Probable Cause for One = Probable Cause for All

State v. Talbot, 2010 UT App 352 (Utah Court of Appeals December 9, 2010).

Talbot was suspected to be in possession of a controlled substance with intent to distribute.  This suspicion was based on statements made to the Garfield County Sheriff.  The Sheriff contacted a deputy and authorized him to stop Talbot, if he was sighted.  The deputy sighted Talbot, stopped him, patted down, hand-cuffed and placed in a patrol car.  The deputy was then authorized to arrest Talbot.  The deputy then conducted a search incident to arrest of Talbot and his vehicle.  Talbot moved to suppress the discovered drug evidence because the search and seizure were unconstitutional.

Note: Talbot did not contest the initial detainment and pat-down; nor did he refer to the Utah State Constitution in his appeal, but appealed under the U.S. Constitution.

The Court of Appeals found that the Sheriff had probable cause to search and arrest Talbot and his knowledge is imputed to his deputies when they act on his instruction.  As such, the arrest was lawful under the Federal Constitution.   Therefore, the search incident thereto was also lawful, and evidence seized is not subject to the exclusionary rule.  Affirmed.

Additional note: Talbot also appeals because of he was not provided with the jury voir dire.  However, because he fails to provide the trial record necessary to address the issue, the Court did not reach this issue

Full Decision available at  http://www.utcourts.gov/opinions/appopin/talbot120910.pdf

Police Must Have Belief that Invidual is Dangerous and Could be Armed Before they Can Perform a Terry Frisk

State of Utah v. Clay C. Lowe, 2010 UT App. 156, (Utah Court of Appeals June 17, 2010).

Officer went to Lowe’s apartment to talk to his roommate.  His roommate refused to comply with Officer’s orders to remove his hands from his pockets.  Officer helped Roommate to the ground and held Lowe at gunpoint while he searched Roommate.  While he searched Roommate, a second officer arrived on the scene and saw Lowe at gunpoint holding his hands high above his head.  The second officer immediately frisked Lowe and found a prescription bottle containing Methamphetamines.  The trial court denied Lowe’s Motion to Suppress, Lowe appealed. 

The Court of Appeals found that an officer cannot frisk simply because one is being detained, or because the officer believes the individual to possess contraband, but instead an officer must reasonably believe the individual is dangerous and the individual may immediately obtain a weapon.  In this case, Lowe complied with Officer’s requests; he kept his hands above his head, and did nothing to interfere with Roommate’s arrest.  In short, Lowe did nothing to induce a reasonable belief that he was dangerous and might obtain control of a weapon; therefore, the evidence should be suppressed.  Reversed.

Dissent Judge Thorne: Under the totality of the circumstances, it is likely that the second officer could have reasonably believed that Lowe was dangerous because Officer found Roommate to possess a knife, it was reasonable for the second officer to conclude that Lowe may also be armed.

Full Decision available at http://www.utcourts.gov/opinions/appopin/lowe061710.pdf

Self Pat-Down = Consent-Search

State v. Hurt, 2010 UT 33, (Utah Court of Appeals, February 11, 2010).

Defendant was a passenger in a car during a traffic stop.  Police arrested Driver.  Officer asked Defendant to step out of the vehicle.  Defendant stepped out of the vehicle.  Officer asked Defendant if he had any weapons and asked him to turn out his pockets.  From his pockets, Defendant produced an eyeglass case.  Officer asked Defendant to open the eyeglass case, he did so and revealed methamphetamine.  Defendant was charged with possession of a controlled substance.  Defendant moved to suppress the evidence.  The trial court found that this was a consent-search.  Defendant Appealed.

The Court of Appeals Affirmed the trial court finding that the police legally detained Defendant, and that the search conducted on Defendant was a consent-search.  The Court found that a command can be a search, but the determination turns on the evaluation of the facts in each case.  (See State v. Bisner, goes more toward voluntariness of consent, but applicable to evaluate whether the command invades voluntariness).  In this case, the command did not rise to the level necessary to overcome the presumption of consent.

Concurrence, Judge Davis: Defendant did not adequately address the facts surrounding the consent in the brief.  The facts are too limited to rule in Defendant’s favor.  Judge Davis also recommends that police inform individuals of their right to refuse consent.

Full Decision available at http://www.utcourts.gov/opinions/appopin/hurt021110.pdf