opinions/mds/cordova_m.htm 18:18:43 GMT --> State of Utah v. Cordova

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IN THE UTAH COURT OF APPEALS

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Michael Cordova,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010480-CA

F I L E D
September 26, 2002

2002 UT App 313
-----

Third District, Sandy Department
The Honorable Denise P. Lindberg

Attorneys:
Robert L. Booker, Salt Lake City, for Appellant
Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee

-----

Before Judges Jackson, Davis, and Greenwood.
JACKSON, Presiding Judge:

Defendant challenges the trial court's denial of his motion to suppress. "'We review the factual findings underlying the denial of a motion to suppress evidence under a "clearly erroneous" standard, and review the trial court's conclusions of law based thereon for correctness.'" State v. Gray, 851 P.2d 1217, 1220 (Utah Ct. App. 1993) (citations omitted).

First, Defendant argues that "the lengthy detention and questioning of Appellant exceeded the scope of the initial stop."(1) Specifically, he asserts that the officer impermissibly expanded the scope of the detention by asking Defendant to step out of the vehicle for further questioning. However, Officer Rapela testified that he asked Defendant to step out of the vehicle "to talk . . . further about . . . the driver licence issue," an issue Defendant conceded both below and on appeal was a permissible area of inquiry.(2) Although his argument is somewhat unclear, we infer from these concessions that Defendant does not claim that Officer Rapela's request that Defendant exit the vehicle and subsequent questioning regarding the suspended driver license illegally expanded the scope of his detention. Instead, he apparently argues that nothing occurred between the time Defendant exited the vehicle and the time Officer Rapela questioned him about "alcohol and drug use or possession" that would give rise to "reasonable suspicion of more serious criminal activity." State v. Lopez, 873 P.2d 1127, 1132 (Utah 1994). We disagree.

After Defendant exited the vehicle, "there is no dispute that Officer Rapela asked for and received Defendant's consent to pat down the Defendant." During the pat down, Officer Rapela detected the odor of alcohol emanating from Defendant. The odor and the knowledge gleaned from Defendant's driver license that Defendant was legally underage to drink gave Officer Rapela reasonable suspicion to ask Defendant if he had been drinking. Defendant said that he had been drinking. Thus, Officer Rapela determined that because of his suspended driver license and admission to consuming alcohol, Defendant could not be allowed to drive the vehicle home.

In an attempt to locate a driver for the vehicle, Officer Rapela asked Brittney Martinez, a passenger in the vehicle, if she had a valid driver license. While speaking to her, Officer Rapela saw a Zig Zag paper, often used for rolling marijuana joints, on the floor of the car. Ms. Martinez indicated that the Zig Zag paper did not belong to her. We conclude that Officer Rapela thus had reasonable suspicion to question Defendant about drug use and possession. Defendant's following admission to drug use resulted in his arrest. Because Officer Rapela had reasonable suspicion to expand the scope of the detention at each stage of his investigation, we cannot say that his detention or questioning of Defendant was in any way unlawful.(3)See State v. Shepard, 955 P.2d 352, 355 (Utah Ct. App. 1998).

Next, Defendant argues that "[t]he trial court erred in finding that the evidence was obtained from [Defendant's] vehicle pursuant to a valid inventory search."

For an inventory search of a lawfully impounded vehicle to be reasonable under the Fourth Amendment, the officer conducting the search must follow standardized procedures. The State has the burden of introducing evidence that such a standardized, reasonable procedure exists "and that the challenged police activity was essentially in conformance with that procedure."
State v. Giron, 943 P.2d 1114, 1117 (Utah Ct. App. 1997) (citations omitted).

We must "first determine whether Officer [Rapela] possessed 'reasonable and proper justification' to impound the defendant's vehicle 'either through explicit statutory authorization or by the circumstances surrounding the initial stop.'" State v. Strickling, 844 P.2d 979, 986 (Utah Ct. App. 1992) (citation omitted). We conclude there was "'reasonable and proper justification' to impound the defendant's vehicle," id. (citation omitted), because: Defendant was legally incapable of driving the vehicle; reasonable efforts failed to produce a competent driver; Defendant had stated that the driver's side door did not lock; the vehicle was parked on private property not belonging to him; and the vehicle was blocking two parking stalls and partially blocking a sidewalk.(4)

Further, Officer Rapela's decision to impound and inventory the vehicle complied with Sandy Police Department's standardized procedures. Sandy City Police Department's standardized procedures allow impoundment and inventories of vehicles "[w]hen the driver of a vehicle is arrested and taken into custody and the vehicle is on . . . private property other than" his own or "[w]hen the driver is . . . legally incapable of operating a vehicle and reasonable but unsuccessful efforts cannot locate a competent driver and the officer believes that the vehicle should not be left in the location unattended." See Sandy City Police Department Policy and Procedures § 45.47.1(A), (M) (1997). Thus, because Defendant had been arrested, the vehicle was on private property not belonging to him, he was "legally incapable of operating a vehicle," reasonable efforts to locate a competent driver were unavailing, and Officer Rapela had credible reasons for "believ[ing] that the vehicle should not be left in the location unattended," we conclude that Officer Rapela "followed standardized procedures," Giron, 943 P.2d at 1117, in conducting the inventory search. Accordingly, the evidence found in Defendant's trunk was obtained pursuant to a lawful inventory search. SeeGiron, 943 P.2d at 1117; Strickling, 844 P.2d at 987-90.

Affirmed.
 
 

______________________________
Norman H. Jackson,
Presiding Judge

-----

WE CONCUR:
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
Pamela T. Greenwood, Judge

1. "Once a traffic stop is made, the detention 'must be temporary and last no longer than is necessary to effectuate the purpose of the stop.'" State v. Lopez, 873 P.2d 1127, 1132 (Utah 1994) (citation omitted). Further, "[i]nvestigative questioning that further detains the driver must be supported by reasonable suspicion of more serious criminal activity . . . based on specific, articulable facts drawn from the totality of the circumstances facing the officer at the time of the stop." Id.; accordState v. Shepard, 955 P.2d 352, 355 (Utah Ct. App. 1998).

Whether reasonable, articulable suspicion exists is a conclusion of law. See State v. Humphrey, 937 P.2d 137, 140 (Utah Ct. App. 1997). Thus, "[t]he trial court's determination regarding reasonable suspicion is reviewed for correctness, affording a measure of deference due to the fact-specific nature of the inquiry." Salt Lake City v. Smoot, 921 P.2d 1003, 1006 (Utah Ct. App. 1996).

2. The trial court found that "Defendant has conceded that Officer Rapela has articulated reasonable suspicion for expanding the scope of the detention beyond the minor traffic violation." Defendant does not challenge this finding. Rather, in his opening brief he concedes that "some reasonable questioning related to the [Defendant]'s driving while on suspension is obviously permissible."

3. In light of this conclusion, we decline to address the State's argument regarding failure to marshal.

4. Regarding Defendant's argument that the inventory search was merely a pretext to perform an investigatory search, "Defendant made no showing that Officer [Rapela]'s practice in this regard was at odds with what reasonable officers customarily do. The impoundment was not, therefore, an unconstitutional pretext . . . ." State v. Strickling, 844 P.2d 979, 987 (Utah Ct. App. 1992).

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opinions/mds/cordova_m.htm 18:18:43 GMT -->