State v. Montoya

• Citation: 937 P.2d 145
• Decision Date: 10 April 1997
• Docket Number: No. 960227-CA,960227-CA
• Parties: 314 Utah Adv. Rep. 54 STATE of Utah, Appellee, v. Randy J. MONTOYA, Appellant.
• Court: Court of Appeals of Utah

Page 145

937 P.2d 145

314 Utah Adv. Rep. 54

STATE of Utah, Appellee, v. Randy J. MONTOYA, Appellant.

No. 960227-CA

Court of Appeals of Utah.

April 10, 1997.

Joan C. Watt, Salt Lake City, for Appellant.

Jan Graham, J. Kevin Murphy and Barnard N. Madsen, Salt Lake City, for Appellee.

Before DAVIS, GREENWOOD and ORME, JJ.

DAVIS, Presiding Judge:

Defendant Randy J. Montoya appeals the trial court's denial of his motion to suppress evidence on the grounds that the inventory search of the vehicle he was using was legally deficient and that the officers improperly interrogated defendant before any Miranda ¹ warnings were given. We reverse.

I. FACTS

We recite the facts in a light most favorable to the lower court's findings when reviewing its decision denying defendant's motion to suppress. See State v. Anderson, 910 P.2d 1229, 1230 (Utah 1996).

In the early morning hours of August 24, 1994, Officer Paul Gill of the West Valley Police Department was dispatched to a local convenience store. The store clerk had summoned the police to investigate an "individual out front bothering customers, walking around in his underwear." Officer Gill arrived at the store at approximately 3:00 a.m. and was closely followed by West Valley Police Officer James Schmidt.

The two officers discovered defendant standing next to a car in his "boxers." As the officers approached defendant, they observed him erratically pacing back and forth in front of the car, mumbling to himself, and exhibiting jerky body movements. Concerned about defendant's mannerisms, Officer Gill asked defendant if he was "on" anything. Defendant responded by stating that he had "had a few beers and had smoked a joint." As Officer Gill tried to converse with defendant, his condition progressively worsened. The officers noted that, in response to questions asked of him, defendant's answers were not in context, and defendant was inattentive and unfocused on what was transpiring.

Defendant was handcuffed and arrested for public intoxication. At that time, Officer Gill was concerned about defendant's deteriorating condition and summoned medical assistance. ² Officer Gill also called West Valley Police Officer William McCarthy to the scene, who, according to Officer Gill, "was a little more educated on different types of effects of controlled substances or what might be going on with [defendant]."

When Officer McCarthy arrived, defendant was still handcuffed and standing by Officer Gill's patrol car. Officer McCarthy recognized defendant from prior encounters and approached him to determine whether he was all right. Officer McCarthy observed that defendant was foaming at the mouth, displaying jittery movements, had dilated pupils, and had marks on his arms indicating that he was injecting substances intravenously. Officer McCarthy immediately asked defendant whether he had done some "cheve," which, according to Officer McCarthy, is a street term for heroin. ³ Defendant responded in the affirmative.

After defendant was placed in the back of Officer Gill's police cruiser, Officer Gill decided to impound the vehicle and began an inventory search of the passenger compartment. Scattered on the floorboard were dollar bills, and a syringe and a spoon were located between the center console and the passenger seat. Meanwhile, Officer McCarthy and Officer Schmidt were inventorying the trunk of the vehicle and, after lifting the carpet covering the trunk space, discovered five balloons containing heroin.

Officer Gill ultimately located the name of the vehicle's owner. Because Officer McCarthy was familiar with the family who owned the car and as the senior officer on patrol that night, he "aborted" the impoundment of the vehicle and decided to release it to the owner.

Defendant was charged with unlawful possession of a controlled substance, a third degree felony, in violation of Utah Code Ann. § 58-37-8 (Supp.1995) (amended 1996). ⁴ Defendant filed a Motion to Suppress, seeking to suppress the discovered heroin on the ground that the officers failed to follow departmental policy regarding inventory searches and that the inventory search was therefore a pretext for an investigatory search for narcotics. Defendant also sought to suppress the statements made to both Officer Gill and Officer McCarthy on the ground that he was interrogated before Miranda warnings were given.

