State v. Lambeth

State v. Lambeth

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Richard Kenneth Lambeth,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040595-CA
 

F I L E D
(June 23, 2005)
 

2005 UT App 289

 

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Second District, Ogden Department, 031906457

The Honorable Roger S. Dutson

Attorneys: Dee W. Smith, Ogden, for Appellant

Mark L. Shurtleff and Matthew D. Bates, Salt Lake City, for Appellee

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Before Judges Bench, Greenwood, and Thorne.

THORNE, Judge:

    Richard Lambeth entered a conditional guilty plea to charges of possession of a controlled substance, a third degree felony, and disorderly conduct, a class C misdemeanor. See Utah Code Ann. §§ 58-37-8 (2002), 76-9-102 (2003). Lambeth appeals the trial court's denial of his motion to suppress all evidence discovered during a search incident to his arrest for disorderly conduct. See State v. Trane, 2002 UT 97,¶23, 57 P.3d 1052 ("Pursuant to the search incident to a lawful arrest exception, an arresting officer may, without a warrant, search a person validly arrested." (quotations and citation omitted)).

    Lambeth's sole argument on appeal is that his conduct at the time of his arrest was protected speech under the First Amendment to the United States Constitution, and that his arrest and the resulting search were therefore unlawful. Lambeth was arrested after he encountered two police officers at a convenience store in Ogden at approximately 3:45 in the afternoon. Upon spotting the officers, Lambeth proceeded to yell profanities at them, causing visible alarm to other people in the immediate vicinity. When the officers warned him to stop, Lambeth loudly uttered another profanity, which also caused visible alarm to bystanders. The officers arrested Lambeth on a charge of disorderly conduct and a search incident to arrest revealed methamphetamine in Lambeth's possession. After his arrest, Lambert admitted that his actions affected not just the officers but also "the people around."(1)

    On these facts, the arresting officers had probable cause to believe that Lambeth had committed the crime of disorderly conduct by "mak[ing] unreasonable noises in a public place" while "intending to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof." Utah Code Ann. § 76-9-102(1)(b)(ii). "A stop or arrest made pursuant to an officer's good faith reliance on [a statute] not yet declared unconstitutional is valid, regardless of a subsequent judicial determination of its unconstitutionality." State v. Chapman, 841 P.2d 725, 727 (Utah Ct. App. 1992), rev'd in part on other grounds, 921 P.2d 446 (Utah 1996); see also Illinois v. Krull, 480 U.S. 340, 349-50 (1987). Accordingly, we need not decide the constitutionality of section 76-9-102, but rather we focus on whether the officers used good faith in relying on that statute to arrest Lambeth.

    In this context, an officer acts in good faith merely by applying the statute as written, unless the statute is "so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws." Michigan v. DeFillippo, 443 U.S. 31, 38 (1979). On appeal, Lambeth attempts to demonstrate the apparent unconstitutionality of his arrest by comparing its facts to those of various other First Amendment cases. See, e.g., Logan City v. Huber, 786 P.2d 1372, 1377 (Utah Ct. App. 1990) (reversing conviction for disorderly conduct premised upon an ordinance prohibiting abusive or obscene language in a public place); see also City of Houston v. Hill, 482 U.S. 451, 461 (1987) (stating that "the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers"); Cohen v. California, 403 U.S. 15, 26 (1971) (reversing disturbing the peace conviction of a defendant who wore a jacket emblazoned with an offensive slogan). The facts of Lambeth's arrest do not fit within the fact patterns of these or other cases cited in his brief, as he was arrested for a content-neutral offense after loudly and visibly disturbing and annoying various members of the public.

    We are not convinced that Utah Code section 76-9-102 is grossly and flagrantly unconstitutional as applied to the facts of Lambeth's arrest.(2) Accordingly, the officers had valid probable cause to arrest Lambeth for the crime of disorderly conduct, and the trial court properly denied his motion to suppress. We affirm.

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William A. Thorne Jr., Judge

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WE CONCUR:

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Russell W. Bench,

Associate Presiding Judge

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Pamela T. Greenwood, Judge

1. By including this fact, we are not suggesting that probable cause for an arrest can be supported by information obtained subsequent to the arrest. Rather, Lambeth's admission bolsters the officers' initial perception that members of the public were alarmed by Lambeth's outbursts, and we include it here solely for that reason.

2. We express no opinion on the ultimate constitutionality of Utah Code section 76-9-102 (2003), as Lambeth did not appeal the constitutionality of his conviction under that statute.