State v. Strickling

• Decision Date: 03 December 1992
• Docket Number: No. 910621-CA,910621-CA
• Citation: 844 P.2d 979
• Parties: STATE of Utah, Plaintiff and Appellee, v. Phillip D. STRICKLING, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 979

844 P.2d 979

STATE of Utah, Plaintiff and Appellee, v. Phillip D. STRICKLING, Defendant and Appellant.

No. 910621-CA.

Court of Appeals of Utah.

Dec. 3, 1992.

Rehearing Denied Jan. 15, 1993.

Robert L. Steele, Joan C. Watt, Paul M. Grant, and Ronald S. Fujino (argued), Salt Lake Legal Defender Ass'n, Salt Lake City, for appellant.

R. Paul Van Dam, State Atty. Gen. and J. Kevin Murphy, Asst. Atty. Gen. (argued), Salt Lake City, for appellee.

Before GARFF, JACKSON and ORME, JJ.

OPINION

ORME, Judge:

Defendant appeals the district court's denial of his motion to suppress evidence based on the arguments that the police officer had no articulable suspicion to stop defendant's car and that the ensuing inventory search of his vehicle was illegal. We affirm.

STANDARD OF REVIEW

This court defers to the trial court's factual findings and accordingly will disturb those findings only if they are clearly erroneous. See State v. Bobo, 803 P.2d 1268, 1272 (Utah App.1990); State v. Elder, 815 P.2d 1341, 1343 (Utah App.1991). See also United States v. Kordosky, 878 F.2d 991, 993 (7th Cir.1989) (district court's finding that an inventory search was conducted in accordance with standard procedures reviewed under clearly erroneous standard). Findings are clearly erroneous only if they "are against the clear weight of the evidence, or if the appellate court otherwise reaches a definite and firm conviction that a mistake has been made." State v. Walker, 743 P.2d 191, 193 (Utah 1987). In reviewing the legal conclusions based on the underlying facts, we apply the correction of error standard. See State v. Vigil, 815 P.2d 1296, 1299-1300 (Utah App.1991). Thus, the factual findings supporting the trial court's decision that the stop and search were conducted in a constitutionally permissible manner are reviewed under the "clearly erroneous" standard, while the ultimate legal determination that the stop and search comported with the Fourth Amendment is reviewed for correctness. See Vigil, 815 P.2d at 1298-1300 (voluntariness of consent for search is mixed question of law and fact with predicate facts weighed against clearly erroneous standard and the resulting legal conclusions reviewed for correctness).

In the present case, the defendant challenges several of the district court's factual findings. The court believed the arresting officer to be a credible witness and therefore based its findings almost exclusively on his testimony. None of these findings appear to be against the clear weight of evidence. Accordingly, the following statement of facts is taken largely from the district court's findings of fact.

FACTS

While on motorcycle patrol at approximately 1:45 a.m. on May 3, 1991, Officer Buckmiller, a University of Utah police officer, saw a red Monte Carlo stopped in an alley parking area next to the Sigma Nu fraternity house at the University of Utah. The car's doors were open and its lights were out. Two people exited the Monte Carlo, approached a nearby car, and pressed their faces against the windows with their hands cupped around their faces. As the officer approached, these two ran away on foot.

Earlier in the evening, Officer Buckmiller had encountered the two young men about a block and a half from the fraternity house and asked them if they had been "car hopping." Although the officer had mentioned nothing about burglary, they answered that they had nothing to do with "breaking into cars." Based on his familiarity with the fraternity, the addresses given by the two young men at the time of the earlier encounter, and their apparent ages, Officer Buckmiller did not believe the two to be members of the fraternity. He knew that the university area had experienced a number of car burglaries and, in fact, he had overheard conversations concerning two car burglaries that night over his police radio.

At the same time the two young men fled, the Monte Carlo departed, throwing gravel as it left the scene. As he followed the car, Officer Buckmiller noticed the license plate registration sticker had expired and, activating his flashing lights, stopped the car. As he approached the car, the passenger, who the officer had twice before arrested, stepped out. The officer ordered the passenger back into the car and called for backup. The driver of the car was the defendant, Phillip Strickling. While he was waiting for assistance, Officer Buckmiller approached a nearby tree for cover. At this time, he noticed the occupants reach under the seat, but he could not determine whether they were placing something under, or removing something from under, the seat. He ordered the occupants to place their hands on the dashboard. Police backup arrived a few minutes later. The occupants were then ordered to stand behind the car with another police officer. Officer Buckmiller looked under the seat where the two had reached and removed a stereo component with frayed wires attached. Officer Buckmiller impounded the car for a registration violation and conducted an inventory search. At that time, he discovered more stereo equipment. After the police verified that the stereo equipment was stolen, they arrested the defendant and passenger.

The defendant entered a conditional plea of guilty to theft by receiving, a class A misdemeanor, explicitly reserving his right to appeal the trial court's denial of the motion to suppress the evidence seized during the search. See State v. Sery, 758 P.2d 935, 939 (Utah App.1988) (conditional pleas reserving suppression issue are permissible in Utah).

While several issues are briefed, two assume pivotal significance. First, was the officer's initial stop of defendant based on articulable, reasonable suspicion? Second, did the scope of the search exceed the permissible constitutional limits?

LEGALITY OF THE STOP

Automobile stops fall within the ambit of the Fourth Amendment to the United States Constitution "because stopping an automobile and detaining its occupants constitutes a 'seizure.' " Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). The stop in this case can be constitutionally justified in either of two ways:

First, it could be based on specific, articulable facts which, together with rational inferences drawn from those facts, would lead a reasonable person to conclude [the detainee] had committed or was about to commit a crime. Second, the stop could be incident to a lawful citation for [a] traffic violation....

State v. Sierra, 754 P.2d 972, 975 (Utah App.1988) (citations omitted). The facts of the present case justify a warrantless stop.

The defendant spends much effort dissecting the facts that confronted Officer Buckmiller the night of the arrest and argues that these facts fail to support articulable suspicion of criminal activity. Looking at each fact in isolation, as defendant does, is not proper. We instead rely upon a test that "consider[s] the totality of the circumstances to determine whether the officer had 'specific and articulable facts' " to support suspicion. State v. Munsen, 821 P.2d 13, 15 (Utah App.1991) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968)), cert. denied, 843 P.2d 516 (Utah 1992). See also Terry, 392 U.S. at 22, 88 S.Ct. at 1880-81 (defendant's actions, each of which was innocent, when taken together warranted further investigation). Here, the State argues the following facts, taken together, supported the officer's suspicion: (1) the early morning hour, (2) car burglaries had occurred that night in the immediate area, (3) a car was parked in an alley parking area next to a fraternity house with its lights off and door open, (4) near that car were two young men, who the officer reasonably believed did not belong to the fraternity, peering into a parked car window with cupped hands, (5) these same young men fled upon the approach of police, and (6) the car sped off when the officer approached.

"[T]he level of suspicion required for a Terry stop is obviously less demanding than that for probable cause." United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989). In light of all the facts confronting Officer Buckmiller when he first encountered the defendant, "[i]t would have been poor police work indeed for an officer ... to have failed to investigate this behavior further." Terry, 392 U.S. at 23, 88 S.Ct. at 1881. Cf. State v. Ballenberger, 652 P.2d 927, 929 (Utah 1982) (lateness of hour, officer's knowledge of high rate of burglary in the area, along with other factors, justified further investigation); State v. Ramirez, 814 P.2d 1131, 1134 n. 1 (Utah App.1991) (flight, coupled with other facts of the case, is among factors considered to determine probable cause for arrest). Thus, under all the circumstances, Officer Buckmiller was justified in stopping the defendant based on articulable suspicion that a crime was about to be committed. ¹

LEGALITY OF THE SEARCH

A. Weapons Search

Because the initial stop was justified, we must now ascertain whether the officer's search was "reasonably related in scope to the circumstances which justified it in the first place." State v. Robinson, 797 P.2d 431, 435 (Utah App.1990). As discussed above, Officer Buckmiller's reasonable suspicion of criminal activities, namely auto burglary, justified the initial stop. The State argues the officers were justified in searching under the front seat of the defendant's car in order to search for weapons. It bases its assertion on the fact that after he stopped the defendant's car, Officer Buckmiller observed the occupants reach under the seat and that he was therefore legitimately concerned for his safety.

In Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), the United States Supreme Court ruled that if a police officer has specific articulable facts which reasonably warrant the officer to believe that the suspect is dangerous and may gain immediate control of...