State of Utah v. Shorey

State v. Shorey Case No. 20010124-CA

IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Richard Shorey,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010124-CA

F I L E D
(December 6, 2001)

2001 UT App 372

 

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Third District, Salt Lake Department
The Honorable Paul G. Maughan

Attorneys: 
Catherine E. Lilly and Nisa J. Sisneros, Salt Lake City, for Appellant
Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee

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Before Judges Greenwood, Davis, and Thorne.

DAVIS, Judge:

Three levels of police encounters with the public are constitutionally permissible:

(1) an 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.

Salt Lake City v. Ray, 2000 UT App 55,¶10, 998 P.2d 274 (citing State v. Deitman, 739 P.2d 616, 617-18 (Utah 1987) (per curiam) (citations omitted) (alteration in original)).

Defendant contends that his encounter with Officer Larson was a level two detention requiring reasonable suspicion because (1) Officer Larson approached him, rather than his approaching Officer Larson; (2) Officer Larson did not inform him that he was free to leave; and (3) Officer Larson's questions were investigatory in nature.

"Obviously, not all personal intercourse between policemen and citizens involves 'seizures' of persons." Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16 (1968).

"[E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, ask to examine the individual's identification, and request consent to search his or her luggage--as long as the police do not convey a message that compliance with their requests is required."

Florida v. Bostick, 501 U.S. 429, 434-35, 111 S. Ct. 2382, 2386 (1991) (internal citations omitted). Thus, it was perfectly appropriate for Officer Larson to initiate contact with defendant and ask him questions.(1)

Defendant further contends that Officer Larson's failure to inform him that he was free to leave supports a conclusion that he was detained. "A seizure does not exist just because the police officers do not tell the defendant that he does not have to talk to them or that he can walk away." United States v. Baskin, 886 F.2d 383, 387 (D.C. Cir. 1989).

Finally, with respect to the investigatory nature of the questions, defendant relies on State v. Carter, 812 P.2d 460 (Utah Ct. App. 1991). While in Carter the court concluded that "a reasonable person would not have felt free to leave," id. at 465, it did not hold, as defendant suggests, that a seizure occurs whenever an officer poses questions of an investigatory nature and asks for consent to search. Instead, the Carter court considered many factors, including "the length of an interview, blocking an individual's path, retaining an individual's travel ticket, the removal of the defendant to a private area, statements by police that an investigation has focused on the individual, or searching the defendant's belongings or person." Id. at 463.

The trial court correctly concluded that the encounter between defendant and Officer Larson was a level one consensual encounter implicating no Fourth Amendment scrutiny. Under the circumstances, a reasonable person would have believed that he or she was free to terminate the encounter. Therefore, we affirm the trial court.

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James Z. Davis, Judge

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WE CONCUR:

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Pamela T. Greenwood, Presiding Judge

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William A. Thorne, Jr., Judge

1. See also Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 1324 (1983) (observing that "law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen"); accord State v. Bean, 869 P.2d 984, 986 (Utah Ct. App. 1994). Such level one encounters do not implicate the Fourth Amendment at all because they are not seizures. See United States v. Mendenhall, 446 U.S. 544, 553, 100 S. Ct. 1870, 1877 (1980); see also State v. Jackson, 805 P.2d 765, 768 (Utah Ct. App. 1990). "As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification." Mendenhall, 446 U.S. at 554, 100 S. Ct. at 1877.