State v. Sery

• Decision Date: 27 July 1988
• Docket Number: No. 860333-CA,860333-CA
• Citation: 758 P.2d 935
• Parties: STATE of Utah, Plaintiff and Respondent, v. Mark Joseph SERY, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 935

758 P.2d 935

STATE of Utah, Plaintiff and Respondent, v. Mark Joseph SERY, Defendant and Appellant.

No. 860333-CA.

Court of Appeals of Utah.

July 27, 1988.

Karen Stam (argued), Joan C. Watt, Salt Lake Legal Defender Assoc., Salt Lake City, for defendant and appellant.

David L. Wilkinson, Atty. Gen., Kimberly Hornak (argued), Asst. Atty Gen., for State.

Before JACKSON, ORME and DAVIDSON, JJ.

OPINION

JACKSON, Judge:

Defendant Mark Joseph Sery appeals his conviction for unlawful possession of a controlled substance, a third degree felony, in violation of Utah Code Ann. § 58-37-8(2)(a)(i) (1986). We reverse the trial court's denial of defendant's suppression motion and remand for withdrawal of the plea of no contest underlying the judgment of conviction.

On May 22, 1986, Sery arrived at Salt Lake International Airport at 11:05 a.m. on a Delta Airlines flight from Florida. He was carrying a blue suitcase with brown trim; there was nothing unusual about his appearance or attire. He paused momentarily in the arrival gate area, looked around, waited a few minutes while other passengers passed him, and then started along the concourse, looked around again, and entered a snack bar. In a few minutes, he exited the snack bar with a soft drink. He walked directly across to a bank of pay telephones and sat down in one of the enclosures. While holding a phone receiver, he twice stood up and looked over the booth's partition. Within three to five minutes, he left the phone booth area by a different path than the one he used to enter it, rejoining the concourse past several men standing near the phone booths, and proceeded in the direction of the baggage claim area. At that point, he was stopped by three of the men who had been standing outside the phone booth area after following him from the arrival gate. They identified themselves to Sery as police officers. One was Agent Mark Whittaker of the Utah Narcotics and Liquor Enforcement Bureau; one was Sergeant William Pearson of the Miami, Florida Police Department.

The day Sery arrived, Sergeant Pearson was conducting a drug courier seminar for Salt Lake City police. The training session for twenty to twenty-five officers had moved out of the classroom and into the airport concourses for practical application. Approximately six officers were watching the deplaning of Sery's flight from Florida, including Pearson and Whittaker. As soon as Sery entered the terminal and looked around, Pearson said to trainee Whittaker, "Let's follow him" or "Let's take a look at him." When Sery emerged from the snack bar, Pearson was ten to fifteen feet away from him. While Sery was in the phone booth area, Pearson and several of the trainees stood watching him, some within five feet.

When Sery was first stopped for questioning by Pearson, Whittaker, and another trainee, Pearson asked to see his airline ticket. A ticket bearing the name of Sidsel was produced. Pearson returned the ticket and asked "Mr. Sidsel" for identification. Sery responded that he had none, that his name was not Sidsel, and that the name on the ticket was incorrect due to airline error. According to Pearson, he did not ask Sery for, and Sery did not offer, his correct name. Pearson asked for his destination, which Sery stated was Evanston, Wyoming. Pearson then asked if he could search Sery's carry-on bag. Sery said he would rather Pearson did not. Pearson told Sery he was free to leave.

Sery continued on his way along the concourse, took the escalator down to the baggage claim area, waited for a few minutes, and then left the terminal. He re-entered the building at least once, looked around the baggage claim area, and exited again.

After releasing Sery, Pearson obtained from Delta Airlines--and checked out--the callback phone number that had been left when Sery's ticket was reserved. After discovering that the number in Ft. Lauderdale, Florida had been changed to a nonpublished number, Pearson ordered a drug detection dog from a local police department.

The dog and his handler arrived at the airport about noon. Shortly thereafter Pearson and other officers again confronted Sery, this time outside the terminal in the passenger pick-up zone. Pearson asked Sery to submit his carry-on bag to a drug detection dog sniff; Sery declined. Pearson then advised Sery that both he and his bag were being "detained" and that he would have to go back into the terminal with them while the bag was presented to the drug detection dog.

After the officers took Sery back inside the terminal, Pearson took Sery's bag, carried it behind the Delta ticket counter to a baggage area out of view and off-limits to the general public, and placed it in a four-bag lineup. The drug detection dog was brought in by his handler and reacted positively to Sery's bag. This information was conveyed by Pearson to Whittaker, who went to the public concourse area where Sery was being detained and informed him that he was under arrest.

