State v. Nimer

• Decision Date: 23 December 2010
• Docket Number: No. 20090206–CA.,20090206–CA.
• Citation: 672 Utah Adv. Rep. 13,246 P.3d 1194,2010 UT App 376
• Parties: STATE of Utah, Plaintiff and Appellee,v.Alex Preston NIMER, Defendant and Appellant.
• Court: Utah Court of Appeals

246 P.3d 1194

672 Utah Adv. Rep. 13

2010 UT App 376

STATE of Utah, Plaintiff and Appellee,

v.Alex Preston NIMER, Defendant and Appellant.

No. 20090206–CA.

Court of Appeals of Utah.

Dec. 23, 2010.

Lori J. Seppi and Heather Chesnut, Salt Lake City, for Appellant.Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee.Before Judges McHUGH, ORME, and THORNE.

MEMORANDUM DECISION

McHUGH, Associate Presiding Judge:

¶ 1Alex Preston Nimer appeals his conviction for possession of a controlled substance, seeUtah Code Ann. § 58–37–8(2)(a)(i)(Supp.2010).¹Nimer claims that the trial court erred in denying his motion to suppress evidence of heroin possession because the officer lacked probable cause to arrest him and that, therefore, a subsequent search and discovery of heroin violated his Fourth Amendment rights.We affirm.

¶ 2 On August 1, 2008, an officer was dispatched to a Sportsman's Warehouse store in response to a citizen complaint of a “suspicious circumstance” involving a woman in the parking lot seen on surveillance footage injecting herself with a syringe.When the officer arrived, he observed the woman using a syringe to inject a substance into her arm,² which subsequent testing identified as heroin.The officer placed the woman under arrest.At that time, a Sportsman's Warehouse employee ³ notified the officer that the woman had been observed with two men, both of whom were currently located at the front of the building.The employee identified Nimer as one of those men.

¶ 3 The officer approached the two men and asked if they had any weapons or “anything that he should know about.”Nimer promptly admitted to having syringes in his pocket, some of which had uncapped needles.The officer instructed Nimer to remove the syringes from his pocket and place them on the ground.When Nimer did so, the officer observed that the syringes were identical in appearance to the syringe used by the woman and that they were not kept in any kind of medical kit.The officer concluded that the syringes were drug paraphernalia, seeid.§ 58–37a–5, and arrested Nimer.In a search of Nimer incident to the arrest, the officer seized a black sock containing seven balloons of what was later identified as heroin.

¶ 4 Nimer was charged with one count of unlawful possession of a controlled substance, seeid.§ 58–37–8(2)(a)(i), and possession of drug paraphernalia, seeid.§ 58–37a–5.⁴Nimer filed a motion to suppress the evidence, alleging that because the officer lacked probable cause to believe Nimer was engaged in criminal activity, the arrest and subsequent search were unlawful under the Fourth Amendment of the United States Constitution, seeU.S. Const. amend. IV.The trial court denied the motion, concluding that the officer's determination that the syringes were drug paraphernalia was reasonable and that the officer had probable cause to arrest Nimer.After the motion to suppress was denied, Nimer entered a conditional guilty plea, ⁵ preserving his right to appeal, see generallyState v. Sery,758 P.2d 935, 939(Utah Ct.App.1988).Nimer now appeals the trial court's denial of the motion to suppress the heroin discovered during the search incident to arrest.

¶ 5 Whether the trial court erred in denying Nimer's motion to suppress is a mixed question of law and fact.We review the trial court's conclusions of law non-deferentially for correctness, seeState v. Brake,2004 UT 95, ¶ 15, 103 P.3d 699, and its factual findings for clear error, seeState v. Krukowski,2004 UT 94, ¶ 11, 100 P.3d 1222.However, with respect to the application of the law to the underlying facts, “we afford little discretion to the [trial] court because there must be state-wide standards that guide law enforcement and prosecutorial officials.”State v. Hechtle,2004 UT App 96, ¶ 8, 89 P.3d 185(internal quotation marks omitted);see alsoSalt Lake City v. Bench,2008 UT App 30, ¶ 5, 177 P.3d 655(“In search and seizure cases no deference is granted to ... the [trial] court regarding the application of law to underlying factual findings.”(alteration and omission in original)(internal quotation marks omitted)).

¶ 6 The Fourth Amendment of the United States Constitution protects citizens from unreasonable searches and seizures.SeeU.S. Const. amend. IV.⁶“[W]arrantless searches are per se unreasonable unless undertaken pursuant to a recognized exception to the warrant requirement.”State v. Harker,2010 UT 56, ¶ 17, 240 P.3d 780(internal quotation marks omitted).A search incident to a lawful arrest is one such exception.Seeid.Thus, if the officer lawfully arrested Nimer, the search was reasonable for purposes of the Fourth Amendment.Seeid.

