State v. Despain , 74 P.3d 1176 ( 2003 )

OPINION

THORNE, Judge:

{1 Defendant Matthew Despain appeals from his conditional guilty plea to operating a clandestine drug laboratory, a second degree felony, in violation of Utah Code Annotated Section 58-37d-4 (Supp.2001). We affirm.

BACKGROUND

T2 On November 6, 1999, Despain, his wife, and their young son were traveling southbound on SR 40, near Heber, Utah. At about midnight, near the intersection of SR 40 and SR 189, Heber City Police Officer Troy Slaugh noticed that the license plate attached to Despain's fifth wheel trailer was not properly lit. Accordingly, Slaugh called dispatch with the license plate number and learned that the vehicle belonged to Despain. Slaugh immediately recognized that he had had contact with Despain recently and that the previous contact had resulted in Despain being charged with both a narcotics violation and a concealed weapon violation.

T3 Armed with this information, Slaugh initiated a traffic stop of Despain. Despain pulled over and Slaugh parked behind the fifth-wheel trailer. Both Slaugh and his partner, Officer Rusty Olsen, then got out of the patrol car and cautiously approached Despain's vehicle. As the officers neared the bed of Despain's truck, Despain's rottweiler stood up, lunged toward Slaugh and began barking furiously, causing both officers to draw their sidearms and retreat back to the patrol car. Slaugh then yelled for Despain, who at that point had exited his truck, to meet the officers near the patrol car, away from the truck and the dog. Despain, instead, got back into the cab of the truck and closed the door, obscuring his subsequent actions from the officers' view. Slaugh again yelled to Despain, ordering him to meet the . officers by the patrol car. Despain then exited the truck and walked back to the officers.

1 4 While he walked, both officers noticed that Despain was dressed in blue jeans and a very loose, baggy shirt that hung down over his hips. When he reached the officers, Slaugh asked for Despain's driver license and registration while Olsen asked Despain if he was carrying any weapons on his person. Despain admitted that he had two knives and began reaching toward his waist. Olsen intervened, grabbing and searching Despain, whereupon he discovered and confiscated two knives. The first knife, a smaller knife with a folding blade, was attached vertically to Despain's belt and was in a secured covered sheath. The second knife, however, was a large heavy knife with a fixed blade, loosely placed in a sheath attached horizontally across Despain's belly unsecured by either a cover or a strap. After a short consultation, Slaugh placed Despain under arrest for possession of a concealed dangerous weapon. The officers then conducted a search of the vehicle incident to the arrest and discovered evidence that Despain intended to produce, or was in the process of producing, methamphetamine.¹

T5 Following his arrest, the State charged Despain with possession or operating a clandestine drug laboratory, possession or use of a controlled substance by a person with a prior conviction, transportation or possession of items prohibited in a correctional and mental health facility, reckless endangerment, possession of drug paraphernalia, and carrying a concealed dangerous weapon. Despain filed a motion to suppress all evidence discovered as a result of Olsen's question, arguing that the question was not supported by reasonable suspicion. Thus, Despain argues his arrest and the subsequent search of his vehicle incident to the arrest were unconstitutional.. On November 15, 2000, the trial court conducted a suppression hearing. The court then denied Despain's motion, following which Despain entered into a plea agreement with the State, pleading guilty to the clandestine drug lab charge. In accepting the plea agreement, pursuant to State v. Sery, 758 P.2d 935 (Utah Ct.App.1988), Despain preserved the suppression issue for appeal.

ANALYSIS

16 Despain argues that the trial court erred in denying his motion to suppress the evidence discovered as a result of Olsen's question concerning weapons possession. " 'We review the factual findings underlying the trial court's decision to grant or deny a motion to suppress evidence using a clearly erroncous standard." " State v. Kohl, 2000 UT 35, ¶ 9, 999 P.2d 7 (quoting State v. Pena, 869 P.2d 932, 939 n. 4 (Utah 1994)). "However, we review the trial court's conclusions of law based on these findings 'for correctness, with a measure of discretion given to the trial judge's application of the legal standard to the facts' " Id. (quoting State v. Moreno, 910 P.2d 1245, 1247 (Utah Ct.App.1996)).

