State of Utah v. Zepeda

Utah State Courts - Opinions - State v. Zepeda

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Frank D. Zepeda,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020260-CA

F I L E D
(September 5, 2003)

2003 UT App 298

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Sixth District, Kanab Department

The Honorable David L. Mower

Attorneys: Mary Deiss Brown, Salt Lake City, for Appellant

Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee

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Before Judges Jackson, Orme, and Thorne.

JACKSON, Presiding Judge:

Frank Zepeda challenges the trial court's denial of his motion to suppress, arguing (i) that the officer did not have probable cause to stop Zepeda's vehicle, and (ii) that the evidence and confession obtained during the stop were obtained in violation of Zepeda's Fifth Amendment Miranda rights. We affirm.

Zepeda first argues that, insofar as he was preparing to make a right-hand turn, he was justified in operating his vehicle outside of the normal lane of travel. This contention is not supported by the Utah Code, however, which clearly states that right-hand turns are to "be made as close as practical to the right-hand curb or edge of the roadway." Utah Code Ann. § 41-6-66(1) (1998) (emphasis added). Given the clear statutory distinction between the "roadway" and the "shoulder," compare Utah Code Ann. § 41-6-1(41) (Supp. 2002) (defining "roadway" as the "portion of highway . . . ordinarily used for vehicular travel, exclusive of the . . . shoulder") (emphasis added) with id. § 41-6-1(45) (defining "shoulder area" as "that area of the hard-surfaced highway separated from the roadway by a pavement edge line"), it is clear that Zepeda was required by law to stay within the proper confines of the roadway while preparing to make his right-hand turn.

Zepeda also argues that his use of the breakdown lane was justified by the fact that he was traveling at a slow rate of speed. This contention is incorrect. Under Utah law, "a vehicle proceeding at less than the normal speed of traffic . . . shall be operated in the right-hand lane then available for traffic, or as close as practicable to the right-hand curb or edge of the roadway." Utah Code Ann. § 41-6-53(2) (1998). By its express terms, Utah law allows for travel only in the "lane" or "roadway." Here, insofar as Zepeda was admittedly traveling outside of the defined "roadway," his use of the "breakdown lane" was not justified by his rate of speed. Thus, insofar as the officer personally observed Zepeda's illegal operation of his vehicle, we hold that the traffic stop was justified.(1)

Zepeda next argues that the trial court erred in not suppressing Zepeda's admissions to the officer regarding his marijuana use. Specifically, Zepeda argues that the officer's conduct at the traffic stop subjected him to a custodial interrogation, thereby mandating Miranda warnings.

"It is settled that the safeguards prescribed by Miranda become applicable as soon as a suspect's freedom of action is curtailed to a 'degree associated with formal arrest.'" Berkemer v. McCarty, 468 U.S. 420, 440, 104 S. Ct. 3138, 3150 (1984) (citation omitted). In Berkemer, the United States Supreme Court specifically held that though "a traffic stop significantly curtails the 'freedom of action'" of the driver, id. at 436, 104 S. Ct. at 3148, the stop does not become custodial for Miranda purposes unless the circumstances of the stop "exert[] upon [the] detained person pressures that sufficiently impair his free exercise of his privilege against self-incrimination." Id. at 437, 104 S. Ct. at 3149. Thus, "[a] person may be 'seized' for Fourth Amendment purposes but not be 'in custody' for Fifth Amendment purposes." State v. Mirquet, 914 P.2d 1144, 1147 (Utah 1996).

"To determine if a person is in custody . . . we look to '"(1) the site of the interrogation; (2) whether the investigation focused on the accused; (3) whether the objective indicia of arrest were present; and (4) the length and form of interrogation."'" State v. Brandley, 972 P.2d 78, 81 (Utah Ct. App. 1998) (quoting Mirquet, 914 P.2d at 1147). In accordance with these factors, we hold that the circumstances here were not such that Zepeda's privilege against self-incrimination was impaired. First, the site in which the questioning occurred was decidedly non-custodial, as the questioning occurred not in the intimidating confines of a patrol car or at the police station, but rather while Zepeda was in his own car. Compare Mirquet, 914 P.2d at 1147; Brandley, 972 P.2d at 83. Second, at the time of the questioning, it is apparent that the typical indicia of arrest, "such as readied handcuffs, locked doors or drawn guns," Salt Lake City v. Carner, 664 P.2d 1168, 1171 (Utah 1983), were not present. Third, the length and form of the interrogation were not such so as to resemble an arrest. There is no indication that the officer's questioning regarding the smell of marijuana emanating from Zepeda's car was accompanied by any direct accusations of illegal drug usage or by coercive orders that were calculated to induce Zepeda to confess to wrongdoing. Compare Mirquet, 914 P.2d at 1147-48. Further, there is no indication that the officer raised his voice in a threatening manner so as to intimidate Zepeda into cooperating with his questioning. Compare Brandley, 972 P.2d at 82. Finally, neither the length of time involved in the traffic stop nor the nature of the questioning resembled that which is typically found in an arrest. Compare id. (holding that a questioning which lasted "only ten to fifteen minutes" was not unduly coercive). Instead, we find that the officer's conduct was entirely consistent with a non-custodial traffic stop. We therefore hold that the trial court did not err in ruling that Zepeda's confession and the evidence obtained as a result of that confession were admissible.

Accordingly, we affirm.

______________________________

Norman H. Jackson,

Presiding Judge

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WE CONCUR:

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Gregory K. Orme, Judge

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William A. Thorne Jr., Judge

1. Zepeda also argues that his failure to operate his vehicle in a regular lane of traffic was caused by "faint or non-existent" markings at the side of the road. Zepeda fails to cite any legal authority, however, that would indicate that such a condition invalidates the officer's probable cause to effectuate a traffic stop. We accordingly decline to address the argument. See Smith v. Four Corners Mental Health Ctr., Inc., 2003 UT 23,¶46, 70 P.3d 904 (citations omitted).