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Third District, Salt Lake Department
The Honorable Roger A. Livingston

Attorneys:
David S. Kottler and Joan C. Watt, Salt Lake City, for Appellant
Jan Graham and Jeffrey S. Gray, Salt Lake City, for Appellee

Before Judges Bench, Billings, and Orme.

ORME, Judge:

Prior to broadcasting the request to stop defendant, Sergeant Park had not observed defendant commit any illegal act or exhibit any suspicious behavior that would have led him to reasonably believe that criminal activity was afoot. Thus, this case hinges on whether, based solely on the Fox News program, Sergeant Park could have formed the reasonable suspicion necessary to stop defendant.⁽¹⁾

Both parties draw an analogy between the news program and a tip from an informant, but disagree as to whether the program was a reliable source of information. In determining whether an informant's tip provides reasonable suspicion to justify a detention or seizure, this court will consider whether "the information is reliable, provides sufficient detail of criminal activity, and is confirmed by the investigating officer." City of St. George v. Carter, 945 P.2d 165, 169 (Utah Ct. App. 1997), cert. denied, 953 P.2d 449 (Utah 1998). See Kaysville City v. Mulcahy, 943 P.2d 231, 235-36 (Utah Ct. App.), cert. denied, 953 P.2d 449 (Utah 1997).

Assuming, for purposes of this appeal, that defendant closely resembles Mr. Lewis, and that the Fox News program had the necessary indicia of reliability, Sergeant Park's reliance solely on that news program as the basis for stopping defendant still does not pass muster under the Fourth Amendment. The Fox News program did not establish the necessary reasonable suspicion because it did not provide sufficient detail of any ongoing criminal activity by Mr. Lewis.⁽²⁾

The State argues that Sergeant Park could reasonably have deduced that defendant was a fugitive wanted in Ogden because the reporter in the news program stated that "Lewis has been ordered to remain in jail with no bond until he heads to court on the stalking charge." However, "objective facts," not supposition, are required for reasonable suspicion. State v. Swanigan, 699 P.2d 718, 719 (Utah 1985) (per curiam). The news program plainly stated that Lewis had been lawfully released from jail under the federal consent decree--the clear implication being that the federal decree had trumped whatever state court order resulted in the incarceration from which he had just been released.

There is some discussion in the news program that Lewis's wife feared for her life and even had a protective order issued against him. However, the program did not indicate that Lewis had violated the protective order subsequent to his release, or, for that matter, that she had even seen her husband since his lawful release from jail. In fact, Ms. Lewis's sister is the only person in the news report claiming to have seen Mr. Lewis, but the report did not say where she saw him or whether, at the time, he was within a distance of Ms. Lewis prohibited by the protective order. (She indicated only that she had seen him "drive by in the car today.") Although Lewis's early release from jail did not sit well with Lewis's wife and sister-in-law, and while their frustration and concern is entirely understandable, these facts simply do not support the conclusion that Lewis had violated the protective order or engaged in any other criminal activity.

The State also argues that Sergeant Park could have formed the reasonable suspicion necessary to stop defendant because Ms. Lewis stated in the news report that her husband "was getting my mail, and continues to get my mail." However, the news report fails to provide any details to support a reasonable allegation of mail theft--much less a complaint of mail theft as an offense separate and apart from misbehavior by Lewis already dealt with by the protective order and/or actions to enforce the order.

The Fox News program, when viewed objectively, does not indicate that Mr. Lewis was either a wanted fugitive or that he was currently, or about to be, involved in any criminal activity. Accordingly, the trial court's denial of defendant's suppression motion is reversed, and the case is remanded for such further proceedings as may now be appropriate.
 
 
 
 
 

______________________________
Gregory K. Orme, Judge

WE CONCUR:
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

______________________________
Judith M. Billings, Judge

1. It is of little relevance that Officer Wihongi ultimately stopped defendant. Under United States v. Hensley, 469 U.S. 221, 231-33, 105 S. Ct. 675, 681-82 (1985), courts will trace the analysis back to the officer that initiated a broadcast or bulletin. Thus, if Sergeant Park did not have the reasonable articulable suspicion necessary to stop defendant, then Officer Wihongi, acting only on Sergeant Park's request, could also not lawfully have stopped defendant.

2. Indeed, Sergeant Park determined to stop defendant, whom he thought was Lewis, not because he concluded the facts in the news report established reasonable suspicion, but only because he misunderstood the broadcast and acted on that mistake. He incorrectly gathered from the report that Lewis was an escaped felon for whom a warrant had been issued, when in fact Lewis had lawfully been released from jail.