State v. Goddard

               THE UTAH COURT OF APPEALS

                       STATE OF UTAH,
                         Appellee,
                             v.
                   ZACHARY LYNN GODDARD,
                         Appellant.

                            Opinion
                        No. 20190740-CA
                    Filed November 12, 2021

           Third District Court, Salt Lake Department
                The Honorable Royal I. Hansen
                          No. 171910247

         Lori J. Seppi and Samantha R. Dugan, Attorneys
                           for Appellant
         Sean D. Reyes and David A. Simpson, Attorneys
                          for Appellee

     JUDGE DIANA HAGEN authored this Opinion, in which
 JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN concurred.

HAGEN, Judge:

¶1     Zachary Lynn Goddard entered a conditional plea to one
count of possession of a dangerous weapon by a restricted
person, reserving his right to appeal the denial of his motion to
suppress evidence he alleges was obtained as a result of an
unlawful search. On appeal, Goddard argues that the district
court’s factual findings on the motion to suppress are clearly
erroneous and that the court should have granted the motion for
three reasons: (1) officers conducted a Terry stop of Goddard
without reasonable suspicion of criminal activity, (2) officers
frisked Goddard for weapons without reasonable suspicion that
he was armed and dangerous, and (3) officers subjected
                         State v. Goddard


Goddard to custodial interrogation without providing Miranda
warnings. We reject these arguments and affirm.


                        BACKGROUND 1

¶2     While on bike patrol, an officer and his partner were
passing through an alley known to them as a “high-drug-use
area.” They spotted Goddard, alone, “kind of hunched over
some items.” Among those items were some twist wrappers that
the officer recognized as drug paraphernalia. The officer testified
that “a twist is a small user amount of a controlled substance”—
usually “heroin or cocaine”—that is “tightly wrapped” in plastic
and then “wrapped up in another plastic which is tightly tied.”
The color of the twist wrapper indicates which “drug is inside.”
The officer had been trained to recognize illegal drug use and
drug paraphernalia and had learned “quite a bit” about
identifying drug paraphernalia from patrolling the area around
the alley, where he commonly saw paraphernalia strewn about.
In particular, the officer was familiar with twists as he had
observed “hundreds” of them in his career.

¶3     The officer testified that he suspected the twist wrappers
belonged to Goddard because they were “directly in front” of
him and close enough to reach. The only other people in the
alley were some distance from the twists, “maybe 30 feet up or
so and on the other side.” The officer noticed that “one of the
white twist wrappers,” which “was directly underneath”
Goddard, “appeared to be relatively clean,” meaning “[i]t didn’t
appear that it had been there and had dirt on it . . . from being


1. When reviewing a district court’s denial of a motion to
suppress, “[w]e recite the facts in a light most favorable to the
[district] court’s findings.” State v. Montoya, 

(Utah Ct. App. 1997).




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                          State v. Goddard


kicked around the alley for a little while.” The officers walked
toward Goddard, but as they approached, he “stood up” and
attempted to “leave the area.”

¶4     Based on these facts, the officers initiated a Terry stop 2 to
investigate whether Goddard was engaged in drug-related
activity. When the officers approached Goddard and asked for
identification, he “appeared nervous” and “made some motion
towards his chest.” Specifically, the officer testified that Goddard
“reach[ed] up towards” the “area above [his] breast line” and
“point[ed] and motion[ed] as if he was going to continue and
put his hand inside [his] coat.” The officer testified that
Goddard’s actions “made us feel nervous,” so his partner asked
Goddard whether he had any weapons. Goddard told the
officers that he had a gun “in his left coat pocket” and “moved
his hand toward that.” Goddard discontinued the motion only
when the officers “told him to stop.”

¶5      The officers told Goddard to put his hands above his
head, and the partner reached into Goddard’s left coat pocket,
pulling out a handgun. The officers asked if Goddard had a
concealed weapon permit, and Goddard admitted that he did
not. 3 Then, after giving Goddard Miranda warnings, the officers
arrested him.




2. “A Terry stop,” or level two stop, “occurs when a police officer
temporarily seizes an individual because the officer has a
reasonable, articulable suspicion that the person has committed
or is about to commit a crime.” State v. Perkins, 

, 

 (cleaned up).

3. At the time of the stop, carrying a concealed firearm without a
permit violated Utah law, even if the person was at least 21 years
                                                     (continued…)


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                         State v. Goddard


¶6     Relevant to this appeal, the State charged Goddard with
crimes arising from his possession of the firearm. At the
preliminary hearing, the officer testified regarding the stop and
events leading up to Goddard’s arrest.

¶7     Goddard later moved to suppress evidence of the firearm,
along with his statements about having a gun and lacking a
concealed weapon permit. Goddard argued that (1) the officers
lacked reasonable suspicion of criminal activity to conduct a
stop, (2) the officers frisked Goddard for weapons without
reasonable suspicion that he was armed and dangerous, and (3)
Goddard was subjected to custodial interrogation before
receiving Miranda warnings.

¶8      After hearing testimony from the officer at the motion to
suppress hearing, 4 the district court denied the motion. The
court concluded that the officers had reasonable suspicion to
stop Goddard. The court found that Goddard “was segregated
from others” and “hunched over the drug paraphernalia,” that
the drug paraphernalia “was new and clean,” and that Goddard
and the drug paraphernalia were “isolated” because “there
wasn’t anyone else in the same vicinity.” The court did not,
however, explain its reasons for rejecting Goddard’s challenges
to the seizure of the gun or the pre-Miranda questioning.




(…continued)
old and could otherwise lawfully possess a firearm. See 

 (LexisNexis Supp. 2017).

4. Goddard attached the preliminary hearing transcript to his
motion to suppress, placing the officer’s earlier testimony before
the district court as well. We refer to the officer’s testimony from
both hearings in reciting and applying the facts.




