State v. Leonard

¶1OPINION

¶2Defendant Foster Leonard appeals from his conviction for possession of equipment with intent to manufacture a controlled substance, a third degree felony, in violation of Utah Code Ann. § 58-37C-8 (1990), and for conspiracy to manufacture a controlled substance, a third degree felony, in violation of Utah Code Ann. §§ 76-4-201 (1990) and 58-37-8 (1990). We affirm.

¶3*666BACKGROUND

¶4From approximately May 1, 1989, to when the present facts occurred, law enforcement agencies had been conducting surveillance at Intertech Chemical in Orem, Utah. The surveillance had resulted in several arrests and convictions relating to the possession and manufacture of controlled substances, specifically methamphetamine. On July 20, 1989, Police Officer Terry Fox was conducting surveillance at Intertech. He noticed defendant and April Garza in the parking lot. Both were dressed in clothing “not typical of business [people],” and looked nervous. Defendant went into Intertech and came out carrying a box of what appeared to be glassware and chemicals. Defendant loaded the box into a Ford Bronco, and drove away from the parking lot with Garza. Fox decided to follow the vehicle in order to identify its owner.

¶5As Fox proceeded out of the parking lot in his unmarked vehicle, a Datsun truck swerved in front of him. Fox testified that he thought the driver of the Datsun was trying to block him from pursuing defendant’s vehicle. Fox continued to follow defendant, who drove recklessly onto the freeway. Defendant’s vehicle accelerated to over seventy miles per hour and made several illegal lane changes, according to Fox. Fox also observed defendant putting bandanna-type flags out both windows of the Bronco, apparently to signal the occupants of the Datsun. Fox attempted to find out who owned the vehicle he was pursuing, but the police dispatcher found no owner registered for the license plates on defendant’s vehicle. The Datsun similarly had no registered owner.

¶6Fox testified that he decided to stop defendant for the traffic violations he had witnessed. Thinking that he might be in danger, Fox called for assistance. Three other police officers eventually assisted Fox in stopping defendant. One of those, Detective Gary Caldwell, learned from In-tertech that defendant and his companion had purchased glassware and a chemical. None of the items purchased were controlled substances, but all were commonly used in the manufacture of methamphetamine. Caldwell testified that he made the decision to stop the vehicle based on his belief that defendant was in possession of drug paraphernalia and controlled substances.

¶7When defendant’s vehicle was pulled over, the officers had defendant and Garza get out of the vehicle and kneel down on the side of the freeway. Under Caldwell’s direction, Officer Sean Greening placed Garza in his vehicle and asked her name, address, and birthdate. Garza produced an Oregon driver’s license. Greening testified that he also advised Garza she did not have to answer his questions. Garza asked why she was being stopped, to which Greening replied “for possession of drug paraphernalia.” Garza then explained to Greening that someone had paid her and defendant to purchase the items, and that they were to deliver the items to a motel room.

¶8Meanwhile, Caldwell asked defendant for a driver’s license and vehicle registration. Defendant had no identification and told Caldwell the vehicle belonged to Garza. Defendant then gave Caldwell the name “Scott Leonard” and a birthdate which was later determined to be false. Caldwell testified he advised defendant of his constitutional rights and defendant consented to answering some questions. Caldwell then proceeded to question defendant as to what he was doing in Utah County. Defendant told Caldwell that he had come to Utah County to purchase the items for someone, and that he could not tell Caldwell who that was, because defendant would get in trouble. Caldwell also testified that he could see a box in the back of the Bronco, and that the box contained the items Intertech had told him defendant had purchased.

¶9Because the stories given by defendant and Garza were different, and because he knew what items defendant had purchased at Intertech, Caldwell arrested defendant and Garza. Defendant and Garza were transported to the American Fork Police Department and both were questioned by Caldwell. Eventually Caldwell determined the exact address of the apartment which defendant and Garza shared, and a search *667warrant of the premises was obtained, based on Caldwell’s affidavit.

