State v. Sykes

840 P.2d 825, 198 Utah Adv. Rep. 35, 1992 Utah App. LEXIS 172, 1992 WL 297075

• Court: Court of Appeals of Utah
• Decided: October 19, 1992
• Docket: 910554-CA
• Status: Published

Opinions

OPINION

GREENWOOD, Judge:

Defendant Lisa Sykes appeals her conviction for possession of a controlled substance, a third degree felony, in violation of Utah Code Annotated section 58-37-8(2)(a)(i) (Supp.1991), claiming that the trial court erred in denying her motion to suppress. We reverse.

FACTS

On appeal we state the facts involving the seizure of evidence in detail because the issue presented is fact sensitive. State v. Marshall, 791 P.2d 880, 882 (Utah App.), cert. denied, 800 P.2d 1105 (Utah 1990).

On the night of November 17, 1990, Deputy Keith Stephens of the Salt Lake County Sheriffs Office was watching a house located at 855 South 1500 West in Salt Lake City. Deputy Stephens was conducting the surveillance because of (1) neighbors’ complaints regarding suspicious activities at the house; (2) information from a confidential informant; and (3) Deputy Stephens’s purchase of cocaine in an undercover capacity in the general area. That night, after Deputy Stephens had been watching the house for about fifteen minutes, defendant drove up, parked, and entered the house. Approximately three minutes later, defendant returned to her car and drove off.

Deputy Stephens followed her in his car. After traveling some distance, defendant pulled over and Deputy Stephens approached her.¹ He identified himself and asked defendant for identification and the vehicle’s registration. Defendant had neither, but gave Deputy Stephens her name and date of birth. Deputy Stephens then returned to his vehicle where he checked defendant’s driver’s license status and ran a warrants check. The warrants check revealed that defendant had several outstanding warrants.

Deputy Stephens had defendant accompany him to his car where he questioned her about drug activity at the house she had just left. Defendant denied having any knowledge about narcotics trafficking at the home. Deputy Stephens then informed defendant she was under arrest for the outstanding warrants. At that point, defendant offered to divulge any information she had about the house, but Deputy Stephens refused the offer, stating he could not trust her. He then summoned a vice officer to assist in arresting defendant and impounding her vehicle. Deputy Stephens searched defendant’s car and found a grocery store receipt under the front seat. Inside the folded receipt was a small paper that contained a white powdery substance. Through a field-test Deputy Stephens determined the powder was cocaine. The state laboratory later confirmed this identification.

Defendant moved to suppress all evidence seized from her car on the grounds that the detention and search of her vehicle violated her rights under the Fourth Amendment to the United States Constitution. Deputy Stephens was the only person to testify at the suppression hearing. The trial court denied the motion without comment. Defendant entered a conditional plea of nolo contendere, preserving her right to appeal the court’s denial of her motion to suppress, pursuant to State v. Sery, 758 P.2d 935, 937-40 (Utah App.1988).

ISSUES

On appeal defendant argues that the court erred in denying her motion to suppress because (1) Deputy Stephens had no reasonable articulable suspicion to justify stopping her; and (2) the scope of the detention exceeded that permitted by law.

STANDARD OF REVIEW

In State v. Mendoza, 748 P.2d 181, 183 (Utah 1987), the court stated that a trial court’s determination of reasonable suspicion should not be overturned unless it is clearly erroneous.²

ANALYSIS

When a police officer stops a vehicle, a “seizure” occurs, giving rise to Fourth Amendment protections. State v. Holmes, 774 P.2d 506, 507 (Utah App.1989). The parties agree that a level two encounter, as described in State v. Deitman, 739 P.2d 616, 617-18 (Utah 1987), occurred in this case, requiring reasonable suspicion. Deit-man described three levels of encounters between police and citizens as follows:

(1) an officer may approach a citizen at anytime [sic] 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 necessary to effectuate the purpose of the stop”; (3) an officer may arrest a suspect if the officer has probable cause to believe an offense has been committed or is being committed.

Id., (quoting United States v. Merritt, 736 F.2d 223, 230 (5th Cir.1984), cert. denied, Hartsel v. United States, 476 U.S. 1142, 106 S.Ct. 2250, 90 L.Ed.2d 696 (1986)).

To pass muster under the Fourth Amendment, the seizure must be based on specific articulable facts which, together with rational inferences drawn from them, would lead a reasonable person to conclude defendant had committed or was about to commit a crime. State v. Trujillo, 739 P.2d 85, 88 (Utah App.1987).

In Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968), the Court stated:

[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which taken together with rational inferences from those facts, reasonably warrant that in-trusion_ [I]n making that assessment it is imperative that the facts be judged against an objective standard.... Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction.

The requirement of reasonable suspicion has also been codified in Utah Code Annotated section 77-7-15 (1990).

A peace officer may stop any person in a public place when he has 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.

Under this section, a police officer may detain an individual if he or she has an articulable suspicion that criminal activity has occurred or is occurring. Deitman, 739 P.2d at 617-18. The courts have acknowledged that police officers, by virtue of their specialized experience, can sometimes recognize illegal activity where ordinary citizens would not. State v. Miller, 740 P.2d 1363, 1366 n. 2 (Utah App.), cert. denied, 765 P.2d 1277 (Utah 1987).

There is no bright line test for what constitutes reasonable suspicion. State v. Steward, 806 P.2d 213, 215 (Utah App.1991). Courts will engage in a totality of the circumstances analysis to determine whether there was a reasonable suspicion of criminal conduct. Id.; United States v. Sokolow, 490 U.S. 1, 6, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989). That analysis “must be based upon all the circumstances and must ‘raise a suspicion that the particular individual being stopped is engaged in wrongdoing.’ ” Steward, 806 P.2d at 215 (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)).

