State of Utah v. Clifford

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State v. Clifford. Filed April 8, 1999 IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Vernon E. Clifford,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 971681-CA

F I L E D
April 8, 1999
  1999 UT App 112 -----

Third District, Murray Department
The Honorable Joseph C. Fratto, Jr.

Attorneys:
Catherine E. Lilly and Matthew G. Nielsen, Salt Lake City, for Appellant
David E. Yocom and Trina A. Higgins, Salt Lake City, for Appellee

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Before Judges Greenwood, Bench, and Davis.

BENCH, Judge:

Inventory searches are a well recognized exception to the warrant requirement of the Fourth Amendment. See State v. Hygh, 711 P.2d 264, 267-68 (Utah 1985) (citing South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092 (1976)). "In order to support a finding that a valid inventory search has taken place, the court must first determine whether there was reasonable and proper justification for the impoundment of the vehicle." Id. at 268. The State must also show "'that there exists an established reasonable procedure for safeguarding impounded vehicles and their contents and that the challenged police activity was essentially in conformance with that procedure.'" Id. at 269 (quoting 2 Wayne H. LaFave, Search & Seizure § 7.4 at 576-77 (1978)).

Defendant concedes that his vehicle was justifiably impounded. He argues, however, that the trial court erred in finding the inventory search valid because the State failed to meet its burden to establish that a standardized procedure for inventory searches existed and that the officer complied with the procedure when conducting the search of defendant's vehicle. Specifically, defendant argues that the best evidence rule, Rule 1002 of the Utah Rules of Evidence, requires the State to introduce the actual written policy at the suppression hearing. We disagree. The best evidence rule does not apply because the determination as to the admissibility of the gun was not made at trial, but rather was made at a pretrial suppression hearing, where the rules of evidence do not apply. See Utah R. Evid. 1101(b)(1) and Utah R. Evid. 104(a).(1)

Even if the best evidence rule did apply, the State is not bound to "submit written procedures in order to carry its burden of showing that its agents acted in accordance with standardized procedures when performing an inventory search of an impounded automobile." State v. Strickling, 844 P.2d 979, 989 (Utah Ct. App. 1992). In Strickling, as in the instant case, evidence regarding the procedures for inventory searches came solely from the testimony of the searching officer at a pretrial suppression hearing. Id. at 988. The testimony of the officer in the instant case, like the testimony of the officer in Strickling, was sufficient to establish the existence of, and compliance with, standardized procedures. Additionally, defendant's contention that the inventory search was invalid because the officer failed to complete it himself is without merit. The fact that the first officer did not complete the search himself is unimportant because the record reflects that a second officer completed it.

Defendant next argues that the trial court erred in finding the inventory search valid because it was conducted as a pretext to an investigative motive. We again disagree. The law allows an officer to impound a vehicle "with registration that has been expired for more than three months." Utah Code Ann. § 41-1a-1101(1)(f)(i) (1998). The officer in this case testified that he routinely impounds when a vehicle is well past the required time for registration, as defendant's vehicle was in this case. In Strickling, the court determined that the State produced the necessary threshold evidence when the impounding officer testified that he impounds sixty to seventy-five percent of the vehicles he stops for expired plate registrations. See Strickling, 844 P.2d at 987. The court then stated that "[t]he determinative evidence here is what the officer actually did, without regard to his motives in a particular case, when confronted with registration violations." Id. The uncontroverted testimony of the officer in the instant case is that he impounds ninety-nine percent of the vehicles he stops when plate registration expired nine months earlier. Moreover, in addition to the long expired registration, defendant could not provide proof of insurance, further demonstrating that impoundment was proper. Upon properly impounding the vehicle, an inventory search was required.

The long expired registration and the defendant's inability to provide proof of insurance, coupled with the officer's stated impoundment practices, demonstrate that the officer properly conducted the inventory search in accordance with established policy and procedure. Therefore, even assuming the continued viability of the pretext doctrine in inventory search cases, there was no pretext in this case.(2)

We see no reason to disturb the trial court's determination that the inventory search of defendant's vehicle was valid. 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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WE CONCUR:
 
 

 
Pamela T. Greenwood,
Associate Presiding Judge
 
 

 
James Z. Davis, Judge

1. A defendant who wishes to make an evidentiary challenge, such as a best evidence objection under Rule 1002, must proceed to trial and make the evidentiary challenge there.

2. Compare State v. Hygh, 711 P.2d at 268 (stating the inventory exception does not apply when the inventory is merely a pretext) with State v. Lopez, 873 P.2d 1127, 1138 (Utah 1994) (rejecting the pretext doctrine in traffic stops).