State v. Wilkinson

• Decision Date: 30 July 2009
• Docket Number: No. 20070325-CA.,20070325-CA.
• Citation: 216 P.3d 973,2009 UT App 202
• Parties: STATE of Utah, Plaintiff and Appellant, v. Jack WILKINSON, Defendant and Appellant.
• Court: Utah Court of Appeals

216 P.3d 973

2009 UT App 202

STATE of Utah, Plaintiff and Appellant, v. Jack WILKINSON, Defendant and Appellant.

No. 20070325-CA.

Court of Appeals of Utah.

July 30, 2009.

Margaret P. Lindsay, Spanish Fork, for Appellant.

Mark L. Shurtleff, Joanne C. Slotnik, and Marian Decker, Salt Lake City, for Appellee.

Before Judges ORME, DAVIS, and McHUGH.

OPINION

ORME, Judge:

¶ 1 Defendant Jack Wilkinson appeals his jury conviction, arguing that the trial court incorrectly denied his motion to suppress evidence.¹ Although the totality of the circumstances created reasonable suspicion of criminal activity to justify stopping Wilkinson, see Alabama v. White, 496 U.S. 325, 331-32, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (holding reliable informant tip provided reasonable suspicion of criminal activity, given totality of circumstances), the circumstances did not create reasonable suspicion that Wilkinson was armed so as to justify a Terry frisk, see Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) (stating a police officer "must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous"). Accordingly, we reverse the denial of the motion to suppress and remand for a new trial.

BACKGROUND²

¶ 2 In May 2006, a confidential informant (CI) told Officer Bebe that Mary Albert "had traveled to Salt Lake to pick up an amount of methamphetamine and [was going to] bring it back to Utah County and distribute it." CI had an on-going arrangement with the police, Officer Bebe knew CI's identity and other personal information, and Officer Bebe had worked with CI over a six-month period "on numerous occasions." During these occasions, CI conducted controlled buys and furnished tips to police about individuals distributing controlled substances. Officer Bebe found CI's past information to be reliable, and the prior information had led to a number of arrests. CI informed Officer Bebe that Wilkinson was with Albert, but CI did not say anyone but Albert would be purchasing methamphetamine.

¶ 3 At Officer Bebe's request, CI called Albert and requested she sell CI a "teener"³ of methamphetamine. Albert agreed to do so, and they arranged to meet at Albert's residence to complete the transaction. Officer Bebe, along with two other detectives, set up surveillance near Albert's home.

¶ 4 While waiting for Albert to arrive, CI initiated a phone call with Albert during which Albert indicated she was on her way. CI thereafter placed another phone call to check on Albert's status, and Albert said "she was on her way, . . . by RC Willey in Orem taking the back roads[,] and would be there shortly." CI told Albert that he had people waiting and wanted her to hurry.

¶ 5 Officer Bebe was "very familiar with [Albert's] vehicle" and easily recognized it as it approached the surveillance point. He observed that the five to ten minutes it took Albert to arrive seemed consistent with the time required to travel from RC Willey to his location. As the vehicle passed, Officer Bebe recognized Albert and Wilkinson, who were passengers in the vehicle.

¶ 6 After the vehicle passed, Officer Bebe initiated the flashing lights and siren of his unmarked police minivan. Officer Bebe's purpose for stopping the vehicle was to investigate the possible distribution of methamphetamine. The vehicle traveled about 400 feet before pulling over, which Officer Bebe considered an unreasonable amount of time to stop. While driving behind the vehicle, Officer Bebe observed back seat passengers "reaching to the very rear of the Jeep Cherokee, and [he] observed Mary Albert specifically slide down in her seat and then come back up." With Officer Bebe's three years of experience as a narcotics officer, he testified that such movements concerned him because "[i]ndividuals in the drug culture often arm themselves to protect themselves both from the criminal element and from law enforcement," and because such individuals "discard . . . hide, secrete, damage, [or] destroy evidence."

¶ 7 After the vehicle stopped, Officer Bebe approached the driver's side of the vehicle and addressed the driver, Albert's son, who indicated that he did not have his driver license. At this point, Officer Bebe opened the driver's-side door and asked the driver to step out. Officer Bebe later explained that his actions were for "safety" and to prevent "the immediate destruction of evidence." As the driver stepped out of the vehicle, Officer Bebe observed a syringe cap "on the side near the post of the door." Officer Bebe associated a syringe with "intravenous ingestion of methamphetamine." Officer Bebe then advised all the vehicle's occupants "to put their hands where [he] could see them." Officer Bebe noticed that the driver had bloodshot eyes, had dilated pupils, and "was speaking very loudly," all of which Officer Bebe interpreted as indicative of methamphetamine use. Officer Bebe conducted a Terry frisk of the driver, which revealed no weapons, and asked the driver to wait at the rear of the vehicle with the other detectives.