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                         State v. Goddard


¶9     After the district court denied the motion to suppress,
Goddard entered a conditional plea to possession of a dangerous
weapon by a restricted person and reserved his right to appeal
the ruling on the motion to suppress. The State dismissed the
remaining charges. Goddard now appeals.


            ISSUES AND STANDARD OF REVIEW

¶10 Goddard challenges the district court’s denial of his
motion to suppress, contending that: (1) the court’s factual
findings supporting reasonable suspicion were clearly erroneous
and, in any event, the stop was not “justified by reasonable
suspicion that criminal activity was afoot and that [Goddard]
was sufficiently connected to that criminal activity”; (2) the
officers “did not have reasonable suspicion that Goddard was
armed and presently dangerous” to justify a frisk for weapons;
and (3) “Goddard was entitled to Miranda warnings before the
officers” asked him “whether he had a firearm or a concealed
weapon permit.” (Cleaned up.) “We review a denial of a motion
to suppress as a mixed question of law and fact and will disturb
the district court’s factual findings only when they are clearly
erroneous, but we afford no deference to the district court’s
application of law to the underlying factual findings.” State v.
Paredez, 

, 

 (cleaned up).


                           ANALYSIS

           I. Reasonable Suspicion to Detain Goddard

¶11 Goddard contends that the officers lacked reasonable
suspicion that he was involved in criminal activity and,
therefore, were not legally permitted to detain him to investigate
his connection to the drug paraphernalia. In challenging the
district court’s conclusion to the contrary, Goddard first argues



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                        State v. Goddard


that the court’s factual findings were clearly erroneous. Next,
Goddard argues that even if the court’s findings are supported
by the evidence, those facts do not give rise to reasonable
suspicion that criminal activity was afoot and that Goddard was
sufficiently connected to that activity. We address both
arguments in turn.

A.    The district court’s findings are adequately supported by
      the evidence.

¶12 Goddard first challenges the factual findings supporting
the district court’s reasonable suspicion determination. We
review a district court’s factual determination under a “clearly
erroneous” standard and in so doing, we “do[] not consider and
weigh the evidence de novo.” State v. Walker, 

(Utah 1987) (cleaned up). Accordingly, the mere fact that we
“might have reached a different result” when looking at the
same evidence will not justify setting the findings aside. 

(cleaned up). Rather, we “may regard a finding as clearly
erroneous only if the finding is without adequate evidentiary
support or induced by an erroneous view of the law.” 

(cleaned up). Under this standard, the district court’s findings
are not clearly erroneous.

¶13 The district court made three factual findings that
Goddard challenges. First, the court found that, during the
events in question, Goddard was “segregated from others” and
that he and the drug paraphernalia “were isolated” because
“there wasn’t anyone else in the same vicinity.” Second, the
court found that the drug paraphernalia “was new and clean” at
the time. Lastly, the court found that Goddard had been
“hunched over the drug paraphernalia.” The court’s findings are
adequately supported by the officer’s testimony at both the
preliminary hearing and the evidentiary hearing on the motion
to suppress.




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                         State v. Goddard


¶14 Goddard first challenges the court’s finding that he was
“segregated from others,” he was “isolated,” and “there wasn’t
anyone else in the same vicinity.” Goddard argues that he was
not isolated because the alley where he was stopped is “public.”
But the court did not find that Goddard was alone in a private
space, only that Goddard and the drug paraphernalia were
“segregated” or “isolated” relative to others in the alley. The
officer testified that there were no people in Goddard’s
“immediate area” and that the closest group of people was
sitting “maybe 30 feet up or so and on the other side” of the
alley. The distance between Goddard and the other group of
people supports the court’s finding that, with respect to their
proximity to the drug paraphernalia, Goddard was “segregated”
and “isolated,” and “there wasn’t anyone else in the same
vicinity.” Thus, the court’s finding is adequately supported by
the officer’s testimony and not clearly erroneous.

¶15 Goddard next challenges the court’s finding that the drug
paraphernalia was “new and clean.” The officer testified that he
had seen “hundreds” of twist wrappers in his career and
confirmed that he commonly saw them strewn about the area
where Goddard was sitting. In comparison, the paraphernalia
directly underneath Goddard “appeared to be relatively clean.”
He explained that at least one of the twist wrappers had an
“appearance of, I guess you say, maybe cleanliness. It didn’t
appear that it had been there and had dirt on it . . . from being
kicked around the alley for a little while.” Goddard argues that,
“at most, th[is] evidence showed that [the officer] considered the
wrapper to be relatively clean” and cannot support the district
court’s finding that the drug paraphernalia was “new and
clean.” We disagree.

¶16 The court could reasonably infer that the paraphernalia
was “new and clean” based on the officer’s experience with
seeing twist wrappers in the area and his testimony that the
twist observed directly underneath Goddard did not appear to


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                         State v. Goddard


have been there for long. When the district court makes findings
of fact, it is entitled to draw all reasonable inferences from the
facts. See State v. Moosman, 

 (Utah 1990). Here,
the officer testified that the twist did not have “dirt on it” from
“being kicked around the alley for a little while,” supporting an
inference that it was “new,” in the sense that it had been recently
discarded, and “clean” in comparison to other paraphernalia
that the officer commonly saw in the alley. Thus, the court’s
finding that the paraphernalia was “new and clean” is fully
supported by reasonable inferences from the officer’s direct
testimony and is not clearly erroneous.

¶17 Finally, Goddard challenges the court’s finding that he
“was hunched over the drug paraphernalia,” as opposed to
other unidentified items. The officer testified that Goddard was
“sitting on the ground in this alley and he was kind of hunched
over some items and I observed drug paraphernalia directly
underneath him.” The district court could reasonably construe
this testimony to mean that the drug paraphernalia was among
those items over which Goddard was hunched. And when asked
how close Goddard was to the twists, the officer confirmed that
Goddard “was seated on the ground and he was hunched over
and they were directly be—like in his area where he was
hunched over, if that makes sense.” 5 Based on this testimony, the
district court’s characterization of Goddard being “hunched over
the drug paraphernalia” is not clearly erroneous.




