State v. Perkins

• Decision Date: 11 July 2019
• Docket Number: No. 20180154-CA,20180154-CA
• Parties: STATE of Utah, Appellee, v. Jeremy Lee PERKINS, Appellant.
• Court: Utah Court of Appeals

446 P.3d 145

STATE of Utah, Appellee,

v.Jeremy Lee PERKINS, Appellant.

No. 20180154-CA

Court of Appeals of Utah.

Filed July 11, 2019

Ryan L. Holdaway and Diane Pitcher, Logan, Attorneys for Appellant

Sean D. Reyes and Jeffrey D. Mann, Salt Lake City, Attorneys for Appellee

Judge Diana Hagen authored this Opinion, in which Judges David N. Mortensen and Ryan M. Harris concurred.

Opinion

HAGEN, Judge:

¶1 Jeremy Lee Perkins challenges the district court's denial of his motion to suppress evidence obtained from a search that he argues was unconstitutional. Perkins argues that the officers did not have reasonable suspicion of recent criminal activity and his detention was therefore illegal. In the alternative, he argues that even if the detention was lawful at its inception, the detention was unreasonably long. We affirm.

BACKGROUND

¶2 A concerned citizen met "face-to-face" with Officer Pearce to inform the officer that Perkins's girlfriend (the girlfriend) was using and selling drugs. Among other things, the concerned citizen witnessed the girlfriend sell methamphetamine to Perkins. For the next few weeks, Officer Pearce attempted to contact the girlfriend and her probation officer, to no avail.

¶3 When the girlfriend went to the Adult Probation and Parole (AP&P) office for her monthly check-in, the probation officer informed Officer Pearce that she had arrived. Officer Pearce met with the girlfriend at the AP&P office and asked her some questions based on the concerned citizen's report. In particular, Officer Pearce asked the girlfriend if he and the probation officer would find any drugs if they searched her car. At first the girlfriend said no, but as they were walking to her car, she admitted there were drugs in the center console. The officers searched the car and collected small baggies containing crystal pieces that later tested positive for methamphetamine.

¶4 After discovering the narcotics in her car, Officer Pearce informed the girlfriend of her rights and questioned her about using and selling drugs. The girlfriend admitted to selling methamphetamine and confirmed the concerned citizen's report that Perkins was one of her customers. Initially, she told Officer Pearce that she had seen Perkins use methamphetamine that morning, but she later changed her story and claimed she had last seen him use the week before. The girlfriend lived with Perkins and his sister, and Officer Pearce asked whether there were drugs at the residence (the residence). The girlfriend said they would find only drug paraphernalia.

¶5 Officer Pearce, other officers, and a canine unit, accompanied the girlfriend back to the residence and conducted a drug sniff and a search of the common areas "as outlined in [her] probation agreement." The girlfriend lived in the basement of the residence, and Perkins and his sister lived upstairs. The drug dog alerted to narcotics in the girlfriend's bedroom and in an upstairs bathroom used by Perkins and his sister. The officers also found paraphernalia and prescription medication not prescribed to the girlfriend in her room.

¶6 Based on the information provided by the concerned citizen as well as the girlfriend's statements that she sold Perkins methamphetamine and recently saw him use it, Officer Pearce wanted to detain Perkins for further investigation. Officer Pearce contacted another officer, Officer Stirland, and instructed him to attempt to locate and detain Perkins at his workplace. According to Officer Stirland's testimony, Officer Pearce did not provide many details about the justification for or purpose of the stop.

¶7 At 11:44 a.m., Officer Stirland located Perkins in the company's parking lot and detained him.¹ Officer Stirland notified Officer Pearce, who was still at the residence where the canine unit was finishing its work. Officer Pearce told Officer Stirland that he was dispatching a canine unit to Perkin's location and to continue to detain Perkins until the unit arrived. As soon as the drug sniff at the residence had concluded, the canine unit left for Perkins's location. Due to heavy snow on the roads as well as the distance between the residence and Perkins's location, the drive took approximately twenty minutes. While waiting for the canine unit to arrive, Officer Stirland allowed Perkins to remove company-owned items from his truck and wait inside his company's office. According to the call records, the canine unit arrived at Perkins's location between 12:20 p.m. and 12:30 p.m. The drug dog alerted to narcotics in Perkins's truck within five minutes of arriving.

¶8 Meanwhile, at the residence, Officer Pearce had begun drafting an affidavit for a search warrant to obtain bodily fluids from Perkins to test for recent drug use. When he was notified that the drug dog had alerted to the smell of narcotics in Perkins's truck, Officer Pearce revised his affidavit to include a request to search the truck. The officers decided to wait for the search warrant, which was already in progress, rather than conduct a warrantless search of the truck based on the drug dog's alert or Perkins's consent.

¶9 Officer Pearce concluded his investigation at the residence at approximately 12:45 p.m. and then traveled to Perkins's location. Officer Pearce completed the affidavit for a search warrant while another officer drove. Once they arrived on the scene, Officer Pearce electronically submitted the affidavit for the search warrant at 1:31 p.m. When he did not receive an immediate response, Officer Pearce contacted the court and learned that the magistrate judge who was in charge of signing warrants that week was not available. Officer Pearce contacted two other magistrate judges, but neither judge could access the affidavit. After contacting different agencies to resolve the issue, a magistrate judge was able to review the affidavit and the search warrant was approved at 1:59 p.m.

¶10 Officer Pearce executed the search warrant and collected a urine sample from Perkins, which tested positive for methamphetamine. A search of the truck did not uncover drugs or drug paraphernalia, but did lead to the discovery of an assault rifle. The State charged Perkins with possession of an illegal substance² and possession of a firearm by a restricted person.

¶11 Perkins moved to suppress the result of his urine analysis and the discovery of the firearm in his truck, arguing that his initial detention was illegal because it "was not based upon reasonable suspicion" and, even if it were, "the duration of the detention substantially exceeded what was reasonable given the information available [to the officers] at the time." Following an evidentiary hearing, the district court denied Perkins's motion to suppress, concluding that "the officer had reasonable suspicion that [Perkins] may have been in possession of illegal narcotics and acted with due diligence in pursuing the investigation thereof and obtained the necessary search warrants in a timely manner." The district court credited the call logs to establish the timeline of events and determined that the length of the detention was reasonable under the totality of the circumstances.

¶12 Following this denial, Perkins entered a conditional no-contest plea to possession of a controlled substance, preserving his right to appeal the denial of his motion to suppress under rule 11(j) of the Utah Rules of Criminal Procedure. Perkins now appeals.

ISSUES AND STANDARDS OF REVIEW

¶13 Perkins contends the district court should have granted his motion to suppress for two reasons. First, he argues that the officers did not have reasonable suspicion of criminal activity to detain him. Second, he argues that the duration of the detention was "considerably longer than necessary" to confirm or dispel the officers' suspicion of criminal activity. "We review a denial of a motion to suppress as a mixed question of law and fact and will disturb the district court's factual findings only when they are clearly erroneous, but we afford no deference to the district court's application of law to the underlying factual findings." State v. Sosa , 2018 UT App 97, ¶ 6, 427 P.3d 448 (quotation simplified).

ANALYSIS

¶14 The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. "The 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 (quotation simplified); see also Ohio v. Robinette , 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996). "Reasonableness under the Fourth Amendment depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law [enforcement] officers." Baker , 2010 UT 18, ¶ 10, 229 P.3d 650 (quotation simplified).

¶15 There are "three different kinds of police-citizen encounters, each permitting a different degree of intrusion and requiring a different level of justification." State v. Worwood , 2007 UT 47, ¶ 21, 164 P.3d 397. "A level one encounter occurs when a police officer approaches a citizen and asks questions, but the person is not detained against his will and remains free to leave." State v. Biggs , 2007 UT App 261, ¶ 10, 167 P.3d 544 (quotation simplified). "A level two encounter," otherwise known as a Terry stop, "occurs when a police officer temporarily seizes an individual because the officer has a reasonable, articulable suspicion that the person has committed or is about to commit a crime." Id. (quotation simplified); see also Terry v. Ohio , 392 U.S. 1, 26–27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). "Finally, a level three [encounter] occurs when a police officer has probable cause to believe that a crime has been committed and effects an arrest of the suspect." Biggs , 2007 UT App 261, ¶ 10, 167 P.3d 544 ...