utah, Appellee, v. Michael J. Miller, Appellant.
• Attorney: Cory A. Talbot, Tamara L. Kapaloski, Dawn M. David, and Brandon T. Christensen Attorneys for Appellant. Sean D. Reyes and Jeanne B. Inouye, Attorneys for Appellee
• Judge Panel: Judge Diana Hagen authored this Opinion, in which Judge Jill M. Pohlman concurred. Judge Gregory K. Orme dissented, with opinion. ORME, Judge (dissenting):
• Case Date: January 31, 2019
• Court: Utah Court of Appeals

2019 UT App 18

State of Utah, Appellee,

v.

Michael J. Miller, Appellant.

No. 20170084-CA

Court of Appeals of Utah

January 31, 2019

Third District Court, Silver Summit Department The Honorable Paige Petersen No. 151500325

Cory A. Talbot, Tamara L. Kapaloski, Dawn M. David, and Brandon T. Christensen Attorneys for Appellant.

Sean D. Reyes and Jeanne B. Inouye, Attorneys for Appellee

Judge Diana Hagen authored this Opinion, in which Judge Jill M. Pohlman concurred. Judge Gregory K. Orme dissented, with opinion.

HAGEN, JUDGE.

¶1 Michael J. Miller appeals the district court's denial of his motion to suppress evidence of marijuana discovered during a traffic stop. Miller entered a plea to one count of possession of a controlled substance with intent to distribute, reserving the right to appeal the denial of his motion to suppress. He argues that the traffic stop was impermissibly prolonged without reasonable suspicion when the officer conducting the traffic stop asked him to walk back to the patrol car, engaged him in unrelated questioning before and during the citation process, and waited to run a records check until later in the stop. Because none of these actions unconstitutionally extended the stop, we affirm.

BACKGROUND¹

The Traffic Stop

¶2 At 10:41 p.m., a Utah Highway Patrol Trooper (the officer) stopped Miller for driving seventy miles per hour on I-80, five miles per hour above the posted limit. After Miller gave the officer his driver license and the car rental agreement, the officer asked Miller to come back to his patrol vehicle. The officer testified that he asks drivers to come back to his patrol vehicle in 90% of traffic stops because he sometimes needs to gather additional information from drivers. In addition, by having Miller sitting in the passenger seat of the patrol vehicle and conversing with him, the officer "could try and gain suspicion while actively filling out a citation."

¶3 Miller followed the officer back to the patrol vehicle. Although Miller had a crutch with him and "was limping a little bit," the district court found that "it didn't take him an excessive amount of time to get back to the patrol [vehicle]." Once Miller was in the passenger seat, the officer stood at the passenger door and asked Miller, "What'd ya do to your ankle?" Miller told the officer how he came to be injured, and the officer asked no follow-up questions. Within one minute, the officer "was back on his side of the car and he began to fill out the citation."

¶4 Over the next seven minutes, the officer filled out the citation while conversing with Miller. The officer asked Miller "some questions about his license and the car and where he rented it." But "the majority of the conversation was the defendant making conversation with the [officer] about various topics[, ] such as children and marriage and relationships." In reviewing the dashboard camera recording of the conversation, the district court found that Miller initiated much of the conversation and that the questions the officer asked "did not take up much of that time." The court also credited the officer's testimony that "during this time he was filling out the citation."

¶5 After finishing all but one section of the citation, the officer informed Miller that he needed to call Miller's information into dispatch. In his testimony, the officer explained that the final section of the citation requires him to identify the offenses or traffic code violations committed and whether he will issue a ticket or a warning. The officer "leave[s] the violations part, the offenses part blank until [he hears] back from dispatch in case there's any other offenses that [he] might be adding to the citation." The district court accepted the officer's testimony that "he needed to hear back from dispatch before he could complete the citation."

¶6 The officer testified that, approximately eleven minutes after he officer initiated the stop, he called into dispatch for a "license records and criminal-history check." On the dashboard camera recording, an automated voice announces, "License is valid." The officer's statements to dispatch are largely inaudible, but he testified that he asked the dispatch operator to run a criminal-history or "Triple I" check, which he typically requests only when the driver has roused his suspicions. The parties also agree that the officer's request included a check for outstanding warrants. While waiting for dispatch to respond with additional information, the officer deployed his police service dog around Miller's car.

