State v. Navarro , 841 Utah Adv. Rep. 4 ( 2017 )

2017 UT App 102THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
CHANCE ARIC NAVARRO,
Appellant.
Opinion
No. 20150832-CA
Filed June 22, 2017
Fifth District Court, St. George Department
The Honorable John J. Walton
No. 131501328
Gary W. Pendleton, Attorney for Appellant
Sean D. Reyes, Jeanne B. Inouye, and Jeffrey S. Gray,
Attorneys for Appellee
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES
DAVID N. MORTENSEN and JILL M. POHLMAN concurred.
ROTH, Judge:
¶1 This case is about the reasonableness under the Fourth
Amendment of a warrantless vehicle search which uncovered
weapons, drugs, and drug paraphernalia. Chance Aric Navarro
appeals the district court’s denial of his motion to suppress the
evidence. We affirm.
¶2 One night in August 2013, Officer Parry of the
Washington County Drug Task Force was conducting
surveillance of a St. George tire shop, trying to find a person for
State v. Navarro
whom the task force had an arrest warrant. 1 Parry never found
his target, but he did watch Navarro and several others as they
hung out at the shop and in its parking area. At one point,
Navarro opened the front door of his SUV, and, when he did so,
Parry noticed the SUV’s window was darkly tinted. Parry “was
very confident that the window was too dark” and “believed it
was going to be a tint violation.” 2
¶3 Later, Navarro opened the SUV’s rear hatch and Parry
saw “what appeared to be a rifle case.” The case concerned Parry
because he “believed that Mr. Navarro was a felon, and he may
have [had] a weapon with him.” 3 Parry’s belief was based on his
personal involvement in a proceeding from several years earlier
in which Navarro had agreed to plead guilty to felony charges. 4
Parry was also concerned that Navarro might have a gun
because the drug task force had information from two sources
that Navarro “was involved with the distribution of drugs,” was
“in possession of weapons,” and “was possibly looking to shoot
it out with officers . . . if he was caught.”
1. “In reviewing the trial court’s ruling on a motion to suppress
evidence, we recite the relevant facts in the light most favorable
to the trial court’s findings.” State v. Burdick, 2014 UT App 34, ¶ 2
n.1, 320 P.3d 55.
2. Utah law prohibits the operation of motor vehicles with
windows that are tinted too darkly. Utah Code Ann. § 41-6a-
1635(1) (LexisNexis Supp. 2016).
3. Utah law prohibits restricted persons, a class that includes
convicted felons, from possessing dangerous weapons. Utah
Code Ann. § 76-10-503 (LexisNexis Supp. 2016).
4. Unknown to Parry at the time he saw Navarro’s gun case,
Navarro’s felony conviction had been reduced to a misdemeanor
at some point after the conviction was entered.
20150832-CA 2 2017 UT App 102State v. Navarro
¶4 A short time before midnight, Navarro got in his SUV and
left the tire shop in a convoy with three other cars. Parry used
his radio to alert other members of the task force to Navarro’s
presumed tint violation and to warn them to use caution dealing
with him. Officers Jessop and Nutchatelli responded to the radio
call and paralleled the convoy as it stopped briefly at a Wendy’s
restaurant. The convoy broke up in the Wendy’s parking lot,
with Navarro’s SUV and another car driving to a nearby
Denny’s restaurant.
¶5 Jessop and Nutchatelli followed both cars into the
Denny’s parking lot and turned on their patrol car’s lights to
initiate a traffic stop of the vehicles. Both Navarro’s SUV and the
other vehicle stopped. The other driver got out of her car and
headed quickly for the Denny’s. Jessop and Nutchatelli, with the
assistance of other officers arriving on the scene, stopped her
and then approached Navarro’s SUV. After a short delay,
Navarro complied with officer requests to show his hands and
get out of his vehicle. Navarro notified the officers that he had a
knife on his belt and a firearm in the SUV; they frisked Navarro
for other weapons, found none, and then placed him in
handcuffs.
¶6 Around this time, Parry left his surveillance position,
went to Navarro’s location, and discussed the possible tint
violation with him. Because none of the officers on the scene had
a tint meter with them, the officers waited for one to arrive so
they could confirm their suspicion that Navarro’s window tint
violated the statute.