¶10Defendant moved to suppress the evidence found in the warrantless search of the Bronco and in the warrant search of his apartment, claiming that the officers did not have probable cause to initiate the stop of his vehicle. The trial court denied his motion. Defendant then entered a conditional plea of guilty pursuant to this court’s decision in State v. Sery, 758 P.2d 935, 938 (Utah App.1988), and this appeal followed.

¶11Before this court, defendant appeals the denial of his motion to suppress, claiming that the evidence was illegally obtained. Specifically, defendant claims that his arrest was not based on probable cause; that the search of the Bronco was not based on probable cause; and that the search of his residence was tainted by the illegality of the arrest.

¶12STANDARD OP REVIEW

¶13Our review of findings of fact underlying a trial court’s decision on a motion to suppress is governed by the “clearly erroneous” standard, State v. Grovier, 808 P.2d 133, 133 (Utah App.1991), because the trial court is in an advantageous position to determine the factual basis underlying such a motion. “The trial court’s finding is clearly erroneous only if it is against the clear weight of the evidence....” State v. Sery, 758 P.2d 935, 942 (Utah App.1988).

¶14LEGALITY OF THE INITIAL STOP

¶15The Fourth Amendment to the United States Constitution requires that all seizures of an individual be based on probable cause.1 The United States Supreme Court first explicitly permitted a seizure of an individual upon less than probable cause in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The TerryCourt held that a police officer must be able to point to “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” 392 U.S. at 21, 88 S.Ct. at 1880. The reasonable suspicion standard is codified at Utah Code Ann. § 77-7-15 (1990):

A peace officer may stop any person in a public place when he has a reasonable suspicion to believe he has committed or is in the act of committing or attempting to commit a public offense and may demand his name, address and an explanation of his actions.

¶16“Stressing that each case must be decided upon its own facts, the Terrycourt concluded that the limited stop and frisk was justified where ‘a police officer observes unusual conduct which leads him reasonably to conclude in light of his [or her] experience that criminal activity is afoot_’” State v. Sery, 758 P.2d 935, 941 (Utah App.1988) (quoting Terry, 392 U.S. at 30, 88 S.Ct. at 1884). Thus, a temporary detention or seizure is justified when there is an articulable suspicion that an individual has committed or is about to commit a crime.2See id.(quoting Florida *668v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality opinion)). This court has further refined the Terryreasonable suspicion test, concluding that a “brief investigatory stop must be based on ‘objective facts’ that the ‘individual is involved in criminal activity.’ ” State v. Holmes, 774 P.2d 506, 508 (Utah App.1989) (citations omitted).

¶17The State argues that several facts support the conclusion that the officers in the present case had a reasonable suspicion that criminal activity was afoot, and that therefore the stop of defendant was justified. Intertech had been under surveillance for selling drug paraphernalia; defendant’s behavior was suspiciously inconsistent with that of a legitimate businessman; defendant purchased several items from Intertech which are commonly used in the manufacture of methamphetamine; defendant left Intertech in an unregistered vehicle; some person in a Datsun tried to prevent the officers from pursuing defendant; defendant displayed bandannas from the windows of his vehicle in an apparent attempt to signal the occupants of the Dat-sun; and defendant drove erratically and illegally on the freeway, apparently engaging in evasive tactics.3

¶18We agree that there was an articu-lable suspicion which justified the stop of defendant’s vehicle, and that therefore the level two seizure of defendant was reasonable.4 While defendant contends that the officers had no evidence that a crime had been committed, we note that the officers were not only entitled, but probably required, to obtain more information when they reasonably suspected a crime had been committed. See State v. Folkes, 565 P.2d 1125, 1127 (Utah), cert. denied, 434 U.S. 971, 98 S.Ct. 523, 54 L.Ed.2d 461 (1977); Holmes, 774 P.2d at 508. We hold, therefore, that defendant was constitutionally stopped and briefly detained, and that the trial court’s determination that the requisite reasonable suspicion existed was not clearly erroneous.

