State v. Sanchez-Granado , 841 Utah Adv. Rep. 17 ( 2017 )

2017 UT App 98THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JAVIER SANCHEZ-GRANADO,
Appellant.
Per Curiam Opinion
No. 20160651-CA
Filed June 15, 2017
Third District Court, West Jordan Department
The Honorable L. Douglas Hogan
No. 151401609
Marshall Thompson and Brock Van De Kamp,
Attorneys for Appellant
Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellee
Before JUDGES J. FREDERIC VOROS JR., STEPHEN L. ROTH, and
DAVID N. MORTENSEN.
PER CURIAM:
¶1 Javier Sanchez-Granado appeals his conviction for
possession with intent to distribute a controlled substance, a
second degree felony. Sanchez-Granado entered a conditional
guilty plea, reserving the right to appeal from the district court’s
denial of his motion to suppress. We affirm.
¶2 Sanchez-Granado claims that the district court erred by
(1) adopting the subjective view of one of the police detectives
rather that applying an objective standard and (2) failing to
consider the “numerous innocent explanations of [his] actions
within the totality of the circumstances.” In sum, Sanchez-
Granado claims that under the totality of the circumstances, the
State v. Sanchez-Granado
detectives did not have an objectively reasonable suspicion to
support his detention. “We review a trial court’s decision to
grant or deny a motion to suppress for an alleged Fourth
Amendment violation as 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. Accordingly, “we review as a matter of
law whether a specific set of facts gives rise to reasonable
suspicion.” State v. Gurule, 2013 UT 58, ¶ 20, 321 P.3d 1039(citation and internal quotation marks omitted).
¶3 The motion to suppress was based on the testimony of
Detective Denise Lovendahl in the preliminary hearing in the
underlying case and the testimony of Detective Lovendahl and
Detective Scott Lloyd in the preliminary hearing of a co-
defendant. The district court made the following findings. On
May 18, 2016, Detective Lovendahl was watching a Wal-Mart
parking lot in Salt Lake County. Detective Lovendahl had been
involved in investigating drug cases for seven years. On May 18,
she was monitoring an area that, in her experience, had been a
location where drug sales occurred. She watched a white Lexus
sedan occupied by two males for approximately twenty minutes.
During that time, the occupants did not leave the vehicle, but
they appeared to be using cell phones and watching the lot.
Detective Lovendahl contacted Detective Lloyd, who joined in
the surveillance in a separate vehicle. After about twenty
minutes, the Lexus moved to another part of the parking lot,
where it met a Chevy Tahoe and a motorcycle. A passenger from
each of those vehicles climbed into the back seat of the Lexus.
The driver of the Tahoe and the motorcycle rider remained
where they were. “Based on their experience in drug
enforcement, the detectives believed that this pattern of behavior
indicated that drugs were likely being sold in the Lexus.” The
detectives therefore approached the vehicles to investigate the
suspicious activity.
20160651-CA 2 2017 UT App 98State v. Sanchez-Granado
¶4 Detective Lloyd activated his red and blue lights to notify
the suspects that he was a police officer. 1 The motorcycle fled at
a high rate of speed. The Tahoe attempted to forcefully back up,
but it was blocked by Detective Lovendahl’s vehicle, whereupon
Detective Lovendahl activated her red and blue lights. Detective
Lloyd approached the Lexus on foot and observed that a
backseat passenger was holding a folding knife in one hand and
cash in the other. He also observed that the center console was
open and that it contained a baggie full of colorful balloons
typically used to package drugs for individual sale and
distribution. The front seat passenger’s hand was in the console.
Sanchez-Granado—the driver—was attempting to close the
console. Based on Detective Lloyd’s observation of a weapon
and the balloons located in the center console, the detectives
then developed probable cause to search the vehicle. They
recovered a large knife under the front passenger seat and
heroin and cocaine in the center console.
¶5 In the preliminary hearing in this case, Detective
Lovendahl testified that she was watching the parking lot
because, based on her past experience, it was a location for drug
trafficking. She testified that in her seven years of experience
working drug cases, when you see a person in a vehicle where
the occupant is on their phone, looking around, “sitting there for
a while, they pull up and meet with another car and two people
get in it, then it’s typically a drug deal.” She had watched the
Lexus long enough “to know that they weren’t doing anything
in the store,” and she “just recognized it to be likely dealers
waiting for people to show up.” Detective Lovendahl testified,
“At that point, I realized they were likely doing a drug deal and
so we pulled up to go see what they were doing.” Her intention
was to walk up and see what they were doing in the car.