¶7 While the officers were waiting for the tint meter, several
other things happened. First, an officer with a computer arrived
and determined that Navarro was not a felon by running a
criminal history check. Second, Parry called an officer with a
drug dog, who arrived shortly after the call. The dog alerted on
Navarro’s SUV, and the officers searched it. The search
uncovered two guns, drug paraphernalia, and a substance
20150832-CA 3 2017 UT App 102State v. Navarro
alleged to be methamphetamine. Eventually, a tint meter arrived
and confirmed that the SUV’s windows were tinted too darkly.
The State charged Navarro with two counts of possession of a
dangerous weapon by a restricted person, 5 possession or use of a
controlled substance, possession of drug paraphernalia, and
illegal window tinting.
¶8 Navarro moved to suppress the evidence of drugs and
weapons on the ground that the police search of his vehicle was
illegal under the Fourth Amendment to the United States
Constitution. Navarro’s basic argument was that the police
stopped him on the pretext of a window tint violation, but they
immediately detoured into an investigation for drugs and
weapons without doing any of the normal activities associated
with clearing a traffic stop for a tint violation. This investigatory
detour, he claimed, was outside the scope of a reasonable
investigation necessary to resolve the window tinting pretext,
and thus was illegal under the Fourth Amendment. Navarro
requested an evidentiary hearing on the issue.
¶9 At the suppression hearing, the trial court heard
testimony from officers Parry, Jessop, and Nutchatelli. Much of
the testimony related to the timeline of events before and during
the stop, the search of Navarro’s SUV, and the pretextual nature
of the stop. Testimony showed that Navarro left the tire shop at
11:39 p.m. Several minutes passed before he arrived at the
Denny’s, where he was stopped at roughly 11:45 p.m. Parry
testified that, based on his phone records, he had called for the
drug dog at 12:03 a.m. and that the search of Navarro’s SUV
began at 12:12 a.m. after the dog alerted to the possible presence
of drugs. No officer was able to remember when the tint meter
5. Although Navarro was not a felon when the police stopped
him, Utah law prohibits any “unlawful user of a controlled
substance” from possessing a firearm. Utah Code Ann. § 76-10-
503(1)(b)(iii) (LexisNexis Supp. 2016).
20150832-CA 4 2017 UT App 102State v. Navarro
was requested or who requested it, but Nutchatelli testified that
he had been informed that Parry “was going to get ahold of a St.
George police officer” to bring a tint meter before the stop began.
Parry testified that he did not remember requesting the meter,
but “[i]t very well could have been me. It would make sense.”
¶10 Likewise, no officer could pinpoint when the tint meter
arrived in relation to the drug dog. Parry testified that the meter
arrived sometime between the initiation of the stop at 11:45 p.m.
and the beginning of the vehicle search at 12:12 a.m., although he
could not say whether the dog or the meter arrived first. Jessop
testified that “[he] would guess” the dog arrived “less than five
minutes” after Navarro was stopped. He also estimated that it
took “20 minutes” “from the time we made contact [with
Navarro] to when [the tint meter] arrived on scene and we
confirmed the tint.” Because his “attention was drawn away” by
the other stopped vehicle, Nutchatelli was not sure how long
after the initial stop it took for the drug dog to arrive, but he
thought it was “[l]ess than 15 minutes.” He estimated the tint
meter arrived “within 20 minutes” of the stop.
¶11 At the close of the hearing, the trial court described how it
had weighed the evidence presented:
There appeared to be reasonable suspicion of a tint
violation; that a tint meter was requested; that it
arrived probably in the neighborhood of 20
minutes after the stop; that the drug dog arrived in
the neighborhood of probably 10 or 15 minutes
after the stop. [The dog] did sniff [Navarro’s SUV]
prior to the time the tint meter got there.
¶12 Both parties submitted briefing after the suppression
hearing, and the court thereafter denied the motion to suppress
in a brief written decision:
20150832-CA 5 2017 UT App 102State v. Navarro
The Court finds that the stop of [Navarro’s] vehicle
for a window tint violation was constitutional at its
inception. The Court further finds that both a tint
meter and a K-9 unit were requested shortly after
the stop, and that the tint meter did not arrive until
after the arrival of the K-9 unit. Once the K-9
alerted on the defendant’s vehicle, the detectives
had reasonable suspicion of additional serious
criminal activity, and could appropriately expand
the investigative scope of the initial stop.
¶13 The case proceeded to trial and a jury convicted Navarro
on two counts of possession of a dangerous weapon by a
restricted person and possession of drug paraphernalia. 6
Navarro timely appealed.
