State v. Olivarez , 392 P.3d 1007 ( 2017 )

2017 UT App 42THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ROMEO LUCERO OLIVAREZ,
Appellant.
Opinion
No. 20150284-CA
Filed March 9, 2017
Third District Court, Salt Lake Department
The Honorable Randall N. Skanchy
No. 131904665
Teresa L. Welch and Ralph W. Dellapiana, Attorneys
for Appellant
Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and JILL M. POHLMAN concurred.
MORTENSEN, Judge:
¶1 Romeo Lucero Olivarez activated his turn signal and, in
one continuous movement, crossed two lanes of traffic. An
officer stopped Olivarez for an illegal lane change. One thing led
to another, heroin and methamphetamine were found, and
Olivarez conditionally pled guilty to two counts of Possession or
Use of a Controlled Substance, reserving a right to appeal the
denial of his motion to suppress. On appeal, Olivarez contends
that the evidence obtained during this stop, which included an
inventory search of his car, should have been suppressed. We
affirm.
State v. Olivarez
BACKGROUND
¶2 Driving alone, Olivarez exited Interstate 15 on a four-lane
off-ramp toward 900 South in Salt Lake City. For clarity we refer
to the lanes on the off-ramp, from left to right while facing the
direction of the flow of traffic, as lane one, lane two, lane three,
and lane four. While on the exit ramp, Olivarez activated his
turn signal and in one motion moved from lane two, across lane
three, into lane four on the far right of the ramp. An officer in an
unmarked patrol car activated his emergency lights to stop
Olivarez because he ‚went across all the traffic without leaving
the appropriate two second signal.‛ After making a right hand
turn, Olivarez pulled over on the side of the road, ‚outside the
lane of travel,‛ on 900 South.
¶3 The officer told Olivarez why he had stopped him and
asked for Olivarez’s driver license, registration, and proof of
insurance. Olivarez first told the officer that he did not have his
license with him. Later, when it became apparent that the officer
would search Olivarez’s name to check the status of his license,
he told the officer that his license might be suspended. Indeed,
the officer verified that Olivarez’s license was ‚denied.‛ The
officer also verified that the car Olivarez was driving was
registered to someone else. At this point, the officer decided to
impound the car because Olivarez ‚was driving on a denied or
he didn’t have a valid driver’s license‛ and because there was no
other driver present to take possession of the car that Olivarez
did not own.
¶4 The officer approached Olivarez to inform him that his
license was ‚suspended or denied‛ and that the police were
‚going to impound the vehicle.‛ Olivarez then told him that the
car belonged to his brother and asked if he could call his brother
to come get the car. The officer told Olivarez that ‚he could
make his phone call once he was outside the vehicle so [the
officer] could start the impound.‛
20150284-CA 2 2017 UT App 42State v. Olivarez
¶5 When Olivarez exited the car, the officer asked him if he
was carrying any weapons. Olivarez informed the officer that he
was carrying brass knuckles in his front pocket. Olivarez
consented to a search of his person. The officer searched
Olivarez and found the brass knuckles, whereupon the officer
handcuffed and arrested Olivarez for carrying a concealed
dangerous weapon.
¶6 After securing Olivarez in a patrol vehicle, the officer,
along with other officers who had arrived, conducted an
inventory search of the car in preparation for impound. The
officers found ‚a blue flashlight . . . that contained . . .
methamphetamine, heroin, and marijuana,‛ as well as ‚a glass
pipe that appeared to have been used to smoke narcotics.‛ After
the officers completed the inventory search, a tow truck arrived
and was hooked up to the car. The registered owner of the car
then arrived to pick up the car, but the officers proceeded to
impound the car rather than turn it over to the owner because
the impound was almost complete.1
¶7 Olivarez was charged with multiple offenses based on the
evidence gathered during the traffic stop and inventory search.
Olivarez moved to suppress this evidence, arguing that ‚the
method by which [he] changed lanes complied with applicable
Utah law‛ and that the officer made a ‚mistake in law‛ by
requiring that Olivarez pause ‚for any particular time in lane 3
before going over to lane 4.‛ Olivarez further argued that the
vehicle impound was improper under both the Fourth
Amendment to the United States Constitution and the Salt Lake
City Police Department’s impound policy because the car ‚was
1. We question the propriety of this decision, but it has no
bearing on the issues before us, as the incriminating evidence
against Olivarez had already been discovered by the time the
owner arrived.
