State of Utah v. Jackson

State of Utah v. Jackson

IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Bill Jackson,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020790-CA
 

F I L E D
(July 10, 2003)
 

2003 UT App 243

 

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Fourth District, Provo Department

The Honorable Gary D. Stott

Attorneys: Margaret P. Lindsay, Provo, for Appellant

Mark L. Shurtleff and Joanne C. Slotnik, Salt Lake City, for Appellee

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Before Judges Jackson, Billings, and Davis.

JACKSON, Presiding Judge:

Appellant Bill Jackson appeals the trial court's denial of his motion to suppress. He challenges its determination that the arresting officers had reasonable, articulable suspicion of criminal activity sufficient to detain Jackson and investigate further. We affirm.

This appeal presents an issue of law, which we review for correctness. See State v. Hodson, 907 P.2d 1155, 1157 (Utah 1995). However, we afford a "measure of discretion" to the trial court's application of the law due to the fact-sensitive nature of such inquiries. Id. In Utah, an officer is permitted to detain an individual when "he has a reasonable suspicion to believe [the individual] has committed or is in the act of committing . . . a public offense." Utah Code Ann. § 77-7-15 (1999). In determining whether reasonable suspicion exists to temporarily detain a suspect, courts look to "specific and articulable facts, together with rational inferences from those facts, which warrant the intrusion." State v. Ramirez, 817 P.2d 774, 786 (Utah 1991). That determination turns on the totality of the circumstances confronting the officers. See State v. Humphrey, 937 P.2d 137, 141 (Utah Ct. App. 1997).

The facts of this case, coupled with both officers' extensive experience and training in narcotics investigation and enforcement, give rise to reasonable suspicion of criminal activity. It is true that the officers did not identify the small object sold by the driver to the pedestrian and that in other circumstances this transaction would be susceptible to an entirely innocent explanation. Susceptibility to an innocent explanation, however, is not the test for determining whether reasonable suspicion exists. See State v. Menke, 787 P.2d 537, 541 (Utah Ct. App. 1990) (stating where defendant's conduct is "conceivably consistent with innocent . . . activity" but is also "strongly indicative" of criminal activity, reasonable suspicion exists to detain a suspect); State v. Holmes, 774 P.2d 506, 509 (Utah Ct. App. 1989) (stating "experienced officers may be 'able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer'" (citation omitted)). Rather, we defer to the experience of the officers and look to the reasonable inferences to be drawn from the totality of the circumstances. See United States v. Williams, 271 F.3d 1262, 1268 (10th Cir. 2001), cert. denied, 535 U.S. 1019, 122 S. Ct. 1610 (2002); Oliver v. Woods, 209 F.3d 1179, 1188 (10th Cir. 2000).

Here, officers were engaged in undercover surveillance of the Deseret Industries parking lot in response to a specific tip that had earlier been called in to the Utah County Major Crimes Task Force. Driving through the parking lot, the officers noticed, very close to their own vehicle, a transaction taking place in a suspicious manner. Specifically, the officers saw an interaction between one man on foot, leaning or kneeling next to the driver's side window of a car, exchanging money with the driver for a small object. Based on the experience and judgment of both officers, the transaction appeared highly suggestive of a transaction for the sale of contraband. Further, when the officers approached the suspects and identified themselves as police officers, the driver of the vehicle secreted his hands between his legs and refused to show the officer his hands when requested to do so. Finally, one of the officers recognized one of the suspects, at first with a vague impression of past drug involvement, which later evolved into positive identification of a known drug offender.

Thus, we determine that the totality of the circumstances--a specific tip leading two trained and experienced narcotics officers to witness a suspicious transaction between driver and pedestrian in a parking lot, followed by furtive behavior after introduction to police officers--gave rise to reasonable, articulable suspicion of criminal activity.

Jackson further challenges the denial of his suppression motion on grounds that the officers did not have probable cause to effect a warrentless search. However, this issue was not preserved to allow meaningful appellate review. See State v. Burns, 2000 UT 56,¶17, 4 P.3d 795. To preserve an issue for appellate review, "Utah courts require specific objections in order 'to bring all claimed errors to the trial court's attention to give the court an opportunity to correct the errors if appropriate.'" State v. Hardy, 2002 UT App 244,¶14, 54 P.3d 645 (citations omitted). A defendant must "raise the issue . . . 'to a level of consciousness such that the trial judge [could] consider it.'" Id. at ¶15 (citations omitted).

Jackson argues that he raised the issue in his motion to suppress, thus preserving the issue. However, at the hearing on Jackson's suppression motion, the prosecution noted to the court, "the State and the Defense agree that the issue in this case is whether the officer had reasonable suspicion to detain the defendant, so that's what we intend to offer evidence on today." The trial judge responded, "That's what the motion goes to." In the face of this limitation of the scope of the evidence to be heard and issues to be considered, Jackson and his counsel stayed silent.

Although the prosecution mischaracterized the scope of the evidentiary hearing, Jackson acquiesced in that characterization. Further, after the trial court issued its ruling, Jackson did not object or move the trial court to reconsider the validity of the search in the context of probable cause. Thus, Jackson's mention of the probable cause issue in his motion to suppress did not "raise the issue . . . 'to a level of consciousness such that the trial judge [could] consider it.'" Id. at ¶15 (citations omitted). Further, Jackson waived the issue by acquiescing in the prosecution's characterization of the scope of the issue the trial court was to consider. See Holstrom v. C.R. England, Inc., 2000 UT App 239,¶26, 8 P.3d 281 ("When issues are not brought to the trial court's attention in a timely manner, they are 'deemed waived, precluding this court from considering their merits on appeal.'" (Citation omitted.)). Finally, our review of the record reveals no further mention of the probable cause issue after the original motion to suppress. Thus, we do not address whether the officers had probable cause to search Jackson or whether the evidence must therefore be excluded.

Accordingly, we affirm the trial court's denial of Jackson's motion to suppress.

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Norman H. Jackson,

Presiding Judge

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WE CONCUR:

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Judith M. Billings,

Associate Presiding Judge

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James Z. Davis, Judge