¶ 8 Officer Bebe then opened the passenger door where Wilkinson was seated and asked him to step out of the vehicle. As this occurred, Officer Bebe noticed that Wilkinson's pupils were dilated, there was "redness to the conjunctiva of his eyes," and "[h]e appeared flush." Officer Bebe believed Wilkinson might have methamphetamine on his person. Officer Bebe testified that three reasons justified his request for Wilkinson to step out of the vehicle: the syringe cap, the condition of the driver, and CI's information. Officer Bebe asked Wilkinson if he had any weapons, but he did not remember Wilkinson's response. Officer Bebe then performed a Terry frisk of Wilkinson. He felt several small, indiscernible items in Wilkinson's pockets. Officer Bebe reached into Wilkinson's pockets and extracted the contents. The search revealed a small pocket knife, "a bindle of a dollar bill," and a plastic baggie. Both the bindle and baggie contained what Officer Bebe believed to be methamphetamine.

¶ 9 Albert was also searched, and no drugs were found on her person. A search of the vehicle, though, revealed "syringes, one of which contained a small amount of a clear liquid," and a "baggie that contained a white crystallis substance in one of the rear seat passenger's purse." Wilkinson was charged with possession and use of a controlled substance, see Utah Code Ann. § 58-37-8(2)(a)(i) (2007), in a drug free zone, see id. § 58-37-8(4)(a)(v), a second degree felony, see id. § 58-37-8(2)(b)(ii), (4)(c), and possession of drug paraphernalia, see id. § 58-37a-5(1), in a drug free zone, see id. § 58-37-8(4)(a)(v), a class A misdemeanor, see id. §§ 58-37a-5(1), 58-37-8(4)(a), (4)(c).⁴ Wilkinson filed a motion to suppress the evidence found in his pockets, which motion the trial court denied. The trial court determined that probable cause existed to stop the vehicle and that reasonable suspicion existed to frisk Wilkinson.⁵ A jury trial followed in which Wilkinson was convicted.

ISSUE AND STANDARD OF REVIEW

¶ 10 Wilkinson challenges the trial court's denial of his motion to suppress, arguing that the officers did not have reasonable suspicion of criminal activity to stop the vehicle in which he was riding and that Officer Bebe had no reasonable suspicion to frisk him, even if it was legal to stop the vehicle. "Challenges to suppression rulings present questions of law that we review for correctness," State v. Wilkinson,⁶ 2008 UT App 395, ¶ 5, 197 P.3d 96, "without deference to the trial court's application of the law to the facts," Layton City v. Oliver, 2006 UT App 244, ¶ 11, 139 P.3d 281.

ANALYSIS

¶ 11 Wilkinson first challenges the stop's legality. Under settled case law, the stop was clearly valid. See Alabama v. White, 496 U.S. 325, 326-27, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (evaluating if an informant's tip established reasonable suspicion of criminal activity and stating "both the content of information . . . and its degree of reliability" must be considered); State v James, 2000 UT 80, ¶ 10, 13 P.3d 576 (stating that "officers may temporarily detain a vehicle and its occupants upon reasonable suspicion of criminal activity for the purpose of conducting a limited investigation of the suspicion" and that "[r]easonable suspicion may be based on information provided by a citizen if that information, coupled with available corroboration, is sufficiently reliable under the totality of the circumstances"), cert. denied, 29 P.3d 1 (Utah 2001).

¶ 12 Having readily concluded the stop was valid, we now focus on the propriety of the Terry frisk of Wilkinson, see State v. White, 856 P.2d 656, 662 (Utah Ct.App.1993) ("The facts relevant to justifying the frisk are distinct from those justifying the stop."), and whether the facts and circumstances objectively support a reasonable suspicion of Wilkinson being armed and dangerous, see State v. Warren, 2003 UT 36, ¶¶ 13-14, 78 P.3d 590. "The legality of a frisk for weapons, absent probable cause, is governed by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 . . . (1968), and its progeny."⁷ State v. Lafond, 2003 UT App 101, ¶ 18, 68 P.3d 1043, cert. denied, 72 P.3d 685 (Utah 2003). "The sole purpose for allowing the frisk is to protect the officer and other[s] by neutralizing potential weapons." Warren, 2003 UT 36, ¶ 13, 78 P.3d 590 (emphasis added). The State must prove the frisk was justified by showing specific, articulable facts that, viewed "objectively according to the totality of the circumstances," id. ¶ 14, demonstrate that "the officer reasonably believe[d] a person [wa]s `armed and presently dangerous to the officer or others,'" id. ¶ 13 (quoting Terry, 392 U.S. at 24, 88 S.Ct. 1868). See also White, 856 P.2d at 660 (stating reasonable suspicion "depends on `whether a reasonably prudent man in the circumstances would be warranted in the belief...