¶7 Approximately sixty seconds after the call to dispatch, the dog alerted the officer to the presence of a controlled substance. Several minutes after the dog signaled the alert, dispatch responded with the results of the criminal-history check. A subsequent search of Miller's car uncovered seventy-one pounds of marijuana.

Miller's Motion to Suppress

¶8 The State charged Miller with one count of possessing a controlled substance with intent to distribute and one count of speeding. After a preliminary hearing at which the officer testified, Miller was bound over for trial.

¶9 Miller moved to suppress all evidence discovered during the search of his vehicle, arguing that the "search and seizure went well beyond the time necessary to conduct and conclude a routine traffic stop involving a speeding ticket for going 5 over." In support of the motion, Miller relied on the officer's testimony at the preliminary hearing and did not request an opportunity to present further evidence.

¶10 The district court denied the motion to suppress. In an oral ruling, the district court addressed "whether the unrelated investigations[, ] which were some of the questioning and the dog search, . . . had the effect of extending [the] stop." First, the court concluded that the officer did not measurably extend the stop by conversing with Miller in the patrol vehicle. The court found that the officer "said much less than [Miller]" and the questions he did ask "were going on simultaneously with him filling out a portion of the citation."

¶11 Second, the court concluded that the dog sniff did not measurably extend the stop. Because the officer could not finish the citation until he heard back from dispatch on the records check, the court found that he could not have completed the mission of the traffic stop within the sixty seconds it took for the dog to alert the officer to the presence of drugs. The court also rejected Miller's argument that it was impermissible for the officer to fill out a portion of the citation before calling dispatch: Is it possible that [the officer] could have shaved off some time if he had called dispatch first? It's possible, but that [would be] speculation on my part . . . . [And] that would basically be the Court holding that the [officer] has to call dispatch immediately upon getting back to his car. And that's micromanaging. That would be the Court telling the officer the order in which he has to perform the duties that are related to and permissible steps at a traffic stop.

The court concluded that the officer "was reasonably diligent in pursuing the mission of the traffic stop" and that "his unrelated questioning and the dog sniff did not measurably extend the stop, but took place during the time that he was conducting a permissible investigation that was related to the reason for the stop."

¶12 Following the denial of his motion to suppress, Miller pled guilty to possession of marijuana with the intent to distribute, reserving his right to appeal the district court's denial of his motion to suppress. He now appeals.

ISSUE AND STANDARD OF REVIEW

¶13 Miller contends that the district court erred in denying his motion to suppress the evidence discovered during the officer's search of his car. "We review a trial court's decision to grant or deny a motion to suppress for an alleged Fourth Amendment violation as a mixed question of law and fact." State v. Fuller, 2014 UT 29, ¶ 17, 332 P.3d 937. "While the court's factual findings are reviewed for clear error, its legal conclusions are reviewed for correctness, including its application of law to the facts of the case." Id.

ANALYSIS

¶14 The Fourth Amendment to the United States Constitution protects citizens from "unreasonable searches and seizures." U.S. Const. amend. IV. ^[2] "[T]he 'touchstone of the Fourth Amendment is reasonableness,' which 'is measured in objective terms by examining the totality of the circumstances.'" State v. Baker, 2010 UT 18, ¶ 10, 229 P.3d 650 (alteration in original) (quoting Ohio v. Robinette, 519 U.S. 33, 39 (1996)). In evaluating the reasonableness of a traffic stop, we assess whether the stop was "justified at its inception" and "reasonably related in scope to the circumstances that justified the interference in the first place." Id. ¶ 12 (quotation simplified). Miller does not challenge the justification for the stop because it is undisputed that the officer had probable cause to stop Miller for speeding.³ Therefore, we must determine only whether the traffic stop, which was justified at its inception, was reasonable in duration and scope.

¶15 When a vehicle is pulled over for investigation of a traffic violation, "[t]he temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop." Arizona v. Johnson, 555 U.S. 323, 333 (2009). "If, during the scope of the traffic stop, the officer forms new reasonable articulable suspicion of criminal activity, the officer may also expediently investigate his new suspicion." State v. Baker, 2010 UT 18, ¶ 13, 229 P.3d 650. But "without additional reasonable suspicion, the officer must allow the seized person...