¶14 According to Navarro, the “only issue on appeal” is
whether, under the Fourth Amendment to the United States
Constitution, “the district court erred in denying [his] motion to
suppress evidence” found during the search of his vehicle. “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.¶15 Navarro concedes that the traffic stop of his SUV was
justified at its inception based on the officers’ reasonable
suspicion of an equipment violation, namely the dark tinting of
his windows. He contends, however, that the police
6. The trial court dismissed the charge of possession of a
controlled substance because the State failed to test the alleged
methamphetamine in time for trial. The window tinting charge
was apparently also dismissed.
20150832-CA 6 2017 UT App 102State v. Navarro
“impermissibly exploited the traffic stop” by immediately
“embarking upon [a] narcotics investigation” that was unrelated
to the purpose of the stop. Because it was unrelated to the
suspected equipment violation that justified the stop, he claims
the narcotics investigation exceeded the bounds of the Fourth
Amendment and the evidence uncovered should have been
suppressed under State v. Lopez, 873 P.2d 1127 (Utah 1994).
Under Lopez, both “the length and the scope of the detention
must be strictly tied to and justified by the circumstances which
rendered its initiation permissible.” Id. at 1132 (brackets, citation,
and internal quotation marks omitted).
¶16 Given that Navarro concedes the stop’s initial validity, the
only question presented on appeal is “whether the detention
following the stop was reasonably related in scope to the
circumstances that justified the interference in the first place.”
See State v. Baker, 2010 UT 18, ¶ 12, 229 P.3d 650 (citation and
internal quotation marks omitted). On that question, Navarro
argues that the “evidence that the State offered” “does not
demonstrate that officers took any measures to clear the traffic
stop before concluding their narcotics investigation.” (Emphasis
omitted.) Navarro also argues that the “police did not have
reasonable suspicion to initiate a stop or extend [his] detention
for the purpose of investigating a weapons violation.” In
essence, Navarro asserts that the police unreasonably extended
his detention by not immediately taking steps to resolve the
suspected tint violation and that no other circumstance—such as
suspicion of a separate weapons violation—justified the police
delay. We conclude, however, that the totality of the
circumstances of this case, including police efforts to investigate
Navarro for a potential weapons violation, must be taken into
account in determining whether the actions of law enforcement
violated Navarro’s constitutional rights. See Ohio v. Robinette, 519
U.S. 33, 39 (1996) (stating that “the touchstone of the Fourth
Amendment is reasonableness,” which “is measured in objective
20150832-CA 7 2017 UT App 102State v. Navarro
terms by examining the totality of the circumstances” (citation
and internal quotation marks omitted)).
¶17 “During a lawful traffic stop, the temporary seizure of
driver and passengers ordinarily continues, and remains
reasonable, for the duration of the stop.” Baker, 2010 UT 18, ¶ 13
(brackets, citation, and internal quotation marks omitted). “If,
during the scope of the traffic stop, the officer forms new
reasonable articulable suspicion of criminal activity, the officer
may also expediently investigate his new suspicion.” Id.“Reasonable suspicion means suspicion based on specific,
articulable facts drawn from the totality of the circumstances
facing the officer at the time of the stop,” Lopez, 873 P.2d at 1132,
which facts “are most frequently based on an investigating
officer’s own observations and inferences,” State v. Roybal, 2010
UT 34, ¶ 14, 232 P.3d 1016 (citation and internal quotation marks
omitted). “If reasonable suspicion of more serious criminal
activity does arise, the scope of the stop is still limited. The
officers must diligently pursue a means of investigation that is
likely to confirm or dispel their suspicions quickly, during which
time it is necessary to detain the defendant.” Lopez, 873 P.2d at
1132 (brackets, citation, and internal quotation marks omitted).
¶18 In this case, the record shows that Parry believed, based
on his personal knowledge, that Navarro had pleaded guilty to a
felony in the past. Parry also saw the rifle case in the back of
Navarro’s SUV. Because Utah law prohibits felons from
possessing firearms, the State argues that Parry had independent
reasonable suspicion to investigate Navarro for a possible
weapons violation. The State asserts that this is so even though
Navarro was not in fact a felon—and therefore not a restricted
person—at the time of the stop, having had his felony conviction
reduced to a misdemeanor.
