State v. Lopes

552 P.2d 120, 1976 Utah LEXIS 885

• Court: Utah Supreme Court
• Decided: July 15, 1976
• Docket: 14327
• Status: Published

Opinions

CROCKETT, Justice:

Defendant, Theodore Lopes, seeks reversal of his conviction of carrying a concealed weapon in violation of Section 76-10-504, U.C.A.1953. His contention is that the core evidence against him, the weapon, was obtained as a result of an unconstitutional search and seizure.

On June 1, 1975, at approximately 5:30 p. m., the defendant and a woman companion were riding in the defendant’s car near Fourth West and Second South and were observed by Salt Lake City police officers, who recognized the woman as one for whom there was an outstanding arrest warrant. The officers ordered defendant to stop and one of them proceeded to place the woman under arrest. The other officer asked to see the defendant’s driver’s license and made a check, by radio, with police headquarters. Upon so doing, it was disclosed that the defendant was also subject to an outstanding warrant for a traffic violation. He placed defendant under arrest; and a search of his person revealed a pistol tucked in his waistband.

The defendant recognizes that the police officers are authorized by Section 41-2-15, U.C.A.1953, to check his driver’s license. But he argues that when nothing is found amiss: that is, that the driver’s license and the vehicle registration are in order, that exhausts the officer’s prerogative. Wherefore, he urges that his ensuing arrest and search were illegal; so that the discovery and the taking of his pistol could not constitute legal basis for the charge against him.

The pertinent Utah and federal constitutional provisions are identical:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated :¹

It is important to have in mind the purpose those constitutional provisions are intended to serve; and that it is not all searches which are proscribed, but only unreasonable ones.² The test to be applied is whether fair-minded people, in weighing the necessary accommodation between the rights of individuals to be free from unnecessary harassment or oppression and the interest of the public in being protected from crime, would regard the police officer’s conduct as unreasonable.³ And further, that this determination is primarily for the trial court; and that it will not be upset unless it is persuasively shown to be in error.

We also observe that when a warrant of arrest is issued, it is obviously impossible for every peace officer who might apprehend the accused to have the warrant in his possession. There is no im-properiety in his receiving that information by any reliable means, including by telephone or two-way radio, and thus serving the warrant. It was by the latter means that the officer here learned of the warrant for the defendant’s arrest. It is well settled that in making a lawful arrest an officer may make a search of the person arrested and the immediate physical surroundings to check for evidence of crime or dangerous weapons.⁴

For the reasons above stated we see nothing unlawful about the search by the officer in performing a lawful arrest pursuant to the warrant for the defendant.

Affirmed. No costs awarded.

HENRIOD, C. J., and ELLETT and TUCKETT, JJ., concur.

1 . Utah Constitution, Art. I, Sec. 14; U.S. Constitution, Amendment XV.

2 . Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777; State v. Criscola, 21 Utah 2d 272, 444 P.2d 617 (1968).

3 . State v. Torres, 29 Utah 2d 269, 508 P.2d 534 (1973) ; and authorities cited therein; and see also United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) ; Adams v. ’Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

4 . United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) ; Baca v. People, 160 Colo. 477, 418 P.2d 182 (1966) ; Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).