State v. Gomez , 2012 UT App 102 ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
State of Utah, ) OPINION
)
Plaintiff and Appellee, ) Case No. 20100486‐CA
)
v. ) FILED
) (April 5, 2012)
Luis Parra Gomez, )
) 2012 UT App 102Defendant and Appellant. )
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Fourth District, Provo Department, 081402283
The Honorable Lynn W. Davis
Attorneys: Margaret P. Lindsay and Matthew R. Morrise, Provo, for Appellant
Mark L. Shurtleff and Kris C. Leonard, Salt Lake City, for Appellee
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Before Judges McHugh, Voros, and Davis.
VOROS, Associate Presiding Judge:
¶1 The encounter at issue in this appeal began with a traffic stop and ended with the
search of a hotel room. Defendant Luis Parra Gomez consented to the search, but
challenges the voluntariness of that consent. We affirm.
BACKGROUND1
¶2 Around midnight on August 3, 2008, on University Parkway in Orem, Officer
Scott Speeth stopped a car for a taillight violation. The car, a rental, held three
occupants. Gomez was in the back seat. When the officer approached the car and
requested the driver’s identification, he noticed that Gomez was not wearing a seat belt.
In addition, a routine records check revealed that the driver had a suspended license
and a criminal history related to drug trafficking. Three or four minutes into the stop,
as he began to issue the citation, the officer requested a canine unit. Within five
minutes, the unit arrived. The drug dog indicated the possible presence of narcotics.
¶3 The officer ordered all three occupants out of the car and separately questioned
them. Each, including Gomez, denied having visited any hotels in the area. In fact,
Gomez indicated that his mother lived in Provo. Officers searched the car and all three
occupants but found no drugs. However, they did find two items of interest: on the
car’s dashboard they found a parking permit for a hotel located 100 feet away, and in
the driver’s shoe they found $4,000 in cash. Officer Speeth called the hotel and learned
that the parking pass had been issued to a room registered to Gomez. By this time,
thirty to forty minutes had elapsed since the initial stop. The officer asked Gomez why
he had lied about the hotel room. Gomez stammered a bit and gave inconsistent
explanations. At that point, the driver’s criminal history, the fact that Gomez had
rented a hotel room notwithstanding his mother lived in Provo, the rental car, the dog
alert, the $4,000 in the driver’s shoe, the inconsistent explanations, and the initial lie
about the hotel led the officer to believe “that there was a likelihood there were
narcotics inside the hotel room.”
¶4 The officer asked Gomez for consent to search the hotel room. Gomez replied
that he “did not want to be put in that kind of a position.” The officer interpreted this
response to mean that “possibly some of the other occupants [of the car] had something
1. The “legal analysis of a search and seizure case is highly fact dependent.” State v.
Hansen, 2002 UT 125, ¶ 5, 63 P.3d 650 (internal quotation marks omitted). “[W]e recite
the facts in detail[,]” and, “[w]here appropriate, we supplement the [trial] court’s
findings with relevant testimony” given by Orem Police Officer Scott Speeth at the
preliminary hearing held on February 18, 2009. See id. (citations and internal quotation
marks omitted).
20100486‐CA 2
incriminating inside the hotel room” and that Gomez did not want to expose them. The
officer again requested consent to search the hotel room. The gist of Gomez’s reply was
that if the other two passengers would agree to allow officers into the room, then
Gomez was “okay with it.” The officer spoke to the other two suspects. Both denied
having been in the hotel room or having any claim to anything in the room. When the
officer informed Gomez of their responses, Gomez “pretty much shrugged his
shoulders and agreed to let [the officers] in.” Officer Speeth walked to the hotel room
with Gomez, who was not handcuffed or physically restrained. Gomez used his key
card to open the door. In the room, Officer Speeth found cocaine, marijuana, a digital
scale, and a measuring spoon. Gomez admitted the drugs were his. Officers arrested
Gomez and released his companions.
¶5 Gomez was charged with two counts of possession of a controlled substance
with intent to distribute in a drug‐free zone, first and third degree felonies, see Utah
Code Ann. §§ 58‐37‐8(1)(a)(iii), (b), 58‐37‐8(4) (2008), and one count of possession of
drug paraphernalia in a drug‐free zone, a class A misdemeanor, see id. §§ 58‐37‐8(4), 58‐
37a‐5(1). Gomez moved to suppress the hotel room evidence. The trial court denied the
motion, ruling that the police legally detained Gomez and that his consent to search the
hotel room was voluntary. Gomez entered conditional pleas of guilty to all three
counts, reserving the right to appeal the court’s denial of his suppression motion.