¶19ARREST OF DEFENDANT AND SEARCH OF VEHICLE

¶20Having determined that the initial seizure of defendant was lawful, we must determine if the subsequent arrest and search were lawful. Defendant argues that the police officers lacked probable cause to arrest him, or to conduct a war-rantless search of the vehicle in which he was riding. The trial court found that the arrest of defendant was based on probable cause because the chemicals and equipment found in the vehicle were commonly used together in the manufacture of methamphetamine, and because testimony revealed that only one specialized piece of glassware and some chemicals were lacking to make the illegal substance. As to the search of defendant’s vehicle,5 the trial court found that there was probable cause based on the list of items purchased from Intertech received while the officers were in pursuit, the suspicious behavior of defendant, and “all attendant circumstances.”6 However, *669the court’s ruling does not indicate which exception to the warrant requirement of the Fourth Amendment it was relying upon in justifying the warrantless search.

¶21The Arrest

¶22As to the legality of the arrest, Utah Code Ann. § 77-7-2 (1990) provides authority for peace officers to make an arrest with or without a warrant. Reasonable cause for arrest without a warrant was defined by the Utah Supreme Court in State v. Hatcher, 27 Utah 2d 318, 495 P.2d 1259 (1972): “The determination should be made on an objective standard: whether from the facts known to the officer, and the inferences which fairly might be drawn therefrom, a reasonable and prudent person in his position would be justified in believing that the suspect had committed the offense.” Id. at 1260 (citations omitted). See also State v. Ayala, 762 P.2d 1107, 1111 (Utah App.1988), cert. denied, 773 P.2d 45 (Utah 1989).

¶23The arresting officer, Caldwell, testified that he questioned defendant regarding his presence in Utah County and the purchase from Intertech. Only after defendant gave a false name and birthdate, could provide no plausible explanation for the purchase, and would not tell Caldwell who had paid him to make the purchase, did Caldwell effectuate an arrest.

¶24These facts, taken together with the evasive tactics engaged in by defendant when the officers were pursuing him, the fact that the officers knew exactly what defendant had purchased from Intertech based on the list of items received while in pursuit, and the fact that the items found in defendant’s vehicle were commonly used together in the manufacture of methamphetamine, warranted arresting defendant. Accordingly, we cannot say that the trial court’s finding of probable cause was an erroneous one.

¶25The dissent takes issue with the tactics employed by the officers in effectuating a level two stop, concluding that a de facto arrest actually occurred. Admittedly, if defendant had been arrested immediately upon being stopped by the officers, probable cause would have to be established at that point, and not after Caldwell interviewed defendant. While many courts have addressed the issue of when a seizure occurs,7 the cases are less clear on when an arrest occurs. The United States Supreme Court has acknowledged that it is sometimes difficult to distinguish an investigative stop from a de facto arrest. See United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985). There is no “litmus-paper test for ... determining when a seizure exceeds the bounds of an investigative stop[,]” Florida v. Royer, 460 U.S. 491, 506, 103 S.Ct. 1319, 1329, 75 L.Ed.2d 229 (1983), and becomes an arrest. Rather, the determination usually depends upon the reasonableness of the stop under the circumstances. Two factors, whether there was a proper basis for the stop, and whether the degree of *670intrusion was reasonably related to the facts and circumstances at hand, are determinative of reasonableness. Terry, 392 U.S. at 19-20, 88 S.Ct. at 1878-79; United States v. Hardnett, 804 F.2d 353, 356 (6th Cir.1986), cert. denied, 479 U.S. 1097, 107 S.Ct. 1318, 94 L.Ed.2d 171 (1987). While the dissent does not dispute there was a reasonable basis for the stop, it does take issue with tactics employed by the officers. In reaching our conclusion that a proper level two stop was effectuated in this case, a review of cases which have addressed this question is useful to illustrate that no arrest took place.

