State of Utah v. Brownlee

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

William Brownlee,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981295-CA

F I L E D
June 29, 2000
  2000 UT App 202 -----

Third District, Salt Lake Department
The Honorable Homer F. Wilkinson

Attorneys:
John L. McCoy, Salt Lake City, for Appellant
Jan Graham and Karen A. Klucznik, Salt Lake City, for Appellee

-----

Before Judges Greenwood, Billings, and Orme.

GREENWOOD, Presiding Judge:

Defendant appeals the trial court's denial of his motion to suppress, arguing Deputy Fountaine lacked reasonable suspicion to detain him.(1) We affirm.

Three levels of constitutionally permissible encounters between police and citizens exist: "'(1) [A]n officer may approach a citizen at anytime [sic] and pose questions so long as the citizen is not detained against his will; (2) an officer may seize a person if the officer has an "articulable suspicion" that the person has committed or is about to commit a crime; however, the "detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop"; (3) an officer may arrest a suspect if the officer has probable cause to believe an offense has been committed or is being committed.'" State v. Struhs, 940 P.2d 1225, 1227 (Utah Ct. App. 1997) (alterations in original) (citations omitted).

The State concedes the encounter here escalated to a level two stop when Deputy Fountaine removed his gun from his holster, thereby seizing the defendant for purposes of the Fourth Amendment. See State v. Bean, 869 P.2d 984, 986 (Utah Ct. App. 1994). Thus, a reasonable suspicion of criminal activity was required to justify Deputy Fountaine's seizure of defendant. "While 'reasonable suspicion' is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop." Illinois v. Wardlow, 120 S. Ct. 673, 675-76 (2000). Under the Fourth Amendment, an officer's reasonable suspicion may be justified by "'unusual conduct' that would lead a reasonable person to conclude 'that criminal activity may be afoot.'" State v. Rodriguez-Lopi, 954 P.2d 1290, 1293 (Utah Ct. App. 1998) (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884 (1968)). "'Whether there are objective facts to justify such a stop depends on the "totality of the circumstances."'" Provo City v. Warden, 844 P.2d 360, 362 (Utah Ct. App. 1992), aff'd, 875 P.2d 557 (Utah 1994) (citations omitted).

Defendant claims Deputy Fountaine did not have sufficient articulable facts to justify a reasonable suspicion that he was intoxicated, arguing that bloodshot eyes and confusion do not support a reasonable suspicion. It is true, as defendant asserts, that this court has previously held that nervous or evasive behavior and bloodshot eyes are not sufficient, in and of themselves, to support reasonable suspicion. See State v. Lovegreen, 829 P.2d 155, 158 (Utah Ct. App. 1992). Nevertheless, the facts of this case are sufficiently distinguishable from those of Lovegreen to persuade us that this seizure was not unreasonable.

Unlike the defendant in Lovegreen, who became nervous during direct police questioning, defendant, in this case, did not act nervously when Deputy Fountaine asked him to roll down his window, but rather he seemed confused and could not figure out what to do. More importantly, defendant's confusion did not dissipate after the initial shock of being awakened. In fact, Deputy Fountaine testified that he requested that defendant roll down his window for "possibly five minutes" and "it went on and on." Defendant's lasting confusion and strange behavior combined with his bloodshot eyes support a reasonable suspicion that he was intoxicated.

Additionally, Deputy Fountaine did not escalate the encounter to a level two stop until defendant reached for his keys to start his car. By this time, Deputy Fountaine reasonably suspected that the defendant might attempt to drive while intoxicated. As noted, the purpose of a level two stop "'is to clarify ambiguous situations, "even if it was equally probable that the vehicle or its occupants were innocent of any wrongdoing, police must be permitted to act before their reasonable belief is verified by escape or fruition of the harm it was their duty to prevent."'" State v. Bridge, 452 N.W.2d 542, 545 (Neb. 1990) (citations omitted); see also City of St. George v. Carter, 945 P.2d 165, 170 (Utah Ct. App. 1997), cert. denied, 953 P.2d 449 (Utah 1998) (holding police "must diligently pursue a means of investigation likely to confirm or dispel the suspicions quickly").

In short, Deputy Fountaine observed a series of facts, "each of them perhaps innocent in itself, but which taken together warranted further investigation." Terry, 392 U.S. at 22, 88 S. Ct. at 1880-81. Based on this suspicion, Deputy Fountaine pursued the quickest avenue to resolve his suspicions: he first requested defendant roll down his window, and later asked defendant to exit his vehicle. As this court has previously noted, an officer's "request that defendant exit the vehicle was an appropriate means to quickly confirm or dispel his reasonable suspicion" that defendant was intoxicated. Carter, 945 P.2d at 170.

Viewing the facts of this case under the totality of the circumstances, we cannot conclude Deputy Fountaine lacked reasonable suspicion to briefly detain the defendant to confirm or dispel his suspicion that defendant was about to operate his vehicle while intoxicated.

Accordingly, we affirm the trial court's denial of defendant's motion to suppress.
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge -----

WE CONCUR:
 
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 
 

______________________________
Gregory K. Orme, Judge

1. Defendant argues that Deputy Fountaine lacked probable cause, but the proper standard for detention is reasonable suspicion. See State v. Struhs, 940 P.2d 1225, 1227 (Utah Ct. App. 1997).