State of Utah v. Trujillo

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Carl Trujillo,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000143-CA

F I L E D
May 3, 2001 2001 UT App 147 -----

Second District, Layton Department
The Honorable Darwin C. Hansen

Attorneys:
Richard Gallegos, Ogden, for Appellant
Melvin C. Wilson and Kathi Sjoberg, Farmington, for Appellee

-----

Before Judges Greenwood, Jackson, and Billings.

JACKSON, Associate Presiding Judge:

Defendant Carl Trujillo appeals a conditional guilty plea of theft, a class A misdemeanor, in violation of Utah Code Ann. § 76-6-404 (1998). See State v. Sery, 758 P.2d 935, 940 (Utah Ct. App. 1988). Trujillo argues that the trial court erred in denying his motion to suppress evidence. We agree and reverse.

Trujillo does not question the validity of the initial traffic stop. Instead, he challenges the trial court's ruling that Deputy Jensen did not exceed the scope of the original stop.(1) Trujillo first challenges the "incorrect factual finding of the court" that Jensen did not know from where the smell of alcohol emanated even after he performed field sobriety tests.(2)

"'The factual findings underlying a trial court's decision to . . . deny a motion to suppress evidence are reviewed under the deferential clearly-erroneous standard, and the legal conclusions are reviewed for correctness, with a measure of discretion given to the trial judge's application of the legal standard to the facts.'"(3) State v. O'Brien, 959 P.2d 647, 648 (Utah Ct. App. 1998) (citation omitted).
 

Trujillo challenges the following finding(4) of the trial court:
 

The officer then asked the defendant to exit the vehicle, which he did, and the officer said he attempted--well, the officer said he could smell the odor of alcohol, but he didn't know whether that odor emanated from the inside the car or whether the odor--the odor was emanating from the person of the driver himself.

That, in and of itself, in the court's mind gives justification for investigation which goes a step further than simply focusing on the defendant and making a judgment as to whether or not the defendant is too impaired, due to alcohol, to drive.
 

We are not convinced that the trial court found that Jensen did not know from where the smell of alcohol emanated, even after he performed field sobriety tests. The trial court's statement can be construed to mean two different things. The trial court found either that at some point(5) Jensen could not discern the source of the odor, or that Jensen still could not discover the source even after performing the field sobriety tests.
 

Under the first interpretation, the trial court relied on Jensen's testimony that he could not detect the odor's source when he first approached the vehicle to conclude that Jensen had reasonable suspicion to search Trujillo's vehicle even after he performed the field sobriety tests. No articulable facts related to the odor, other than Jensen's hunch (based on his past experience) that open container violations sometimes accompany drivers who have consumed alcohol, support a finding of reasonable suspicion that Trujillo had committed an open container violation. If this was the trial court's approach, we would determine that the trial court erroneously concluded that Jensen's initial inability to discern the odor's source gave rise to reasonable suspicion to search Trujillo's car. See State v. Shepard, 955 P.2d 352, 355 (Utah Ct. App. 1998) ("Any further detention for investigative questioning 'must be supported by reasonable suspicion of more serious criminal activity . . . based on specific, articulable facts drawn from the totality of the circumstances.'" (Citation omitted.)).
 

Under the second interpretation of the trial court's finding, Jensen still could not discover the source even after performing the field sobriety tests. If this was the case, Jensen may indeed have had reasonable suspicion to search the vehicle. However, the fact that Jensen noticed "the odor of alcohol on [Trujillo's person]" after Trujillo exited the vehicle undermines this interpretation. In light of Jensen's testimony and the absence of articulable facts supporting this interpretation, the record does not support such a finding. If this was the meaning of the trial court's finding, we would conclude that it was clearly erroneous. See Dep't of Human Servs. v. Irizarry, 945 P.2d 676, 682 (Utah 1997) ("To meet the clearly erroneous standard, an appellate court must determine that the trial court's factual findings are 'against the clear weight of evidence,' or the court must 'otherwise reach[] a definite and firm conviction that a mistake has been made.' (Alteration in original.) (Citations omitted.)). Thus, neither interpretation of this finding supports the trial court's legal conclusion that Jensen had reasonable suspicion to search Trujillo's car.
 

As a result, only Trujillo's admission to having consumed a beer remains to support the trial court's conclusion that Jensen had reasonable, articulable suspicion to search Trujillo's car. In State v. Tetmyer, 947 P.2d 1157 (Utah Ct. App. 1997), we reviewed a similar denial of a motion to suppress. See id. at 1158. The trial court in that case supported its conclusion that the officer had reasonable suspicion primarily by its finding that "defendant's passenger was obviously intoxicated." Id. at 1161. In Tetmyer we concluded that "without more facts than exist in this case, the presence of an intoxicated passenger does not amount to reasonable suspicion of an open container violation." Id. If an obviously "intoxicated passenger does not give rise to reasonable suspicion of an open container violation," we cannot say that an unintoxicated driver who merely admitted to consuming one beer "give[s] rise to reasonable suspicion of an open container violation." Id. Here, Jensen's level of suspicion rises no higher than a hunch. Thus, we conclude that Trujillo's admission alone does not give rise to a "reasonable suspicion of more serious criminal activity . . . based on specific, articulable facts." State v. Lopez, 873 P.2d 1127, 1132 (Utah 1994).

Accordingly, we reverse the trial court's denial of Trujillo's motion to suppress, and remand this matter to the trial court for further proceedings consistent with this decision.
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge -----

WE CONCUR:
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 

______________________________
Judith M. Billings, Judge

1. "Once a traffic stop is made, the detention 'must be temporary and last no longer than is necessary to effectuate the purpose of the stop.'" State v. Lopez, 873 P.2d 1127, 1132 (Utah 1994) (citation omitted). Moreover, "[i]nvestigative questioning that further detains the driver must be supported by reasonable suspicion of more serious criminal activity . . . based on specific, articulable facts drawn from the totality of the circumstances facing the officer at the time of the stop." Id. (emphasis added).

2. Trujillo also contends that the trial court erred by concluding that Jensen had reasonable suspicion to investigate further because suspicion of "more serious criminal activity is required, and [Jensen] simply did not meet that standard." Since we reverse on the first issue, we need not reach this issue.

3. A determination of reasonable articulable suspicion is one such conclusion of law. See State v. Humphrey, 937 P.2d 137, 140 (Utah Ct. App. 1997).

4. Though the trial court did not enter written findings or conclusions, we may review the transcript of the trial court's oral findings and conclusions. See State v. Hodges, 798 P.2d 270, 274 (Utah Ct. App. 1990) ("A complete trial court record and transcript can suffice in lieu of written findings.").

5. Jensen testified that before Trujillo exited the vehicle, Jensen could not determine the source of the alcoholic odor.