20150284-CA 3 2017 UT App 42State v. Olivarez
*in+ a safe place, not blocking traffic‛ and because ‚Olivarez had
called his brother and told [the officer] he wanted his brother to
come take possession of the car and the officer refused to do
that.‛
¶8 The Salt Lake City Police Department’s impound policy
requires officers to ‚use discretion in determining whether or
not a vehicle should be impounded‛ to ‚avoid needless expense
and inconvenience to the vehicle owner.‛ The policy also
restricts officers from impounding vehicles solely due to a lack
of insurance or for an expired registration of less than ninety
days when the vehicle is occupied by the owner or a responsible
party.
¶9 The district court denied the motion to suppress,
concluding that (1) ‚the stop was justified at its inception‛
because the officer ‚directly observed a traffic offense‛; (2) ‚the
officer’s decision to impound the vehicle did not exceed the
scope of the purpose of the stop‛ because ‚the officer
determined that the driver did not have a valid license[,] that he
was the only occupant[,] and that the driver was not the owner‛;
and (3) the officer ‚conducted the impound pursuant to his
department impound policy.‛
¶10 After the court denied his motion to suppress, Olivarez
entered a conditional guilty plea to possession of
methamphetamine and heroin, while reserving his right to
appeal the court’s ruling.2
2. Under Utah law, a defendant may enter a conditional plea
while reserving the right to appeal an adverse determination of a
pretrial motion. See Utah R. Crim. P. 11(j); State v. Sery, 758 P.2d
935, 937–39 (Utah Ct. App. 1988).
20150284-CA 4 2017 UT App 42State v. Olivarez
ISSUES AND STANDARDS OF REVIEW
¶11 Olivarez appeals the denial of his motion to suppress and
presents two issues. First, we must decide whether an officer has
reasonable suspicion that a crime has been committed after
observing a motorist signal for two seconds prior to changing
multiple lanes in one continuous movement. Second, we review
whether an officer may impound a vehicle in accordance with
the Fourth Amendment to the United States Constitution and the
Salt Lake City Police Department’s impound policy where the
driver is not the owner of the vehicle, has a denied license, and
there are no other drivers present to take possession of the
vehicle.
¶12 A court’s denial of a motion to suppress presents a
‚mixed question of law and fact.‛ State v. Fuller, 2014 UT 29,
¶ 17, 332 P.3d 937. ‚While the court’s factual findings are
reviewed for clear error, its legal conclusions are reviewed for
correctness, including its application of law to the facts of the
case.‛ Id.ANALYSIS
I. Reasonable Suspicion for the Stop
¶13 First, we conclude that the officer had reasonable
suspicion that Olivarez violated the law when he failed to signal
for two seconds prior to moving from lane three to lane four.
The district court therefore correctly decided that the stop was
justified.
¶14 ‚A traffic stop for a suspected violation of law is a
‘seizure’ of the occupants of the vehicle and therefore must be
conducted in accordance with the Fourth Amendment.‛ Heien v.
North Carolina, 135 S. Ct. 530, 536 (2014). Police officers are
justified in making traffic stops if they have ‚reasonable
20150284-CA 5 2017 UT App 42State v. Olivarez
suspicion—that is, a particularized and objective basis for
suspecting the particular person stopped of breaking the law.‛
Id. (citation and internal quotation marks omitted).
¶15 To decide whether Olivarez violated the law, we look to
section 41-6a-804 of the Utah Code, which governs lane changes
in Utah. The statute provides, ‚A person may not turn a vehicle
or move right or left on a roadway or change lanes until: (i) the
movement can be made with reasonable safety; and (ii) an
appropriate signal has been given as provided under this
section.‛ Utah Code Ann. § 41-6a-804(1)(a) (LexisNexis Supp.
2016). The statute then describes an appropriate signal: ‚A signal
of intention to turn right or left or to change lanes shall be given
continuously for at least the last two seconds preceding the
beginning of the movement.‛ Id. § 41-6a-804(1)(b).
