State v. Bertoch

State v. Bertoch

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Travis Bertoch,

Defendant and Appellant.

AMENDED MEMORANDUM DECISION1

(Not For Official Publication)
 

Case No. 20030111-CA
 

F I L E D
(February 17, 2005)
 

2005 UT App 68

 

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Third District, Salt Lake Department

The Honorable Dennis M. Fuchs

Attorneys: Lori Seppi, Salt Lake City, for Appellant

Mark L. Shurtleff and Christine Soltis, Salt Lake City, for Appellee

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Before Judges Davis, Jackson, and Thorne.

JACKSON, Judge:

    Travis Bertoch appeals the trial court's order denying his motion to suppress as evidence a pipe and a plastic bag of marijuana obtained by police during a traffic stop, as well as certain statements he made at the scene. He claims police discovered this evidence after an illegal frisk and that his statements were made prior to receiving a Miranda warning. The trial court ruled that the pipe and marijuana were admissible as part of a search incident to arrest and that his statements were made during a noncustodial police interview. Upon this determination, Bertoch entered a conditional guilty plea to possession of a controlled substance, a third degree felony We reverse the trial court's denial of Bertoch's motion to suppress.

    "When a case involves the reasonableness of a search and seizure, 'we afford little discretion to the district court because there must be state-wide standards that guide law enforcement and prosecutorial officials.'" State v. Warren, 2003 UT 36, ¶12, 78 P.3d 590 (quoting State v. Hansen, 2002 UT 125,¶26, 63 P.3d 650). "'In reviewing the trial court's denial of [a defendant's] motion to suppress, we examine the underlying factual findings for clear error, and review the trial court's conclusions of law based thereon for correctness.'" State v. Allred, 2002 UT App 291,¶8, 55 P.3d 1158 (citation omitted).

    First, Bertoch argues that the pipe and marijuana discovered during the highway patrol trooper's initial frisk should be suppressed because, as Bertoch contends, the trooper lacked a reasonable belief that Bertoch was armed and dangerous. We agree that the frisk was improper. A police officer "may perform a protective frisk pursuant to a lawful stop when the officer reasonably believes a person is 'armed and presently dangerous to the officer or [to] others.'" Warren, 2003 UT 36 at ¶13 (quoting Terry v. Ohio, 392 U.S. 1, 24 (1968)). "In determining reasonableness, 'due weight must be given, not to [an officers'] inchoate and unparticularized suspicion or "hunch," but to specific reasonable inferences which [an officer] is entitled to draw from the facts in light of his experience.'" Id. at ¶14 (quoting Terry, 392 U.S. at 27) (alterations in original). Here, the trooper's suspicion that the missing trunk lid and misplaced license plate indicated the car may have been stolen does not provide sufficient grounds to perform a frisk.

    The trial court denied the motion to suppress, holding that the evidence was obtained as part of a search incident to arrest. Although a police officer may perform a search incident to arrest even before a suspect is formally arrested, the officer must have "probable cause to believe that the suspect has committed or is committing an offense.'" State v. Trane, 2002 UT 97,¶26, 57 P.3d 1052 (quoting Michigan v. DeFillippo, 443 U.S. 31, 36 (1979)). At the time of the frisk in this case, the smell of alcohol on Bertoch's breath and the condition of his automobile could not provide the trooper with probable cause to arrest him.

    Although the State indicates that the doctrine of "inevitable discovery" may apply to admit the pipe and marijuana, we may only affirm on such alternative grounds if they are "apparent on the record" and sustained by the trial court's factual findings. State v. Topanotes, 2003 UT 30,¶9, 76 P.3d 1159. Here, the trial court made its ruling from the bench and included only cursory factual findings. Given this limited information, we can neither affirm on alternative grounds nor conclude with certainty that the items would have been discovered independently of the illegal frisk.

    Second, the trial court denied Bertoch's motion to suppress his pre-Miranda statements. Specifically, Bertoch seeks to suppress his admission, which was made during the frisk, that he had marijuana in his pocket and had smoked marijuana the night before. It is clear that such an admission may be suppressed if it was obtained by means of police illegality. "In determining the validity of a confession or incriminating statements following police illegality, two inquiries must be made. First, the court must determine . . . whether the confession was voluntary; [and] second, the court must determine . . . whether the confession was obtained in the course of police exploitation of the prior illegality." State v. Allen, 839 P.2d 291, 300 (Utah 1992). In considering the degree to which a confession is derived from police exploitation of a prior illegality, the court should consider "[(1)] whether Miranda warnings were given, [(2)] the temporal proximity of the illegality and the confession, [(3)] the absence or presence of intervening circumstances, and [(4)] the purpose and flagrancy of the official misconduct." Id. at 301. Here, Bertoch made the statements during the course of the frisk and in response to what the officer found during the frisk. Regardless of whether Bertoch's statements were voluntary, they were made as a direct result of the illegal frisk and must be suppressed.

    In sum, we conclude that the trooper's frisk was illegal and, as such, the pipe, marijuana, and Bertoch's pre-Miranda statements regarding them must be suppressed. Accordingly, we reverse the trial court's denial of Bertoch's motion to suppress with regard to the pipe, marijuana, and related statements and remand for further proceedings consistent with this decision and Bertoch's conditional guilty plea.

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Norman H. Jackson, Judge

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WE CONCUR:

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James Z. Davis, Judge

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William A. Thorne Jr., Judge

1. This Amended Memorandum Decision replaces the Memorandum Decision in Case No. 20030111-CA issued on December 16, 2004. Footnote 1 of the original opinion has been deleted.