State v. Ellis ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
State of Utah, ) MEMORANDUM DECISION
)
Plaintiff and Appellee, ) Case No. 20100563‐CA
)
v. ) FILED
) (September 27, 2012)
Christopher Duane Ellis, )
) 2012 UT App 272Defendant and Appellant. )
‐‐‐‐‐
Fourth District, Provo Department, 091402191
The Honorable David N. Mortensen
Attorneys: Margaret P. Lindsay and Matthew R. Morrise, Provo, for Appellant
Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee
‐‐‐‐‐
Before Judges Thorne, McHugh, and Roth.
ROTH, Judge:
¶1 Defendant Christopher Duane Ellis appeals the district court’s denial of his
motion to suppress evidence he alleges was seized when the detaining officer exceeded
the permissible scope of a protective frisk. We affirm.
¶2 If an officer has “reasonable suspicion that [a] detained individual is armed and
dangerous,” the officer may conduct a warrantless protective frisk, known as a Terry
frisk, to discover weapons that “might be used to harm the officer” so as to “ensure
officer safety” during the investigative detention. State v. Peterson, 2005 UT 17, ¶¶ 9‐10,
110 P.3d 699 (internal quotation marks omitted) (citing Terry v. Ohio, 392 U.S. 1, 23‐24,
26‐27 (1968)). For a Terry frisk to be permissible, “the officer’s action [must have been]
justified at its inception” and the protective frisk must be “reasonably related in scope
to the circumstances which justified the interference in the first place.” Id. ¶ 12 (citing
Terry, 392 U.S. at 19‐20). “Because the only permissible objective of the Terry frisk is the
discovery of weapons that may be used against the officer . . . , ‘a protective search
[that] goes beyond what is necessary to determine if the suspect is armed . . . is no[t] . . .
valid . . . and [the] fruits [of that search] will be suppressed.’” Id. (quoting State v.
Warren, 2003 UT 36, ¶ 14, 78 P.3d 590).
¶3 “The reasonableness of . . . the frisk [is] evaluated objectively according to the
totality of the circumstances.” Warren, 2003 UT 36, ¶ 14 (citing Terry, 392 U.S. at 21).
“To determine reasonableness, a court should question whether the facts available to
the officer . . . warrant a man of reasonable caution in the belief that the action taken
was appropriate.” Id. (internal quotation marks omitted). “[T]he officer must be able to
point to specific facts which, considered with rational inferences from those facts,
reasonably warrant the intrusion.” Id. “In determining reasonableness, due weight
must be given . . . to specific reasonable inferences which [an officer] is entitled to draw
from the facts in light of his experience.” Id. (alteration in original) (internal quotation
marks omitted). “[T]his process allows officers to draw upon their own experience and
training to make determinations based on the cumulative facts before them . . . .” Id.¶4 Here, an officer encountered Ellis while investigating a suspected automobile
burglary. Upon approaching Ellis, the officer saw “a clip knife in his right pocket.” He
also noticed that Ellis’s pockets were “very bulky.” Concerned for his safety, the officer
frisked Ellis for weapons.
¶5 The officer began the Terry frisk by removing the knife that was clipped on Ellis’s
right, front pocket. That same pocket was “bulging,” so the officer felt the outside of
the pocket in an attempt to identify whether the items inside were benign or included
things that could be used as weapons. Touching the outside of the pocket, the officer
felt “numerous items,” several of which were “long objects that seemed to be sharp” or
pointed. Concerned that these objects might be weapons or objects that could be used
as weapons, such as pens, the officer reached into Ellis’s pocket to remove those items.
While his hand was in Ellis’s pocket, the officer felt several other objects, such as
“pouches and all kinds of stuff.” Because “there were so many items in the pocket . . . it
was hard to . . . pull out just . . . one thing,” so the officer “just started taking everything
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out so [he] could . . . determine what . . . was dangerous and what wasn’t.” The officer
emptied the pocket in about “two or three handfuls” of items that included another
knife, pens, papers, and a couple of “pouches.” One of those pouches was described as
a “knife sheath”‐‐about three inches long, one to two inches wide, and the thickness of a
pencil. In the officer’s experience, such pouches could contain weapons like “[r]azor
blades, Leatherman tools, small pen knives‐‐things that have sharps on them” and can
be used as weapons.1
¶6 Without opening or manipulating that pouch, another officer who had joined the
investigation could see that it contained an object that resembled a glass
methamphetamine pipe. When that officer asked what was in the pouch, Ellis admitted
that it contained drug paraphernalia and agreed that the pouch could be searched. That
officer then opened the pouch and found that it did in fact contain a glass
methamphetamine pipe. On further search, drugs were found in Ellis’s possession.
After charges were filed, Ellis filed a motion to suppress both the paraphernalia and the
drugs. The district court’s denial of that motion is the subject of this appeal.
¶7 Ellis does not dispute that, under the circumstances, the officer was justified in
detaining him and conducting a protective Terry frisk, nor does he dispute that the
officer was justified in expanding the Terry frisk by reaching into his pocket to further
investigate the items felt during the pat down. Rather, Ellis argues that the officer
exceeded the permissible scope of the Terry frisk by removing everything from Ellis’s
pocket‐‐more particularly, by removing objects from Ellis’s pocket that the officer did
not believe to be weapons. However, in making this argument, Ellis concedes that the
officer could investigate the objects in his pocket that the officer reasonably believed to
be weapons or to contain a weapon, such as the long pointed objects and the pouch or
knife sheath. Indeed, Ellis does not dispute that the officer felt the pouch in Ellis’s
pocket during the Terry frisk and identified that pouch as an object that could contain a
weapon. Ellis accordingly concedes that if the officer reasonably believed that the
pouch contained a weapon, removal of the pouch from his pocket would fall within the
scope of a Terry frisk. Rather, Ellis’s argument is a much more narrow challenge to the
1
It is unclear from the officer’s testimony whether the other pouch contained the
knife that was removed from Ellis’s pocket or whether the knife was unsheathed and
the other pouch was an additional item in the pocket.
