State of Utah v. Fanari

----ooOoo---- State of Utah,

Plaintiff and Appellee,

v.

Marco C. Fanari,

Defendant and Appellant. )
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) MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981108-CA

F I L E D
(December 3, 1998)

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Sixth District, Richfield Department
The Honorable David L. Mower

Attorneys:D. Gilbert Athay and Michael R. Sikora, Salt Lake City, for Appellant
Jan Graham and Kenneth A. Bronston, Salt Lake City,
for Appellee
 

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Before Judges Greenwood, Jackson, and Orme.

ORME, Judge:

"If reasonable in scope, a traffic stop based on probable cause or reasonable suspicion that the driver has violated 'any one of the multitude of applicable traffic and equipment regulations' is lawful under the Fourth Amendment." State v. Lopez, 873 P.2d 1127, 1140 (Utah 1994) (quoting Delaware v. Prouse, 440 U.S. 648, 661, 99 S. Ct. 1391, 1400 (1979)). Appellant correctly notes that, combined with other mitigating circumstances, a "single instance of weaving . . . cannot serve as the constitutional basis for stopping" a driver for suspicion of driving while impaired, nor for violating Utah Code Ann. § 41-6-61(1) (1993), which requires drivers to operate their vehicles "as nearly as practical" within a single lane. State v. Bello, 871 P.2d 584, 587 (Utah Ct. App.), cert. denied, 883 P.2d 1359 (Utah 1994). The other mitigating circumstances present in Bello were the extreme wind, the camper shell on the driver's vehicle which "caused it to catch the wind more easily than other vehicles," and that, after a single weaving incident, the officer "observed no further weaving." Id. "'[I]f failure to follow a perfect vector down the highway . . . were sufficient reason[] to suspect a person of driving while impaired," the court noted, "a substantial portion of the public would be subject each day to an invasion of their privacy.'" Id. (quoting United States v. Lyons, 7 F.3d 973, 976 (10th Cir. 1993)).

Far from merely failing to follow a perfect vector down Highway I-70, appellant engaged in a three-quarter mile pattern of weaving back and forth. Trooper Avery testified that appellant "was going . . . to the fog line, then back across to the center line [and] not staying right in that lane . . . . [Appellant's car] would hit the white fog line, then it would hit the center line, and then it would . . . come back in his lane, then he'd drift over again." This testimony describes a pattern, not a single instance, of weaving. Moreover, unlike the vehicle in Bello, appellant's Lincoln had no camper or any other trait which would cause it to catch wind more easily than other vehicles. In sum, after observing appellant's driving pattern Trooper Avery based his stop of appellant on a reasonable suspicion that appellant had violated section 41-6-61(1) or was driving while impaired, and the stop was thus lawful under the Fourth Amendment. Additionally, viewed as a comprehensive whole, as is appropriate, see State v. Humphrey, 937 P.2d 137, 141 (Utah Ct. App. 1997), the circumstances present during Trooper Avery's stop of appellant provided reasonable suspicion to extend the detention's scope.

Dissecting each of Trooper Avery's bases for suspicion, appellant points to case law indicating that nervousness, errant travel plans, criminal histories, and field sobriety tests, in and of themselves, do not necessarily provide reasonable suspicion to extend a motorist's detention. However, the multiple bases for suspicion present in this case readily distinguish it from those cited by appellant. Viewing the whole picture in terms of the quantity and quality of information Trooper Avery possessed, reasonable suspicion is readily apparent. In other words, appellant's extreme nervousness, curious rental car arrangements and travel itinerary, prior criminal history, peculiar account of the trunk's contents, and performance on Sgt. Bushnell's lack-of-convergence test--taken in their aggregate--provided Trooper Avery with legitimate grounds to expand the scope of appellant's detention beyond a routine traffic stop. Each of these misgivings, coupled with the others,
combined to provide Trooper Avery with the reasonable suspicion necessary to extend the stop at each step of the way.

Affirmed. 1
 

Gregory K. Orme, Judge
 

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WE CONCUR:

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Pamela T. Greenwood

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Norman H. Jackson, Judge

1. As to appellant's challenge to specific factual findings, we initially note that under Rule 52, Utah Rules of Civil Procedure, "[r]equests for findings are not necessary for purposes of review." Utah R. Civ. P. 52(a). See Utah R. Civ. P. 81(e) ("[The Utah Rules of Civil Procedure] shall also govern in any aspect of criminal proceedings where there is no other applicable statute or rule . . . ."). Appellant is correct that the finding about what airline he used is clearly erroneous, and we accordingly disregard it. As to the lack of evidence about the dog's performance, such evidence was unnecessary given appellant's concession in his moving papers that "[t]he dog hit on the trunk." While the finding about appellant's admission of weaving is not of great consequence and could be disregarded without affecting our analysis, the finding does not appear to be clearly erroneous, although it is somewhat at variance with Trooper Avery's testimony on the subject. Finally, while the finding about recent drug use may not be clearly erroneous in a technical sense, it unnecessarily generalizes Sgt. Bushnell's observations, and in undertaking our analysis, we therefore have considered Trooper Avery's specific testimony on this point rather than the more general finding.