5. The record also suggests that the officer may have physically
demonstrated the wrapper’s location relative to Goddard during
his testimony. The deference afforded by the clearly erroneous
standard recognizes that the “lower court often has a
comparative advantage in its firsthand access to factual
evidence.” Myers v. Myers, 

, 

.




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                         State v. Goddard


¶18 In sum, the court’s factual findings were not clearly
erroneous. Having determined the court’s findings are
adequately supported, we next turn to whether those facts
supplied the officers with reasonable suspicion to detain
Goddard.

B.    The officers reasonably suspected Goddard was engaged
      in criminal activity.

¶19 The Fourth Amendment protects citizens from
“unreasonable searches and seizures.” U.S. Const. amend. IV.
“The Fourth Amendment is not, of course, a guarantee against
all searches and seizures, but only against unreasonable searches
and seizures.” United States v. Sharpe, 

 (1985).
Accordingly, the “touchstone of the Fourth Amendment is
reasonableness.” Ohio v. Robinette, 

 (1996) (cleaned
up). “Whether a particular seizure is unreasonable depends
upon the level of the encounter between the police officer and
citizen and the justification for it.” State v. Jervis, 

, 

.

¶20 The Utah Supreme Court has articulated three levels of
“constitutionally permissible” police encounters. See State v.
Deitman, 

, 617–18 (Utah 1987). “A level one
encounter is a consensual encounter, which does not implicate
the Fourth Amendment.” State v. Bui-Cornethan, 

, 

 (cleaned up). “A level two encounter occurs
when a police officer temporarily seizes an individual because
the officer has a reasonable, articulable suspicion that the person
has committed or is about to commit a crime.” State v. Applegate,

, 

 (cleaned up). A level three
encounter “occurs when a police officer has probable cause to
believe that a crime has been committed and effects an arrest of
the suspect.” 

 (cleaned up).




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                         State v. Goddard


¶21 The State does not contend that the interaction between
Goddard and the officers was a level one consensual encounter.
Rather, it is undisputed that Goddard was subject to a level two
investigative detention when the officers approached him. A
level two encounter, otherwise known as a Terry stop, see Terry v.
Ohio, 

, 26–27 (1968), is reasonable only if the “officer’s
action was justified at its inception,” and “the detention
following the stop was reasonably related in scope to the
circumstances that justified the interference in the first place,”
Jervis, 

 (cleaned up). Goddard does not
challenge the scope of the detention; therefore, we analyze only
whether the Terry stop was justified at its inception.

¶22 A Terry stop is justified at its inception so long as the
officers have reasonable suspicion that the suspect “has been, is,
or is about to be engaged in criminal activity.” State v. Worwood,

, 

 (cleaned up). Reasonable
suspicion does not require officers to “rule out innocent conduct
or establish the likelihood of criminal conduct to the same
degree as required for probable cause.” 

 We measure the
articulated facts “in objective terms by examining the totality of
the circumstances,” State v. Mitchell, 

, 

 (cleaned up), “and avoid the temptation to divide the
facts and evaluate them in isolation,” State v. Markland, 

, 

 (cleaned up). Thus, facts which might
appear innocent on their own may “collectively amount[] to
reasonable suspicion.” United States v. Arvizu, 

, 274–
75 (2002).

¶23 Under the totality of the circumstances, the officers had
reasonable suspicion that Goddard was engaged in illegal drug
activity. While patrolling a “high-drug-use area,” the officers
spotted Goddard alone, “hunched over,” with “new and clean”
drug paraphernalia “directly underneath him.” When Goddard
saw the officers, he stood up and attempted to leave. Each of
these facts contributed to the officers’ reasonable suspicion.


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                         State v. Goddard


¶24 First, Goddard’s proximity to “new and clean” drug
paraphernalia supported an objectively reasonable suspicion
that he was actively involved in criminal activity. Goddard does
not dispute that the officers recognized the twist wrappers as
drug paraphernalia, but argues that the officers “identified
nothing about Goddard that suggested his proximity to the litter
was anything more than coincidence.” But just because
Goddard’s proximity to the wrappers “was ambiguous and
susceptible of an innocent explanation,” does not mean that the
officers lacked reasonable suspicion for the stop. See Illinois v.
Wardlow, 

 (2000). Law enforcement need not
“rule out the possibility of innocent conduct” when conducting a
Terry stop. Arvizu, 

. Indeed, the Fourth
Amendment “accepts the risk that officers may stop innocent
people.” Wardlow, 

. So long as the facts known to
the officer support an objectively reasonable belief “that criminal
activity may be afoot,” Terry, 

, the officers are
permitted to conduct a Terry stop to “resolve the ambiguity,”
Wardlow, 

. While there might have been an
innocent explanation for why Goddard was “hunched over”
drug paraphernalia “directly underneath him,” the totality of the
circumstances justified a brief detention to investigate and
resolve that ambiguity.

¶25 Goddard argues that the presence of drug paraphernalia
in this case did not give rise to reasonable suspicion because he
“was merely in the vicinity of the discarded twist wrappers in a
public area next to a parking lot where the wrappers could have
been discarded by any member of the public.” But in addition to
seeing Goddard hunched directly over the twist wrappers, the
officer noticed that at least one of the wrappers was “new and
clean” and did not appear to have been on the ground in the
alley for long, suggesting that it had been recently discarded. Cf.
State v. Vinh Ba Nguyen, 

 (Or. Ct. App. 2009)
(holding that officers lacked reasonable suspicion to stop a




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                         State v. Goddard


group of people for drinking in a public park, in part, because
there was no evidence as to whether the nearby beer cans
“appeared to be brand new or old, facts from which it might be
inferred how long the containers had been lying next to the
tree”). And the people nearest to Goddard and the twist
wrappers were approximately thirty feet away. Under these
circumstances, it was reasonable to suspect that the wrapper had
just been dropped by the person hunched directly over it.

