State v. Lowe

2010 UT App 156, 234 P.3d 160, 658 Utah Adv. Rep. 37, 2010 Utah App. LEXIS 160, 2010 WL 2403375

• Court: Court of Appeals of Utah
• Decided: June 17, 2010
• Docket: 20090149-CA
• Status: Published

Opinions

OPINION

McHUGH, Associate Presiding Judge:

T1 Clay C. Lowe appeals from his conviction for possession of methamphetamine, a third degree felony, see Utah Code Ann. § 58-37-8(2)(a)(1), (b)(i) (Supp.2009). Lowe argues that the trial court erred in denying his motion to suppress evidence. We agree and reverse.

BACKGROUND ¹

12 On February 24, 2008, Deputy Deke Taylor, a Provo City police officer, went to Lowe's apartment in the hope of obtaining information from his acquaintance, Timothy Lamoreaux, regarding the whereabouts of a fugitive sought by police. When Deputy Taylor approached Lamoreaux, who was standing in an outside doorway of the apartment, Lamoreaux put his left hand in his pants pocket. Deputy Taylor twice ordered Lamoreaux to keep his hands visible, but Lamoreaux refused. Because of Lamo-reaux's failure to comply, Deputy Taylor pulled Lamoreaux from the doorway onto the ground and searched him for weapons. He found a butterfly knife with a six-inch blade. As a category-two restricted person, it was unlawful for Lamoreaux to possess the knife. See Utah Code Ann. § 76-10-508(1)(b), (8) (2008).

T3 As a second officer, Officer Troy Morgan, arrived on the scene, he saw "Deputy Taylor with his gun out, [Lowe] with his hands in the air, and Lamoreaux not complying." Lowe, who was standing between the two officers, made a 180 degree turn toward Officer Morgan while continuing to hold his hands above his head. Upon seeing the knife retrieved from Lamoreaux, Officer Morgan frisked Lowe's outer clothing, noting a "hard cylindrical object" in Lowe's pocket. Concerned that it might be the handle of a knife, Officer Morgan removed the object, which turned out to be a prescription bottle. In the process of removing the bottle, a baggie containing a erystal substance fell from Lowe's pocket. A field test indicated that the substance was 1.16 grams of methamphetamine.

T4 Lowe was arrested and charged with possession of methamphetamine. After his motion to suppress the methamphetamine evidence was denied, Lowe entered a conditional guilty plea, preserving his right to appeal, see State v. Sery, 758 P.2d 935, 939 (Utah Ct.App.1988). The trial court sentenced Lowe to an indeterminate term of zero to five years in prison but suspended the prison term and placed Lowe on probation for thirty-six months. Lowe filed this appeal, challenging his conviction on the ground that the methamphetamine evidence should have been suppressed.

ISSUE AND STANDARD OF REVIEW

15 Lowe argues that the search by Officer Morgan violated his Fourth Amendment rights under the United States Constitution, see U.S. Const. amend. IV, and that, therefore, the methamphetamine evidence should have been suppressed. "In an appeal from a trial court's denial of a motion to suppress evidence 'we review the trial court's factual findings for clear error and we review its conclusions of law for correctness"" Salt Lake City v. Bench, 2008 UT App 30, ¶ 5, 177 P.3d 655 (alteration omitted) (quoting State v. Tiedemann, 2007 UT 49, ¶ 11, 162 P.3d 1106), cert. denied, 199 P.3d 367 (Utah 2008). "In search and seizure cases, no deference is granted to ... the district court regarding the application of law to underlying factual findings." State v. Alverez, 2006 UT 61, ¶ 8, 147 P.3d 425.

ANALYSIS

T6 Lowe argues that the officers were not justified in detaining him because he was merely a bystander who was not suspected of criminal activity. He further contends that it was improper to frisk him because Officer Morgan did not have a reasonable suspicion that he was armed and dangerous. See generally Terry v. Ohio, 392 U.S. 1, 21, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (holding that an officer is permitted to frisk an individual for weapons if he can "point to specific and articulable facts" that lead him reasonably to believe "that eriminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous"). The State disagrees, arguing that the totality of the cireumstances justified Officer Morgan's actions.

T7 The Fourth Amendment to the United States Constitution recognizes the right to be free from "unreasonable searches and seizures." U.S. Const. amend. IV.² In assessing the reasonableness of a search or seizure, we recognize three constitutionally permissible levels of encounters between police officers and citizens:

(1) [An officer may approach a citizen at any time and pose questions so long as the citizen is not detained against his will; (2) an officer may seize a person if the officer has an articulable suspicion that the person has committed or is about to commit a crime; however, the detention must be temporary and last no longer than is nee-essary to effectuate the purpose of the stop; (8) an officer may arrest a suspect if the officer has probable cause to believe an offense has been committed or is being committed.