ISSUE AND STANDARDS OF REVIEW
¶6 Gomez contends that the search of his hotel room violated the Fourth
Amendment because his consent to the search was the product of a prior police
illegality, specifically, an illegal detention. See Brown v. Illinois, 422 U.S. 590, 600–04
(1975) (stating that to ensure that a violation of the Fourth Amendment “has not been
unduly exploited” to obtain a confession, the prosecutor must show “not merely that
the statement meets the Fifth Amendment standard of voluntariness but that it be
sufficiently an act of free will to purge the primary taint” (internal quotation marks
omitted)); accord State v. Arroyo, 796 P.2d 684, 687–91 (Utah 1990). Whether consent was
given presents a question of fact reviewed for clear error; whether consent was
voluntary presents a question of law reviewed for correctness. See State v. Brake, 2004
UT 95, ¶ 15, 103 P.3d 699 (citing State v. Hansen, 2002 UT 125, ¶ 51, 63 P.3d 650).
Moreover, in search cases the application of law to the underlying facts is reviewed
without deference to the trial court. See id.20100486‐CA 3
ANALYSIS
¶7 The Fourth Amendment to the United States Constitution protects people from
“unreasonable searches and seizures” of “their persons, houses, papers, and effects” by
the government. U.S. Const. amend IV. “[S]topping an automobile and detaining its
occupants constitute a ‘seizure’ within the meaning of [the Fourth] Amendment[ ], even
though the purpose of the stop is limited and the resulting detention quite brief.”
Delaware v. Prouse, 440 U.S. 648, 653 (1979). A traffic stop must therefore be reasonable
in scope to be upheld. See State v. Morris, 2011 UT 40, ¶ 15, 259 P.3d 116.
¶8 To determine whether a traffic stop is reasonable, we apply a two‐step test
derived from Terry v. Ohio, 392 U.S. 1, 19–20 (1968). Step one asks whether the police
officer’s action was justified at its inception; step two asks whether the ensuing
detention was reasonably related in scope to the circumstances that justified the stop in
the first place. See id.; State v. Applegate, 2008 UT 63, ¶¶ 8–9, 194 P.3d 925. A traffic stop
is justified at its inception when the officer “has reasonable articulable suspicion that the
driver is committing a traffic offense.” See State v. Lopez, 873 P.2d 1127, 1132 (Utah 1994)
(internal quotation marks omitted). In assessing whether officers had reasonable
suspicion to detain, “[w]e ‘look to the totality of the circumstances . . . to determine if
there was an objective basis for suspecting criminal activity.’” State v. Baker, 2008 UT
App 115, ¶ 11, 182 P.3d 935 (omission in original) (quoting State v. Beach, 2002 UT App
160, ¶ 8, 47 P.3d 932), aff’d, 2010 UT 18, 339 P.3d 650.
¶9 During a lawful traffic stop, “[t]he temporary seizure of driver and passengers
ordinarily continues, and remains reasonable, for the duration of the stop.” Arizona v.
Johnson, 555 U.S. 323, 333 (2009). “[I]f, during the scope of the traffic stop, the officer
forms new reasonable articulable suspicion of criminal activity, the officer may also
expediently investigate his new suspicion.” Morris, 2011 UT 40, ¶ 15 (internal quotation
marks omitted). But without additional reasonable suspicion, the officer must allow the
seized person to depart once the purpose of the stop has concluded. See Hansen, 2002
UT 125, ¶ 31. Even where additional reasonable suspicion exists, officers must
“diligently pursue[] a means of investigation that [is] likely to confirm or dispel their
suspicions quickly.” United States v. Sharpe, 470 U.S. 675, 686 (1985).