¶16 We interpret statutory language ‚according to its
ordinary and usually accepted meaning.‛ See Marion Energy, Inc.
v. KFJ Ranch P'ship, 2011 UT 50, ¶ 14, 267 P.3d 863 (citation and
internal quotation marks omitted). A statute is ambiguous when
‚its terms remain susceptible to two or more reasonable
interpretations after we have conducted a plain language
analysis.‛ Id. ¶ 15. When a statute is unambiguous ‚no other
interpretive tools are needed.‛ Id. (citation and internal
quotation marks omitted).
¶17 The statute is unambiguous; it requires an appropriate
signal before each lane change. Under the statute’s plain
language, there are three ‚movements‛ contemplated in the
statute: turning, moving left or right, and changing lanes. Utah
Code Ann. § 41-6a-804(1)(a). ‚*T+he movement,‛ for our
purposes, means a lane change. See id. § 41-6a-804(b). It is
unreasonable to construe the statute to mean that one turn signal
is sufficient for an infinite number of movements, even if all are
part of a continuous series. The plain language of the statute
indicates that ‚the movement‛ is singular, not plural. The statute
20150284-CA 6 2017 UT App 42State v. Olivarez
unambiguously states that a turn signal must be given for at
least two seconds before ‚the movement,‛ i.e., the lane change—
a single movement, not a collective number of movements. See
id.
¶18 Here, Olivarez changed over multiple lanes, and thus
completed multiple movements as contemplated in the statute.
Once Olivarez had moved from lane two to lane three, he had
changed lanes—made a ‚movement‛—and he was then required
to signal for another two seconds if he desired to change lanes
again.
¶19 Olivarez argues that he ‚complied with the clear
language of Utah Code [section] 41-6a-804 by signaling before
beginning his ‘one continuous movement’‛ across multiple
lanes. We disagree. This argument ignores the fact that once
Olivarez had moved from lane two to lane three he had changed
lanes—a ‚movement‛ as described by the statute. As explained
above, a ‚movement‛ in the context of the statute means a single
lane change.
¶20 Olivarez also argues that the statute only uses the term
‚change lanes,‛ see id. § 41-6a-804(1)(a), (b) (emphasis added),
and thus contemplates ‚one or more‛ lanes, meaning that
moving across multiple lanes in one continuous movement after
signaling for two seconds is appropriate. This argument, too, is
unavailing. A single lane change, when expressed in a verbal
phrase, is ‚to change lanes.‛ The phrase ‚to change lane‛ is
grammatically incorrect. Because the legislature was
grammatically required to use a plural form of ‚lane‛ when
expressing ‚lane change‛ in a verbal phrase, we reject Olivarez’s
interpretation. A single lane change will always involve more
than one lane: the lane from which a driver moves, and a
contiguous lane to which the driver will move. We cannot
reasonably interpret the term ‚to change lanes‛ to mean ‚to
change from one lane to any number of other lanes across the
20150284-CA 7 2017 UT App 42State v. Olivarez
highway.‛ This is especially true when considering the safety
hazards and unpredictable driving patterns that such an
interpretation would create.
¶21 Thus, we agree with the district court that the officer
observed a traffic offense and that the stop was consequently
justified. Olivarez did not signal for two seconds before
changing from lane three to lane four. This conduct violates Utah
law. Because the officer saw Olivarez violate Utah law, the
officer had reasonable suspicion to stop Olivarez. See Heien v.
North Carolina, 135 S. Ct. 530, 536 (2014). Therefore, the stop was
reasonable under the Fourth Amendment. See id.II. Inventory Search
¶22 Olivarez next challenges the district court’s conclusion
that the officer’s decision to impound the car, and thus conduct
an inventory search, did not exceed constitutional limitations.
We agree with the district court.
¶23 The Fourth Amendment to the United States Constitution
prohibits unreasonable searches. See U.S. Const. amend. IV. ‚In
order for a search to be constitutionally permissible, a search
warrant issued by a neutral magistrate and based upon probable
cause is required.‛ State v. Hygh, 711 P.2d 264, 267 (Utah 1985).
An inventory search of an impounded vehicle is an exception to
the general warrant requirement. See id. The purpose of this
exception is to ‚protect*+ the police and public from danger,
avoid[] police liability for lost or stolen property, and protect[]
the owner’s property.‛ Id. (citing South Dakota v. Opperman, 428
U.S. 364 (1976)). Impounding a vehicle is constitutional only
when there is ‚reasonable and proper justification‛ to impound
the vehicle, ‚either through explicit statutory authorization or by
the circumstances surrounding the initial stop.‛ Id. at 268. The
State concedes that there is no statutory authorization here.
