State v. Burdick , 754 Utah Adv. Rep. 61 ( 2014 )

DAVIS, Judge

(concurring in part and dissenting in part):

[ 42 I dissent from the lead opinion solely with regard to its analysis under Part LB., in which Judge Christiansen endorses the trial court's determination that the syringe could be used as a dangerous weapon.¹⁰ See supra ¶¶ 20-22. As to all other parts of the lead opinion, I concur.

4 48 The trial court's ruling on Defendant's motion to suppress includes the impermissi-bly broad finding that "[a] syringe can be used as a weapon." Without evidence that a needle was attached to the syringe in Defendant's pocket, I do not see how this syringe, or a syringe in general, could be per se a weapon under any of the analytical frameworks referenced by the trial court or in Part L.B. Cf. United States v. Rue, 988 F.2d 94, 96 (10th Cir.1993) (syringe used as a stabbing implement, indicating that it had an attached needle, was considered a deadly weapon); People v. Autry, 232 Cal.App.3d 365, 283 Cal.Rptr. 417, 418 (1991) ("[A] contaminated hypodermic needle is one of the more deadly objects one can imagine outside of firearms."); State v. Nimer, 2010 UT App 376, ¶ 3, 246 P.3d 1194 (the defendant admitted to having syringes with uncapped needles attached in his pocket); State v. White, 856 P.2d 656, 658 (Utah Ct.App.1993) (a police officer removed an uncapped needle from the defendant's pocket). A syringe, by definition, is not necessarily accompanied by an attached needle. See, eg., Syringe, Merriam-Webster Online, http://www. webster.com/dictionary/syringe (last visited Feb. 3, 2014) (defining "syringe" as "a device used to inject fluids into or withdraw them from something," "a device that consists of a nozzle of varying length and a compressible rubber bulb and is used for injection or irrigation," and "an instrument (as for the injection of medicine or the withdrawal of bodily fluids) that consists of a hollow barrel fitted with a plunger and a hollow needle"); Syringe, Oxford Dictionaries, http://www. oxforddictionaries.com/us/definition/ american_english/syringe (last visited Feb. 3, 2014) (defining "syringe" as "a tube with a nozzle and piston or bulb for sucking in and ejecting liquid in a thin stream, used for cleaning wounds or body cavities, or fitted with a hollow needle for injecting or withdrawing fluids" (emphasis added)).

{44 Here, there is no evidence that the syringe Detective Warren felt in Defendant's pocket during his weapons search had a needle attached to it. And Defendant represented to Detective Warren that he " 'absolutely' " did not have any needles or other sharp objects on his person. As stated in Part LB., "Terry itself does not define a weapon, but allows an officer to seize or neutralize 'weapons which might be used to harm the officer or others nearby' or that 'might be used to assault" the officer." See supra ¶ 21 (Quoting Terry v. Ohio, 392 U.S. 1, 26, 80, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Similarly, the general definition of a dangerous weapon provided in the Utah Code broadly defines a dangerous weapon as "any item capable of causing death or serious bodily injury." Utah Code Ann. § 76-1-601(5)(a) (LexisNex-is 2012). However, under either approach, I cannot see how the syringe in this case, without evidence of an attached needle, would be "capable of causing death or serious bodily injury," see id.

1 45 The same statute also provides that "a facsimile or representation" of a dangerous weapon is a dangerous weapon where "the actor's use or apparent intended use of the item leads the victim to reasonably believe the item is likely to cause death or serious bodily injury" or "the actor represents to the victim verbally or in any other manner that he is in control of such an item." Id. § 76-1-601(5)(b). Here, Defendant denied having any sharp objects on his person and he did not attempt to access the syringe. Indeed, it is not clear that Detective Warren handcuffed Defendant because of any threat he may have perceived from the presence of the syringe where, after Detective Warren commented on feeling the syringe in Defendant's pocket, Defendant turned toward him aggressively with an arm raised, visibly upset and yelling. Furthermore, Detective Warren did not "disarm" Defendant after discovering the syringe, see Terry, 392 U.S. at 30, 88 S.Ct. 1868, but did so some time later, implying that Detective Warren did not "reasonably believe" the syringe was a dangerous weapon. See Utah Code Ann. § 76-1-601(5)(b). However, by endorsing the trial court's determination on this record that a syringe can be used as a weapon, Part I.B. effectively holds that anyone carrying a syringe for a legitimate purpose, e.g., an insulin-dependent diabetic, is guilty of carrying a weapon.

T 46 Accordingly, while I do not necessarily disagree that Defendant inadequately briefed this issue, see supra ¶ 22 & n. 5, I would overlook any inadequacy to clarify that a syringe, contrary to the trial court's finding, is not per se a weapon and that the evidence in this case does not support a finding that this syringe, even if a needle had been attached, could be used as a weapon. To the extent reversal of that finding would undermine the trial court's ruling on the motion to suppress, I would reverse the trial court's denial of that motion and reverse Defendant's paraphernalia charge.¹¹

10 . Because Judge McHugh concurs only in the result of affirming Defendant's conviction, the lead opinion has majority support and thus prec-edential value only with respect to the portions of the opinion with which I concur. Part LB. of the lead opinion, in which I do not concur, represents only the view of the author, and thus has no precedential value.

11 . It is also worth noting that the syringe ultimately tested negative for controlled substances.