State v. Park

• Decision Date: 10 April 1991
• Docket Number: No. 900260-CA,900260-CA
• Citation: 810 P.2d 456
• Parties: STATE of Utah, Plaintiff and Appellee, v. Dan A. PARK, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 456

810 P.2d 456

STATE of Utah, Plaintiff and Appellee, v. Dan A. PARK, Defendant and Appellant.

No. 900260-CA.

Court of Appeals of Utah.

April 10, 1991.

Certiorari Denied Sept. 17, 1991.

LeRay G. Jackson, Delta, for defendant and appellant.

R. Paul Van Dam, State Atty. Gen., and Christine F. Soltis, Asst. Atty. Gen., Salt Lake City, for plaintiff and appellee.

Before ORME, BENCH and GARFF, JJ.

MEMORANDUM DECISION.

PER CURIAM:

Defendant appeals the trial court's denial of his motion to suppress and the trial court's denial of his motion for a directed verdict. Based on this court's recent decision in State v. Sims, 808 P.2d 141 (Utah Ct.App.1991), we reverse and remand.

On May 10, 1990, defendant was stopped at a roadblock on I-15 about two miles south of Nephi, Utah. The roadblock, consisting of about fifteen officers stopping all traffic traveling northbound and southbound except trucks, was conducted under the supervision of Utah Highway Patrol Sergeant Paul Mangelson. Notice of the roadblock was published in the local newspapers two weeks earlier. At about 8:15 a.m., Officer LuWayne Walker stopped defendant's vehicle and requested his license and registration. During the stop, Officer Walker detected an odor coming from the vehicle and noted that defendant was acting unusual. Officer Walker asked defendant if he was carrying alcohol, firearms or drugs. All three individuals in the vehicle looked straight ahead and said nothing. Defendant then quickly turned to Officer Walker and said "No". Officer Walker then asked defendant if he would mind if the vehicle was searched. Defendant responded that it would be fine. The officer asked defendant to pull to the side of the road and exit the vehicle. All three occupants exited and were patted down for weapons. Small amounts of marijuana were found on the two passengers. In the trunk of the vehicle, officers discovered a red tool box containing five baggies of marijuana and a twenty dollar bill. A subsequent inventory search of the vehicle revealed a methamphetamine kit under the console next to the driver's seat. Defendant was charged with possession of a controlled substance with intent to distribute and possession of a controlled substance.

Defendant filed a motion to suppress evidence seized in the search on the ground that "1. There was no probable cause nor legal reason to stop said vehicle. 2. There was no probable cause to search said vehicle. 3. The search of said vehicle was illegal and was not conducted pursuant to legal consent nor pursuant to the legal issuance of a Search Warrant." After an evidentiary hearing, defendant submitted a memorandum to the court, claiming that the warrantless search of the vehicle was unreasonable in that there is no statute authorizing such roadblocks and that the roadblock did not meet the standard under state and federal caselaw. Defendant's memorandum also asserted that the officer's request to search the vehicle violated his constitutional right to be free from unreasonable searches and seizures, and that the officers lacked probable cause to justify searching the trunk and console. The trial court denied the motion to suppress, stating that the roadblock minimally inconvenienced the public and was structured to neutralize the discretion of the officers conducting the roadblock. Thus, the court concluded, the stop was a reasonable seizure and did not violate defendant's state or federal constitutional rights. The court also concluded that defendant voluntarily consented to the search and therefore the search did not violate defendant's state or federal constitutional rights. During the trial, the court denied defendant's motion for a directed verdict. The jury found defendant guilty of possession of marijuana and of knowingly and intentionally possessing methamphetamines.

On appeal, defendant raises three issues: 1) Whether officers had probable cause or reasonable suspicion to detain or seize the vehicle; 2) Whether defendant's consent was voluntary; and 3) Whether the court erred in denying his motion for a directed verdict.

We first consider whether the roadblock violated defendant's fourth amendment right to be free from unreasonable searches and seizures. The State narrowly construes the issue as a challenge only to whether the officers had probable cause or reasonable suspicion to detain defendant and his vehicle after the roadblock stop. Under that narrow reading of the issue, the State claims the issue was not raised below and therefore may not be raised on appeal. We disagree with the State's characterization of the issue. Defendant's memorandum in support of the motion to suppress and his brief clearly address the constitutionality of the roadblock stop. Therefore, the constitutionality of the roadblock stop is squarely before this court.

In State v. Sims, 808 P.2d 141 (Utah Ct.App.1991), this court addressed the constitutionality of a virtually identical roadblock stop and held that the roadblock stop violated defendant's state and federal constitutional rights. In Sims, defendant was stopped at a roadblock on I-15 about two miles south of Nephi, Utah. The roadblock, staffed by about ten officers, was planned and supervised by Sergeant Paul Mangelson, and its purpose was to detect license, registration, liquor and drug violations. Notice of the roadblock was published in the local paper two to four weeks earlier. Sergeant Mangelson testified that no written policy existed governing the roadblock and that his supervisor gave him permission to conduct the roadblock. All vehicles were stopped, except trucks. At about 9:00 a.m., Trooper Howard stopped Sims and requested his license and registration. While talking with Sims, Trooper Howard saw an open liquor bottle and shortly thereafter obtained Sims's consent to search the vehicle.

The court, relying on Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), held that because the roadblock was not carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of the individual officers, because the plan was not developed by politically accountable officials, and because...