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facts supporting the officer’s belief that the pouch contained a weapon. Specifically, he
argues that
[the o]fficer . . . did not testify that he believed the black
knife sheath which contained the meth pipe to be a weapon.
. . . [The o]fficer . . . testified that Ellis’s pockets contained
pouches, and that these pouches were a cause for concern
because they could contain weapons. However, whether the
pouches could contain weapons is not the relevant question.
The question is, rather, whether [the o]fficer . . . believed that
the pouches did contain weapons, and in particular, whether
he believed that the black knife sheath which contained the
meth pipe was a weapon. . . . [The o]fficer . . . did not testify
that he believed that the sheath was a weapon or contained a
weapon. [The o]fficer . . . did not testify to the contours of
the sheath, or provide any specific, articulable facts which
indicated that that particular sheath was a weapon or
contained a weapon.
Thus, Ellis argues, in effect, that the officer did not articulate sufficient facts to support a
belief that the pouch actually contained a weapon.
¶8 Ellis’s distinction between whether the officer thought the pouch “could contain
[a] weapon[]” and whether he “believed that the pouch[] did contain [a] weapon[]” is of
little significance, however, because the allowable scope of a Terry frisk is determined
by the reasonableness of the officer’s belief that an object might be a weapon or might
contain one, not by the degree of his certainty that an object is or contains a weapon.
See generally State v. Zearley, 468 N.W.2d 391, 392 (N.D. 1991) (“Weapon verification is
essential if safety is to be preserved and a potentially volatile situation neutralized. We
cannot impose a condition of certainty that the object is a weapon before allowing an
officer to continue the . . . search . . . . We can impose a condition that an officer’s belief
that the object is a weapon be reasonably grounded and not a mere subterfuge for a
random search.” (internal quotation marks omitted)); North Dakota v. Heitzmann, 231
ND 136, ¶ 13, 632 N.W.2d 1, 8 (citing Zearley, 468 N.W.2d at 392 (“[W]hen a[] . . . search
reveals the presence of an object of a size and density that reasonably suggests the
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object might be a weapon, the searching officer is entitled to continue the search . . . in
order to determine whether the object is in fact a weapon.”).
¶9 Here, the officer testified that in his experience, pouches, such as the pouch he
felt and then removed from Ellis’s pocket, commonly contain weapons. The officer’s
identification of the pouch and the nature of his experience with such pouches gives his
belief that this particular pouch might contain a weapon a basis in reason. That belief
was further supported by the attendant circumstances: the officer had already observed
a knife in plain sight in the same pocket and then detected by feel other hard, pointed
objects that, based on his experience, could have been weapons or objects that could be
used as weapons. Some of those objects turned out to be weapons or potential weapons
when they were removed from the pocket and identified as another knife and several
pens. Under the totality of the circumstances, then, the officer was justified in removing
the pouch from Ellis’s pocket as part of the Terry frisk because he had a reasonable
concern that it could contain another weapon. See State v. Warren, 2003 UT 36, ¶ 14, 78
P.3d 590 (“The reasonableness of . . . the frisk [is] evaluated objectively according to the
totality of the circumstances. . . . In determining reasonableness, due weight must be
given . . . to specific reasonable inferences which [an officer] is entitled to draw from the
facts in light of his experience. . . . [T]his [approach] allows officers to draw upon their
own experience and training to make determinations based on the cumulative facts
before them that may elude an untrained person.” (second alteration in original)
(citations and internal quotation marks omitted)).
¶10 Having reached this conclusion, we need not address the broader contention
raised by Ellis that the officer expanded the search beyond the permissible scope of a
Terry frisk by removing everything from Ellis’s pocket, including items that the officer
did not believe to be weapons. See generally United States v. Campa, 234 F.3d 733, 736,
739 (1st Cir. 2000) (concluding that an officer expanded a search beyond the appropriate
scope of a Terry frisk by intentionally removing objects from the defendant’s pocket‐‐
particularly, a wallet, which yielded the contraband at issue‐‐where the officer did not
even assert that he thought that object was or contained a weapon); State v. Fowler, 883
P.2d 338, 339‐40 (Wash. Ct. App. 1994) (concluding that an officer expanded a search
beyond the appropriate scope of a Terry frisk by intentionally removing “two soft
objects of indeterminate shape” that the officer knew were not weapons and turned out
to be cigarette packages containing drugs). We do not reach this issue, however,
because we have already concluded that the officer was justified in removing the pouch,
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which he identified independently from the indistinguishable mass of objects that he
also removed from the pocket. Thus, the contraband that Ellis was charged with
possessing was not extracted from that mass but was found in the pouch, the discovery
of which then led to the discovery of other contraband.
¶11 Ellis also argues that the officers exploited an illegal Terry frisk to obtain Ellis’s
consent to further search. However, because we have concluded that the officer did not
exceed the scope of the Terry frisk, we need not address this argument.
¶12 We affirm.
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Stephen L. Roth, Judge
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¶13 WE CONCUR:
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William A. Thorne Jr., Judge
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Carolyn B. McHugh, Judge
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