State v. Johnson, 805 P.2d 761, 763 (Utah 1991) (alteration in original) (internal quotation marks omitted).

T8 Pursuant to this analytical framework, an officer generally cannot detain a person absent at least a reasonable suspicion that the person is involved in criminal activity. See Sibron v. New York, 392 U.S. 40, 62-63, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) (holding that a level three encounter (arrest) requires probable cause); Terry, 392 U.S. at 30, 88 S.Ct. 1868 (holding that a level two encounter (investigatory stop) requires reasonable suspicion); see also Johnson, 805 P.2d at 763 (stating that an individual should not be detained against his will during a level one encounter). However, "under certain circumstances officers may detain a person without reasonable suspicion of criminal activity for the sole purpose of 'exercising unquestioned command of the situation.'" See State v. Valdez, 2003 UT App 100, ¶ 18, 68 P.3d 1052 (additional internal quotation marks omitted) (quoting Maryland v. Wilson, 519 U.S. 408, 414, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997)). Such detention has primarily been employed in the case of passengers in the course of a vehicle stop and individuals present during the execution of a search or arrest warrant. See Michigan v. Summers, 452 U.S. 692, 705, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) ("[A] warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted." (footnote omitted)); State v. Baker, 2010 UT 18, ¶ 13, 229 P.3d 650 ("During a lawful traffic stop, '[tlhe temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop.'" (alteration in original) (quoting Arizona v. Johnson, — U.S. —, —, 129 S.Ct. 781, 788, 172 L.Ed.2d 694 (2009); Valdez, 2003 UT App 100, ¶ 19, 68 P.3d 1052 (holding that it was lawful for police to detain an individual present in the home where police were arresting another).

19 Such detention, even if permissible, does not give an officer the authority to frisk for weapons absent a reasonable articu-lable suspicion that the detained person is armed and presently dangerous. See Ybarra v. Illinois, 444 U.S. 85, 92-94, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (holding that it was not permissible for police to indiscriminately search the patrons of a tavern for weapons while executing a search warrant); Baker, 2010 UT 18, ¶ 41, 229 P.3d 650 (holding that, although a passenger may be detained for the duration of a lawful traffic stop, "officers may not perform a pat-down search absent reasonable articulable suspicion ... that the suspect is dangerous, and that he may obtain immediate control of weapons" (citations and internal quotation marks omitted)). "We evaluate the reasonableness of a weapons search objectively according to the totality of the cireumstances," Baker, 2010 UT 18, ¶ 41, 229 P.3d 650 (internal quotation marks omitted), and will not "divide the facts and evaluate them in isolation from each other," State v. Warren, 2003 UT 36, ¶ 14, 78 P.3d 590.

T10 In State v. Baker, 2010 UT 18, 229 P.3d 650, the Utah Supreme Court recently considered whether a weapons search was permissible. There a police officer noticed that a vehicle was traveling after midnight without an illuminated license plate, and the officer initiated a traffic stop. See id. 18. After checking the driver's identification, the officer learned that the driver's license had been suspended for a drug violation. See id. While the officer was placing the driver under arrest for driving on a suspended license, two backup officers arrived. See id. T4. One of the backup officers approached the vehicle, and the four passengers voluntarily relinquished thirteen knives. See id. The backup officer considered the passengers "nonthreatening and cooperative." Id. Shortly thereafter, a K-9 unit arrived and the dog alerted on the rear driver's side door of the vehicle and the trunk. See id. 15. At that point, the police officers ordered the passengers out of the vehicle and frisked them. See id. The defendant, Baker, was found in possession of controlled substances and arrested. See id. One of the issues before the supreme court on certiorari review was whether this court had correctly concluded that Baker's motion to suppress the drug evidence should have been granted. See id. 11 1-2.

T11 In affirming our determination that the frisk of Baker was unreasonable, the supreme court reaffirmed that an officer may not perform a weapons search absent a "reasonable] belie[f] both that the suspect is dangerous, and that he may obtain immediate control of weapons." Id. T41 (internal quotation marks omitted). In reviewing the totality of the cireumstances, the Baker court considered a number of factors, including the presence of other weapons, the lateness of the hour, whether the individual cooperated with police, whether the officers actually feared for their safety, whether the individual was suspected of a crime for which he would likely be armed, and whether the circumstances were inherently dangerous³ See id. 1144-52. The supreme court concluded that under the facts present in Baker, the weapons search was not objectively reasonable. See id. 1 55.