¶19 Navarro relies on State v. Houston to argue that an officer’s
unaided memory alone is not sufficient to give rise to reasonable
suspicion that a suspect is a convicted felon. 2011 UT App 350,
20150832-CA 8 2017 UT App 102State v. Navarro
263 P.3d 1226. In Houston, we determined that reasonable
suspicion existed to stop a driver for operating under a
suspended license based on the officer’s personal knowledge
that the driver’s license had been suspended in the past, which
knowledge the officer had confirmed “just a few days before”
the stop. Id. ¶¶ 2, 21–22. But license suspensions are by their
nature temporary, whereas felony convictions are not. Thus,
while our determination in Houston relied on the officer’s recent
verification of the defendant’s driver license status, that does not
imply that an officer must always verify his or her memory
before it can give rise to reasonable suspicion. Rather, unlike the
driver license suspension in Houston, felony convictions are
generally permanent absent further judicial process. See Utah
Code Ann. § 76-3-402 (LexisNexis 2012) (setting forth the
procedure for reducing the severity of a conviction); id. § 77-40-
103 (LexisNexis Supp. 2016) (explaining the “process for the
expungement of [criminal] records”). Given that the “standard
for reasonable suspicion is relatively low” and “falls
considerably short of satisfying a preponderance of the evidence
standard,” State v. Morris, 2011 UT 40, ¶ 29, 259 P.3d 116 (citation
and internal quotation marks omitted), we conclude that Parry
had reasonable suspicion to investigate whether Navarro was a
restricted person in this case.
¶20 Once the officers who stopped Navarro for the tint
violation informed Parry they had done so, Parry left his
position near the tire shop and arrived at the scene of the traffic
stop “within a few minutes.” And Parry’s reasonable suspicion
of a weapons violation traveled with him. That is, Parry brought
to the scene of the stop independent reasonable suspicion that
Navarro was a restricted person in possession of a firearm.
Contrary to Navarro’s argument, Parry’s arrival at the Denny’s
parking lot justified an extension of the traffic stop for the
purpose of investigating a possible weapons violation. See Baker,
2010 UT 18, ¶ 13 (“If, during the scope of the traffic stop, the
officer forms new reasonable articulable suspicion of criminal
20150832-CA 9 2017 UT App 102State v. Navarro
activity, the officer may also expediently investigate his new
suspicion.”).
¶21 We now turn to the core question of whether the totality
of Navarro’s detention was reasonable under the Fourth
Amendment. “Though officers are not required to move at top
speed” during a lawful detention, “the officer’s overall course of
action during a traffic stop, viewed objectively and in its totality,
must be reasonably directed toward the proper ends of the
stop.” State v. Simons, 2013 UT 3, ¶ 33, 296 P.3d 721 (brackets,
ellipses, citation, and internal quotation marks omitted); see also
id. ¶ 34 (“The analysis of whether an officer diligently pursued
the original purpose of a stop is necessarily a fact-bound
inquiry.”).
¶22 The record reveals that the trial court heard
uncontroverted evidence about many of the events and
circumstances that comprised the totality of the circumstances in
this case. Navarro’s SUV was stopped, along with another car
which had been travelling with him from the tire shop. The
driver of the other car, by immediately attempting to leave the
scene after stopping, diverted police attention briefly before they
focused their attention on Navarro. Once the officers talked with
Navarro, he told them that he had a knife on his person, as well
as a firearm in his car. That information raised reasonable
concerns for officer safety and led to a weapons frisk of Navarro,
with the police eventually placing him in handcuffs for their
safety.
¶23 None of the original officers at the stop had a tint meter
on hand. An officer therefore arranged for one to be brought to
the scene to test the window so that the police would “actually
have some evidence of what the window tint was.” While they
were waiting for the tint meter, Officer Parry arrived at the
scene. His arrival brought with it the independent reasonable
suspicion of a weapons violation that we discussed above.
However, none of the officers had a computer when Parry
20150832-CA 10 2017 UT App 102State v. Navarro
arrived, so they could not confirm or dispel Parry’s suspicion
that Navarro was a felon in possession of a firearm until another
officer arrived with a laptop computer. Once the computer
arrived, officers dispelled the suspicion that Navarro was a
restricted person by running a felony records check. And then at
12:03 a.m., and still waiting for the tint meter to arrive, Parry
called for a drug dog. The dog quickly arrived, alerted to the
presence of drugs, and the police then searched the SUV.
¶24 After weighing the evidence, the trial court found that the
tint meter did not arrive until after the drug dog, and Navarro
has not challenged that finding. The court then concluded that,
once the dog alerted on Navarro’s SUV, the officers had
“reasonable suspicion of additional serious criminal activity, and
could appropriately expand the investigative scope of the initial
stop” with a search of Navarro’s SUV. Though not directly
stated in its written order, the court implicitly determined that
the scope of the initial detention—the time leading up to the
search of Navarro’s car—was also reasonable under the Fourth
Amendment. That is, for the court to have reached its ultimate
determination that the expanded investigation—here, the
search—was constitutionally permissible, it necessarily had to
first determine that the original detention was constitutionally
reasonable as well.
