State of Utah v. Taylor

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Eric Samuel Taylor,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990753-CA

F I L E D
May 4, 2000
  2000 UT App 123 -----

Seventh District, Moab Department
The Honorable Lyle R. Anderson

Attorneys:
Happy Morgan, Moab, for Appellant
Jan Graham and Joanne C. Slotnik, Salt Lake City, for Appellee

-----

Before Judges Greenwood, Jackson, and Davis.

JACKSON, Associate Presiding Judge:

The trial court's ruling on Taylor's Motion to Suppress impliedly found that Taylor was still seized for Fourth Amendment purposes after the officer returned his papers. The trial court noted that "[t]he conversation after checking the papers was not routine," and that the further questioning would be permissible only if the officer had a reasonable suspicion that Taylor was engaged in criminal activity. See State v. Godina-Luna, 826 P.2d 652, 655 (Utah Ct. App. 1992). The trial court also concluded that the four facts known to the officer gave rise to reasonable suspicion to extend the investigative detention.(1)

We do not agree with the trial court that these four facts created a "'reasonable suspicion of more serious criminal activity.'" State v. Shepard, 955 P.2d 352, 355 (Utah Ct. App. 1998) (citation omitted). That Taylor was not from Nevada but was driving a Nevada rental car is unremarkable. Similarly, while Taylor's answer about his business in Nevada would perhaps be strange to one who knows that Microsoft does not manufacture computers, it would not lead to a reasonable suspicion of criminal activity. The significance of the white velvet bags is not evident from the record; they may have carried the air freshener that the officer smelled. However, the scent of air freshener, without "other indicia of criminal activity," United States v. Alvarez, 68 F.3d 1242, 1246 (10th Cir. 1995) (McKay, J., concurring) (emphasis added), is not enough to create a reasonable suspicion. In sum, we cannot conclude these four facts were enough to give rise to reasonable suspicion to extend the scope of the stop.

Because Taylor's consent to search was given "during an ongoing illegal seizure, . . . no time factor separated the illegality from the consent." Godina-Luna, 826 P.2d at 656. Accordingly, Taylor's consent was obtained by exploitation of the prior illegality, and is thus invalid. See State v. Arroyo, 796 P.2d 684, 688 (Utah 1990).

Taylor's conviction is reversed.
 
 
 
 

Norman H. Jackson,
Associate Presiding Judge -----

WE CONCUR:
 
 
 
 

Pamela T. Greenwood,
Presiding Judge
 
 
 
 

James Z. Davis, Judge

1. These facts were: Taylor was not from Nevada but had rented a car in Nevada; Taylor said he sold Microsoft computers, but Microsoft does not manufacture computers; Taylor had white velvet bags on the front mirror and dashboard; and the car had a strong odor of perfume or air freshener.