State v. Schlosser

• Decision Date: 17 May 1989
• Docket Number: No. 860061,860061
• Citation: 774 P.2d 1132
• Parties: The STATE of Utah, Plaintiff and Appellant, v. Anthony Price SCHLOSSER and Harris Lowder, Defendants and Appellees.
• Court: Utah Supreme Court

Page 1132

774 P.2d 1132

The STATE of Utah, Plaintiff and Appellant, v. Anthony Price SCHLOSSER and Harris Lowder, Defendants and Appellees.

No. 860061.

Supreme Court of Utah.

May 17, 1989.

Stephen R. McCaughey, Christine S. Soltis, Salt Lake City, for Schlosser.

Loni F. DeLand, Salt Lake City, for Lowder.

R. Paul Van Dam, Sandra L. Sjogren, Salt Lake City, Donald J. Eyre, Juab County, for plaintiff and appellant.

STEWART, Justice:

Defendants Schlosser and Lowder were charged with unlawful possession of a controlled substance in violation of Utah Code Ann. § 58-37-8(2)(a)(i) (Supp.1988). Upon defendants' motion, the trial court ordered the suppression of all evidence obtained during a search of the pickup truck the defendants were riding in. On appeal, the State argues that the evidence was improperly suppressed. We affirm.

I. THE FACTS

Officer Howard of the Utah Highway Patrol clocked a pickup truck traveling forty-two miles per hour in a thirty mile-per-hour zone in Nephi, Utah, and signaled the vehicle to pull over. As the vehicles were pulling over, Officer Howard observed defendant Schlosser, a passenger in the vehicle, bending forward, acting fidgety, turning to the left and to the right, and turning back to look at the officer. After stopping the vehicle, the driver, defendant Lowder, got out of the truck and met Officer Howard between the truck and the patrol car with a valid driver's license and vehicle registration ready to show the officer. Schlosser continued to move about in the cab of the truck. Defendants' behavior led the officer to conclude that Schlosser was trying to hide something. Officer Howard approached the passenger side of the vehicle, tapped on the closed window, immediately opened the passenger door, and asked Schlosser for identification. Officer Howard testified that he asked for identification as a pretense for trying to determine what Schlosser may have been hiding. ¹ Upon opening the door, Officer Howard scanned the interior of the truck for contraband and saw a bag of marijuana in the passenger door pocket. He also smelled marijuana smoke. Defendants were arrested, and in a subsequent search of the vehicle, additional bags of marijuana, drugs, drug paraphernalia, and two unloaded firearms were also found.

Defendants were charged with unlawful possession of a controlled substance. On defendants' motion, the trial court suppressed all the evidence seized. In ruling on the motion, the trial court found that Officer Howard acted on "a mere suspicion that the defendant [Schlosser] was engaged in criminal activity," had no legal basis for the search and seizure, and ordered the evidence taken from the automobile suppressed. ²

On this appeal, we employ the usual standard of review; we will not reverse the trial court's findings of fact unless they are clearly erroneous. State v. Gallegos, 712 P.2d 207, 208-09 (Utah 1985); State v. Cole, 674 P.2d 119, 122 (Utah 1983).

II. SEARCH OF AN AUTOMOBILE STOPPED FOR TRAFFIC INFRACTION

The State contends that Officer Howard's opening of the passenger door and questioning of Schlosser did not constitute an unlawful search of the passenger compartment of the car, and therefore, the discovery of the marijuana in the pouch of the door and the seizure of the contraband was not unlawful.

Although a person has a lesser expectation of privacy in a car than in his or her home, California v. Carney, 471 U.S. 386, 390-93, 105 S.Ct. 2066, 2068-70, 85 L.Ed.2d 406 (1985), one does not lose the protection of the Fourth Amendment while in an automobile. However, when an officer stops a vehicle for a traffic violation, he may briefly detain the vehicle and its occupants while he examines the vehicle registration and the driver's license. See Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). An officer, for his own protection, may also order a driver out of a vehicle which has been stopped for a traffic violation. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). ³ If no arrest is made, an officer may make a warrantless search of the automobile only if there is probable cause for the search, United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173, 72 L.Ed.2d 572 (1982); 1 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 3.1(a), at 542-43 (2d ed. 1987), or if the officer has a reasonable and "articulable suspicion that the suspect is potentially dangerous," Michigan v. Long, 463 U.S. 1032, 1052-55 n. 16, 103 S.Ct. 3469, 3482-83 n. 16, 77 L.Ed.2d 1201 (1983) (search limited to a search for weapons).

