American Fork v. Lee

----ooOoo----

American Fork City,
Plaintiff and Appellant,

v.

Christian C.F. Lee,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000775-CA

F I L E D
February 14, 2002 2002 UT App 39 -----

Fourth District, American Fork Department
The Honorable Howard H. Maetani

Attorneys:
James "Tucker" Hansen, American Fork, for Appellant
Margaret P. Lindsay and Patrick V. Lindsay, Provo, for Appellee -----

Before Judges Jackson, Bench, and Davis.

DAVIS, Judge:

Appellant argues that the trial court erred in concluding that the warrantless search of Defendant's vehicle constituted an illegal and unjustifiable search under the Fourth Amendment of the United States Constitution and Article I, § 14 of the Utah Constitution. We affirm.

"[T]he determination of whether an encounter with law enforcement officers constitutes a seizure under the Fourth Amendment calls for consistent application from one police encounter to the next, regardless of the particular individual's response to the actions of the police, such determination is a legal conclusion that we review for correctness." Salt Lake City v. Ray, 2000 UT App 55,¶8, (internal quotations and citations omitted). Likewise, "[a]lthough we afford some '"measure of discretion"' to the trial court's application of the standard, whether a set of facts supports a reasonable articulable suspicion is a question of law that we review for correctness." State v. Preece, 971 P.2d 1, 4 (Utah Ct. App. 1998) (citation omitted); accord State v. Case, 884 P.2d 1274, 1276 (Utah Ct. App. 1994).

The trial court found, and both parties agree, that because Officer Smith had retained Defendant's driver's license and then proceeded to question Defendant about the jacket with the word "POLICE" written on the back, this remained a level two stop. Therefore we begin our analysis with the question of whether Officer Smith had reasonable suspicion to believe that Defendant was engaging in other more serious criminal activity, based on the totality of the circumstances. "'While the required level of suspicion is lower than the standard required for probable cause to arrest, the same totality of facts and circumstances approach is used to determine if there are sufficient "specific and articulable facts" to support reasonable suspicion.'" City of St. George v. Carter, 945 P.2d 165, 168 (Utah Ct. App. 1997) (quoting State v. Case, 884 P.2d at 1276).

"'[A]n officer may stop and question a person "when the officer has reasonable, articulable suspicion that the person has been, is, or is about to engage in criminal activity."'" Id. at 168 (citations omitted). Reasonable suspicion may be supported by the facts derived from an officer's observation as well as ""information, bulletins, or flyers received from other law enforcement sources.'" Id. (citation omitted).(1)

In this case the trial court concluded, and counsel for Defendant agreed at oral argument that "[i]t is not a crime to have possession of a jacket with the wor[d] "POLICE" on it. Nor does [mere] possession of such jacket mean that a crime is about to be committed." At the time of the traffic stop there was no evidence or report that Defendant, or anyone else in the surrounding area, was engaging in, or attempting to engage in, the crime of impersonating an officer. In addition, Officer Smith testified that he did not observe Defendant do anything with the jacket that would give him reason to believe that the Defendant was actually intending to impersonate a police officer.(2)

Evaluating the facts now before us against prevailing case law, we conclude that Defendant's mere possession of a jacket with the word "POLICE" written on the back was not sufficient to establish reasonable suspicion of criminal activity. We therefore affirm the trial court's determination that the officer did not have reasonable articulable suspicion to investigate the Defendant and hold that Defendant's Motion to Suppress was properly granted.
 
 
 

______________________________
James Z. Davis, Judge -----

WE CONCUR:
 
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 
 

______________________________
Russell W. Bench, Judge

1. "In determining whether such reasonable suspicion exists, we have indicated that under certain circumstances, police officers can rely on a dispatched report in making an investigatory stop." State v. Pena, 869 P.2d 932, 940 (Utah 1994).

2. Other than Appellant's brief allusion during the trial to concerns about people impersonating an officer, neither party raised nor addressed an officer safety argument at the trial court level. "We therefore follow our longstanding rule that we will not consider issues raised for the first time on appeal." Julian v. State, 966 P.2d 249, 258 (Utah 1998).