State of Utah v. Sosa

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State of Utah,
Plaintiff and Appellee,

v.

Julio Sosa,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981173-CA

F I L E D
July 1, 1999
  1999 UT App 218 -----

Second District, Ogden Department
The Honorable Pamela G. Heffernan

Attorneys:
Kent E. Snider, Ogden, for Appellant
Jan Graham and Kenneth A. Bronston, Salt Lake City, for Appellee

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Before Judges Greenwood, Davis, and Jackson.

GREENWOOD, Associate Presiding Judge:

Defendant Julio Sosa appeals his conviction for possession of cocaine with the intent to distribute, possession of marijuana, and giving false information to a police officer. We reverse.

"When reviewing a trial court's decision to grant or deny a motion to suppress, this court will uphold the trial court's underlying findings of fact unless they are clearly erroneous." State v. White, 856 P.2d 656, 659 (Utah Ct. App. 1993). However, "the final determination of lawfulness of a detention or search is reviewed for correctness." Id.

"'To determine whether a search or seizure is constitutionally reasonable, we make a dual inquiry: (1) Was the police officer's action "justified at its inception"? and (2) Was the resulting detention [or search] "reasonably related in scope to the circumstances that justified the interference in the first place?"'" State v. Humphrey, 937 P.2d 137, 141 (Utah Ct. App. 1997) (citations omitted). Using this analysis, we conclude the weapons search of defendant was justified under the reasoning of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), and its progeny, but that Sergeant Ashment exceeded the scope of the search when he patted down defendant's coin pocket after finding no weapons during his initial search.

Defendant argues the pat-down search for weapons was not reasonable because "the only articulable facts to support the frisk of Mr. Sosa were the pre-stop movements of the two suspects and the empty cardboard [ammunition] box." The record, however, does not support defendant's assertion. Sergeant Ashment had also received information from Sergeant Malmborg that the vehicle had not stopped immediately when Malmborg signaled the vehicle to pull over, that Malmborg had noticed the suspects moving around inside the vehicle and that it had appeared they were trying to hide something as they stopped the vehicle, that the driver had an outstanding warrant, and that both suspects had lied about their identities. Based on this information(1) and the totality of the circumstances, Sergeant Ashment acted reasonably in conducting a weapons search of defendant to assure his safety and the safety of Sergeant Malmborg. See State v. O'Brien, 959 P.2d 647, 649 (Utah Ct. App. 1998) (holding defendant's furtive movements in vehicle prior to stop, his questionable explanation of those movements, and admission of gun in vehicle justified officer's search of vehicle).

Although Sergeant Ashment's search of defendant was justified at its inception, this conclusion does not end our inquiry. "The Fourth Amendment proceeds as much by limitations upon the scope of governmental action as by imposing preconditions upon its initiation." See Terry, 392 U.S. at 28-29, 88 S. Ct. at 1883-84. We also must determine if the scope of Sergeant Ashment's pat-down of defendant was "limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby." Id. at 266, 88 S. Ct. at 1882.

At the suppression hearing, Sergeant Ashment testified that, after conducting a thorough search of defendant in the areas most typically used to hide weapons, he did not locate a weapon or any evidence of criminal activity. At that point, the safety of both officers was reasonably secured, and the search should have ended. See, e.g., State v. Chapman, 921 P.2d 446, 453 (Utah 1995) (reasoning that once detainee was known to be unarmed, officers would have no reasonable, articulable suspicion to continue searching for weapons). By continuing with the search and invading defendant's coin pocket, Sergeant Ashment impermissibly expanded the scope of the frisk beyond that reasonably necessary to ascertain the presence of weapons and exceeded the boundaries of the Fourth Amendment.(2) Consequently, we reverse the trial court's decision denying defendant's motion to suppress and vacate defendant's conviction.
 
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge

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WE CONCUR:
 
 
 

______________________________
James Z. Davis, Judge
 
 
 

______________________________
Norman H. Jackson, Judge

1. We note that Sergeant Ashment had every right to rely on Sergeant Malmborg's report of the events prior to Sergeant Ashment's arrival. See Humphrey, 937 P.2d at 142 ("[A]n officer may rely upon the observations of fellow officers engaged in a common investigation.") Sergeant Malmborg's report, together with Sergeant Ashment's personal observations, formed the reasonable articulable suspicion necessary to conduct the weapons search of defendant.

2. Because we hold that Sergeant Ashment's search of defendant should have ended with the initial pat-down, we need not address whether the "plain feel" doctrine allowed Sergeant Ashment to retrieve the cocaine from defendant's coin pocket.