Therefore, we analyze the ‚circumstances surrounding the initial
stop.‛ Id.
20150284-CA 8 2017 UT App 42State v. Olivarez
¶24 State v. Johnson, 745 P.2d 452 (Utah 1987), is controlling in
this matter and illustrates circumstances where there is
justification to impound a vehicle. In Johnson, the defendant
claimed that an inventory search violated his Fourth
Amendment rights. Id. at 454. Our supreme court outlined the
circumstances that justified the impound, including that the car
was ‚parked in the middle of a motel parking lot, blocking
traffic,‛ the car ‚had an out-of-town temporary sticker in lieu of
license plates,‛ and that ‚neither *the defendant+ nor his friends
could properly have moved the vehicle‛ because the defendant
‚did not have a driver’s license,‛ and the defendant’s friends
‚were under the influence of a controlled substance and were
under arrest.‛ Id. The court concluded, ‚The interest the police
had in protecting themselves and the lot owners against false
claims of theft was sufficient under the Fourth Amendment to
justify taking an inventory . . . .‛ See id.
¶25 We similarly conclude that the inventory search of the car
here did not violate the Fourth Amendment. Olivarez was
lawfully stopped, was driving without a valid license, was the
only person with the car when the decision to impound was
made, and was not the car’s registered owner.3 Similar to
Johnson, where no one present could properly move the vehicle,
the officer here could not allow Olivarez to drive the car when
he was not properly licensed. Under these circumstances, it was
3. As indicated, see supra note 1, it is immaterial to Olivarez’s
appeal that the owner eventually showed up because that owner
did not appear until after the contraband was found. It may well
be that at that point the officers should have terminated the
impound process and turned the car over to Olivarez’s brother,
but that is a matter between the brother and the police
department.
20150284-CA 9 2017 UT App 42State v. Olivarez
within the officer’s discretion to decide to impound the car and,
as a result, to undertake an inventory search of the car.4
¶26 We acknowledge that Johnson contains additional facts,
which are not present here, that could weigh in favor of
impounding a vehicle. In Johnson, the vehicle was blocking
traffic, the vehicle had an out-of-town temporary sticker instead
of license plates, and there was evidence of other criminal
activity resulting in the arrest of the vehicle’s passengers when
the officer decided to impound the vehicle.5 See id. But this case
presents facts not present in Johnson that favor impounding the
car—Olivarez did not own the car, nor was the owner present
when the impound began. Where the owner of a vehicle is
absent and the vehicle will be left parked on the side of the road,
a reasonable officer may not believe that ‚police liability for lost
or stolen property‛ will be avoided or that the ‚owner’s
property‛ will be protected, see Hygh, 711 P.2d at 267. The police
have a legitimate interest in protecting themselves from claims
of theft or loss, see Johnson, 745 P.2d at 454, especially where the
owner of the vehicle is absent, cf. State v. Weaver, 2008 UT App
4. Impounding a vehicle because the driver is unlicensed is not
novel. See State v. Ashcraft, 2015 UT 5, ¶ 5, 349 P.3d 664(reviewing a case where the police impounded a vehicle where
both the driver and passenger did not have a valid license); State
v. Lucero, 2015 UT App 120, ¶ 2, 350 P.3d 237 (reviewing a case
where an officer decided to impound a vehicle because the
driver did not have a valid license); see also In re P.S., 2001 UT
App 305, ¶¶ 3, 5, 38 P.3d 303 (reviewing an unrelated issue in a
case where an officer decided to impound a vehicle because the
driver had no record of a license).
5. While Olivarez was eventually arrested for carrying a
concealed dangerous weapon, he was arrested after the officer
decided to impound the car. See supra ¶¶ 4–5.
20150284-CA 10 2017 UT App 42State v. Olivarez
101U, para. 4 (‚It would be ‘countersensical’ to allow an
individual to remove his personal belongings from a vehicle that
is the subject of an inventory search before the search occurs,
especially in circumstances where, as here, the individual has no
ownership or verifiable possessory interest in the vehicle.‛
(quoting United States v. Penn, 233 F.3d 1111, 1116 (9th Cir.
