State of Utah, v.Cerroni

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Paul Anthony Cerroni,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981217-CA

F I L E D
January 28, 1999 1999 UT App 016 -----

Third District, Tooele Department
The Honorable Leon A. Dever

Attorneys:
Wayne A. Freestone, Salt Lake City, for Appellant
Jan Graham and Barnard N. Madsen, Salt Lake City, for Appellee

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Before Judges Bench, Billings, and Jackson.

BILLINGS, Judge:

Appellant Paul Cerroni appeals his conviction of possession of a controlled substance, a third degree felony, in violation of Utah Code Ann. § 58-37-8(2)(a)(i) (1996), claiming the trial court erred in denying his Motion to Suppress. We affirm.

"'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.'" State v. Shepard, 955 P.2d 352, 354-55 (Utah Ct. App. 1998) (quoting State v. Pena, 869 P.2d 932, 939 n.4 (Utah 1994) (additional citation omitted)).

As an initial matter, appellant complains that the officer had no basis for the traffic stop. Though appellant questions the factual underpinnings for the stop, he has failed to establish that the trial court's factual findings were clearly erroneous. We therefore conclude that the traffic stop was justified because appellant's vehicle had several equipment violations and the officer witnessed two moving violations.

Next, appellant argues that the baggie of methamphetamine ultimately seized by the police was obtained by an unauthorized patdown search. The trial court found, however, that appellant himself produced the baggie: And the question is is [sic] whether or not there was an impermissible search and a terry search. And what we have here is Mr. Cerroni responding to the officer's question as to what was in his pocket, he reaches in and he pulls out his watch and Trooper McMann watched the defendant do that and Trooper Graham also testified that the defendant responded by pulling his watch out of his pocket and that's when they saw the [baggie of methamphetamine] that they seized. (Emphasis added.) Again, because appellant has failed to establish that the trial court's factual findings were clearly erroneous, we conclude that appellant exposed the methamphetamine, and that no patdown occurred prior to that event. 1

Finally, appellant argues that the officers had no reason to ask him to exit his vehicle, and, but for this conduct, the methamphetamine would never have been found. We disagree. An officer may order a driver or passenger out of a vehicle during a routine traffic stop to protect himself. See State v. Schlosser, 774 P.2d 1132, 1135 (Utah 1989). Here, after initially stopping appellant's vehicle and approaching the driver side window, the officer noticed several empty beer bottles in the back seat. In addition, the officer testified that appellant appeared agitated and was verbally abusive. Thus, the officer was clearly within his authority to order appellant out of his vehicle, and the resulting seizure of the methamphetamine was proper. We therefore affirm appellant's conviction.
 
 
 

______________________________
Judith M. Billings, Judge

----- WE CONCUR:
 
 

_______________________________
Russell W. Bench, Judge
 
 

_______________________________
Norman H. Jackson, Judge

1. Appellant also argues that he did not consent to pull the watch from his pocket, and thus the methamphetamine that was also pulled from the pocket was illegally obtained. In contrast, the trial court found that appellant was asked about the contents of his pocket, and was not ordered to reveal the contents therein. Appellant has not shown that this factual finding was clearly erroneous, and we therefore conclude appellant voluntarily produced both the watch and methamphetamine.