State of Utah, v. Mitchell

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State of Utah,
Plaintiff and Appellee,

v.

Michael Eugene Mitchell,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010473-CA

F I L E D
May 16, 2002 2002 UT App 163 -----

Seventh District, Monticello Department
The Honorable Lyle R. Anderson

Attorneys:
William L. Schultz, Moab, for Appellant
Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee

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Before Judges Jackson, Davis, and Greenwood.

JACKSON, Presiding Judge:

Defendant appeals the trial court's denial of his motion to suppress(1) evidence discovered by Trooper Eldredge following Defendant's consent to search his vehicle. Warrantless searches are per se unconstitutional under the Fourth Amendment unless conducted pursuant to a recognized exception to the warrant requirement. One such exception includes searches conducted pursuant to consent. However, for a consent search to be valid, consent must have been given voluntarily and not have been "obtained by police exploitation of . . . prior illegality." State v. Bisner, 2001 UT 99,¶43, 37 P.3d 1073 (citations omitted). Defendant challenges the trial court's rulings that his consent was voluntary and that it was not obtained through exploitation of a prior illegality. We affirm.

We first address the voluntariness(2) of Defendant's consent. Consent is not voluntary if it is obtained as "the product of duress or coercion, express or implied." Factors indicating a lack of duress or coercion, which should be assessed in the "totality of all the surrounding circumstances," include: "1) the absence of a claim of authority to search by the officers; 2) the absence of an exhibition of force by the officers; 3) a mere request to search; 4) cooperation by the owner of the [property]; and 5) the absence of deception or trick on the part of the officer." Bisner, 2001 UT 99 at ¶47 (alteration in original) (citations omitted). Nothing in the record indicates that Trooper Eldredge resorted to a claim of authority, an exhibition of force, or deception to obtain Defendant's consent. Moreover, Trooper Eldredge merely requested Defendant's consent, explaining several times that he was asking for a voluntary consent. Furthermore, Defendant signed a waiver, after Trooper Eldredge read the waiver to him, and he cooperated by opening the trunk of his vehicle for Trooper Eldredge. Thus, the trial court correctly concluded that Defendant's consent was voluntary.

Next, we consider whether Trooper Eldredge obtained Defendant's voluntary consent by exploiting a prior illegality. "In reviewing the legality of a traffic stop, we consider two questions: [W]hether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." State v. Hansen, 2000 UT App 353,¶9, 17 P.3d 1135 (alteration in original) (quotations and citations omitted). Defendant first argues that the stop was not justified.

An officer is justified in stopping a vehicle "when the officer has reasonable articulable suspicion that the driver is committing a traffic offense . . . . [A]s long as an officer suspects that the driver is violating any one of the multitude of applicable traffic and equipment regulations, the police officer may legally stop the vehicle." State v. Lopez, 873 P.2d 1127, 1132 (Utah 1994) (alteration in original) (quotations and citations omitted). Defendant challenges the trial court's ruling that the stop was justified at its inception, arguing that "no traffic violations, articulable or reasonable suspicion justifies the stop." However, Trooper Eldredge had a reasonable and articulable suspicion that Defendant was violating an equipment regulation, see Utah Code Ann. §§ 41-6-117, -155 (1998), because he heard a "loud clicking noise" emanating from Defendant's vehicle as it passed. This caused Trooper Eldredge to believe that Defendant's vehicle was "obviously not in proper mechanical order," as if "a wheel [was] about to come off or something." Thus, the trial court correctly concluded that the stop was justified.

Next, Defendant asserts that Trooper Eldredge impermissibly expanded the scope of the stop by "asking [him] numerous unrelated questions he had no[] business asking" after Trooper Eldredge "discovered there was no problem such that he would not let Defendant go with a warning."(3) Thus, he argues that although he "eventually consented to the search, he did so in the course of an illegal seizure."

However, we conclude that Defendant was not seized for Fourth Amendment purposes after Trooper Eldredge told Defendant that he was "free to go."(4) Thus, there was no seizure when the questions Defendant complains of were asked and when Defendant consented to the search. "Not every encounter between a police officer and a citizen is a seizure. A person is seized under the Fourth Amendment when, considering the totality of the circumstances, the police conduct would have communicated to a reasonable person that the person was not free to decline the officer's requests or otherwise terminate the encounter and go about his or her business." Hansen, 2000 UT App 353 at ¶12 (quoting State v. Higgins, 884 P.2d 1242, 1244 (Utah 1994)). In the present case, Trooper Eldredge returned Defendant's license and other documents to him, "[h]anded him the written warning so that he would feel free and . . . told him that he was free to go." Defendant testified that he then thanked Trooper Eldredge and asked him, "Is there some place down here I can get this checked?" Only after this point did Trooper Eldredge question Defendant about what he was responsible for in the vehicle and request consent to search it. "Examples of circumstances that might indicate a seizure . . . would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." State v. Patefield, 927 P.2d 655, 659 (Utah Ct. App. 1996) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980)). Nothing in the record suggests that any of these or similar indicators were present to show that Defendant was seized for Fourth Amendment purposes. To the contrary, the totality of the circumstances indicate that Trooper Eldredge's "'conduct would [not] have communicated to a reasonable person that the person was not free to decline the officer's requests or otherwise terminate the encounter and go about his or her business.'" Hansen, 2000 UT App at ¶12 (citation omitted). Accordingly, the questions Defendant complains of were not asked during the course of a "seizure," as contemplated by the Fourth Amendment, and Defendant's "'consent was not obtained by police exploitation of [a] prior illegality.'" Id. at ¶18 (citation omitted).

In summary, Defendant's consent was valid because it "'was given voluntarily, and . . . was not obtained by police exploitation of [a] prior illegality.'" Id. (citation omitted).

Affirmed.
 
 

______________________________
Norman H. Jackson,
Presiding Judge

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WE CONCUR:
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
Pamela T. Greenwood, Judge

1. We review findings of fact that underlie the trial court's suppression decision for clear error, and its legal conclusions based upon those findings for correctness. See State v. Kohl, 2000 UT 35,¶9, 999 P.2d 7.

2. We review "the trial court's ultimate conclusion that consent was voluntary or involuntary . . . for correctness." State v. Hansen, 2000 UT App 353,¶7, 17 P.3d 1135.

3. Defendant fails to specify of which questions he complains. However, the record reflects that the only questions Trooper Eldredge asked Defendant after he "let Defendant go with a warning," were to inquire about what items Defendant was responsible for in the vehicle.

4. The "determination of whether an encounter with law enforcement officers constitutes a seizure under the Fourth Amendment . . . is a legal conclusion that we review for correctness." Salt Lake City v. Ray, 2000 UT App 55,¶8, 998 P.2d 274.