State v. Rochell

• Decision Date: 01 April 1993
• Docket Number: No. 920309-CA,920309-CA
• Citation: 850 P.2d 480
• Parties: STATE of Utah, Plaintiff and Appellee, v. Jeffrey W. ROCHELL, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 480

850 P.2d 480

STATE of Utah, Plaintiff and Appellee, v. Jeffrey W. ROCHELL, Defendant and Appellant.

No. 920309-CA.

Court of Appeals of Utah.

April 1, 1993.

Robert L. Neeley (argued), Campbell and Neeley, Ogden, for defendant and appellant.

Jan Graham, State Atty. Gen., and Marian Decker (argued), Asst. Atty. Gen., Salt Lake City, for plaintiff and appellee.

Before BENCH, GARFF and JACKSON, JJ.

OPINION

GARFF, Judge:

Appellant, Jeffrey W. Rochell, appeals from a conviction of possession of a controlled substance. We affirm.

FACTS

The court's findings of fact are undisputed and are supported by the record.

Trooper David V. Maycock stopped Rochell for driving sixty-five miles per hour in a fifty-five mile per hour zone. Rochell exited his car and walked toward the police car, meeting Maycock halfway between the two vehicles. Rochell's passenger, Billy G. Miller, remained in the car. Maycock noticed the smell of alcohol on Rochell's breath. When asked whether he had been drinking, Rochell admitted that he had drunk one beer.

Maycock asked Rochell for his vehicle registration. As Rochell opened the passenger door of his car in order to get the registration from the glove box, an open container of alcohol fell out the door, spilling its contents onto the ground. Maycock picked up the cup, sniffed it, and confirmed it had contained alcohol.

Maycock then spoke with Miller and determined that he also had alcohol on his breath.

Maycock cited Rochell for speeding, for not wearing a seat belt, and for violation of the open container law. He asked both Rochell and Miller whether they had any weapons. Miller said no, emptied his pockets, and turned around to show that he had no weapons. Rochell hesitated in answering and did not offer the contents of his pockets.

Maycock noticed a bulge in Rochell's left front pocket. He believed the dimensions of the bulge were consistent with those of a knife or other weapon. Maycock tapped the bulge and asked Rochell what it was. In reply, Rochell reached into his pocket and pulled out some keys. However, the bulge was still present. Again, Maycock tapped it, determined it was still hard, and asked what it was. Rochell again reached into his pocket. This time, he pulled out some coins, exposing a portion of a plastic bag.

Maycock asked Rochell what was in the bag. Rochell said "nothing," and pulled his hand holding the bag out of the pocket and placed it behind his back. A second officer, approaching from the rear, observed that the bag contained white powder, and seized it.

Maycock immediately arrested Rochell and administered his Miranda warnings. The officer inquired whether Rochell had "any other dope in the car." Rochell said "yes," and told Maycock where it was. Maycock then retrieved another bag of white powder from Rochell's car. Both bags were later determined to contain cocaine.

Rochell moved to suppress the evidence seized pursuant to the frisk and the vehicle search, arguing the frisk and search violated the Fourth Amendment of the federal constitution, and article I, section 14 of the Utah Constitution. After a hearing on the motion, the trial court denied the motion.

On April 15, 1992, Rochell plead guilty to the reduced offense of possession of a controlled substance, a third degree felony, in violation of Utah Code Ann. § 58-37-8(2)(a)(i) (Supp.1992), on the condition that his right to appeal the order denying his motion to suppress be preserved. Rochell appeals the conviction.

REASONABLE SUSPICION TO DETAIN

Rochell agrees that Maycock justifiably stopped him for traveling sixty-five miles per hour in a fifty-five mile per hour zone. However, he claims Maycock exceeded his authority in detaining him in order to search him and his passenger.

Rochell is unclear as to precisely when he thought the detention became unreasonable. Thus, we first consider whether the searches of Rochell and his passenger were " 'strictly tied to and justified by' " the circumstances rendering the initial stop permissible. Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968) (quoting Warden v. Hayden, 387 U.S. 294, 310, 87 S.Ct. 1642, 1652, 18 L.Ed.2d 782 (1967) (Fortas, J., concurring)).

After an officer has lawfully stopped a vehicle for a traffic violation, the officer "may briefly detain the vehicle and its occupants while he examines the vehicle registration and the driver's license." State v. Schlosser, 774 P.2d 1132, 1135 (Utah 1989) (citing Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979)). In addition, an officer may check for outstanding warrants "so long as it does not significantly extend the period of detention." State v. Figueroa-Solorio, 830 P.2d 276, 280 (Utah App.1992); accord State v. Sepulveda, 842 P.2d 913, 917 (Utah App.1992).

If the officer extends the detention beyond this point, we then consider whether the officer had additional reasonable suspicion to justify further detention. Terry, 392 U.S. at 19-20, 88 S.Ct. at 1878-79; State v. Johnson, 805 P.2d 761, 763 (Utah 1991); State Godina-Luna, 826 P.2d 652, 654-55 (Utah App.1992).

Here, Maycock appropriately requested the vehicle registration and Rochell's driver's license. When Rochell opened the passenger door to remove the registration from the glove box, the cup of alcohol fell out of the car, triggering further reasonable suspicion that Rochell and his passenger had one, and possibly two, open containers of alcohol, and that Rochell had been consuming alcohol while driving. See Utah Code Ann. § 41-6-44.20(1) & (2) (Supp.1992). Further, both Rochell and Miller had alcohol on their breath and Rochell had admitted to drinking.

We agree with the trial court that these articulable facts are sufficient to show probable cause that Rochell had an open container of alcohol in his vehicle and that he had been drinking while driving, thus justifying further detention. The trial court thus correctly concluded that Maycock justifiably detained Rochell.

REASONABLE SUSPICION TO FRISK

Rochell claims the court erred in concluding Maycock had reasonable suspicion that Rochell may be armed and dangerous, such that Maycock could frisk him for weapons. Rochell does not challenge the court's findings, but rather claims the facts as found by the court do not support a finding of reasonable suspicion. ¹

Because the court made detailed findings, our task is to determine independently whether the facts support a conclusion of reasonable suspicion. State v. Munsen, 821 P.2d 13, 14-15 (Utah App.1991), cert. denied, 843 P.2d 516 (Utah 1992). See State v. Mendoza, 748 P.2d 181, 183 (Utah 1987); State v. Carter, 812 P.2d 460, 466 n. 6 (Utah App.1991), cert. denied, 836 P.2d 1383 (Utah 1992); see also State v. Thurman, 846 P.2d 1256, 1268-70 & n. 11 (Utah 1993) (admissibility of evidence usually an ultimate conclusion of law, although it embodies several subsidiary rulings); United States v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir.1989) (setting forth the generally held view that whether reasonable suspicion exists is a mixed question of fact and law, and the trial court's ultimate conclusion regarding reasonable suspicion is a legal conclusion which is reviewed de novo).

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), established an exception to warrantless searches, including pat down searches. The frisk for dangerous weapons is "a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault [the officer]." Id. at 30, 88 S.Ct. at 1884-85. The officer must limit such frisks to a search for dangerous weapons. Id. at 16 n. 12, 88 S.Ct. at 1877 n. 12.

The officer must justify a pat down search by "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21, 88 S.Ct. at 1880. These facts and inferences may be interpreted "in light of [the officer's] experience." Id. Still, the test for reasonable belief to frisk is objective. See 3 W. LaFave, Search and Seizure § 9.4(a) n. 23 (1987 & 1993 Supp.). Finally, the search must be "confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." Terry, 392 U.S. at 29, 88 S.Ct. at 1884.

Utah has codified a Terry stop and frisk: "A peace officer who has stopped a person temporarily for questioning may frisk the person for a dangerous weapon if he reasonably believes he or any other person is in danger." Utah Code Ann. § 77-7-16 (1990).

The court made the following findings regarding the objective facts relied upon by Maycock to frisk Rochell: That Rochell had been speeding, he had been drinking and driving, his companion had also been drinking, Rochell had been driving with an open container of alcohol in the front seat of the car, Rochell had been speeding, that upon being stopped, Rochell left his vehicle and walked toward the officer, Rochell had a bulge in his pocket, the officer believed the bulge could have been a weapon, ² and, when asked whether he had any weapons, Rochell "was hesitant in answering no."

Here, the findings are undisputed, and, when analyzed in light of Maycock's training and experience, they constitute "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21, 88 S.Ct. at 1880. Thus, Maycock justifiably frisked Rochell for a weapon. During this process, another officer saw a bag of cocaine in Rochell's hand and properly seized it.

SEARCH INCIDENT TO ARREST

Rochell does not challenge the lawfulness of his warrantless arrest pursuant to Utah Code Ann. § 77-7-2(1) (1990). Thus, the issue is whether the search and seizure of cocaine from Rochell's car was lawful because it was incident to his arrest.

Once an officer has...