State of Utah v. Mallery

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Andrew Mallery,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010555-CA

F I L E D
September 26, 2002 2002 UT App 303 -----

Third District, Salt Lake Department
The Honorable Timothy R. Hanson

Attorneys:
Richard P. Mauro, Salt Lake City, for Appellant
Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee -----

Before Judges Jackson, Davis, and Orme.
ORME, Judge:

Mr. Lund, the 911 dispatcher, Ms. Renteria, Ute Cab employees, and Officers Hamideh and Carter each made observations and communications that, together, formed a chain of reliable information suggesting the distinct possibility that Mallery and Rosillo were the men who had robbed Lund. This chain of information constituted the "specific and articulable facts" that the officers needed to effect the stop. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968).

In challenging the existence of reasonable suspicion, Mallery relies quite heavily on the discrepancies in the color of his cap and his perceived ethnicity. However, these discrepancies, if they are discrepancies at all, do not preclude reasonable suspicion. Reasonable suspicion may be found if an assailant "'substantially'" matches an informant's description, Kaysville City v. Mulcahy, 943 P.2d 231, 236 (Utah Ct. App.) (quoting Oregon v. Bybee, 884 P.2d 906, 908 (Or. Ct. App. 1994)), cert. denied, 953 P.2d 449 (Utah 1997), and in this case Mallery and Rosillo substantially matched the description provided by Lund. Therefore, Officers Hamideh and Carter were justified in stopping the taxicab in pursuing their investigation.

Once a stop is effected, police officers are "authorized to take such steps as [are] reasonably necessary to protect their personal safety and to maintain the status quo during the course of the stop." United States v. Hensley, 469 U.S. 221, 235, 105 S. Ct. 675, 683-84 (1985). The officers knew that the perpetrators had been armed as recently as just a few minutes earlier. Therefore, the force that the officers used after the stop was appropriate under the circumstances, especially in view of the presence of an innocent third party, i.e., the taxicab driver.

Mallery correctly points out that a person's consent to search must be "given voluntarily" to be valid. State v. Thurman, 846 P.2d 1256, 1262 (Utah 1993). The validity of apparent consent is considered under "the totality of the circumstances." State v. Whittenback, 621 P.2d 103, 106 (Utah 1980). The phrasing of Officer Hamideh's request of Mallery and the initial response it elicited were arguably ambiguous. However, Officer Hamideh's follow-up question seeking clarification and Mallery's response eliminated the ambiguity and constituted consent for the search, which was not a product of undue coercion under the circumstances.

Finally, any error in admitting evidence of the "show-up" identification made by Lund was harmless. "For an error to require reversal, the likelihood of a different outcome must be sufficiently high to undermine confidence in the verdict." State v. Knight, 734 P.2d 913, 920 (Utah 1987). Even if there was error in admitting the show-up identification, the evidence of Mallery's guilt was overwhelming, especially given that Lund's driver's license was found on Mallery and the gun and Lund's wallet were found at the apartment.

Affirmed.
 
 

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

WE CONCUR:
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
James Z. Davis, Judge