State of Utah v. Merlen

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Mark Anthony Merlen,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000589-CA

F I L E D
May 31, 2002 2002 UT App 181 -----

Seventh District, Price Department
The Honorable Scott N. Johansen

Attorneys:
David M. Allred, Castle Dale, for Appellant
Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee

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Before Judges Billings, Bench, and Thorne.

BENCH, Judge:

"[A] seizure occurs 'only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.'" State v. Struhs, 940 P.2d 1225, 1227 (Utah Ct. App. 1997) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980)). Defendant relies on Struhs to support the contention that his encounter with Officer Allred was a seizure at its inception and that reasonable suspicion did not support the seizure. However, our decision in State v. Justesen, 2002 UT App 165 controls because the "confrontational and stealthy factors present in Struhs are not present in this case." Id. at ¶14.

Defendant also argues that the initial encounter was a seizure because his vehicle was "very nearly blocked in by the officer's patrol car." See Struhs, 990 P.2d at 1227-28 (considering officer's car position as a relevant factor). While Officer Allred parked in front of Defendant's vehicle at a forty-five degree angle, he testified that he did not block the vehicle in, and that it was possible for Defendant to drive away. Thus, we conclude that Officer Allred's initial encounter with Defendant was not a seizure.

Officer Allred did, however, have reasonable suspicion to support a seizure immediately following the initial encounter. After parking his patrol car, Officer Allred noticed the California license plate on Defendant's vehicle and recognized the vehicle as one he had seen a few days before at another location. Officer Allred had also noted that the registration on the vehicle expired in 1997. This detailed information provided Officer Allred with "specific, articulable facts which, together with rational inferences drawn from those facts, would lead a reasonable person to conclude [that Defendant] had committed or was about to commit a crime." Id. at 1228 (quotations and citation omitted); see Utah Code Ann. §§ 41-1a-201, -202, -1302 (1998) (providing that operation of a motor vehicle without current registration is a class C misdemeanor). Officer Allred's reasonable suspicion justified a brief investigatory detention to "effectuate the purpose of the stop." Struhs, 940 P.2d at 1227 (quotations and citations omitted).

Before Officer Allred could investigate the vehicle's registration status, other facts created reasonable suspicion of more pressing concern, which justified a longer detention for additional questioning. See State v. O'Brien, 959 P.2d 647, 649 (Utah Ct. App. 1998) (requiring that a longer detention be supported by additional reasonable suspicion). First, while calling in the license plate number of Defendant's vehicle, Officer Allred noticed Defendant making "a lot of movement with his hands as if he was putting something down in front of his pants or down his pants." See id. (concluding that safety concerns stemming from defendant's furtive movements justified a longer detention). Second, upon exiting his patrol car and approaching Defendant, Officer Allred noticed some empty beer cartons in the back of Defendant's truck. See Utah Code Ann. § 41-6-44(2)(a)(ii) (Supp. 2001) (prohibiting a person from being in actual control of a vehicle while under the influence of alcohol).

After quickly resolving his suspicion about alcohol use, Officer Allred requested that Defendant shut off his vehicle's engine because Officer Allred "wanted to talk to [Defendant] more" and did not want him to drive off. Unresolved reasonable suspicions obviously existed regarding Defendant's furtive movements and the vehicle's registration status, which Officer Allred efficiently proceeded to investigate after requesting that Defendant turn off his vehicle. See State v. Spurgeon, 904 P.2d 220, 225 (Utah Ct. App. 1995) (stating that just because police officer testified that he stopped vehicle for one reason does not negate the existence of other legitimate reasons); see also State v. Shepard, 955 P.2d 352, 355 (Utah Ct. App. 1998) (requiring police officers to pursue an investigation that is likely to confirm or dispel their suspicions quickly). During the course of that investigation, Officer Allred ran a warrants check, which ultimately led to Defendant's arrest and the discovery of the evidence at issue here. Because unresolved reasonable suspicions of criminal activity existed at the time Officer Allred requested that Defendant turn off his vehicle, Officer Allred did not exceed the lawful scope of the seizure at that time. We therefore conclude that the trial court properly admitted evidence obtained in connection with that seizure.

Accordingly, we affirm.
 
 

______________________________
Russell W. Bench, Judge -----

I CONCUR:
 
 

______________________________
William A. Thorne Jr., Judge -----

I CONCUR IN THE RESULT:
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge