State of Utah v. Virgen

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State v. Virgen. Filed September 30, 1999 IN THE UTAH COURT OF APPEALS


State of Utah,
Plaintiff and Appellee,


Rogelio Mora Virgen,
Defendant and Appellant.

(Not For Official Publication)

Case No. 981071-CA

September 30, 1999
  1999 UT App 275 -----

Sixth District, Kanab Department
The Honorable David Mower

Robert L. Booker, David H. Tolk, and Christopher T. Beck, Salt Lake City, for Appellant
Jan Graham and Kenneth A. Bronston, Salt Lake City, for Appellee


Before Judges Wilkins, Billings, and Jackson.


Rogelio Mora Virgen (Virgen) appeals the trial court's denial of his motion to suppress. The trial court ruled that the search of Virgen's truck was a proper search incident to his arrest for driving with no registration or proof of insurance. Virgen then entered a conditional guilty plea to one count of possession of a controlled substance with intent to distribute, reserving the right to appeal the suppression issue. See State v. Sery, 758 P.2d 935, 939 (Utah Ct. App. 1988).

In his opening brief, Virgen challenged the search as an improper inventory search, arguing that the trooper had an improper investigatory motive. In his reply brief, Virgen challenged the propriety of the search as a search incident to arrest. The State contends that because Virgen's opening brief failed to challenge the basis for the trial court's ruling--that is, the search incident to arrest exception--Virgen's appeal should be summarily dismissed.

We agree that Virgen addressed the propriety of the search as a search incident to arrest for the first time in his reply brief. Accordingly, we decline to consider Virgen's challenge to the propriety of the search incident to arrest. See Utah R. App. P. 24(c) ("Reply briefs shall be limited to answering any new matter set forth in the opposing brief." (Emphasis added.)); State v. Brown, 853 P.2d 851, 854 n.1 (Utah 1992) (rejecting state constitutional argument raised for first time in reply brief); State v. Phathammavong, 860 P.2d 1001, 1004 (Utah Ct. App. 1993) ("'[T]he rule is well settled that the court will not consider issues raised for the first time in a reply brief.'" (Citation omitted.)).

We now turn to the merits of Virgen's challenge to the search as an improper inventory search. Our thorough review of the record leads us to conclude the search was a valid inventory search. First, Trooper Whitaker had specific statutory authorization to impound Virgen's truck. See Utah Code Ann. § 41-1a-1101(1)(f) (1998) (authorizing impound of vehicles "being operated on a highway" with improper or no registration). Second, Trooper Whitaker's testimony at the suppression hearing, although brief, reflects that he followed standard procedures in conducting the inventory, which "is particularly relevant in determining whether an officer conducted the inventory search pretextually." State v. Lopez, 873 P.2d 1127, 1138 (Utah 1994); see also Colorado v. Bertine, 479 U.S. 367, 374, 107 S. Ct. 738, 742 n.6 (1987) ("Our decisions have always adhered to the requirement that inventories be conducted according to standardized criteria."); State v. Giron, 943 P.2d 1114, 1117 (Utah Ct. App. 1997) (holding inventory search invalid because officer "did not follow standardized procedures"); State v. Strickling, 844 P.2d 979, 987-90 (Utah Ct. App. 1992).

Finally, Virgen's focus on Trooper Whitaker's "state of mind at the time of the stop is inconsistent with Fourth Amendment law." Lopez, 873 P.2d at 1136. Because the trooper was legally authorized to impound the truck, it does not matter that he also suspected that Virgen was transporting drugs. In other words, "'the fact that the officer does not have the state of mind which is hypothecated by the reasons which provided the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.'" Lopez, 873 P.2d at 1137 (quoting Scott v. United States, 436 U.S. 128, 138, 98 S. Ct. 1717, 1723 (1978)).


Norman H. Jackson, Judge



Michael J. Wilkins,
Presiding Judge

Judith M. Billings, Judge