Since Officer Howard's investigative actions went beyond the scope of the traffic stop, we turn to the issue of whether his opening the passenger door for investigatory purposes constituted an unlawful "search" under the Fourth Amendment. In New York v. Class, 475 U.S. 106, 114-15, 106 S.Ct. 960, 966-67, 89 L.Ed.2d 81 (1986), the Supreme Court stated that "a car's interior as a whole is ... subject to Fourth Amendment protection from unreasonable intrusions by the police." The Court held that an officer's opening the driver's door of an automobile to examine the vehicle identification number constituted a "search" and that the search was justified because the officer sought only to uncover the VIN, or vehicle identification number, a number required by state law to be located in a place ordinarily in plain view from outside the vehicle. 475 U.S. at 114, 119, 106 S.Ct. at 966, 969. The Court warned, however, that "[i]f the VIN is in the plain view of someone outside the vehicle, there is no justification for governmental intrusion into the passenger compartment to see it." 475 U.S. at 119, 106 S.Ct. at 969. Clearly, the State has no regulatory interest or justification in this case that is similar to the state's interest in Class to justify the intrusion into the passenger compartment.

In Arizona v. Hicks, 480 U.S. 321, 325, 107 S.Ct. 1149, 1153, 94 L.Ed.2d 347 (1987), the Supreme Court held that even a small intrusion beyond the legitimate scope of an initially lawful search is unlawful under the Fourth Amendment. See also State v. Gallegos, 712 P.2d 207 (Utah 1985). Officer Howard's testimony established that his opening the car door exceeded the legitimate objectives of a traffic stop. The officer's "clear initial objective" in opening the car door was to see whether Schlosser was "hiding something." However, without probable cause to justify it, that act clearly exceeded the lawful scope of a legitimate governmental interest.

Furthermore, it cannot be said that the discovery of the contraband was lawful because it was in "plain view." Opening the door revealed to the officer portions of the passenger compartment that he could not otherwise see and which were not, therefore, in plain view. See State v. Lee, 633 P.2d 48 (Utah), cert. denied, 454 U.S. 1057, 102 S.Ct. 606, 70 L.Ed.2d 595 (1981). To remove a search from the limitations of the Fourth Amendment under the plain view doctrine, an officer must be able to observe what is in open or plain and lawful view when he is located where he has a lawful right to be. See Hicks, 480 U.S. at 326-28, 107 S.Ct. at 1153-54; Lee, 633 P.2d at 51. Since opening the car door constituted an unlawful search, the discovery of the contraband upon opening the door cannot be justified under the plain view doctrine.

This conclusion is also supported by Commonwealth v. O'Connor, 21 Mass.App. 404, 487 N.E.2d 238 (1986). There, the arresting officer observed the defendant "reaching down below the dash of the vehicle." 21 Mass.App. at 405, 487 N.E.2d at 239. The officer opened the door to converse with the defendant and observed a piece of glass with a white powder on it, whereupon the officer conducted a search and arrested the defendant for possession of cocaine. The court held that "the officer had no right to open the car door" and that since he would not have discovered the cocaine had he not opened the door, the subsequent discovery was the product of an illegal search and should have been suppressed. 21 Mass.App. at 406, 487 N.E.2d at 240. ⁴

Likewise, in People v. Superior Court of Yolo County, 3 Cal.3d 807, 478 P.2d 449, 91 Cal.Rptr. 729 (1970), an officer lawfully stopped the defendants' vehicle for speeding. The driver acknowledged the violation and produced a valid driver's license. Because of furtive movements by the passenger, the officer walked to the passenger side of the car, opened the door, and looked inside, where he discovered marijuana. The officer admitted that he opened the door because he suspected that the passenger was hiding something. The California Supreme Court rejected the validity of the search because the officer, prior to opening the door, did not have probable cause to believe the occupants of the car possessed (1) instrumentalities used to commit a crime, (2) contraband or stolen goods, or (3) weapons which could be used to assault the officer. Since the contraband was not visible from outside the car and did not come into view until the officer had opened the door, its discovery did not fall within the plain view doctrine. 3 Cal.3d at 817, 478 P.2d at 454, 91 Cal.Rptr. at 734. Accordingly, the court held that the evidence was properly suppressed. See also United States v. Frisbie, 550 F.2d 335 (5th Cir.1977) (lowering of vehicle tailgate violated driver's reasonable expectation of privacy); Commonwealth v. Podgurski, 386 Mass. 385, 436 N.E.2d 150 (1982), cert. denied, 459 U.S. 1222, 103 S.Ct. 1167, 75 L.Ed.2d 464 (1983) (officer's poking his head inside slightly open sliding van door required suppression of evidence); People v. Aquino, 119 A.D.2d 464, 500 N.Y.S.2d 677, 679 (1986) ("[The officer] did not merely look into the vehicle from outside. He bent his head into the car to conduct a visual inspection of what would otherwise be hidden from plain view. This was improper."). Cf. State v. Harder,...