The trial court denied defendant's motion in both respects. Regarding defendant's pretextual inventory search claim, the trial court determined that it was necessary to impound the vehicle because it could not be left on the premises of the convenience store during the early morning hours and the ensuing inventory search of the vehicle's contents was therefore legitimate. With respect to defendant's allegation of the officers' failure to give any Miranda warnings, the trial court ruled,

I am not persuaded that the fact or failure to Mirandize the defendant is a detriment to this defendant because I don't really see where the evidence has established anything that was of an incriminating nature after the time of the arrest prior to any Mirandizing being accomplished that would work to his detriment. Indeed, statements made, if there were, were in large part incomprehensible to the officers.

After the trial court denied defendant's motion, defendant entered a Sery ⁵ plea, reserving his right to appeal the trial court's denial of his motion.

II. ISSUES AND STANDARD OF REVIEW

Defendant contends the trial court erred in denying his motion to suppress evidence, arguing that an invalid inventory search occurred and that defendant's statements were admitted in violation of Miranda. The State responds by conceding that it failed to establish that the inventory search was valid, primarily because it wholly failed to demonstrate that the police department had standardized inventory procedures and what those procedures were. ⁶ See generally State v. Strickling, 844 P.2d 979 (Utah.Ct.App.1992). Nonetheless, the State argues that the search should be upheld because it was a search incident to a lawful arrest, and once the officers searched the passenger compartment of the vehicle and discovered the spoon and the syringe, they then had probable cause to conduct a thorough search of the vehicle. ⁷ Such an argument was not The factual findings underlying the trial court's decision will not be disturbed unless we find them to be clearly erroneous. See Anderson, 910 P.2d at 1232. "[C]lear error exists only if the factual findings made by the trial court are not adequately supported by the record." Id. The trial court's conclusions of law will be accorded no deference, but reviewed for correctness. See State v. Gray, 851 P.2d 1217, 1220 (Utah.Ct.App.1993).

made to the trial court and the police all testified to conducting an inventory search--none spoke of any other basis for searching the vehicle.

III. ANALYSIS

A. Search of Vehicle

The State argues this court should conclude that the warrantless search of the vehicle was valid because the search was conducted incident to a lawful arrest and probable cause coupled with exigent circumstances existed. " 'Warrantless searches are per se unreasonable unless undertaken pursuant to a recognized exception to the warrant requirement.' " State v. Wells, 928 P.2d 386, 389 (Utah.Ct.App.1996) (quoting State v. Brown, 853 P.2d 851, 855 (Utah 1992)). Additionally, "[t]he State must demonstrate 'that the circumstances of the seizure constitute an exception to the warrant requirement.' " Id. (quoting Strickling, 844 P.2d at 985).

Although the State's arguments regarding search-incident-to-arrest and probable-cause-with-exigent-circumstances were not raised before the trial court, the State requests that this court utilize the judicially created doctrine of affirming the trial court's ruling on other proper grounds, even if raised for the first time on appeal. While the State claims that the " 'affirm on any proper ground' principle is a settled principle of appellate review," the Utah Supreme Court has recently stated that the "previous opinions on that question have been somewhat inconsistent," State v. South, 924 P.2d 354, 355 n. 3 (Utah 1996) (citing inconsistent cases).

The State is correct in its assertion that we may affirm the trial court's ruling on any proper ground as long as there is evidence in the record supporting such an affirmance. This principle was first articulated in Limb v. Federated Milk Producers Ass'n, 23 Utah 2d 222, 461 P.2d 290 (1969). There the court stated,

"The appellate court will affirm the judgment, order, or decree appealed from if it is sustainable on any legal ground or theory apparent on the record, even though such ground or theory differs from that stated by the trial court to be the basis of its ruling or action, and this is true even though such ground or theory is not urged or argued on appeal by appellee, was not raised in the lower court, and was not considered or passed on by the lower court."

Id., 461 P.2d at 293 n. 2 (quoting 5 C.J.S. Appeal & Error § 1464(1)). The court noted, however, that there is a significant difference between affirming on appeal and reversing: "[T]he appellate court will affirm a judgment on grounds not urged below, but will not reverse the lower court on errors claimed for the first time on appeal." Id.

Critical to affirmance is the requirement that the ground or theory be "apparent on the record." Id. If, in any way, the ground or theory urged for the first time on appeal is not apparent on the record, the principle of affirming on any proper ground has no application. To hold otherwise would invite the prevailing party to selectively focus on issues below, the effect of which is holding back issues that the opposition had neither notice of nor an opportunity to address. Because of this due process component, "apparent on the record," in this context, means more than mere assumption or absence of...