17 "To determine whether a search or a seizure is constitutionally reasonable, we must first determine whether the officer's action was ' "justified at its inception." ' " State v. Chapman, 921 P.2d 446, 450 (Utah 1996) (quoting State v. Lopez, 873 P.2d 1127, 1132 (Utah 1994) (additional citation omitted). "If so, we then consider whether the resulting detention was ' "reasonably related in seope to the circumstances that justified the interference in the first place." ' " Id. (citations omitted). "[A] traffic stop is justified at its inception when 'the stop is "incident to a traffic violation committed in [an officer's] presence." ' " State v. Hansen, 2002 UT 125, ¶ 30, 63 P.3d 650 (alterations in original) (citations omitted). - Moreover, "during a traffic stop an officer 'may request a driver's license and vehicle registration, conduct a computer check, and issue a citation.' " Id. at T 31 (quoting Lopez, 873 P.2d at 1132) (additional citations omitted). " ' "Any further temporary detention for investigative questioning after [fulfilling] the purpose for the initial traffic stop" ' constitutes an illegal seizure, unless an officer has probable cause or a reasonable suspicion of a further illegality." Id. (quoting State v. Godina-Luna, 826 P.2d 652, 655 (Utah Ct.App.1992) (alteration in original) (additional citations omitted)).

T8 However, " '[wlhere a police officer validly stops an individual for investigatory or other purposes and reasonably believes that the individual may be armed and dangerous, the officer may conduct a "frisk" or "pat-down" search of the individual, [or question the individual regarding the presence of weapons,] to discover weapons that might be used against him.' " State v. Warren, 2001 UT App 346, ¶ 13, 37 P.3d 270 (quoting State v. Carter, 707 P.2d 656, 659 (Utah 1985)), cert. granted, 2002 Utah LEXIS 152. However, if the Terry frisk, which may be limited to the officer simply asking about the presence of weapons, is challenged by the defendant following his arrest, "the State must [support the officer's action by] present[ing] articulable facts that would reasonably lead an objective officer to conclude that the suspect may be armed." Id. at ¶ 14 (quoting Carter, 707 P.2d at 659).

T9 In the instant case, there is no question, and Despain does not argue otherwise, that the traffic stop was justified at its inception. The license plate on Despain's fifth-wheel trailer was not properly illuminated, thus, pursuant to Utah Code Annotated Section 41-6-120(b) (1998), Slaugh and Olsen were justified in stopping Despain to cite him for the violation. However, it is also clear that Olsen's questioning of Despain concerning weapons possession lies outside the seope of the reason for the initial stop. Therefore, we must determine whether the ciream-stances that the officers encountered during the stop supported either "a reasonable suspicion of a further illegality" sufficient to justify the question, Hansen, 2002 UT 125 at ¶ 31, 63 P.3d 650, or the reasonable belief that Despain was armed and dangerous. See Warren, 2001 UT App 346 at ¶ 13, 37 P.3d 270.²

10 Despain argues that the trial court erred in relying upon the prior encounter between Slaugh and Despain to support its decision that Olsen's question was supported by reasonable suspicion. We agree.³ However, "[i]t is well settled that we may affirm a judgment of a lower court if it is sustainable on any legal ground or theory apparent on the record." State v. Finlayson, 2000 UT 10, ¶ 31, 994 P.2d 1243.⁴