1. The parties agree that the defendants were detained at this
moment.
20160651-CA 3 2017 UT App 98State v. Sanchez-Granado
¶6 Sanchez-Granado attached the preliminary hearing
transcript for his co-defendant to the motion to suppress. There,
Detective Lloyd testified that “we have continued problems of
high drug activity in the parking lot at Wal-Mart.” He further
testified that “from my experience in the parking lot,” the
behavior exhibited in this case was “consistent with drug
trafficking and drug dealers.” Detective Lloyd was familiar with
the location through his experience with loss prevention and
drug activities in the parking lot. He testified that at that
location, it was suspicious activity for the vehicle to be in the
parking lot for so long, with its occupants looking around, and
then parking and having another vehicle park in front of their
vehicle and then have passengers from that vehicle enter a
defendant’s vehicle. Detective Lloyd noted as other indications
of drug activity “the mannerisms, looking about the parking lot,
not going into the store, [and] two separate parties that are
coming from two different vehicles enter into a vehicle.” Due to
these suspicious activities, Detective Lloyd moved behind the
Lexus and activated his lights. As he walked up to the Lexus, he
saw a rear seat passenger with a knife. In the center console, he
“could clearly see a baggie [containing] smaller, colorful
balloons that are consistent with . . . distribution or selling of
drugs.”
¶7 In the co-defendant’s preliminary hearing, Detective
Lovendahl testified to largely the same facts that she described
in Sanchez-Granado’s preliminary hearing. On May 18, she was
in the Wal-Mart parking lot “because we have a drug problem.”
She observed the Lexus with two male passengers exhibiting
“kind of typical drug behavior that I’ve seen several times [in]
many arrests.” The detectives watched the Lexus for about
twenty minutes. The occupants did not go into a store. They
pulled around to the west side of the lot, where a Tahoe pulled
in front of the Lexus and a motorcycle pulled in next to the
Lexus. She testified that when the passenger from the Tahoe got
in the backseat of the Lexus, and a passenger from the
20160651-CA 4 2017 UT App 98State v. Sanchez-Granado
motorcycle got into the other side of the Lexus, the detectives
“moved up because it’s typical for drug deals to happen that
way.” 2 Detective Lovendahl indicated that she generally agreed
with Detective Lloyd’s description of the subsequent events.
¶8 Sanchez-Granado moved to suppress the evidence based
on a claim that the detention was a level-two stop that was not
supported by a reasonable articulable suspicion. Sanchez-
Granado argued that the behavior observed by the detectives
had a number of potentially innocent explanations and that the
district court erred in relying only on subjective interpretations
of the facts by the detectives. The district court ruled that, “Based
on their experience, the facts they observed, and the reasonable
inferences they made, the detectives formed [a] reasonable
articulable suspicion that drugs were being sold in [Sanchez-
Granado’s] vehicle.” The district court also ruled that “[t]he
initial detainment, even if it happened before the flight or
attempted flight took place, was legally supported by reasonable
articulable suspicion.” The district court relied on State v.
Markland, 2005 UT 26, 112 P.3d 507, as support for its
determination that the officers had a reasonable articulable
suspicion to justify the detention in this case.
2. Sanchez-Granado argues that there was a disagreement
between the two detectives about whether there was a
reasonable suspicion to detain the Lexus. That claim is not
supported by the record. Detective Lloyd’s alleged disagreement
was in his answer to a question about whether there would have
been a reasonable suspicion to support detaining the Tahoe at
the time he was walking up to the Lexus to investigate
suspicious activity and before his observations of the knife and
potential drug evidence. This does not support the claim that
Detective Lloyd disagreed with Detective Lovendahl’s
assessment of the facts gleaned from the surveillance of the
Lexus.
20160651-CA 5 2017 UT App 98State v. Sanchez-Granado
When reviewing a given factual situation to
determine if reasonable suspicion justified a
detention, “[c]ourts must view the articulable facts
in their totality and avoid the temptation to divide
the facts and evaluate them in isolation.” State v.
Warren, 2003 UT 36, ¶ 14, 78 P.3d 590. Courts must
also “judge the officer’s conduct in light of
common sense and ordinary human experience
and . . . accord deference to an officer’s ability to
distinguish between innocent and suspicious
actions.” United States v. Williams, 271 F.3d 1262,
1268 (10th Cir. 2001) (internal quotation and
citations omitted); accord Warren, 2003 UT 36 at
¶¶ 20–21, 78 P.3d 590 (stating that courts should
consider officers’ subjective assessment of the
facts).