2000))). Therefore, because the impound protected the absent
owner’s property and protected the police from liability, the
officer’s decision to impound the car was a ‚reasonable and
proper justification‛ under the circumstances. See Hygh, 711 P.2d
at 268.
¶27 Moreover, a police officer is not required to stand idly by
and wait a certain period of time on the off chance that the
vehicle’s owner will show up. It is reasonable for the officer to
begin the impound process and then release the vehicle if the
owner shows up, just as the Salt Lake City Police Department’s
policies allow.6 Therefore, in light of the circumstances, the
officer did not violate the Fourth Amendment when he began
impounding the car.7
6. The Salt Lake City Police Department’s impound policy states,
‚If the owner is incapacitated, but requests that the vehicle be
released to another person, and the officer is satisfied that the
other person could legally operate the vehicle, the officer may
authorize release of the vehicle.‛
7. Olivarez relies on Minnesota v. Gauster, 752 N.W.2d 496 (Minn.
2008), to argue that ‚the impound of the vehicle was neither
reasonable nor necessary because [Olivarez] made it clear that a
viable alternative arrangement was available.‛ Gauster held that
a vehicle impound was improper, despite the fact that the owner
had a suspended license, where the vehicle owner was not
arrested and offered to make alternate arrangements for the
vehicle. Id. at 507–08. However, Gauster is not controlling. State v.
(continued…)
20150284-CA 11 2017 UT App 42State v. Olivarez
¶28 Olivarez also argues that the Salt Lake City Police
Department’s impound policy restricted the officers from
impounding the car. We conclude that it did not.8 The policy
requires officers to ‚use discretion in determining whether or
not a vehicle should be impounded‛ to ‚avoid needless expense
and inconvenience to the vehicle owner.‛ In addition, the policy
prohibits officers from impounding vehicles merely because of
‚No Insurance,‛ or merely because of an expired registration of
less than ninety days when the vehicle is occupied by the owner
or a responsible party.
¶29 Because the car here was not impounded for an expired
registration or lack of insurance, these restrictions are not
applicable. The only relevant directive from the policy is to use
discretion to ‚avoid needless expense and inconvenience to the
vehicle owner.‛ For the same reasons that we conclude the
inventory search was reasonable under the Fourth Amendment,
(…continued)
Johnson controls here and states that, ‚although the police could
have offered the defendant the opportunity to make other
arrangements for the safekeeping of his property, their failure to
do so did not eliminate the justification for taking an inventory
of the defendant’s property.‛ 745 P.2d 452, 454 (Utah 1987).
Further, ‚*t+he reasonableness of any particular governmental
activity does not necessarily or invariably turn on the existence
of alternative ‘less intrusive’ means.‛ Illinois v. Lafayette, 462 U.S.
640, 647 (1983). Further still, Gauster is distinguishable because
here the car owner was not present when the inventory search
commenced.
8. Because we conclude that the officer followed department
policy in exercising his discretion to impound the car, we need
not analyze the legal consequence, if any, of an officer’s failure to
follow department policies.
20150284-CA 12 2017 UT App 42State v. Olivarez
see supra ¶¶ 22–27, we conclude that a reasonable officer could
exercise discretion here and determine that the expense and
inconvenience to the owner was not ‚needless.‛ Olivarez did not
have a valid license and, at the time the impound process began,
the car’s owner was not present to take custody of the car, nor
was there anyone else present qualified to take possession of the
car. Under these circumstances, the officer could have
reasonably concluded that the cost and inconvenience of
impounding the car was necessary to protect the owner’s
property and to avoid potential police liability.9 See State v. Hygh,
711 P.2d 264, 267 (Utah 1985).
CONCLUSION
¶30 We conclude that the district court did not err in denying
Olivarez’s motion to suppress. The stop was valid because the
officer observed Olivarez violate a traffic law. Further, the
inventory search of the car was valid because Olivarez did not
have a valid driver license, the owner of the car was not present
when the decision to impound the car was made, and no one
else was present to take possession of the car until after
incriminating evidence was discovered.
¶31 Affirmed.
9. This is not to say that the decision should not have been
reassessed when the owner actually appeared ready to take
possession of his car.
20150284-CA 13 2017 UT App 42