¶26 In addition, the location of the stop further contributed to
the officers’ reasonable suspicion. While “[a]n individual’s
presence in an area of expected criminal activity, standing alone,
is not enough to support a reasonable, particularized suspicion
that the person is committing a crime,” officers may rely on
“relevant characteristics of a location in determining whether the
circumstances are sufficiently suspicious to warrant further
investigation.” Wardlow, 

. Here, the fact that the
alley was known as a high-drug-use area provided important
context. When the officers saw Goddard hunched over what
appeared to be a recently discarded twist wrapper in a location
where drugs were commonly used, it increased the likelihood
that he was actively using drugs or otherwise involved in drug-related activity.

¶27 To a more limited extent, Goddard’s attempt to leave the
area when the police approached also reinforced the officers’
reasonable suspicion. While a suspect “has a right to ignore the
police and go about his [or her] business,” the suspect’s
“nervous, evasive behavior is a pertinent factor in determining
reasonable suspicion.” 

 at 124–125. When the officers spotted
Goddard, he was seated and hunched over. Then, when the
officers approached, he stood up and attempted to leave.
Although Goddard did not engage in headlong flight—“the
consummate act of evasion,” see 

 at 124—his sudden change of
behavior suggested not only that he might be trying to avoid
police interaction but also that he was trying to physically


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                         State v. Goddard


distance himself from the evidence of criminal activity. This fact,
standing alone, carries very little weight; but in combination
with the officers’ other observations, Goddard’s apparent
attempt to avoid police scrutiny and distance himself from the
paraphernalia contributed to reasonable suspicion that he was
involved in illegal drug activity. Cf. State v. Duncan, 

 (Wash. 2002) (en banc) (holding that officers lacked
reasonable suspicion to stop a suspect for an open container
violation, in part, because the record did not “indicate that [the
suspect] stood or moved away from the bottle when he saw the
police approach”). Under the totality of the circumstances, the
officers were justified in temporarily detaining Goddard to
investigate their suspicions.

¶28 In reaching this conclusion, we reject Goddard’s
argument that the officers had insufficient information to
support a reasonable inference that he was in constructive
possession of the twist wrappers. Goddard appears to contend
that the only “alleged crime at issue here is possession of drug
paraphernalia” because the officer “testified that he initiated the
level two stop because he suspected Goddard of possessing one
of the ‘twist wrappers’ discarded on the ground near him.”
Goddard points out that the crime of possession of drug
paraphernalia under Utah Code section 58-37a-5(1)(a) requires
proof of either actual or constructive possession. Although he
acknowledges that “an officer does not need proof of
constructive possession beyond a reasonable doubt to initiate a
level two stop,” he argues that there must be “a sufficient nexus
between the person stopped and the paraphernalia for the officer
to form a reasonable suspicion that the person stopped had both
the power and the intent to exercise dominion and control over
the paraphernalia.” (Cleaned up.)

¶29 We reject Goddard’s argument for two reasons. First, our
reasonable suspicion analysis is not limited to the crime of
possession of drug paraphernalia. Although the officer testified


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                          State v. Goddard


that he suspected Goddard of possessing drug paraphernalia,
the officer’s subjective suspicions, while “a factor in the
analysis,” are not determinative. See State v. Alverez, 

, 

. Rather, we “consider police officers’
subjective interpretation of the facts as part of an objective
analysis” based on the “totality of the circumstances.” See 

¶¶ 14–15 (cleaned up).

¶30 Here, possession of drug paraphernalia was not the only
criminal activity suggested by the totality of the circumstances.
The officer testified that he had stopped Goddard because of
“his proximity to the twists and my believing that it was likely
the twist was his and then . . . the area, it was [a] known high-drug use-area.” And the “new and clean” appearance of the
twist suggested that Goddard had just discarded it. These facts
not only supported a reasonable suspicion that Goddard was in
possession of drug paraphernalia, but also gave rise to an
objectively reasonable suspicion that Goddard was in possession
of the recently unwrapped drugs, was in the process of using
drugs, or was packaging drugs for sale. In other words, the
circumstances objectively gave rise to reasonable suspicion of a
variety of criminal activities relating to illicit drugs, not limited
to possession of drug paraphernalia.

¶31 Second, Goddard’s argument assumes that reasonable
suspicion requires some basis for concluding that the suspect’s
conduct satisfies each element of a particular criminal code
violation. Based on this assumption, Goddard argues that the
question “is whether there was a sufficient nexus between the
person stopped and the paraphernalia for the officer to form a
reasonable suspicion that the person stopped had both the
power and the intent to exercise dominion and control over the
paraphernalia,” as required to prove constructive possession of
drug paraphernalia in violation of Utah Code section 58-37a-
5(1)(a). (Cleaned up.) But neither our controlling case law nor
persuasive authority from other jurisdictions supports the


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                           State v. Goddard


assumption that there must be evidence to support each
statutory element of a specific criminal offense for an officer to
initiate a Terry stop.

¶32 The United States Supreme Court has not directly
addressed the question of whether a Terry stop must be
supported by reasonable suspicion of a particular offense. See 4
Wayne R. LaFave, Search & Seizure § 9.5(c) (6th ed. 2020) (noting
that “the Supreme Court has never expressly ruled on” the
question of “whether the available information must support a
conclusion that there is reasonable suspicion of a particular
offense . . . , or whether it should suffice that there is reasonable
suspicion of criminality generally”). But Terry itself speaks in
general terms of “criminal activity” and, although it refers to the
investigating officer’s “hypothesis that these men were
contemplating a daylight robbery,” the opinion does not suggest
that the legality of the stop hinged on whether the officers’
observations supported reasonable suspicion of each statutory
element of that particular crime. 392 U.S. at 28–30. And
subsequent Supreme Court decisions continue to speak in terms
of reasonable suspicion of “criminal activity,” of “legal
wrongdoing,” or “that criminal activity is afoot,” not in terms of
whether the police have reasonable suspicion of a particular
statutorily defined crime. See, e.g., Arvizu, 

;
Rodriguez v. United States, 

 (2015).

