State v. Talbot
| Decision Date | 09 May 1990 |
| Docket Number | No. 880342-CA,880342-CA |
| Citation | 792 P.2d 489 |
| Parties | STATE of Utah, Plaintiff and Appellant, v. Mark TALBOT, Defendant and Appellee. |
| Court | Utah Court of Appeals |
Patrick B. Nolan, Panguitch, for plaintiff and appellant.
Marcus Taylor, Richfield, for defendant and appellee.
Before BILLINGS, GREENWOOD and ORME, JJ.
The state appeals from a circuit court order suppressing evidence obtained following a stop and search of defendant's vehicle. A sheriff's posse had stopped the vehicle because it avoided a roadblock. We affirm.
On June 20, 1987, at approximately 12:15 a.m., a roadblock was established by the Garfield County Sheriff and his posse on the Panguitch Lake road, three miles outside of Panguitch, Utah. The stated purpose for the roadblock was to stop all vehicles traveling on the road in either direction and check for driver's licenses and vehicle registrations. The roadblock was effected by parking one vehicle on each side of the road, facing in opposite directions. These vehicles were equipped with red and blue grill lights, red spotlights, and yellow emergency flashers, all of which were activated. No signs, flares, or other devices were employed by the sheriff to advise oncoming traffic of the roadblock.
At 1:00 a.m., the sheriff and his posse observed the headlights of a vehicle heading south toward the roadblock. As the vehicle crested a hill approximately one-quarter mile away, it stopped abruptly, turned around in the middle of the road, and headed back north. Because of darkness and distance the officers at the roadblock could not identify the vehicle, much less its occupants or contents. Concluding the vehicle's occupants were attempting to avoid the roadblock, the sheriff ordered two posse members to "pursue the vehicle and check driving pattern and to make a stop of the vehicle." At the suppression hearing, the sheriff testified that when he gave the order he had "no idea what crime, if anything, had been committed."
The posse followed defendant's vehicle in a private pickup truck owned by one of the citizen members of the posse. The testimony at the suppression hearing failed to conclusively establish what official indicia of police authority the pickup displayed or whether the red flashing lights mounted either on or inside the front grill were activated during the pursuit. 1 The posse eventually caught up with the vehicle and followed it into Panguitch. According to the posse members, the vehicle's driving pattern was good and the driver did not commit any traffic violations.
During their pursuit, the posse established radio contact with officers patrolling in Panguitch. A discussion ensued as to whether the posse had "probable cause" 2 to stop the vehicle. The officers concluded that the posse had probable cause and the patrol officers agreed to assist in the stop.
The posse truck, defendant's vehicle, and the patrol officers, who were driving a regular police vehicle, converged in Panguitch. It is undisputed that defendant's vehicle stopped as soon as the patrol vehicle's red lights were engaged. Defendant and two juveniles were in the vehicle. Defendant was riding as a passenger. The officers found alcohol, marijuana, and an owl claw during their subsequent search of the vehicle. Defendant was arrested and jailed and his vehicle was impounded. Subsequently, an information was filed charging defendant with a host of offenses: contributing to the delinquency of and supplying alcohol to a minor, possession of a controlled substance and related paraphernalia, threatening a peace officer, allowing an unlicensed driver to drive, possession of an open container, public intoxication, and unlawful possession of protected wildlife. 3
Defendant filed two separate motions to suppress all evidence obtained following the stop. First defendant argued the roadblock itself was illegal. Second, he argued the stop itself was illegal even if the roadblock was not. Following an evidentiary hearing, the circuit court held the roadblock was in fact legal. 4 However, the court granted defendant's second motion to suppress, holding that at the time of the stop the posse did not have a "reasonable suspicion" that the occupants of defendant's vehicle were somehow involved in criminal activity.
The state raises three arguments on appeal. First, it argues that "fleeing" from the roadblock created an articulable suspicion that the occupants of the vehicle had committed or were in the act of committing an offense, and thus the vehicle was lawfully seized. Second, the state argues that the occupants of the vehicle were lawfully seized because the driver of the vehicle committed several traffic violations in the officers' presence. Finally, the state argues that, even assuming the seizure was improper, defendant consented to the search, thereby purging the taint of any illegality of the seizure. The consent argument was raised for the first time on appeal and, accordingly, we decline to address it. See, e.g., Lopez v. Shulsen, 716 P.2d 787, 788-89 (Utah 1986).
The state has not disputed, and it is now beyond question, that stopping a vehicle and detaining its occupants is a Fourth Amendment seizure regardless of the reason for the stop or the brevity of the detention. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1395, 59 L.Ed.2d 660 (1979). See also State v. Sierra, 754 P.2d 972, 975 (Utah Ct.App.1988). Moreover, the seizure may ordinarily be justified only if the stop was 1) incident to a traffic offense or 2) based at least upon a reasonable and articulable suspicion that the occupants had committed or were about to commit a crime. State v. Marshall, 791 P.2d 880, 881-883 (Utah Ct.App.), cert. filed, 133 Utah Adv.Rep. ---- (Utah 1990); Sierra, 754 P.2d at 975. Unless we are convinced that the stop in this case falls under one of these justifications, we will affirm the lower court's decision.
As previously stated, a stop is lawful if incident to a traffic violation committed in the officers' presence. Marshall, 791 P.2d at 881-883; Sierra, 754 P.2d at 975. However, a technical violation may not be used as a pretext to search for evidence of a more serious crime. See Marshall, 791 P.2d at 881-883; Sierra, 754 P.2d at 977. The state argues on appeal that the defendant's vehicle committed at least three traffic violations in the officers' presence which justified the stop. 5 But even assuming that the defendant's vehicle in fact committed the traffic violations as the state argues, 6 the stop was obviously not incident to those violations.
All of the state's evidence at the suppression hearing demonstrated that defendant's vehicle was not--initially or subsequently--pursued, nor was it stopped, for any traffic violation. Sheriff Judd, the officer in charge of the road block, testified at the suppression hearing that when he directed the posse to pursue and stop defendant's vehicle he "had no idea what crime, if anything, had been committed." Moreover, one of the posse members testified that while pursuing the vehicle he "didn't observe any traffic violations." Instead, defendant's vehicle was stopped because the patrol officers believed avoiding the road block created "probable cause" to stop the vehicle. This fact is born out by the conversation between a posse member and the officers on patrol in Panguitch concerning the existence of probable cause. At the suppression hearing the patrol officer testified:
[The posse member] explained to me that the Datsun pickup had turned from the road block and had headed back down the hill and that he was following it and he wondered if he had probable cause, the way he put it, to pull the vehicle over.
I explained to him that, if it was me that was following the truck and I had seen it turn from the road block, that I would believe we would have probable cause to pull the vehicle over because I would think there was something wrong in the reasoning that the vehicle turned before the road block.
It is obvious to us from the evidence produced at the suppression hearing that the stop was not based at the time upon any traffic violations but rather upon the conclusion, however flawed, that avoidance of the roadblock gave rise to a reasonable suspicion of criminal activity. It is inconsequential that the officers could have stopped the vehicle for one or more traffic violations where in fact the stop was for other reasons. Courts do not allow an officer to stop and investigate a "hunch" about criminal activity through the guise of a pretextual traffic violation. Sierra, 754 P.2d at 977. For the same reason, we will not allow the state to justify this stop on the retroactive basis that the officers might have stopped defendant's vehicle for traffic violations appellate counsel believes occurred prior to the stop.
The state's principle argument to justify this stop is based upon Utah Code Ann. § 77-7-15 (1982), which provides:
A peace officer may stop any person in a public place when he has a reasonable suspicion to believe he has committed or is in the act of committing or is attempting to commit a public offense and may demand his name, address and an explanation of his actions.
Id. (emphasis added). See also, e.g., Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968); State v. Menke, 787 P.2d 537, 541 (Utah Ct.App. 1990). It is the state's position that avoiding the roadblock created a reasonable suspicion that the occupants of the vehicle were involved in criminal activity.
Numerous Utah cases have dealt with the question of what constitutes a reasonable suspicion. See, e.g., State v. Mendoza, 748 P.2d 181 (Utah 1987); State v. Carpena, 714 P.2d 674 (Utah 1986) (per curiam); State v. Menke, 787 P.2d 537 (Utah Ct.App.1990); State v. Sery, 758 P.2d 935 (Utah Ct.App.1988); State v. Sierra, 754 P.2d...
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