¶10 Here, Gomez does not challenge the initial traffic stop, the dog sniff, the search of
the car, or the search of the occupants. Indeed, he concedes that Officer Speeth
harbored reasonable suspicion that Gomez was involved in drug trafficking up to the
20100486‐CA 4
moment when the officer first sought and was denied consent to search Gomez’s hotel
room.2 However, Gomez contends that after his “initial refusal to give consent, Officer
Speeth could not lawfully detain Gomez any longer in order to question the driver and
the other passenger or to continue to seek Gomez’s consent.” Gomez’s claim of
unlawful detention thus does not rely on the duration of the post‐refusal detention or
on the shift of the locus of the investigation from the roadside to the hotel room. See
State v. Worwood, 2007 UT 47, ¶ 30, 164 P.3d 397 (“[T]ransporting a suspect can change
the level of coercion involved in an investigative detention to the degree that it is no
longer justified under reasonable suspicion.”). Rather, once Gomez refused consent, he
asserts, the officer “had done all that he could to quickly confirm or dispel his suspicion
that Gomez was involved [in] drug trafficking.” Accordingly, after that point, he
maintains, the detention was illegal, and his later consent to the hotel room search was
the product of that illegality.3
¶11 To the extent that Gomez is asserting that his refusal to consent to the search
ended the investigation as a matter of law, we do not agree. Courts generally hold that
refusal to consent cannot establish or—according to some courts—even support
reasonable suspicion. See, e.g., United States v. Leal, 235 F. App’x 937, 940 (3d Cir. 2007)
“[R]efusal to consent cannot contribute to a finding of reasonable suspicion.”); United
States v. Santos, 403 F.3d 1120, 1125 (10th Cir. 2005) (“A refusal to consent to a search
cannot itself form the basis for reasonable suspicion. . . .”); State v. Sweeney, 227 P.3d 868,
876 (Ariz. App. 2010) (“[I]nvocation of one’s constitutional rights cannot constitute a
2. The concession is presumably based on the facts articulated above in ¶ 3.
3. The State contends that Gomez failed to preserve this claim in the trial court. The
thrust of the State’s argument is that Gomez argued in the trial court that the detention
became illegal once the search of the car failed to turn up drugs, whereas he argues on
appeal that the detention became illegal minutes later when he initially refused consent
to search the hotel room. “The general rule is that issues not raised [below] cannot be
argued for the first time on appeal, and this rule applies to constitutional questions.”
State v. Lopez, 886 P.2d 1105, 1113 (Utah 1994); see also Brigham City v. Stuart, 2005 UT 13,
¶ 14, 122 P.3d 506 (stating that appellate courts are “resolute in our refusal to take up
constitutional issues which have not been properly preserved, framed, and briefed”),
reversed on other grounds, 547 U.S. 398 (2006). We do not believe that Gomez’s appellate
concession so alters the complexion of his claim as to make it effectively a new—and
thus unpreserved—claim on appeal.
20100486‐CA 5
circumstance that gives rise to reasonable suspicion.”); In re H.H., 94 Cal. Rptr. 3d 450,
454 (Cal. Ct. App. 2009) (same) (citing Santos, 403 F.3d at 1125–26); Sieffert v. State, 290
S.W.3d 478, 484 (Tex. App. 2009) (“refusal to consent to search does not, in and of itself,
establish [reasonable suspicion]”); see also State v. Humphrey, 937 P.2d 137, 145 (Utah Ct.
App. 1997) (Greenwood, J., dissenting) (stating that a suspect’s urging of co‐suspect not
to consent to search “provides little support for reasonable suspicion of criminal
activity”). The Tenth Circuit has well stated the rationale of these cases: “If refusal of
consent were a basis for reasonable suspicion, nothing would be left of Fourth
Amendment protections. A motorist who consented to a search could be searched; and
a motorist who refused consent could be searched, as well.” Santos, 403 F.3d at 1125–26;
see also United States v. Hunnicutt, 135 F.3d 1345, 1351 (10th Cir. 1998) (“Any other rule
would make a mockery of the reasonable suspicion and probable cause requirements,
as well as the consent doctrine.”).
