State v. Steward

• Decision Date: 06 February 1991
• Docket Number: No. 900158-CA,900158-CA
• Citation: 806 P.2d 213
• Parties: The STATE of Utah, Plaintiff and Appellee, v. Michael STEWARD, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 213

806 P.2d 213

The STATE of Utah, Plaintiff and Appellee, v. Michael STEWARD, Defendant and Appellant.

No. 900158-CA.

Court of Appeals of Utah.

Feb. 6, 1991.

John D. O'Connell, Salt Lake City, for defendant and appellant.

R. Paul Van Dam, Atty. Gen., and Charlene Barlow, Asst. Atty. Gen. (argued), Salt Lake City, for plaintiff and appellee.

Before BILLINGS, GARFF and RUSSON, JJ.

OPINION

RUSSON, Judge:

Michael Steward appeals his convictions of unlawful possession of marijuana with intent to distribute, a third degree felony, in violation of Utah Code Ann. § 58-37-8(1)(a)(iv) (Supp.1990), and unlawful possession of methamphetamine, a third degree felony, in violation of Utah Code Ann. § 58-37-8(2)(a)(i) (Supp.1990). We reverse and remand.

FACTS

The determination of the constitutionality of a police officer's stop of a person under the fourth amendment of the U.S. Constitution turns upon the facts of each case, and, therefore, we review the facts in detail. State v. Sierra, 754 P.2d 972, 973 (Utah Ct.App.1988).

On August 20, 1989, members of the Metro Narcotics task force executed search warrants on three houses, in a cul-de-sac off Lead Mine Road near Bingham Canyon, which allegedly contained a methamphetamine laboratory and controlled substances. A functional methamphetamine lab and packages of marijuana were found in one house and chemicals for preparing methamphetamine in another. Weapons such as handguns, shotguns, rifles, knives and crossbows were found in all three houses. At least three other houses in the cul-de-sac were not involved in the searches.

The Metro Narcotics team enlisted the support of the Salt Lake Police Department Special Weapons and Tactics (S.W.A.T.) team to assist in securing the area during the searches. The S.W.A.T. team was asked to stop vehicles entering the cul-de-sac, determine the identification and destination of the occupants thereof, and detain individuals headed for one of the involved houses. The officers did not wear traditional police uniforms, but were dressed instead in camouflage uniforms with small patches on the chest, shoulder, and helmet which identified them as police officers.

At approximately 11:50 p.m., Steward turned his pickup truck into the cul-de-sac. The S.W.A.T. team, which had been concealed in the shadows, quickly approached Steward's vehicle and ordered him to stop. Steward stopped and put his vehicle in reverse. According to one officer, Steward looked "kind of panicky or startled." An officer opened the driver's side door and ordered Steward to stop. The S.W.A.T. team then identified themselves as police officers and inquired as to his destination. Steward indicated that he was going to visit a friend. The person identified was an occupant of one of the involved houses. Steward was ordered out of the pickup, at which time he was patted down and his truck searched for weapons. During the search, an open blue gym bag was found on the floor on the passenger's side, with the tops of plastic bags observable therein.

The officers radioed Detective Huggard at the search site, informing him of the stopped vehicle and the suspected presence of marijuana. Detective Huggard proceeded to Steward's pickup, retrieved the gym bag and discovered four baggies containing a substance later determined to be marijuana. Numerous empty baggies were also found. Steward was then placed under arrest.

Detective Huggard next retrieved a leather jacket from the pickup, which Steward identified as his. The jacket was checked for weapons, and a wallet was found containing $4,000 in forty $100 bundles. Also found was a bindle containing a white, powdery substance later determined to be methamphetamine. A further search of Steward revealed an additional $1,257 in the front pocket of his jeans.

Prior to trial, Steward filed a motion to suppress evidence seized from him as a result of this stop. Following a hearing, the motion was denied. The matter was subsequently tried and Steward found guilty of both charges.

ISSUES

Steward raises two issues on appeal: First, was the trial court correct in determining that the initial investigatory stop of defendant's vehicle was lawful? Second, was the trial court correct in determining that the subsequent search of defendant and his vehicle was lawful?

INVESTIGATORY STOP

In absence of clear error, the trial court's findings of fact underlying its decision to grant or deny the suppression motion must be upheld. State v. Bruce, 779 P.2d 646, 649 (Utah 1989). However, as for the trial court's legal conclusions in regards thereto, the correction of error standard applies. State v. Johnson, 771 P.2d 326, 327 (Utah Ct.App.1989), rev'd on other grounds, 805 P.2d 761 (Utah 1991).

The fourth amendment provides that "[t]he right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." U.S. Const. amend. IV.

Consistent therewith, the Utah Supreme Court has held that there are three levels of police-citizen encounters, each of which requires a different degree of justification to be constitutionally permissible.

(1) [A]n officer may approach a citizen at anytime [sic] and pose questions so long as the citizen is not detained against his will;

(2) an officer may seize a person if the officer has an "articulable suspicion" that the person has committed or is about to commit a crime; however, the "detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop;"

(3) an officer may arrest a suspect if the officer has probable cause to believe that an offense has been committed or is being committed.

State v. Deitman, 739 P.2d 616, 617-18 (Utah 1987) (per curiam) (quoting United States v. Merritt, 736 F.2d 223, 230 (5th Cir.1984)).

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court first articulated the narrow level two exception to allow police officers, in certain circumstances, to make limited intrusions on an individual's personal security based on less than probable cause. The stopping of a vehicle and the consequent detention of its occupants constitute a level two "seizure" within the meaning of the fourth amendment, even if the purpose of the stop is limited and the resulting detention brief. State v. Sierra, 754 P.2d 972, 975 (Utah Ct.App.1988).

In the case before us, the trial court and both parties treated the matter as a level two encounter. Such a stop requires that "the officers 'have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.' " State v. Swanigan, 699 P.2d 718, 719 (Utah 1985) (per curiam) (quoting Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979)); State v. Carpena, 714 P.2d 674, 675 (Utah 1986) (per curiam). "Absent reasonable suspicion, evidence derived from the stop is 'fruit of the poisonous tree' and must be excluded." State v. Baird, 763 P.2d 1214, 1216 (Utah Ct.App.1988) (citations omitted).

There is no bright line test for what is, or is not, reasonable suspicion. Id. Whether the officer had reasonable suspicion depends on the "totality of the circumstances." Id. (citations omitted). The "totality of the circumstances" analysis must be based upon all the circumstances and must "raise a suspicion that the particular individual being stopped is engaged in...