112 The cireumstances present here are much less compelling than those present in Baker. There, the police officers were engaged in an inherently dangerous traffic stop. See id. T16. See generally Johnson, 129 S.Ct. at 788 (noting the inherent danger involved in traffic stops). And Baker was a passenger in the vehicle with a lesser expectation of privacy than an average person. See Baker, 2010 UT 18, ¶ 11, 229 P.3d 650. Furthermore, the Baker traffic stop was conducted after midnight, and the suspects outnumbered the police. See id. ¶¶ 3-4. In contrast, Lowe was frisked at four o'clock in the afternoon in front of his apartment, during what began as a voluntary encounter. At the time Lowe was searched, Lamoreaux was being subdued by Deputy Taylor and Lowe was being detained by Officer Morgan. While the officers in Baker recovered thirteen knives, including at least one from Baker, see id. I 4, the officers here found a single knife on Lamoreaux, not Lowe. As in Baker, Lowe cooperated with the police officers. Lowe kept his hands above his head at all times during the encounter and did nothing to interfere with the officers' seizure, search, and arrest of Lamoreaux. Unlike the defendant in Baker, Lowe was not suspected of any crime, let alone a violent crime for which he would likely be armed. See generally id. [ 51 ("If an officer suspects that an individual has committed, was committing or was about to commit a type of crime for which the offender would likely be armed, the officer automatically has the right to frisk the individual to search for weapons." (internal quotation marks omitted)).

118 The only factors supporting the State's assertion that the weapons frisk was reasonable are Officer Morgan's subjective fear for his safety, Lowe's turn toward him, and the discovery of the knife in Lamo-reaux's pocket. Although some deference should be given to an officer's subjective belief that a person may be armed and dangerous, that belief must be objectively reasonable. See id. Furthermore, Lowe's movement turning toward the arriving officer while continuing to keep his hands above his head seems more a normal reaction to a new development than a threat. See generally State v. White, 856 P.2d 656, 661 (Utah Ct.App.1993) (noting that "common gestures or movements" do not indicate that an individual is armed and dangerous (internal quotation marks omitted)). And Officer Morgan made no attempt to assure his safety in a less intrusive way, such as by questioning Lowe about his presence at the scene. See generally id. at 662-65 (discussing the responsibility of officers to question before frisking where the cireumstances indicate that it would not be dangerous for them to conduct an initial inquiry).

CONCLUSION

14 Based on the totality of the ctreum-stances as argued on appeal, we conclude that Officer Morgan did not have an objectively reasonable belief that Lowe was armed and dangerous, thereby justifying a frisk for weapons.⁴ Therefore, Lowe's motion to suppress should have been granted.

1 15 Reversed.

16 I CONCUR: JAMES Z. DAVIS, Presiding Judge.

1 . This case presents us with an unusual preliminary issue. The facts stipulated to by the parties, found by the trial court, and presented in the State's brief on appeal differ in some significant respects from the transcript of the suppression hearing.

Most significantly, neither the trial court's findings nor the parties' appellate briefs refer to Officer Troy Morgan's testimony, noted by the dissent, that he "[took] possession" of Lowe, "had [him] up against [a] vehicle," and "had him by the hands" at the time Lowe turned toward Officer Morgan. Rather, the State's brief indicates that [Lowe] stood between Officer Morgan and ... Deputy [Deke] Taylor," had "his hands in the air," and "made a 180 degree turn toward Officer Morgan." Furthermore, at oral argument, the State's attorney indicated that this movement was made almost immediately after Officer Morgan came on the scene, with no suggestion that Officer Morgan detained Lowe prior to the turn.

The determination of whether a search or seizure violates the Fourth Amendment is dependent upon the reasonableness of the police officer's action under the totality of the circumstances. See State v. Baker, 2010 UT 18, ¶ 10, 229 P.3d 650. Because the dissent evaluates the issues under different facts, it reaches a different result. It is not apparent from the record why the State agreed to facts that differed from those found in the transcript of the preliminary hearing. However, those are the facts found by the trial court and argued by the State on appeal, and neither party challenges those findings. Thus, for purposes of our analysis, we rely on the facts as stipulated to by the parties and found by the trial court. See d'Elia v. Rice Dev., Inc., 2006 UT App 416, ¶ 24, 147 P.3d 515 ("Because the parties do not challenge the trial court's ... findings of fact, we accept the[] findings as true in our analysis on appeal.").

2 . Although Lowe also cites to the Utah Constitution, he provides no independent analysis of his state constitutional claims. Therefore, we do not consider them. See State v. Lafferty, 749 P.2d 1239, 1247 n. 5 (Utah 1988) (noting that appellate courts generally "will not engage in state constitutional analysis unless an argument for different analyses under the state and federal constitutions is briefed").

3 . This list is not exclusive; other factors unique to the circumstances may also be relevant. See, eg., State v. Warren, 2003 UT 36, ¶ 32, 78 P.3d 590 (weighing as part of the totality of the circumstances the fact that the individual had told officers a verifiable lie about the status of his driver license and that officers encountered the individual in a deserted area).

4 . Because we hold that the weapons search of Lowe was unreasonable, we need not consider whether, even if it were reasonable, it was tainted by the Deputy Taylor's actions toward Lamo-reaux.