State of Utah v. Bugyik

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Steven Dieter Bugyik,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981499-CA

F I L E D
October 7, 1999
  1999 UT App 283 -----

Seventh District, Moab Department
The Honorable Lyle R. Anderson

Attorneys:
Jay D. Edmonds, Salt Lake City, for Appellant
Jan Graham and Scott Keith Wilson, Salt Lake City, for Appellee

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Before Judges Bench, Billings, and Davis.

BILLINGS, Judge:

Steven Dieter Bugyik (defendant) was convicted of possession of a controlled substance with intent to distribute, a third degree felony, in violation of Utah Code Ann. § 58-37-8 (1991). Following the denial of his pretrial motion to suppress evidence, defendant pleaded guilty on the condition that he could appeal the denial of his motion to suppress.

On appeal, defendant argues that the initial stop of his car was improper because Trooper Haycock need not have pulled defendant over to determine whether the car was properly licensed. We disagree.

In State v. Naisbitt, 827 P.2d 969 (Utah Ct. App. 1992), we held that even though the trooper could see a paper attached to the window of the defendant's vehicle, "the trooper's inability to identify the paper in the vehicle's back window as a valid temporary registration permit justified the stop of the vehicle." Id. at 971. In this case, there is no evidence that Haycock could determine whether a temporary registration sticker existed at all, let alone that it was valid.

Defendant next argues that he was unreasonably detained, first when Haycock inspected the rental agreement, and again when the officer inspected defendant's license. We disagree. Defendant does not dispute that he offered the rental agreement to Haycock but contends that the offer was not voluntary because Haycock did not tell defendant that his investigation was complete and that defendant was free to go. However, even assuming that defendant did not know he was free to go, that fact would only be relevant to whether defendant voluntarily consented to a search requested by an officer. See, e.g., State v. Harmon, 910 P.2d 1196, 1206 (Utah 1995). Haycock did not request to inspect the rental agreement, and thus defendant's spontaneous offer was clearly not coerced.

Inspection of defendant's license was likewise reasonable. As with the rental agreement, defendant voluntarily offered to show his license to Haycock. Haycock therefore did not need a reasonable suspicion to inspect defendant's license.

However, even if Haycock requested defendant's license, Haycock's inspection of the rental agreement provided reasonable suspicion to support that request: defendant did not know the name of the person who had rented the car; the rental agreement did not list defendant as an authorized driver of the car; defendant claimed to be traveling from Tucson to Denver for a family emergency, but had taken an indirect route; and defendant became increasingly nervous and offered an explanation about his driver's license that Haycock characterized as "gibberish." We conclude such observations justified further detention to investigate. See, e.g., State v. Johnson, 805 P.2d 761, 763 (Utah 1991) (detention justified when driver fails to produce identification or is not the vehicle owner).

Defendant next argues Haycock made an illegal weapons sweep of the passenger compartment of the car. An officer may perform a weapons sweep of the passenger compartment of a car under circumstances not amounting to probable cause if "specific and articulable facts . . . warrant the officer in believing that the suspect is dangerous and . . . may gain immediate control of weapons." Michigan v. Long, 463 U.S. 1032, 1049, 103 S. Ct. 3469, 3480 (1983) (citations and internal quotes omitted); see alsoState v. Bradford, 839 P.2d 866, 869-70 (Utah Ct. App. 1992).

Here, Haycock testified that defendant was unusually agitated and that defendant's behavior became increasingly erratic as the encounter progressed. Haycock's fear for his safety was further supported by his reasonable suspicion that defendant may have been transporting drugs in a stolen car. These circumstances support a reasonable suspicion that defendant may be carrying weapons. See State v. Marshall, 791 P.2d 880, 884 (Utah Ct. App. 1990); State v. Dorsey, 731 P.2d 1085, 1092 (Utah 1986) (Zimmerman, J., concurring) (officer could reasonably assume that individual suspected of transporting illegal drugs over long distances may be armed).

Finally, defendant challenges the search of the car's trunk. The trial court found that Haycock detected a weak odor of marijuana and a strong odor of coffee while searching the passenger compartment. Defendant contends that a weak smell of marijuana coupled with a masking agent is insufficient to support a finding of probable cause. We conclude that the fact that the marijuana smell was weak is not determinative. See State v. Spurgeon, 904 P.2d 220, 227 (Utah Ct. App. 1995). The trial court thus correctly determined that Trooper Haycock had probable cause to search the trunk.

We therefore affirm.
 
 
 
 

______________________________
Judith M. Billings, Judge

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WE CONCUR:
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 

______________________________
James Z. Davis, Judge