State v. Kassuhn

State v. Kassuhn

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Christopher S. Kassuhn and Lisa Marie Manzanares,

Defendants and Appellants.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030771-CA
 

F I L E D
(March 10, 2005)
 

2005 UT App 107

 

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Third District, Sandy Department

The Honorable Denise P. Lindberg

Attorneys: Wesley J. Howard, Salt Lake City, for Appellants

Roger S. Blaylock and David E. Yocom, Salt Lake City, for Appellee

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Before Judges Davis, Greenwood, and Jackson.

DAVIS, Judge:

    Christopher S. Kassuhn and Lisa Marie Manzanares (collectively, Defendants) appeal the trial court's denial of their motions to suppress evidence. We affirm.

    Defendants argue that the arresting officer violated their Fourth Amendment rights by conducting a level two detention that was not supported by reasonable suspicion. Accordingly, Defendants assert that the evidence obtained as a result of their unlawful detention should be suppressed.

    We review the factual findings underlying the trial court's decision to grant or deny a motion to suppress evidence using a clearly erroneous standard. However, we review the trial court's conclusions of law based on these findings for correctness, with a measure of discretion given to the trial judge's application of the legal standard to the facts.

    State v. Veteto, 2000 UT 62,¶8, 6 P.3d 1133 (quotations and citations omitted). "The measure of discretion afforded varies, however, according to the issue being reviewed." State v. Hansen, 2002 UT 125,¶26, 63 P.3d 650. The Utah Supreme Court recently "abandon[ed] the standard which extended 'some deference' to the application of law to the underlying factual findings in search and seizure cases in favor of non[]deferential review." State v. Brake, 2004 UT 95,¶15, 103 P.3d 699. Therefore, in this case, we do not extend any deference to the trial court in its application of the law to its factual findings. See id.

    "To determine whether a search or seizure is constitutionally reasonable" we must ascertain: (1) whether "the police officer's action[ was] 'justified at its inception'" and (2) whether "the resulting detention[ was] 'reasonably related in scope to the circumstances that justified the interference in the first place.'" State v. Lopez, 873 P.2d 1127, 1131-32 (Utah 1994) (quoting Terry v. Ohio, 392 U.S. 1, 19-20 (1968)). Defendants argue that there was no reasonable suspicion to detain them at the inception of the officer's action and that even if the initial detention was lawful, the officer exceeded the scope of the detention when he asked if he could search the vehicle in which they were passengers.

    The undisputed facts of this case demonstrate that it involved an investigatory detention, or a level two encounter. See Hansen, 2002 UT 125 at ¶35 ("A level two encounter involves an investigative detention that is usually characterized as brief and non[]intrusive."). "An officer may initiate a so-called level two stop when specific and articulable facts and rational inferences . . . give rise to a reasonable suspicion a person has or is committing a crime." State v. Chism, 2005 UT App 41,¶12, 518 Utah Adv. Rep. 38 (alteration in original) (quotations and citation omitted). Moreover, "[t]he reasonableness of a level two stop is evaluated objectively according to the totality of the circumstances. An officer must be able to point to specific facts which, considered with rational inferences from those facts, reasonably warrant the intrusion." Id. (quotations and citations omitted). In addition, "the detention 'must be temporary and last no longer than is necessary to effectuate the purpose of the stop.'" Lopez, 873 P.2d at 1132 (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)).

After reviewing the record, we conclude that under a totality of the circumstances the officer had reasonable suspicion to detain Defendants. The officer observed "'unusual conduct' that would lead a reasonable person to conclude 'that criminal activity may be afoot.'" State v. Rodriguez-Lopi, 954 P.2d 1290, 1293 (Utah Ct. App. 1998) (quoting Terry, 392 U.S. at 30). Furthermore, the officer did not exceed the scope of the investigation when he asked for consent to search the vehicle because the investigation into the possible criminal activity was ongoing and his request was reasonably related in scope to the initial detention.

    Therefore, because we conclude that under a totality of the circumstances the officer had reasonable suspicion to both detain Defendants and ask for consent to search the vehicle,(1) we affirm the trial court's denial of Defendants' motions to suppress evidence.

    Affirmed.

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James Z. Davis, Judge

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WE CONCUR:

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Pamela T. Greenwood, Judge

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Norman H. Jackson, Judge

1. In their reply brief, Defendants argue that the consent to search the vehicle was not voluntary. We do not address this issue, however, because Defendants did not preserve this issue for appeal. See State v. Richins, 2004 UT App 36,¶8, 86 P.3d 759 ("As a general rule, appellate courts will not consider an issue, including a constitutional argument, raised for the first time on appeal unless the trial court committed plain error or the case involves exceptional circumstances. In order to preserve an issue for appeal, it must be raised in a timely fashion, must be specifically raised such that the issue is sufficiently raised to a level of consciousness before the trial court, and must be supported by evidence or relevant legal authority." (quotations and citations omitted)). This issue was raised for the first time in the State's appellate brief, and "[t]he trial court is considered the proper forum in which to commence thoughtful and probing analysis of issues." Id. (quotations and citation omitted).