Markland, 2005 UT 26, ¶ 11(alteration and omission in original).
¶9 Sanchez-Granado’s motion to suppress argued that the
detectives did not observe any illegal behavior prior to making
the stop. Instead, the conduct occurred in a large busy parking
lot in the middle of the day and Sanchez-Granado and his
passenger “were seen doing what ordinary people would be
doing if waiting for friends, taking a break for lunch, waiting for
a ride,” and so forth. Accordingly, he claimed that the detectives
had no reasonable articulable suspicion to support the
investigatory stop.
¶10 “A police officer has reasonable, articulable suspicion
when the officer is ‘able to point to specific and articulable facts
which, taken together with rational inferences from those facts,
reasonably warrant th[e] intrusion.’” State v. Anderson, 2013 UT
App 272, ¶ 12, 316 P.3d 949 (alteration in original) (quoting Terry
v. Ohio, 392 U.S. 1, 21 (1968)). In evaluating whether the
reasonable articulable suspicion standard has been met, “a court
20160651-CA 6 2017 UT App 98State v. Sanchez-Granado
considers the totality of the circumstances to determine whether,
taken together, the facts warranted further investigation by the
police officer.” Id. ¶ 13 (citation and internal quotation marks
omitted). “[I]t is settled law that an officer is not obligated to rule
out innocent conduct prior to initiating an investigatory
detention.” Markland, 2005 UT 26, ¶ 17. “Rather we accord
deference to an officer’s ability to distinguish between innocent
and suspicious actions.” Anderson, 2013 UT App 272, ¶ 17
(citation and internal quotation marks omitted). Thus, while
“experience and training alone might lead to only a hunch,”
where an officer “articulated a basis in his specific observations
. . . to justify confidence in the suspicion he developed from the
application of his training and experience to the facts and
circumstances before him,” a court may defer to the officer’s
“ability to distinguish between innocent and suspicious actions.”
Id. ¶ 27 (citation and internal quotation marks omitted). “As long
as the underlying facts, and reasonable inferences drawn from
those facts, justify the conclusion that reasonable suspicion
existed at the inception of a level-two stop, the Fourth
Amendment is satisfied.” Markland, 2005 UT 26, ¶ 19.
¶11 The district court in this case reached its conclusion that
the detention was supported by reasonable suspicion based on
its examination of the totality of the circumstances. The district
court first noted the experience and expertise of the investigating
detectives, who had knowledge that drugs had been sold in the
location by persons who exhibited behavior similar to what the
detectives observed here. Neither Sanchez-Granado nor his
passenger exited the vehicle or entered the store, but they
appeared to be using their cell phones and watching the parking
lot for about twenty minutes. The detectives explained that this
behavior is typical of someone who is selling drugs and meeting
a buyer. Sanchez-Granado drove the vehicle to another part of
the lot, where the Lexus met the Tahoe and motorcycle as they
arrived. A passenger from each vehicle got into the back seat of
the Lexus. Detective Lovendahl testified that this was “the
20160651-CA 7 2017 UT App 98State v. Sanchez-Granado
clincher” that a drug buy was likely occurring. The district court
concluded that “[b]ased on their experience, the facts they
observed, and the reasonable inferences they made, the
detectives formed a reasonable articulable suspicion that drugs
were being sold in [Sanchez-Granado’s] vehicle.”
¶12 Contrary to Sanchez-Granado’s assertion that the district
court failed to consider potentially innocent explanations for the
observed behavior, the district court specifically acknowledged
this argument. However, the court correctly stated that “the
detectives were not required to eliminate all or any possible
innocent explanation for [Sanchez-Granado’s] behavior to arrive
at their reasonable articulable suspicion of criminal conduct.” At
most, Sanchez-Granado challenges the weight given to his
arguments. Under the circumstances, the district court did not
err in concluding that the totality of the circumstances supported
a reasonable articulable suspicion to justify the level-two stop.
The district court’s decision also clarifies that the court did not
consider the flight of the motorcycle or the attempted flight of
the Tahoe in reaching its determination regarding reasonable
suspicion.
¶13 The totality of the circumstances supported the district
court’s conclusion that the detectives had a reasonable
articulable suspicion to detain Sanchez-Granado’s vehicle in a
level-two stop to conduct a further investigation. See Anderson,
2013 UT App 272, ¶ 28. We affirm.
20160651-CA 8 2017 UT App 98