A warrant to search the blue carry-on bag was subsequently issued based on Pearson's affidavit. It was found to contain cocaine. Sery moved to suppress this physical evidence on fourth amendment grounds because the officers, at the time they seized Sery and his bag outside the terminal, did not have specific, articulable facts warranting a reasonable suspicion that Sery was carrying illegal drugs in his bag. The trial court, after stating that the question was a close one, denied Sery's motion.

Sery then entered a plea of no contest to the offense of possession of a controlled substance. The plea was explicitly conditional on his preservation of the ability to appeal the court's suppression ruling and to withdraw the plea if it was determined on appeal that the motion to suppress should have been granted. A judgment of conviction was subsequently entered based on the conditional plea.

CONDITIONAL NO CONTEST PLEA

As a preliminary matter, we must address the State's claim on appeal that, although the prosecutor assented on the record to this conditional plea arrangement, the agreement was improper and mistaken. The State now asserts that, under Utah case law, a defendant who pleads no contest waives the right to appeal all pre-trial rulings.

The State argues that, under State v. Beck, 584 P.2d 870 (Utah 1978) (per curiam), and State v. Yeck, 566 P.2d 1248 (Utah 1977), a defendant cannot plead guilty and then base an appeal on alleged errors other than the voluntariness of the plea. In Yeck, the Utah Supreme Court concluded that, by entering a voluntary plea of guilty, the defendant had waived a trial and, with it, the right to claim on appeal that he was denied his right to a jury trial. Similarly, in Beck, the defendant's entry of a voluntary guilty plea to second degree murder, after a hung jury at his trial for first degree murder, was held to be a waiver of his claim on appeal that the facts underlying his arrest warrant did not constitute probable cause. ¹

Although neither of these Utah cases involved timely pre-trial suppression motions they are consistent with the common-law rule that a voluntary guilty plea is a waiver of the right to appeal all nonjurisdictional issues, including alleged pre-plea constitutional violations. E.g., Gordon v. State, 577 P.2d 701 (Alaska 1978); State v. Carter, 151 Ariz. 532, 729 P.2d 336 (App.1986); State v. Coffin, 104 Idaho 543, 661 P.2d 328 (1983); State v. Rivers, 226 Neb. 353, 411 N.W.2d 350 (1987); Webb v. State, 91 Nev. 469, 538 P.2d 164 (1975); Vogel v. City of Myrtle Beach, 291 S.C. 229, 353 S.E.2d 137 (1987); Beaver v. Commonwealth, 232 Va. 521, 352 S.E.2d 342 (1987), cert. denied, 483 U.S. 1033, 107 S.Ct. 3277, 97 L.Ed.2d 781 (1987). This general rule of appellate procedure has been applied in other jurisdictions to preclude appellate review of fourth amendment issues where the defendant entered an unconditional guilty plea after losing the suppression motion. E.g., State v. Defoy, 109 Ariz. 159, 506 P.2d 1053 (1973); Waits v. People, 724 P.2d 1329 (Colo.1986); People v. New, 427 Mich. 482, 398 N.W.2d 358 (1986); State v. Schulz, 409 N.W.2d 655 (S.D.1987); State v. Armstrong, 148 Vt. 344, 533 A.2d 1183 (1987). Because the conviction is based on the plea, rather than on the evidence defendant claims was obtained unconstitutionally, State v. Turcotte, 164 Mont. 426, 524 P.2d 787 (1974), the defendant who unconditionally pleads guilty forfeits the right to press his fourth amendment claim on appeal, just as constitutional rights can be forfeited by a failure to raise them in a timely fashion. 4 W. LaFave, Search and Seizure § 11.1(d) (2d ed. 1987) (citing Westen, Away from Waiver: A Rationale for the Forfeiture of Constitutional Rights in Criminal Procedure, 75 Mich.L.Rev. 1214 (1977)).

In Utah, this general rule regarding forfeiture of appellate review of an adverse ruling on a pre-plea motion to suppress applies with equal force to a defendant who enters an unconditional no contest plea, which "if accepted by the court shall have the same effect as a plea of guilty...." Utah Code Ann. § 77-13-2(3) (1982). Accord Cooksey v. State, 524 P.2d 1251 (Alaska 1974); Jackson v. State, 294 So.2d 114 (Fla.App.1974); People v. New, supra. But see City of Huber Heights v. Duty, 27 Ohio App.3d 244, 500 N.E.2d 339 (1985) (unlike plea of no contest, guilty plea waives claimed errors in denial of suppression motion).

However, the aforementioned general rule is inapplicable where, as here, the plea entered by the defendant with the consent of the prosecution and accepted by the trial judge specifically preserves the suppression issue for appeal and allows withdrawal of the plea if defendant's arguments in favor of suppression are accepted by the appellate court. See Oveson v. Municipality of Anchorage, 574 P.2d 801, 803 n. 4 (Alaska 1978) (approving expressly conditional nolo contendere plea if resolution of reserved issue on appeal is dispositive, refining rule first...