111 In the instant case, the record supports Olsen's actions because the cireum-stances surrounding the traffic stop support a reasonable belief that Despain was armed and dangerous. " 'Where a police officer validly stops an individual for investigatory or other purposes and reasonably believes that the individual may be armed and dangerous, the officer may conduct a "frisk" or "patdown" search of the individual, for question the individual regarding the presence of weapons,] to discover weapons that might be used against him.' " Warren, 2001 UT App 346 at ¶ 13, 37 P.3d 270 (quoting Carter, 707 P.2d at 659. However, if the Terry frisk, or the questioning of a citizen about the presence of a weapon, is challenged by the defendant following his arrest, "the State must present articulable facts that would reasonably lead an objective officer to conclude that the suspect may be armed." Id. at 114 (quoting Carter, 707 P.2d at 659). The basis for this policy is the recognition that "facts and circumstances unique to the particular suspect and/or factual context may give rise to a reasonable suspicion the suspect may be armed." Warren, 2001 UT App 346 at ¶ 15, 37 P.3d 270.

[ 12 Here, it was well after nightfall when the officers approached Despain's vehicle. Before they reached the cab of the truck, they were accosted by an apparently dangerous dog, prompting both officers to draw their sidearms and retreat to their patrol car where Slaugh noticed for the first time that Despain had dismounted his vehicle. Slaugh then instructed Despain to meet the officers at the patrol car, an instruction which Des-pain completely ignored. He instead reentered the cab of his truck and closed the door concealing any actions he may have taken within the truck, When Despain finally complied with Slaugh's repeated request to meet the officers at the patrol car he approached them wearing an untucked, overly-large shirt that obscured from the officers view any object that Despain may have secreted in or around his waistband.

13 Based on the factual cireumstance of this case, we conclude that an objective police officer in Olsen's position would have drawn a similar conclusion-that Despain may in fact be armed and dangerous-and that an objective officer, concerned for his safety and the safety of others, would have asked Des-pain the same question. See Warren, 2001 UT App 346 at ¶ 14, 37 P.3d 270 (quoting Carter, 707 P.2d at 659). Thus, we conclude that Olsen's question to Despain was supported by a reasonable suspicion that Des-pain was armed and dangerous.

CONCLUSION

T14 Based on Despain's conduct during the traffic stop, it was reasonable for Olsen to believe that Despain was possibly armed and dangerous. Accordingly, we affirm the trial court's denial of Despain's motion to suppress.

T 15 I CONCUR:; PAMELA T. GREENWOOD, Judge.

1 . Despain does not challenge the officer's search of his vehicle and trailer incident to his arrest.

2 . The State urges this court to adopt a rule that would make an officer's inquiry into the presence of weapons reasonable per se regardless of whether the question is supported by other reasonable suspicion. See United States v. Holt, 264 F.3d 1215, 1225-26 (10th Cir.2001) (concluding that an officer's questioning of a motorist concerning the presence of a loaded weapon does not violate the Fourth Amendment of the United States Constitution. Thus, in the Tenth Circuit, questions concerning loaded weapons are considered to be within the normal course of a traffic stop.). Without addressing the applicability of Holt to the instant case, we decline to adopt such a rule because (1) adopting such a position would be contrary to existing supreme court doctrine, see State v. Hansen, 2002 UT 125, ¶¶ 30-32, 63 P.3d 650 (highlighting the limited and prescribed behavior allowed by police officers during the temporary detention of a citizen); and (2) our conclusion that Despain's behavior following the stop reasonably led the officers to believe that he was armed and dangerous forecloses any need to adopt the position urged by the State. Accordingly, we limit our analysis to the traditional confines of police-citizen encounters and reserve our analysis of the State's suggestion for an appropriate case.

3 . The trial court relied on the prior contact between Slaugh and Despain to support its decision to deny Despain's motion to suppress. However, Slaugh merely asked Despain for his license and registration, while it was Olsen who asked Des-pain about weapons. Moreover, Olsen did not know of the prior encounter between Slaugh and Despain and the testimony of Slaugh makes clear that Olsen had no reason to believe anything more than a simple traffic stop was occurring prior to their approaching the truck to complete - the traffic stop. Accordingly, because Olsen had no history with Despain and was not aware of Slaugh's history with Despain, the trial court erred in considering the prior encounter as material to the issue.

4 . Despain does not challenge the trial court's factual findings; thus, we accept them as drafted by the court.