¶26The dissent is correct in acknowledging one exception to the general proscription against intrusive police conduct: police are permitted to use a show of force or other exceptional methods during a Terrystop when such measures are reasonably necessary for the protection and safety of the investigating officers. The mere use or display of force in making a stop will not necessarily convert a stop into an arrest. United States v. Greene, 783 F.2d 1364, 1367 (9th Cir.), cert. denied, 476 U.S. 1185, 106 S.Ct. 2923, 91 L.Ed.2d 551 (1986); United States v. White, 648 F.2d 29, 34 (D.C.Cir.), cert. denied, 454 U.S. 924, 102 S.Ct. 424, 70 L.Ed.2d 233 (1981). See also Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972) (police officers making a reasonable investigatory stop should not be denied the opportunity to protect themselves from possible attack); United States v. Lego, 855 F.2d 542, 545 (8th Cir.1988) (officer can point a gun at suspect without transforming investigative stop into arrest); United States v. Trullo, 809 F.2d 108, 113 (1st Cir.) (because “officer suspected appellant of dealing in narcotics, a pattern of criminal conduct rife with deadly weapons,” display of weapon justified), cert. denied, 482 U.S. 916, 107 S.Ct. 3191, 96 L.Ed.2d 679 (1987); United States v. Eisenberg, 807 F.2d 1446, 1451 (8th Cir.1986) (experienced police officers acted reasonably in drawing weapons in investigative stop of suspected narcotics dealer).

¶27We recognize that the officers’ conduct, ordering defendant to kneel at the side of the road, was intrusive.8 If weapons were drawn, the conduct is even more intrusive.9 Certainly such conduct would not be warranted if the surrounding circumstances did not give rise to a justifiable fear for personal safety. United States v. Hardnett, 804 F.2d 353, 357 (6th Cir.1986). However in this case, there was justification. While the dissent acknowledges that certain situations merit officers approaching a suspect with their weapons drawn, or ordering a suspect to lie on the ground, the dissent argues that in this case, such actions were not warranted because the police never determined whether defendant had a weapon, and there was no indication that defendant was dangerous. However, that conclusion is based on faulty assumptions.

¶28*671First, the record does not indicate whether or not defendant was frisked. Two of the officers who testified gave different accounts of what transpired after defendant’s vehicle was stopped.

¶29Second, the record does indicate that the officers thought defendant was dangerous and could be carrying a weapon. Officer Fox testified that he became fearful when bandannas were put outside the windows of defendant’s car. He decided to call for back-up officers to stop defendant’s car when the bandannas appeared, and when he saw the cream-colored Datsun following him. “I felt it was a chase car, an assistance car,” Fox testified, “and I was again fearful that I needed to have enough help to stop this vehicle so I wouldn’t get hurt.” In addition, Fox stated that when he sees an unregistered vehicle, he immediately gives it more caution. Officer Greening, who also testified at the suppression hearing, stated that he was called to assist in a stop for drug paraphernalia, and that he has been informed in past circumstances that “these people could be dangerous, and thats why [he] was there to assist.” Greening went on to say that officers, including himself, were often called to assist on DUI’s and regular traffic stops, and “whenever an officer may feel he is in danger,” and that it was his belief in dealing with people who were involved with drugs that “[t]hey have been convicted criminals and in the possession of firearms.” We find abundant support in the record that the officers believed defendant could be armed or dangerous, and not, as the dissent suggests, that the police had nothing more than a hunch that defendant might be dangerous. Therefore, the officers’ actions were not unreasonable to insure their safety.