¶25 Given the record before us, we do not agree with Navarro
that the trial court erred as a matter of law when it implicitly
determined that the length of his detention was reasonable
under the Fourth Amendment. Navarro was stopped at 11:45
p.m. and arrested at some time around 12:12 a.m. The duration
of Navarro’s detention, which lasted a total of approximately 27
minutes, is not a facially unreasonable length of time for an
investigatory detention of this sort, see State v. Holt, 780 S.E.2d
44, 51 (Ga. Ct. App. 2015) (determining that “neither the thirty-
minute delay caused by the wait for a second law enforcement
officer, nor the total detention period of almost one hour”
20150832-CA 11 2017 UT App 102State v. Navarro
exceeded the boundaries of an investigatory stop), and Navarro
has not directed our attention to caselaw showing otherwise.
¶26 And the totality of the circumstances support the
conclusion that the length of the detention in this case was
reasonable. In addition to the time required for a tint meter to
arrive, several concerns reasonably complicated the police
investigation in this case. First, given their knowledge that
Navarro might want to “shoot it out” with police, officers were
wary of him and took steps to protect themselves. See State v.
Gurule, 2013 UT 58, ¶ 29, 321 P.3d 1039 (“[T]he inherent
dangerousness of all traffic stops should be considered under the
totality of the circumstances analysis.” (ellipsis, citation, and
internal quotation marks omitted)). Second, an officer testified
that the car that had been travelling with Navarro and was also
stopped at the scene distracted him: “part of it [the
circumstances around Navarro’s detention] was there was
another vehicle [there], and I was kind of dealing with that
person, and then kind of flip-flopping back and forth from Mr.
Navarro to the other person that was there on the scene.” Third,
Parry had independent reasonable suspicion to investigate
Navarro for a weapons violation. Because a weapons violation
poses a unique risk to law enforcement, efforts to confirm or
dispel that suspicion provided reasonable justification for an
investigatory detour that, for a time, pulled officers away from
their original mission of investigating the suspected tint
violation.
¶27 While we recognize that the record evidence could have
been more precise in terms of the sequence and relationship of
events, we also note that the United States Supreme Court has
warned that appellate judges engaging in post hoc evaluations
can “almost always imagine” some way the police investigation
could “have been accomplished by less intrusive means.” See
United States v. Sharpe, 470 U.S. 675, 686–87 (1985) (citation and
internal quotation marks omitted). “But the fact that the
protection of the public might, in the abstract, have been
20150832-CA 12 2017 UT App 102State v. Navarro
accomplished by less intrusive means does not, itself, render the
search unreasonable.” Id. Here as well appellate hindsight might
tempt us to parse the details of the stop in a way that the
practical realities of police work in a situation such as this do not
justify. But given the Supreme Court’s admonition and the
complicated nature of the traffic stop at issue here, we conclude
that the duration of Navarro’s detention was reasonable and the
“overall course of [police] action” was “reasonably directed
toward the proper ends of the stop.” See State v. Simons, 2013 UT
3, ¶ 33, 296 P.3d 721 (citation and internal quotation marks
omitted).
¶28 Finally, we address Navarro’s remaining argument that
one of the trial court’s findings—that both the tint meter and the
drug dog “were requested shortly after the stop”—was not
supported by the evidence. We agree. No evidence was
submitted at the suppression hearing that could support a
finding that the meter was requested after the police stopped
Navarro. However, the record contains evidence that the meter
was requested before the stop began: Nutchatelli testified, “It was
before we made the traffic stop that Parry was going to get ahold
of a St. George police officer” to bring a tint meter. Thus, while
the trial court’s precise finding on this point is unsupported, the
error does not support Navarro’s argument that officers ignored
the suspected tint violation so they could pursue a drug
investigation. Rather, that evidence supports the inference that
the police diligently pursued the initial purpose of the stop by
making arrangements for a tint meter before Navarro was even
detained.
¶29 For these reasons, the trial court correctly determined that
the stop, detention, and search of Navarro’s SUV were
constitutional. Because the detention and search were legal, the
court properly admitted evidence gathered during the search.
Affirmed.
20150832-CA 13 2017 UT App 102