State v. Mogen
Decision Date | 11 July 2002 |
Docket Number | No. 20010207-CA.,20010207-CA. |
Citation | 52 P.3d 462,2002 UT App 235 |
Parties | STATE of Utah, Plaintiff and Appellant, v. Dean Allen MOGEN, Defendant and Appellee. |
Court | Utah Court of Appeals |
Mark L. Shurtleff, Atty. Gen., and Joanne C. Slotnik, Asst. Atty. Gen., Salt Lake City, for Appellant.
Wesley M. Baden, Uintah County Legal Defender, Vernal, and Richard P. Mauro, Salt Lake City, for Appellee.
Before Judges BENCH, GREENWOOD, and THORNE.
¶ 1 The State appeals an order dismissing one count of Possession of a Controlled Substance (Methamphetamine), a third degree felony, in violation of Utah Code Ann. § 58-37-8(2)(a)(i) (2000); and one count of Possession of Drug Paraphernalia, a class B misdemeanor, in violation of Utah Code Ann. § 58-37a-5(1) (2000). The State argues that the trial court erred in granting Defendant's Motion to Suppress, determining that Defendant was still seized within the meaning of the Fourth Amendment when the officer searched Defendant's truck and discovered illegal drugs and contraband. We affirm.
¶ 2 Shortly after midnight on August 22, 2000, Uintah County Deputy Sheriff Troy Slaugh (Officer Slaugh) was patrolling a rural road in the area of Jensen, Utah, when he noticed a large Dodge flatbed truck speeding in the opposite direction. Officer Slaugh made a u-turn and activated his overhead emergency lights, pulling the truck over. Keeping his overhead lights on, Officer Slaugh approached the truck and asked Defendant for his identification. After receiving Defendant's driver license, Officer Slaugh returned to his vehicle to do a routine driver license and warrants check. After the check came back clear, Officer Slaugh returned Defendant's driver license and issued him a verbal warning for speeding.1
¶ 3 Officer Slaugh then took a couple of steps toward his patrol car, turned around, and again made contact with Defendant. Defendant testified that after Officer Slaugh returned his identification, the officer stepped back and stared at him for a few seconds, as if the officer had something more to say. Officer Slaugh then stated to Defendant that he "would be interested in knowing if there is any illegal guns, drugs, knives or bombs in his vehicle, [and] asked him if he would mind if I took a look." Defendant agreed to the search. Officer Slaugh admitted he had no particular reason for turning around and asking Defendant to consent to a search other than he noticed that Defendant "had been quite fidgety while [he] was dealing with him."
¶ 4 Upon searching Defendant's truck, Officer Slaugh found methamphetamine in an Advil bottle in the truck's ashtray. Officer Slaugh placed Defendant under arrest. Officer Slaugh also found a small torch under the front passenger seat. Defendant was subsequently charged with possession of a controlled substance and possession of drug paraphernalia.
¶ 5 Defendant filed a motion to suppress the drugs and paraphernalia. After an evidentiary hearing, the trial court granted Defendant's motion and the evidence was suppressed. The State then filed a motion to dismiss, which the trial court granted. This appeal followed.
¶ 6 The sole issue before us is whether the trial court erred in granting Defendant's motion to suppress the evidence as having been seized in violation of the Fourth Amendment.
"The factual findings underlying a trial court's decision to grant or deny a motion to suppress evidence are reviewed under the deferential clearly-erroneous standard, but the legal conclusions are reviewed for correctness, with a measure of discretion given to the trial judge's application of the legal standard to the facts."
State v. Giron, 943 P.2d 1114, 1116 (Utah Ct.App.1997) (quotations, alteration and citation omitted).
¶ 7 The State argues that the trial court erred in determining that Defendant was still seized within the meaning of the Fourth Amendment after the officer, who had stopped Defendant for speeding, issued a verbal warning, returned Defendant's documents, and stepped back from the vehicle. Defendant argues that he was not free to terminate the encounter with the officer; therefore, he remained seized under the Fourth Amendment when the search of the truck occurred.
¶ 8 The trial court made the following findings of fact and conclusions of law relevant to our analysis:
¶ 9 Based on the testimony presented at the suppression hearing, the trial court determined that there was an insufficient record from which to make a finding concerning whether the officer said to Defendant that he was free to go.
State v. Robinson, 797 P.2d 431, 435 (Utah Ct.App.1990) (citations omitted). ¶ 11 The State admits that the officer did not have reasonable suspicion to justify a search, but essentially argues that this case is not governed by the standard cited above because once the officer told Defendant he was free to go and stepped back from the vehicle towards his police car, the seizure ended. Therefore, when the officer turned around and again approached Defendant, the encounter had de-escalated to a level-one stop and reasonable suspicion to search was not necessary.2 Defendant argues that he did not feel free to go because the officer appeared to have something further to say, was standing close to his truck, making it difficult to pull away safely, and the officer's overhead emergency lights were still flashing.
¶ 12 In determining whether Defendant remained seized within the meaning of the Fourth Amendment, Utah courts have followed the totality of the circumstances standard:
Not every encounter between a police officer and a citizen is a seizure. Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 2387 (1991). A person is seized under the Fourth Amendment when, considering the totality of the circumstances, the police conduct would have communicated to a reasonable person that the person was not free to decline the officer's requests or otherwise terminate the encounter and go about his or her business. United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877 (1980).
State v. Higgins, 884 P.2d 1242, 1244 (Utah 1994); see also State v. Justesen, 2002 UT App 165,¶ 16, 47 P.3d 936 ( ); State v. Hansen, 2000 UT App 353,¶ 16, 17 P.3d 1135 (, )cert. granted, 26 P.3d 235; State v. Patefield, 927 P.2d 655, 659 (Utah Ct.App. 1996) ( ).
Higgins, 884 P.2d at 1244 (citation omitted).
¶ 14 Other courts that have addressed similar issues have followed the same totality of the circumstances approach. See United States v. Elliott, 107 F.3d 810, 814 (10th Cir.1997) (...
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State v. Fridleifson
...that some of its findings of fact are not supported by the evidence. We review a trial court's findings of fact for clear error. State v. Mogen, 2002 UT App 235, ¶ 6, 52 P.3d 462. Defendant also argues that the police lacked reasonable articulable suspicion to engage him in a level two stop......
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Article Title: Important Utah Decisions, 2002
...rebut that presumption, a defendant must present some evidence that the prior proceedings were irregular. State v. Mogen, 2002 UT App 235, 52 P.3d 462. In the course of a routine traffic stop, defendant seized within the meaning of the Fourth Amendment when the police officer kept his overh......