¶30The dissent points to defendant’s being read his Miranda rights as further indication that an arrest took place. In Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), the Supreme Court held that Miranda warnings were not required when a defendant is subjected to questioning during a routine traffic stop. The Court pointed to the circumstances around a traffic stop and compared them to stationhouse interrogation, “which frequently is prolonged, and in which the detainee often is aware that questioning will continue until he provides his interrogators the answers they seek.” Id. at 448, 104 S.Ct. at 3149 (citations omitted). Given that traffic stops occur in public, and that they are relatively brief, the Court concluded that “persons temporarily detained pursuant to such stops are not ‘in custody’ for the purposes of Miranda.” Id.468 U.S. at 440, 104 S.Ct. at 3150. The Court, however, also noted that police “could ensure compliance with the law by giving the full Miranda warnings.” Id.at 431 n. 13, 104 S.Ct. at 3145-46 n. 13.10 That is exactly what took place here.

¶31In the present case, defendant was detained briefly on the side of the highway. The officers interrogated defendant. Defendant was arrested after he gave the officers false information, and had no plausible explanation for the Intertech purchase. Given the circumstances facing the officers, we conclude that they pursued their investigation in a diligent and reasonable manner, and that the methods employed were not excessive.

¶32The Search

¶33Admittedly, a search conducted without a warrant is unreasonable per se unless it falls within a recognized exception *672to the warrant requirement. See State v. Bartley, 784 P.2d 1231, 1285 (Utah App.1989). The State, acknowledging that the trial court did not rely upon a specific exception, claims that the search was justified pursuant to the automobile exception.

¶34In Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), the Supreme Court determined that a war-rantless search of an automobile was permissible if the officers have probable cause to believe the automobile contains either contraband or evidence of a crime and that they may be lost if not immediately seized. Id. at 151-52, 45 S.Ct. at 284; see also United States v. Ross, 456 U.S. 798, 806-07, 102 S.Ct. 2157, 2163-64, 72 L.Ed.2d 572 (1982); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 1978-80, 26 L.Ed.2d 419 (1970); United States v. Mendoza, 722 F.2d 96, 100 (5th Cir.1983); State v. Dorsey, 731 P.2d 1085, 1087-88 (Utah 1986); State v. Christensen, 676 P.2d 408, 411 (Utah 1984); State v. Droneburg, 781 P.2d 1303, 1305 (Utah App.1989) (citing Carroll, 267 U.S. at 132, 45 S.Ct. at 280); State v. Holmes, 774 P.2d 506, 512 n. 6 (Utah App.1989). Thus, where as here, a vehicle is lawfully stopped based on a reasonable suspicion of criminal activity, a warrantless search is justified where the officers have probable cause to believe contraband is contained in the vehicle which may be lost if not immediately seized. See State v. Larocco, 794 P.2d 460, 468 (Utah 1990) (citing Carroll, 267 U.S. at 151-52, 45 S.Ct. at 284).

¶35“The determination of whether probable cause exists ... depends upon an examination of all the information available to the searching officer in light of the circumstances as they existed at the time the search was made.” State v. Dorsey, 731 P.2d at 1088 (citing Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949)). Probable cause for a warrantless search has been found to exist on facts similar to those in the present case. In Mendoza, drug enforcement agents conducted surveillance of a residence, and also followed individuals who had contact with the suspect who resided there. The agents observed several of these individuals driving “in a manner calculated to elude surveillance,” Mendoza, 722 F.2d at 101, using pay telephones, and making several trips to and from a warehouse. While the court said that these facts may be consistent with innocent behavior, the totality of the circumstances justified a warrantless search of the suspects’ vehicles. Id. at 101-02.

¶36Similarly, in Dorsey, our supreme court upheld a warrantless search of an automobile where a police officer who was assisting other officers involved in an undercover narcotics purchase, followed defendant’s truck and eventually stopped him. The court found that because the officer knew that a controlled narcotics purchase had been attempted; that two of the individuals had left the motel room where the negotiations were taking place; that someone involved in the transaction had on a dark leather jacket; and that defendant was wearing a dark leather jacket, probable cause existed. Dorsey, 731 P.2d at 1089.

