State of Utah v. Banks

State of Utah v. Banks

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Richard Sanchez Banks,

Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 981213-CA

F I L E D

(March 11, 1999)

1999 UT App 071

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Fifth District, Beaver Department

The Honorable J. Philip Eves

Attorneys: G. Fred Metos, Salt Lake City, for Appellant

Jan Graham and Marian Decker, Salt Lake City, for Appellee

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Before Judges Wilkins, Bench, and Jackson.

BENCH, Judge:

It is well established that "[w]hen making a routine traffic stop, an officer may request a driver's license and vehicle registration, conduct a computer check, and issue a citation." State v. O'Brien, 959 P.2d 647, 649 (Utah Ct. App. 1998). "'However, once the driver has produced a valid driver's license and evidence of entitlement to use the vehicle, "he must be allowed to proceed on his way, without being subjected to further delay by police for additional questioning."'" State v. Lopez, 873 P.2d 1127, 1132 (Utah 1994) (emphasis added) (quoting State v. Robinson, 797 P.2d 431, 435 (Utah Ct. App. 1990) (quoting United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir. 1988))). An officer must support additional investigative questioning that further detains the driver "with a reasonable 'suspicion based on specific, articulable facts drawn from the totality of the circumstances facing the officer at the time of the stop.'" O'Brien, 959 P.2d at 649 (quoting Lopez, 873 P.2d at 1132).

Defendant first argues that the officer impermissibly extended the scope of the traffic stop when he questioned defendant about his destination and travel plans. Inquiring as to travel plans is reasonably related in scope to a traffic stop. See, e.g., United States v. Alvarez, 68 F.3d 1242, 1245 (10th Cir. 1995) cert. denied, 517 U.S. 1143, 116 S. Ct. 1436 (1996). Furthermore, this brief questioning did not prolong the detention because it took place while defendant searched for the title to the car. Therefore, the officer did not subject defendant to any further delay beyond the permissible limits of the stop. See Lopez, 873 P.2d at 1132.

Defendant also argues that the officer's further questioning about drugs and request to search the vehicle exceeded the scope of the traffic stop and was unsupported by reasonable suspicion.

While acknowledging the second inquiry detained defendant beyond the purposes of the initial traffic stop, the State asserts the officer had reasonable suspicion that defendant might be transporting drugs. We agree. By the time the officer further detained defendant, the officer knew that (1) defendant was using at least three cherry air fresheners in the car; (2) an "overwhelming" odor of air freshener, a known masking agent, emanated from the car, see United States v. Villa-Chaparro, 115 F.3d 797, 802 (10th Cir.) cert. denied, 118 S. Ct. 326 (1997); (3) defendant had prior drug related arrests in Tucson, Arizona and Nashville, Tennessee; (4) defendant denied this criminal history when asked about it; (5) defendant did not know the address or telephone number of the girlfriend he said he was going to visit; (6) defendant was traveling on Interstate 15, a recognized drug trafficking route, see State v. Poole, 871 P.2d 531, 534 n.1 (Utah 1994); and (7) defendant was traveling with a road atlas and a small overnight bag, which the officer knew from training and experience is often consistent with a drug courier's travel.

Defendant asserts that many of these factors, taken individually, do not rise to the level of reasonable suspicion. However, "[i]n evaluating the validity of a stop such as this, [a court] must consider 'the totality of the circumstances--the whole picture.'" United States v. Sokolow, 490 U.S. 1, 8, 109 S. Ct. 1581, 1585 (1989) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695 (1981)). While it is true that "[a]ny one of these factors is not by itself proof of any illegal conduct and [may be] quite consistent with innocent travel," when considered together they amount to reasonable suspicion. Id. at 9, 109 S. Ct. at 1586; see also Reid v. Georgia, 448 U.S. 438, 441, 100 S. Ct. 2752, 2754 (1980) (per curiam) (recognizing "there could, of course, be circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot"). Therefore, based on the totality of these circumstances, this officer had reasonable suspicion of criminal activity, which justified defendant's continued detention.

Next, defendant argues that he did not voluntarily consent to the search of the interior of the vehicle because if he had refused consent, the officer would treat the refusal as an admission that drugs were present. Factors indicating voluntary consent to search include the absence of force or claim of authority to search by the officer, a mere request by an officer to conduct a search, cooperation by the owner of the vehicle, and the absence of deception or trick on the part of the officer. See State v. Whittenback, 621 P.2d 103, 106 (Utah 1980); State v. Archuleta, 925 P.2d 1275, 1277-78 (Utah Ct. App. 1996). Here, the trial court found the officer did not use any deception, threats, or coercion, but simply asked for permission to search. Defendant granted that permission "freely and voluntarily" when he replied, "Sure, go ahead." We see no reason to disturb the trial court's determination that defendant's consent was voluntary.

Based on our resolution of the foregoing issues, we need not address defendant's other arguments. Accordingly, we affirm the

trial court's refusal to suppress the evidence and defendant's resulting conviction.

______________________________

Russell W. Bench, Judge

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I CONCUR:

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Norman H. Jackson, Judge

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I CONCUR IN THE RESULT:

______________________________

Michael J. Wilkins,

Presiding Judge