¶ 7 For an arrest to be lawful, the officer must have “probable cause to believe an offense ha[s] been committed or is being committed,”State v. Johnson,805 P.2d 761, 763(Utah1991)(internal quotation marks omitted), and “a reasonable and prudent person in [the officer's] position [must have been] justified in believing that the suspect had committed the offense,”State v. Henderson,2007 UT App 125, ¶ 9, 159 P.3d 397(first alteration in original)(internal quotation marks omitted).While probable cause requires more than mere suspicion, seeHechtle,2004 UT App 96, ¶ 16, 89 P.3d 185, evidence sufficient to establish a conviction is not necessary, seeHenry v. United States,361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134(1959);Brinegar v. United States,338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879(1949).In determining whether probable cause exists, we do not consider the facts in isolation; instead, we review the events leading up to the arrest and the totality of the circumstances in light of the officer's training and experience.SeeState v. Dorsey,731 P.2d 1085, 1088(Utah1986);Hechtle,2004 UT App 96, ¶¶ 10–11, 89 P.3d 185.“[T]he officer must be able to point to specific facts which, considered with rational inferences from those facts, reasonably warrant the [seizure].”State v. Warren,2003 UT 36, ¶ 14, 78 P.3d 590.

¶ 8 By statute, syringes are considered drug paraphernalia when they are “used, or intended for use to parenterally ⁷ inject a controlled substance into the human body.”Utah Code Ann. § 58–37a–3(11)(Supp.2010).Nimer alleges that the totality of the circumstances here do not support a reasonable inference that the syringes in Nimer's possession were drug paraphernalia.Nimer notes that possessing syringes is not a crime without further evidence that they are intended to be used for the injection of illegal drugs and argues that there was no evidence that the syringes were intended for such use.According to Nimer, the officer made the arrest based on nothing more than an unsupported “hunch.”

¶ 9 In contrast, the State contends, based on the trial court's findings of fact and conclusions of law, that the officer had probable cause to arrest because (1) Nimer “was identified as being with [the woman] who was injecting heroin”; (2) Nimer was “in close proximity and time to” the arrested woman; (3) Nimer's prompt production of the syringes in response to the officer's inquiry “reflect[ed] a consciousness of guilt”; (4)“the syringes he had were identical in appearance to the syringe [the woman] was using”; (5) the officer knew that people who inject drugs legally, such as diabetics, typically store their needles and syringes in a kit with medicine; and (6) the officer had over two years of experience seeing drugs and/or drug paraphernalia on a weekly basis.

¶ 10 Because hypodermic needles and syringes have legitimate medical purposes, Nimer is correct that mere possession does not establish probable cause that they are drug paraphernalia.SeeBaggett v. State,562 So.2d 359, 362(Fla.Dist.Ct.App.1990)(“Hypodermic syringes have legitimate medical purposes so that in every instance they cannot be said to constitute drug paraphernalia....”).Nevertheless, the Utah Code identifies several factors relevant to a “trier of fact” in “determining whether an object is drug paraphernalia,” including “the proximity of the object, in time and space, to a direct violation of [the Utah Drug Paraphernalia Act],”Utah Code Ann. § 58–37a–4(3)(2008);“the proximity of the object to a controlled substance,”id.§ 58–37a–4(4);“statements by an owner or by anyone in control of the object concerning its use,”id.§ 58–37a–4(1); and “the existence and scope of legitimate uses of the object,”id.§ 58–37a–4(12).Because we find these statutory factors helpful in determining whether the officer's conclusion that the syringes were drug paraphernalia was supported by probable cause, we consider each in turn.⁸

¶ 11We begin by considering the proximity of Nimer's syringes to a drug paraphernalia violation or to a controlled substance.Although “mere presence in an area suspected to harbor drug activity does not give rise to reasonable suspicion that [a defendant] was engaged in such activity,”State v. Sykes,840 P.2d 825, 829(Utah Ct.App.1992), the legislature has determined that proximity, in “time and space,” to a drug violation is a factor in determining whether an item is drug paraphernalia, seeUtah Code Ann. § 58–37a–4(3), (4)(providing that “proximity, in time and space” to a violation of drug paraphernalia laws and “proximity of the object to a controlled substance” are relevant factors in determining whether an object is drug paraphernalia).

¶ 12 While the information given to police about Nimer's interaction with the woman was not specific, the circumstances surrounding the report support a reasonable inference that Nimer's contact with the woman was recent and suspicious.The employee reported that the woman had been observed on a security camera and that she was injecting herself with heroin.It is well-settled that police can rely on external information, such as information from a witness, in making a probable cause determination.See, e.g., State v....