¶33 Requiring officers to observe evidence of each element of
a particular crime before making a Terry stop is also
incompatible with the rule allowing officers to conduct a brief
investigative detention based on reasonable suspicion that the
suspect “is about to be engaged in criminal activity.” See United
States v. Place, 

 (1983). Terry itself involved a stop
of “suspicious individuals [who] were not involved in the actual
commission of a crime. Instead, the officers stopped the
individuals out of concern that a crime was going to occur ‘at
some point.’” State v. Martinez, 

, 

-CA                      15                

                         State v. Goddard


385 (quoting Terry, 

). The Court recognized the
governmental interest in “effective crime prevention and
detection” and explained that “it is this interest which underlies
the recognition that a police officer may in appropriate
circumstances and in an appropriate manner approach a person
for purposes of investigating possibly criminal behavior even
though there is no probable cause to make an arrest.” Terry, 

. Unlike an arrest, which requires that the officer be
“apprised of facts sufficient to warrant a belief that the person
has committed or is committing a crime,” the lesser intrusion
involved in a Terry stop is justified “absent that kind of
evidence,” 

, so long as “the officer has reasonable,
articulable suspicion that the person has been, is, or is about to
be engaged in criminal activity,” State v. Simons, 

,

 (cleaned up). Because Terry allows officers to
conduct a brief seizure based on reasonable suspicion that a
crime is about to occur, it cannot require officers to observe facts
that support each element of a completed crime.

¶34 Similarly, Utah courts have never required reasonable
suspicion of each element of a specific statutorily defined crime
for a Terry stop. To the contrary, our supreme court has upheld a
level two stop where the officer had “reasonable, articulable
suspicion that crime was afoot” even though the facts did not
establish that any identifiable crime had been or was about to be
committed. See State v. Markland, 

, 

.
In Markland, a deputy received information from dispatch that
someone was “screaming or crying out for help” near an
apartment complex in the early morning hours. Id. ¶ 2 (cleaned
up). About five minutes later, the deputy drove down a poorly
lit, dead-end street next to the apartment complex where he saw
Markland, alone, walking toward the dead end. Id. The deputy
stopped Markland, told him “there had been a report of
screaming in the area,” and asked him whether he “had heard
anything.” Id. ¶ 3. When Markland denied hearing anything, the




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                          State v. Goddard


deputy asked “where he was headed.” 

 “Markland replied
that he was walking home . . . approximately twenty blocks
away.” 

 The deputy, knowing that Markland was on a dead-end street and surmising it would “not lead him home,” asked
for identification and ran a warrants check. 

 ¶¶ 3–4. Markland
claimed the deputy lacked reasonable suspicion to detain him.
See id. ¶ 15. The Utah Supreme Court rejected his challenge,
holding that the “detention of Markland was justified by a
reasonable, articulable suspicion that crime was afoot and that
Markland was connected to that crime.” Id. ¶ 16. The facts
justifying the stop in Markland do not point to any specific crime,
let alone give rise to reasonable suspicion that each element of a
specific crime was satisfied.

¶35 And the weight of authority from other jurisdictions
holds that reasonable suspicion does not require particularized
suspicion of a specific crime to conduct a Terry stop. 6 Even those



6. See, e.g., United States v. Guardado, 

 (10th
Cir. 2012) (holding that “[d]irect evidence of a specific, particular
crime is unnecessary” for reasonable suspicion); United States v.
Pack, 

 (5th Cir.) (rejecting a defendant’s
argument that “a police officer’s reasonable suspicion must be
directed toward a particular crime” and holding that “police do
not have to observe the equivalent of direct evidence of a
particular specific crime in order to detain a lawfully stopped
individual to investigate where there is reasonable suspicion of
criminal activity”), modified on denial of reh’g, 

 (5th
Cir. 2010); Derichsweiler v. State, 

 (Tex. Crim.
App. 2011) (distinguishing reasonable suspicion required for a
stop from probable cause required for arrest and explaining that
“it is not a sine qua non of reasonable suspicion that a detaining
officer be able to pinpoint a particular penal infraction”); State v.
Perez-Jungo, 

 (Idaho Ct. App. 2014)
                                                      (continued…)


20190740-CA                     17               

                         State v. Goddard


jurisdictions that do require more than reasonable suspicion of
general criminal activity do not require the type of
particularization that Goddard suggests is necessary. For
example, the Oregon Supreme Court has held that, to justify an
investigative detention, “the officers must reasonably suspect
that the defendant has committed or is about to commit a
specific crime or type of crime.” State v. Maciel-Figueroa, 

 (Or. 2017) (en banc) (emphasis added). Even under
that formulation, the officers here had reasonable suspicion that
Goddard was engaged in a specific “type of crime,” namely, a
drug-related offense. The officer testified that he stopped
Goddard because of “his proximity to the twists and my
believing that it was likely the twist was his and then . . . the
area, it was [a] known high-drug-use area.” This testimony
supports an objectively reasonable suspicion that Goddard was


(…continued)
(“[R]easonable suspicion does not require a belief that any
specific criminal activity is afoot to justify an investigative
detention; instead, all that is required is a showing of objective
and specific articulable facts giving reason to believe that the
individual has been or is about to be involved in some criminal
activity.”); State v. Leyva, 

 (N.M. 2011)
(“Suspicion of criminal activity need not necessarily be of a
specific crime.”); State v. Harder, No. 117,937, 

,
at *3 (Kan. Ct. App. Oct. 19, 2018) (“Terry does not require an
officer to have reasonable suspicion that a specific crime has
been or will be committed” but “only requires reasonable
suspicion that criminal activity may be afoot.” (cleaned up));
Simmons v. Commonwealth, No. 2434-09-2, 

, at *3
(Va. Ct. App. Oct. 26, 2010) (“We do not require the officer to
suspect a specific crime; rather, he must have a reasonable
suspicion, based on objective facts, that the person is involved in
criminal activity.” (cleaned up)).




