State v. Ellis

2012 UT App 272, 287 P.3d 471, 718 Utah Adv. Rep. 37, 2012 WL 4450283, 2012 Utah App. LEXIS 275
CourtCourt of Appeals of Utah
DecidedSeptember 27, 2012
Docket20100563-CA
StatusPublished
Cited by1 cases

This text of 2012 UT App 272 (State v. Ellis) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Ellis, 2012 UT App 272, 287 P.3d 471, 718 Utah Adv. Rep. 37, 2012 WL 4450283, 2012 Utah App. LEXIS 275 (Utah Ct. App. 2012).

Opinion

MEMORANDUM DECISION

ROTH, Judge:

1 1 Defendant Christopher Duane Ellis appeals the district court's denial of his motion to suppress evidence he alleges was seized when the detaining officer exceeded the permissible seope of a protective frisk. We affirm.

1 2 If an officer has "reasonable suspicion that [a] detained individual is armed and dangerous," the officer may conduct a war-rantless protective frisk, known as a Terry frisk, to discover weapons that "might be used to harm the officer" so as to "ensure officer safety" during the investigative detention. State v. Peterson, 2005 UT 17, ¶¶ 9-10, 110 P.3d 699 (internal quotation marks omitted) (citing Terry v. Ohio, 392 U.S. 1, 23-24, 26-27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). For a Terry frisk to be permissible, "the officer's action [must have been] justified at its inception" and the protective frisk must be "reasonably related in seope to the circumstances which justified the interference in the first place." Id. 112 (citing Terry, 392 U.S. at 19-20, 88 S.Ct. 1868). "Because the only permissible objective of the Terry frisk is the discovery of weapons that may be used against the officer ..., 'a protective search [that] goes beyond what is necessary to determine if the suspect is armed ... is no[t] ... valid ... and [the] fruits [of that search] will be suppressed.'" Id. (quoting State v. Warren, 2003 UT 86, ¶ 14, 78 P.3d 590).

T3 "The reasonableness of ... the frisk [is] evaluated objectively according to the totality of the Warren, 2003 UT 36, ¶ 14, 78 P.3d 590 (citing Terry, 392 U.S. at 21, 88 S.Ct. 1868). "To determine reasonableness, a court should question whether the facts available to the officer ... warrant a man of reasonable caution in the belief that the action taken was appropriate." Id. (internal quotation marks omitted). *472 "[The officer must be able to point to specific facts which, considered with rational inferences from those facts, reasonably warrant the intrusion." Id. "In determining reasonableness, due weight must be given ... to specific reasonable inferences which [an officer] is entitled to draw from the facts in light of his experience." Id. (alteration in original) (internal quotation marks omitted). "[Tlhis process allows officers to draw upon their own experience and training to make determinations based on the cumulative facts before them...." Id.

T4 Here, an officer encountered Ellis while investigating a suspected automobile burglary. Upon approaching Ellis, the officer saw "a clip knife in his right pocket." He also noticed that Ellis's pockets were "very bulky." Concerned for his safety, the officer frisked Ellis for weapons.

T5 The officer began the Terry frisk by removing the knife that was clipped on Ellis's right, front pocket. That same pocket was "bulging," so the officer felt the outside of the pocket in an attempt to identify whether the items inside were benign or included things that could be used as weapons. Touching the outside of the pocket, the officer felt "numerous items," several of which were "long objects that seemed to be sharp" or pointed. Concerned that these objects might be weapons or objects that could be used as weapons, such as pens, the officer reached into Ellis's pocket to remove those items. While his hand was in Ellis's pocket, the officer felt several other objects, such as "pouches and all kinds of stuff." Because "there were so many items in the pocket ... it was hard to ... pull out just ... one thing," so the officer "just started taking everything out so [he] could ... determine what ... was dangerous and what wasn't." The officer emptied the pocket in about "two or three handfuls" of items that included another knife, pens, papers, and a couple of "pouches." One of those pouches was described as a "knife sheath"-about three inches long, one to two inches wide, and the thickness of a pencil. In the officer's experience, such pouches could contain weapons like "[rlazor blades, Leatherman tools, small pen knives-things that have sharps on them" and can be used as weapons. 1

T6 Without opening or manipulating that pouch, another officer who had joined the investigation could see that it contained an object that resembled a glass methamphetamine pipe. When that officer asked what was in the pouch, Ellis admitted that it contained drug paraphernalia and agreed that the pouch could be searched. That officer then opened the pouch and found that it did in fact contain a glass methamphetamine pipe. On further search, drugs were found in Ellis's possession. After charges were filed, Ellis filed a motion to suppress both the paraphernalia and the drugs. The district court's denial of that motion is the subject of this appeal.

T7 Ellis does not dispute that, under the cireumstances, the officer was justified in detaining him and conducting a protective Terry frisk, nor does he dispute that the officer was justified in expanding the Terry frisk by reaching into his pocket to further investigate the items felt during the pat down. Rather, Ellis argues that the officer exceeded the permissible scope of the Terry frisk by removing everything from Ellis's pocket-more particularly, by removing objects from Ellis's pocket that the officer did not believe to be weapons. However, in making this argument, Ellis concedes that the officer could investigate the objects in his pocket that the officer reasonably believed to be weapons or to contain a weapon, such as the long pointed objects and the pouch or knife sheath. Indeed, Ellis does not dispute that the officer felt the pouch in Ellis's pocket during the Terry frisk and identified that pouch as an object that could contain a weapon. Ellis accordingly concedes that if the officer reasonably believed that the pouch contained a weapon, removal of the pouch from his pocket would fall within the seope of a Terry frisk. Rather, Ellis's argument is a much more narrow challenge to the facts supporting the officer's belief that the pouch *473 contained a weapon. Specifically, he argues that

[the olfficer ... did not testify that he believed the black knife sheath which contained the meth pipe to be a weapon.... [The olfficer ... testified that Ellis's pockets contained pouches, and that these pouches were a cause for concern because they could contain weapons. However, whether the pouches could contain weapons is not the relevant question. The question is, rather, whether [the officer ... believed that the pouches did contain weapons, and in particular, whether he believed that the black knife sheath which contained the meth pipe was a weapon.... [The officer ... did not testify that he believed that the sheath was a weapon or contained a weapon. [The officer ... did not testify to the contours of the sheath, or provide any specific, articulable facts which indicated that that particular sheath was a weapon or contained a weapon.

Thus, Ellis argues, in effect, that the officer did not articulate sufficient facts to support a belief that the pouch actually contained a weapon.

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Bluebook (online)
2012 UT App 272, 287 P.3d 471, 718 Utah Adv. Rep. 37, 2012 WL 4450283, 2012 Utah App. LEXIS 275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ellis-utahctapp-2012.