Although the trial court did not enter written findings of fact and conclusions of law, there was a de facto finding of reasonable suspicion inherent in the court’s denial of the motion to suppress. Therefore, we look to other cases with facts similar to those before us, involving the question of reasonable suspicion of criminal activity and police detention.

In State v. Carter, 812 P.2d 460, 466 (Utah App.1991), cert. denied, 836 P.2d 1383 (Utah 1992), narcotics officers observed defendant deplaning from a flight arriving from Los Angeles, acting in a manner thought to be indicative of a drug carrier. The officers stopped defendant, identified themselves, and asked to examine his bag and to conduct a pat-down search of defendant’s person. This court held that the encounter became a level two seizure at this point, if not sooner, and agreed with the trial court’s findings that there was no reasonable suspicion of criminal activity. The trial court noted that the bulge under defendant’s clothing at waist level and his failure to produce identification were inadequate circumstances for the officers to have formed a reasonable articu-lable suspicion. Id. at 466-67.

In State v. Steward, a S.W.A.T. team stopped and searched a vehicle entering a cul-de-sac where the police were executing search warrants on three houses. Although defendant had backed his truck up and tried to leave after the S.W.A.T. team had initially attempted to detain him, the court held the totality of the circumstances did not give rise to a reasonable suspicion that the driver of the truck was involved in criminal activity. Steward, 806 P.2d at 216. In addition to noting that the officers were not uniformed, the court emphasized that there were no facts to link this particular person to the suspected illegal activities in the targeted houses. His mere presence in the area was insufficient to support a reasonable suspicion. Id.

In State v. Trujillo, defendant was observed in a high crime area carrying a nylon bag in what the police officer described as a “suspicious” manner. Examining the totality of the circumstances, this court found that defendant’s detention was not based upon a reasonable suspicion that he was involved in criminal activity, despite the lateness of the hour, the high-crime factor in the area, and the subsequent nervous behavior of defendant after he was stopped. Trujillo, 739 P.2d at 89-90. Defendant’s reaction was “consistent with innocent as well as with criminal behavior,” there was no contemporary criminal activity in the area, and no articulation of objective facts supporting the officer’s “hunch” of criminal activity. Id.

Finally, in Lemon v. State, 580 So.2d 292 (Fla.App.1991), a police officer, while patrolling a high crime area, observed a ear stop in front of an apartment complex known for drug activity. He watched the driver enter the complex, return after a brief interlude, and then leave in the car. The court held that these circumstances were insufficient to justify stopping the driver, as “they amount to no more than a bare suspicion of illegal activity.” Id. at 293. Those circumstances likewise did not justify a pat-down search for weapons after the defendant was stopped. Id.

Applying these cases, the trial court clearly erred in denying the motion to suppress, because the facts do not support a reasonable suspicion that defendant was engaged in criminal activity. The only facts articulated by Deputy Stephens were that (1) the neighbors had complained about individuals entering and leaving the house at all hours; (2) Deputy Stephens previously had purchased cocaine in the general area; (3) there was unspecified information from a confidential informant; (4) there was an ongoing investigation of the house; and (5) defendant drove up to the house, entered it and left shortly thereafter. None of these factors, either singly or in the aggregate, necessarily indicate wrongdoing as opposed to innocent actions by defendant.

At the time of the arrest, any connection between defendant and illegal activity was purely speculation. The police did not know the identity of either the owner or occupants of the house, and they did not know defendant. At that point, they had no positive evidence linking the house to illegal activity.³ Further, defendant’s mere presence in an area suspected to harbor drug activity does not give rise to reasonable suspicion that she was engaged in such activity. Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979). Defendant’s single visit does not link her to any drug dealers. She could have as easily been at the house to visit someone who was not there, and so left quickly. In fact, Deputy Stephen’s testimony indicates that defendant told him she was looking for her boyfriend.

CONCLUSION

The trial court committed clear error in finding that Deputy Stephens had articulated facts which would support a reasonable suspicion that defendant was engaged in criminal activity. Therefore, because defendant’s detention was unconstitutional, the court erred in denying her motion to suppress the evidence procured as a result of the illegal detention.

Because we reverse on the basis that the detention was illegal, we do not reach the issue of whether the scope of the detention was permissible.

Reversed and remanded for proceedings consistent with this opinion.

1 . The record indicates and the State concedes in its brief, that Deputy Stephens stopped defendant.

2 . But see State v. Ramirez, 817 P.2d 774, 782 (Utah 1991), in which the supreme court suggests a two-step process of analysis in reviewing admissibility of evidence, where the appellate court will “defer to the trial court’s fact-finding role by viewing the facts in the light most favorable to the trial court’s decision” and then review for correctness "whether these facts are sufficient to demonstrate reliability.” Similarly, some panels of this court have held that ultimate conclusions of fact drawn from preliminary factual findings are subject to a "correction of error” standard of review in cases involving voluntary consent, while other panels have held that a "clearly erroneous” standard should be applied. In State v. Carter, 812 P.2d 460, 468-69 n. 8 (Utah App.1991), cert. denied, 836 P.2d 1383 (Utah 1992), we invited the Utah Supreme Court to clarify the division among different panels of this court in cases involving voluntariness of consent, reasonable suspicion, and when a seizure occurs. While the supreme court has thus far declined to comment, the author would prefer to apply a two-step analysis as described in Ramirez and Carter, to the issue of whether reasonable suspicion existed in this case. It is particularly appropriate here, where the trial court made underlying findings of fact, but did not explicitly find reasonable suspicion. However, we utilize a clearly erroneous standard of review throughout in this case, because Mendoza is the supreme court’s most recent pronouncement addressing reasonable suspicion.

3 . Approximately a week later, police obtained a search warrant for the house, based largely on the evidence seized from defendant.