20190740-CA                     18               

                         State v. Goddard


involved in a narrow set of crimes related to drug activity—and
was far more particular than the reasonable suspicion that
justified the stop in Markland.

¶36 In sum, the officers were entitled to stop Goddard
because the circumstances gave rise to objectively reasonable
suspicion that Goddard was engaged in criminal activity. To
defeat Goddard’s motion to suppress, the State was not required
to establish reasonable suspicion of the exact crime the officers
had subjectively suspected, nor were the officers required to
observe facts supporting each element of a particular crime.
Because the officers’ observations supported a reasonable
suspicion that Goddard was involved in drug activity, the
officers were justified in briefly detaining Goddard to investigate
whether a crime had been, was, or was about to be committed.

            II. Reasonable Suspicion to Seize the Gun

¶37 Goddard next contends the officers were not justified in
searching him for weapons and seizing the gun because they
lacked reasonable suspicion that he was armed and dangerous. 7
If during a lawful stop, a law enforcement officer has reasonable
suspicion that the suspect is “armed and presently dangerous,”
an officer may “conduct a carefully limited search of the outer
clothing of such persons in an attempt to discover weapons
which might be used to assault him” or others. Terry v. Ohio, 

 (1968). And “[i]f the officer discovers what he believes
to be a weapon, he may reach inside the suspect’s clothing and


7. This court requested supplemental briefing on the issue of
whether the Fourth Amendment allows officers to protect their
safety by temporarily seizing a known gun during an
investigative detention even absent reasonable suspicion that the
suspect is “presently dangerous.” Because we can decide this
case without resolving that question, we do not reach it.




20190740-CA                    19               

                         State v. Goddard


remove it.” United States v. Harris, 

 (10th Cir.
2002) (citing Adams v. Williams, 

 (1972)).

¶38 Our court has previously identified specific circumstances
that could provide reasonable suspicion that an armed suspect is
presently dangerous, including “an otherwise inexplicable
sudden movement toward a pocket or other place where a
weapon could be concealed” or “discovery of a weapon in the
suspect’s possession.” State v. Wilkinson, 

,

 (quoting 4 Wayne R. LaFave, Search & Seizure
§ 9.6(a), at 628–30 (4th ed. 2004)). Such discovery may occur
through the suspect’s own admission “in response to the
officer’s question” as to whether the suspect is armed. See United
States v. Street, 

 (6th Cir. 2010). The ultimate
inquiry is whether the totality of the circumstances would
“warrant [an officer] of reasonable caution in the belief that the
action taken was appropriate.” Terry, 

 (cleaned up).

¶39 Here, when Goddard reached toward the inside of his
coat, subsequently admitted that he had a gun in his left coat
pocket, and then moved his hand toward that pocket again, the
officers had reasonable suspicion that Goddard was both armed
and dangerous. Specifically, upon being detained by police on
suspicion of drug activity, Goddard “reach[ed] up toward” the
“area above [his] breast line,” “point[ed],” and “motion[ed] as if
he was going to continue and put his hand inside [his] coat.”
Then, in response to the partner’s question about Goddard
having any weapons, Goddard admitted he had a gun “in his
left coat pocket” and “moved his hand toward that” pocket until
he was ordered to stop. A detained suspect reaching toward a
known firearm provides an officer with an objectively
reasonable basis to believe that the suspect intends to use that
weapon and therefore poses a danger to the officers.

¶40 Goddard argues that moving his hand toward his pocket
“was not the kind of sudden or inexplicable movement that



20190740-CA                    20               

                         State v. Goddard


would justify a frisk.” To be sure, it is entirely possible that
Goddard was merely reaching for his requested identification or
gesturing to indicate where the gun was located in response to
the officers’ questions. But officers are not required to risk their
safety in hopes that a suspect reaching toward a gun does not
intend to use it. By simply disarming Goddard, the officers
effectively defused the potential danger using the least intrusive
means and without resorting to the use of physical force. Under
the circumstances, it was reasonable to “protect the officer[s] and
other prospective victims by neutralizing” the known weapon.
See State v. Warren, 

, 

. Therefore, we
affirm the district court’s denial of Goddard’s motion to
suppress evidence of the gun.

               III. Custody for Purposes of Miranda

¶41 Goddard also contends that the district court should have
suppressed his statements to police because he was subjected to
a custodial interrogation before receiving Miranda warnings.
Specifically, Goddard argues that he was “entitled to Miranda
warnings before being questioned about whether he had a
firearm and whether he had a concealed weapon permit.” 8
Although the district court did not make findings on this issue,
the undisputed facts show that Goddard was not in custody




8. Because it is not clear whether Goddard seeks to suppress
only his incriminating statements or the gun itself, we note that a
Miranda violation does not bar “the admission into evidence of
the physical fruit of a voluntary statement.” United States v.
Patane, 

 (2004). Goddard has not argued that his
admission regarding the presence of the gun was involuntary.
Therefore, only the statements themselves are potentially subject
to suppression.