¶37Reviewing all of the information available to the officers in the present case, we hold that there was probable cause to justify a search. Officers Caldwell and Fox both testified that they observed drug paraphernalia and chemicals in plain view in the vehicle.11 The officers also testified they had learned from Intertech what had been purchased by defendant, and that these items were commonly used in the manufacture of methamphetamine. Further, defendant could not explain why he purchased the items, or for whom they were purchased. While the officers’ information at the time of the search might not be sufficient by itself to establish guilt, it *673was sufficient to establish probable cause. See id.Therefore, the trial court’s determination that probable cause existed for the search was not erroneous.

¶38VALIDITY OF THE SEARCH WARRANT

¶39Defendant’s last claim is that the affidavit in support of the warrant to search his apartment contained nothing from which a detached and neutral magistrate could conclude that the apartment contained evidence of a crime. It is well established that a finding of “probable cause supported by oath or affirmation” is required for the issuance of a search warrant. State v. Brown, 798 P.2d 284, 285 (Utah App.1990) (citation omitted). In reviewing a probable cause determination, a magistrate’s decision will be upheld if “the magistrate had a substantial basis for ... [determining] that probable cause existed.” State v. Babbell, 770 P.2d 987, 991 (Utah 1989) (quoting Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)).

¶40Contrary to defendant’s assertion, the affidavit in this case is sufficient. Taken as a whole, the affidavit establishes that the affiant relied on his own and upon Fox’s investigation and observations of defendant’s conduct; that defendant had purchased several items which were known to be used in the manufacture of methamphetamine; that defendant gave false information as to where he resided, and when questioned about the Intertech purchase; and that Garza, with whom defendant shared the apartment, and who was arrested at the same time based upon the same facts as defendant, had previously been convicted for conspiracy to manufacture and distribute illegal substances. See State v. Stromberg, 783 P.2d 54, 57 (Utah App.1989) (probable cause determination supported by fact that defendant has previously been convicted of similar offense), cert. denied, 795 P.2d 1138 (Utah 1990). These facts, taken together, support the trial court’s determination that probable cause existed for the issuance of the search warrant.

¶41CONCLUSION

¶42We hold that the stop and subsequent warrantless search of defendant’s vehicle, defendant’s arrest, and the warrant search of defendant’s home did not violate his rights, and therefore, the trial court’s decision to deny defendant’s motion to suppress the evidence found as a result of those searches was not clearly erroneous. The conviction is affirmed.

¶56(concurring in the result):

¶57I concur in the result of the main opinion, but write separately because I prefer a different analytical approach to reach the same result. I would hold that probable cause to arrest Leonard existed at the time at which the officers stopped Leonard’s vehicle. The facts which support probable cause include: (1) evidence that the continuing surveillance had resulted in several arrests and convictions relating to the possession and manufacture of methamphetamine; (2) Officer Fox’s observation that Leonard’s dress and manner were suspiciously inconsistent with those of a legi-mate businessman; (3) the Datsun truck’s attempt to block Officer Fox from following Leonard; (4) Leonard’s evasive driving manner, including driving at excessive speeds and making numerous illegal lane changes; (5) Leonard’s apparent attempt to signal the occupants of the Datsun truck by waving bandanna-type flags out the window; (6) Officer Fox’s discovery that no owner was registered for the license plates on the vehicle that Leonard was driving; and (7) the fact that Officer Caldwell had learned from Intertech what items had been purchased by Leonard and his companion, in concert with Officer Caldwell’s knowledge that the said items are commonly used in the manufacture of methampeta-mine. On the basis of these facts, I would hold that the officers had probable cause to arrest Leonard when they stopped his vehicle, and that therefore the trial court properly denied Leonard’s motion to suppress. Accordingly, I agree that Leonard’s conviction should be affirmed.