¶12 However, the issue here is not whether refusal to consent supports reasonable
suspicion, but whether it dispels reasonable suspicion, or at any rate terminates an
officer’s attempts to confirm or dispel his or her original reasonable suspicion. On this
point, the case law is equally clear. Gomez “cites no case law, and we have found none,
that would require [the officer] to ignore all that he had observed and all that he knew
up to the moment he asked for consent.” See Leal, 235 F. App’x at 940. Indeed, courts
routinely hold post‐refusal detentions to be supported by pre‐refusal reasonable
suspicion under an ordinary totality‐of‐the‐circumstances analysis. See, e.g., United
States v. Briasco, 640 F.3d 857, 859–60 (8th Cir. 2011) (rejecting defendant’s claim that
police “lacked reasonable suspicion to detain him [for forty‐two minutes] after he
refused consent to search the car”); United States v. Whitney, 391 F. App’x 277, 281‐82
(4th Cir. 2010) (rejecting defendant’s claim that “once he refused consent to search his
car, [police] lacked reasonable suspicion to detain [him for several minutes] until a drug
dog arrived on the scene”), cert. denied, 131 S.Ct. 954 (2011); Leal, 235 F. App’x at 942
(holding that defendant’s eighty‐minute detention after he refused consent “may have
bumped up against the outer limit of a Terry stop, but it did not cross it”); United States
v. Schlieve, 159 F. App’x 538, 543–44 (5th Cir. 2005) (detention of over an hour after
suspect refused consent to search was not unreasonable); Santos, 403 F.3d at 1124–34
(holding that a twenty‐two minute detention after suspect refused consent was not
unreasonable); People v. Garcia, 251 P.3d 1152, 1159‐60 (Colo. Ct. App. 2010) (upholding
detention after suspect’s “denial of having contraband and refusal to consent to
search”), cert. denied, 2011 WL 976736 (Colo. Mar. 21, 2011). Thus, a brief investigative
detention of a suspect who has refused consent, like any other official detention, is
20100486‐CA 6
lawful to the extent it is supported by reasonable suspicion, and the investigating officer
acts diligently to pursue a means of investigation likely to quickly confirm or dispel that
suspicion. See Sharpe, 470 U.S. at 686.
¶13 Nor do we agree with Gomez that, as a factual matter, once he denied consent to
search, Officer Speeth “had done all that he could to quickly confirm or dispel his
suspicion that Gomez was involved [in] drug trafficking.” Gomez’s own response to
the officer’s request suggested a further avenue of investigation. When the officer made
the original request, Gomez did not consent, but neither did he categorically refuse
consent. He gave a response from which the officer inferred that “some of the other
occupants had something incriminating inside the hotel room.” That inference cued up
the next logical step in the investigation: determining whether Gomez’s companions
would object to a search of the hotel room. When they disclaimed any interest in the
room, the officer again approached Gomez. This time, Gomez consented.
¶14 Gomez has not shown how asking a few additional questions of the other
occupants to resolve his implied concern deviated from the officer’s otherwise diligent
pursuit of “a means of investigation that was likely to confirm or dispel [his] suspicions
quickly.” See United States v. Sharpe, 470 U.S. 675, 686 (1985). Officer Speeth had not
“purposefully embarked on what was legally nothing more than a fishing expedition,
apparently ‘in the hope that something might turn up.’” See United States v. Sandoval, 29
F.3d 537, 544 (10th Cir. 1994) (quoting United States v. Fernandez, 18 F.3d 874, 883 (10th
Cir. 1994)). Rather, he was still pursuing “all that he had observed and all that he knew
up to the moment he asked for consent.” See Leal, 235 F. App’x at 940.
¶15 Gomez has not shown that his refusal to consent to a search rendered his
continuing detention illegal. Consequently, we need not reach his argument that his
ultimate consent was involuntary because it was the product of police exploitation of
illegal detention. See State v. Hansen, 2002 UT 125, ¶ 47, 63 P.3d 650 (explaining that
consent to search is valid only if consent was voluntary and not obtained by police
exploitation of a prior illegality).
CONCLUSION
¶16 While Gomez’s initial refusal to consent to a search of his hotel room did not as a
matter of law contribute to the officer’s reasonable suspicion, neither did it require
20100486‐CA 7
termination of the detention. The officer had the same reasonable suspicion after the
refusal as before. And he had a ready means of continuing to diligently pursue it,
which he did by asking Gomez’s companions if they objected to a search of the room.
Because Gomez has not shown that his continued detention was illegal, he cannot show
that his ultimate consent was involuntary as the product of an illegal detention.
Consequently, we affirm.
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J. Frederic Voros Jr.,
Associate Presiding Judge
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¶17 I CONCUR:
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Carolyn B. McHugh,
Presiding Judge
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¶18 I CONCUR IN THE RESULT:
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James Z. Davis, Judge
20100486‐CA 8