State of Utah v. Wheat

----ooOoo----

State of Utah,
Appellee,

v.

Shayne Dell Wheat,
Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000281-CA

F I L E D
February 8, 2001 2001 UT App 38 -----

Second District, Ogden Department
The Honorable Stanton M. Taylor

Attorneys:
Maurice Richards, Ogden, for Appellant
Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee

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Before Judges Billings, Davis, and Orme.

ORME, Judge:

We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3).

Defendant concedes that he consented to the breathalyzer test for DUI purposes. He argues, however, that his consent was obtained through coercion and was thus involuntary. The only "coercion" defendant identifies is his fear that if he did not consent to the test for DUI purposes, his probation officer would file an affidavit alleging a probation violation.(1) Defendant's subjective worries, unaccompanied by any record evidence of police violence, threats, or intimidation, do not amount to official coercion. As has been noted in the Fifth Amendment context, constitutional jurisprudence "is not concerned 'with moral and psychological pressures to [waive one's rights] emanating from sources other than official coercion.'" Colorado v. Connelly, 479 U.S. 157, 170, 107 S. Ct. 515, 523 (1986) (quoting Oregon v. Elstad, 470 U.S. 298, 305, 105 S. Ct. 1285, 1290 (1985)). We conclude that defendant's consent was voluntary in fact.

"Even where the government proves the consent is voluntary, such consent cannot justify a search if the otherwise voluntary consent was obtained through the exploitation of an antecedent police illegality." State v. Carter, 812 P.2d 460, 469 (Utah Ct. App. 1991), cert. denied, 836 P.2d 1383 (Utah 1992). See State v. Thurman, 846 P.2d 1256, 1263 (Utah 1993). We see in this case no prior illegality exploited by the police to obtain defendant's otherwise voluntary consent.

Officer Peterson saw defendant make an illegal left turn and pulled him over. "[F]urther temporary detention for investigative questioning after the fulfillment of the purpose for the initial traffic stop is justified under the fourth amendment only if the detaining officer has a reasonable suspicion of serious criminal activity." State v. Robinson, 797 P.2d 431, 435 (Utah Ct. App. 1990). See State v. Lopez, 873 P.2d 1127, 1132 (Utah 1994). Against the background of the illegal turn and the poor judgment it suggested, reasonable suspicion arose when Officer Peterson learned defendant's license had been "revoked for alcohol," Officer Peterson noticed the smell of alcohol as he approached defendant, and defendant admitted to having been drinking.

While administering the field sobriety tests, Officer Peterson legally learned from defendant that he was on probation, that one of his probation restrictions was to have no alcohol, and that defendant's probation officer was Diane Roddam. Officer Peterson contacted Roddam and told her that he was arresting defendant and that defendant had admitted he had been drinking. Roddam legitimately requested that Officer Peterson conduct a breathalyzer test of defendant. See Reeves v. Turner, 28 Utah 2d 310, 501 P.2d 1212, 1214 (Utah 1972) ("[A] parole officer may properly request police assistance in the . . . investigation of a parole violator."). When Officer Peterson informed defendant of Roddam's request, defendant voluntarily consented to the breathalyzer test.(2)

Because we conclude that defendant voluntarily consented to the breathalyzer test for DUI purposes and that defendant's consent was not obtained through police exploitation of a prior illegality, we need not address whether Officer Peterson had sufficient cause to require defendant to submit to the breathalyzer test under Utah Code Ann. § 41-6-44.10 (Supp. 2000).

Affirmed.
 
 
 
 

______________________________
Gregory K. Orme, Judge -----

WE CONCUR:
 
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 
 

______________________________
James Z. Davis, Judge

1. Because defendant was driving on a revoked license and admitted to drinking in violation of his probation agreement, it seems likely that defendant's probation officer would have filed an affidavit alleging a probation violation regardless of whether defendant consented to a breathalyzer test.

2. Because defendant consented to the breathalyzer test both to determine whether he had violated the terms of his probation and for DUI purposes, we need not reach the "provocative issue" identified in State v. Blackwell, 809 P.2d 135, 138 n.4 (Utah Ct. App. 1991).