20190740-CA                     21               

                         State v. Goddard


when those questions were asked. Therefore, he was not entitled
to Miranda warnings. 9

¶42 The Fifth Amendment guarantees that a defendant will
not be “compelled in any criminal case to be a witness against
himself.” U.S. Const. amend V. In Miranda v. Arizona, 

 (1966), the Court addressed the coercive pressures inherent
in custodial interrogations where suspects are generally in
“unfamiliar surroundings,” “cut off from the outside world,”
and subjected to “sustained and protracted questioning” in a
“police-dominated atmosphere.” 

 at 445–46, 448, 450. As a
prophylactic measure, the Court established the Miranda
warnings requirement “to insure that the right against
compulsory self-incrimination is protected.” Oregon v. Elstad, 

 (1985) (cleaned up).

¶43 But Miranda warnings are required only “in those types of
situations in which the concerns that powered the decision are
implicated,” namely “custodial interrogation.” Berkemer v.
McCarty, 

 (1984). And, the Court clarified,
“by custodial interrogation, we mean questioning initiated by
law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any
significant way.” California v. Beheler, 

 (1983)
(per curiam) (cleaned up).

¶44 To determine whether a suspect is in custody for
purposes of Miranda, “the initial step is to ascertain whether, in


9. Because we conclude that Goddard was not in custody when
the officers asked him whether he had a firearm and whether he
had a concealed weapon permit, we do not address whether
these questions constitute “interrogation” for purposes of
Miranda or whether an exception to the Miranda rule would
apply in these circumstances.




20190740-CA                    22               

                         State v. Goddard


light of the objective circumstances of the interrogation, a
reasonable person would have felt he or she was not at liberty to
terminate the interrogation and leave.” State v. MacDonald, 

, 

 (quoting Howes v. Fields, 

 (2012)). “Determining whether an individual’s freedom
of movement was curtailed, however, is simply the first step in
the analysis, not the last.” Howes, 

. “If ‘an
individual’s freedom of movement was curtailed,’ the focus
turns to ‘whether the relevant environment presents the same
inherently coercive pressures as the type of stationhouse
questioning at issue in Miranda.’” State v. Fullerton, 

, 

 (quoting Howes, 

). In making
this determination, a court must examine the totality of the
circumstances surrounding the interrogation, “but the ultimate
inquiry is simply whether there was a formal arrest or restraint
on freedom of movement of the degree associated with a formal
arrest.” Stansbury v. California, 

 (1994) (per
curiam) (cleaned up).

¶45 Focusing on the first step of this inquiry, Goddard argues
that he was in custody because “a reasonable person in
Goddard’s position would not have felt free to leave.” This
statement is true enough, as a suspect “is not free to leave . . .
during a Terry stop.” MacDonald, 

. But
“the freedom-of-movement test identifies only a necessary and
not a sufficient condition for Miranda custody.” Maryland v.
Shatzer, 

 (2010). “Not all restraints on freedom of
movement amount to custody for purposes of Miranda.” Howes,

.

¶46 Relevant here, the Supreme Court has held that “the
temporary and relatively nonthreatening detention involved in a
traffic stop or Terry stop does not constitute Miranda custody.”

 (cleaned up). The Court first addressed this issue in
Berkemer v. McCarty, 

 (1984). In that case, the Court
“held that a person detained as a result of a traffic stop is not in


20190740-CA                     23               

                          State v. Goddard


Miranda custody because such detention does not ‘sufficiently
impair [the detained person’s] free exercise of his privilege
against self-incrimination to require that he be warned of his
constitutional rights.’” Howes, 

 (quoting Berkemer,

). Although motorists at traffic stops are not free to
leave, “two features of an ordinary traffic stop” alleviate the
inherently compelling pressures at work in a custodial
interrogation. See Berkemer, 

. First, such stops are
“presumptively temporary and brief,” and second, the
“circumstances associated with the typical traffic stop are not
such that a motorist feels completely at the mercy of the police.”

 at 437–38. “In both of these respects, the usual traffic stop is
more analogous to a so-called Terry stop.” 

 (cleaned up).
“The comparatively nonthreatening character of detentions of
this sort explains the absence of any suggestion in [Supreme
Court] opinions that Terry stops are subject to the dictates of
Miranda.” 

; see also State v. Mirquet, 

(Utah 1996) (“In the context of a routine traffic stop, the driver
and the passengers, even though they have been stopped and, at
least momentarily, are not free to leave, are not in custody for
Miranda purposes.” (cleaned up)).

¶47 Although Terry stops are presumptively non-custodial,
the encounter may “evolve[] into a state of detention tantamount
to a formal arrest.” State v. East, 

 (Utah 1987).
If an individual is temporarily detained but “thereafter is
subjected to treatment that renders him ‘in custody’ for practical
purposes, he will be entitled to the full panoply of protections
prescribed by Miranda.” Berkemer, 

. “The
safeguards prescribed by Miranda become applicable as soon as a
suspect’s freedom of action is curtailed to a degree associated
with formal arrest.” 

 (cleaned up); see also Mirquet, 

 (“[T]he standard is whether a defendant’s freedom of action
is curtailed to an extent associated with a formal arrest.”).




20190740-CA                     24               

                          State v. Goddard


¶48 Only one prior Utah case has analyzed a Terry stop to
determine whether the detention escalated to a de facto arrest for
purposes of Miranda. In State v. Mirquet, 

 (Utah
1996), our supreme court held that the defendant was in Miranda
custody during a traffic stop after the officer asked him to enter
the patrol car, “told him that it was clear he had been using an
illegal drug,” and directed him to either “retrieve the drugs from
his car or the officer would.” 

. “To guide the decision
as to when one is in custody and entitled to a Miranda warning
prior to a formal arrest,” the court in Mirquet evaluated the four
factors set out in Salt Lake City v. Carner, 

 (Utah
1983): “(1) the site of interrogation; (2) whether the investigation
focused on the accused; (3) whether the objective indicia of arrest
were present; and (4) the length and form of interrogation.”
Mirquet, 

 (cleaned up).

¶49 Our supreme court has since clarified that “[s]trict or sole
reliance on the Carner factors is inconsistent with the totality of
the circumstances analysis prescribed by federal law.” Fullerton,

. “Each of the Carner factors should be
considered when relevant, ignored when not, and given
appropriate weight according to the circumstances” and must be
considered “in conjunction with all other relevant
circumstances.” 10 

 ¶¶ 23–24. Other potentially relevant factors



10. In State v. Mirquet, 

 (Utah 1996), our supreme
court analyzed the Carner factors to determine whether, during
the course of a presumptively non-custodial traffic stop, the
defendant’s freedom of movement was curtailed to a degree
associated with formal arrest triggering the protections of
Miranda. 

. But in State v. Fullerton, 

, 

, the court identified the Carner factors as relevant to “[t]he
first part of [the] inquiry—whether a reasonable person would
have felt free to leave.” Id. ¶ 22. Presumably, the Carner factors—
                                                       (continued…)


20190740-CA                     25               

                         State v. Goddard


might include “‘the location of the questioning, its duration,
statements made during the interview, the presence or absence
of physical restraints during the questioning, and the release of
the interviewee at the end of the questioning.’” 

 ¶ 25 (quoting
Howes, 

). “In determining whether an individual
was in custody, a court must examine all of the circumstances
surrounding the interrogation, but the ultimate inquiry is simply
whether there was a formal arrest or restraint on freedom of
movement of the degree associated with a formal arrest.”
Stansbury v. California, 

 (1994) (cleaned up).

¶50 In this case, none of the circumstances surrounding the
stop suggest that Goddard was in Miranda custody before the
officers administered Miranda warnings and placed Goddard
under arrest. Neither the location nor the length and nature of
the questioning distinguish this from a typical Terry stop.
Goddard was stopped in a public alley in full view of other
people. As the Supreme Court has explained, the “exposure to
public view both reduces the ability of an unscrupulous
policeman to use illegitimate means to elicit self-incriminating
statements and diminishes” the suspect’s “fear that, if he does
not cooperate, he will be subjected to abuse.” Berkemer, 

. The detention was remarkably brief, just long enough for
the officers to ask Goddard for identification, whether he was
armed, and whether he had a permit for the firearm he was
carrying. 11 Although the “investigation focused on the accused,

(…continued)
along with all other surrounding circumstances—may be
relevant to both inquiries.

11. Goddard also argues that asking whether he was armed and
whether he had a concealed weapon permit was coercive
because it “was wholly unrelated to the reason for the Terry
stop,” not reasonably expected, and “was designed to elicit an
                                                (continued…)


20190740-CA                    26              

                          State v. Goddard


. . . that factor alone does not dispositively determine whether a
person is in custody,” see Mirquet, 914 P.2d at 1147–48, and does
not distinguish Goddard’s detention from an ordinary Terry
stop. Importantly, none of the objective indicia of arrest were
present. Goddard was not handcuffed, placed in a patrol vehicle,
or told that he was under arrest before he was questioned about
the firearm. The officers did not draw weapons or employ any
other physical force, threats, or coercion. In short, there was
nothing to distinguish this encounter from an ordinary Terry
stop.

¶51 Goddard argues that the stop was nonetheless coercive
because the officers “built an environment suggesting that
Goddard was completely at their mercy and created the
impression that Goddard would be held until he provided the
answers they wanted.” This characterization is not borne out in
the record. Goddard was approached by only two uniformed
police officers in a public alley, not in an inherently coercive
setting such as an interrogation room of a station house. There is

(…continued)
incriminating response” and “produce incriminating evidence.”
But the United States Supreme Court has made it clear that
asking questions unrelated to the reason for the detention is
permissible during a Terry stop, so long as the questions do not
measurably prolong the detention. See Muehler v. Mena, 

 (2005); see also Arizona v. Johnson, 

 (2009)
(“An officer’s inquiries into matters unrelated to the justification
for the traffic stop . . . do not convert the encounter into
something other than a lawful seizure, so long as those inquiries
do not measurably extend the duration of the stop.”). Goddard
does not contend that the two questions about weapons
measurably prolonged his detention. Such permissible
questioning does not distinguish Goddard’s detention from a
presumptively non-custodial Terry stop.




20190740-CA                     27               

                         State v. Goddard


no suggestion that the officers brandished firearms, threatened
Goddard, or employed any kind of physical force. Goddard was
not handcuffed, physically restrained, or even placed in the back
of a police vehicle for questioning. Cf. Mirquet, 

(holding that a defendant was in Miranda custody where, among
other things, “the site of the interrogation was inside the police
car,” which “added to the coercive environment”). While “the
aura of authority surrounding an armed, uniformed officer and
the knowledge that the officer has some discretion in deciding
whether to issue a citation, in combination, exert some pressure
on the detainee to respond to questions,” those features do not
transform a Terry stop into a custodial arrest. See Berkemer, 468
U.S. at 438–39. A brief investigative detention, such as the one at
issue here, is simply not the type of inherently coercive
environment that Miranda guards against.

¶52 Although Goddard was not free to leave once the officers
initiated a Terry stop, his freedom of action was not curtailed to a
degree associated with formal arrest. And because Goddard was
not in custody for purposes of Miranda when asked whether he
was armed and whether he had a concealed weapon permit, the
district court correctly declined to suppress his unwarned
statements.


                         CONCLUSION

¶53 Under the totality of the circumstances, the officers were
justified in briefly detaining Goddard to investigate their
reasonable suspicion that he was involved in drug activity. After
Goddard admitted he was carrying a firearm and twice moved
his hand toward the gun, the officers acted reasonably in
disarming him based on reasonable suspicion that he was both
armed and dangerous. Lastly, because Goddard was not in
custody when the officers asked whether he was armed and
whether he had a concealed weapon permit, he was not entitled



20190740-CA                     28               

                       State v. Goddard


to Miranda warnings at that point. Accordingly, we affirm the
denial of Goddard’s motion to suppress.




20190740-CA                  29