State v. Perkins ( 2019 )

2019 UT App 117THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JEREMY LEE PERKINS,
Appellant.
Opinion
No. 20180154-CA
Filed July 11, 2019
First District Court, Logan Department
The Honorable Brian G. Cannell
No. 161100060
Ryan L. Holdaway and Diane Pitcher, Attorneys
for Appellant
Sean D. Reyes and Jeffrey D. Mann, Attorneys
for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.
HAGEN, Judge:
¶1 Jeremy Lee Perkins challenges the district court’s denial of
his motion to suppress evidence obtained from a search that he
argues was unconstitutional. Perkins argues that the officers did
not have reasonable suspicion of recent criminal activity and his
detention was therefore illegal. In the alternative, he argues that
even if the detention was lawful at its inception, the detention
was unreasonably long. We affirm.
BACKGROUND
¶2 A concerned citizen met “face-to-face” with Officer Pearce
to inform the officer that Perkins’s girlfriend (the girlfriend) was
State v. Perkins
using and selling drugs. Among other things, the concerned
citizen witnessed the girlfriend sell methamphetamine to
Perkins. For the next few weeks, Officer Pearce attempted to
contact the girlfriend and her probation officer, to no avail.
¶3 When the girlfriend went to the Adult Probation and
Parole (AP&P) office for her monthly check-in, the probation
officer informed Officer Pearce that she had arrived. Officer
Pearce met with the girlfriend at the AP&P office and asked her
some questions based on the concerned citizen’s report. In
particular, Officer Pearce asked the girlfriend if he and the
probation officer would find any drugs if they searched her car.
At first the girlfriend said no, but as they were walking to her
car, she admitted there were drugs in the center console. The
officers searched the car and collected small baggies containing
crystal pieces that later tested positive for methamphetamine.
¶4 After discovering the narcotics in her car, Officer Pearce
informed the girlfriend of her rights and questioned her about
using and selling drugs. The girlfriend admitted to selling
methamphetamine and confirmed the concerned citizen’s report
that Perkins was one of her customers. Initially, she told Officer
Pearce that she had seen Perkins use methamphetamine that
morning, but she later changed her story and claimed she had
last seen him use the week before. The girlfriend lived with
Perkins and his sister, and Officer Pearce asked whether there
were drugs at the residence (the residence). The girlfriend said
they would find only drug paraphernalia.
¶5 Officer Pearce, other officers, and a canine unit,
accompanied the girlfriend back to the residence and conducted
a drug sniff and a search of the common areas “as outlined in
[her] probation agreement.” The girlfriend lived in the basement
of the residence, and Perkins and his sister lived upstairs. The
drug dog alerted to narcotics in the girlfriend’s bedroom and in
an upstairs bathroom used by Perkins and his sister. The officers
also found paraphernalia and prescription medication not
prescribed to the girlfriend in her room.
20180154-CA 2 2019 UT App 117State v. Perkins
¶6 Based on the information provided by the concerned
citizen as well as the girlfriend’s statements that she sold Perkins
methamphetamine and recently saw him use it, Officer Pearce
wanted to detain Perkins for further investigation. Officer Pearce
contacted another officer, Officer Stirland, and instructed him to
attempt to locate and detain Perkins at his workplace. According
to Officer Stirland’s testimony, Officer Pearce did not provide
many details about the justification for or purpose of the stop.
¶7 At 11:44 a.m., Officer Stirland located Perkins in the
company’s parking lot and detained him. 1 Officer Stirland
notified Officer Pearce, who was still at the residence where the
canine unit was finishing its work. Officer Pearce told Officer
Stirland that he was dispatching a canine unit to Perkin’s
location and to continue to detain Perkins until the unit arrived.
As soon as the drug sniff at the residence had concluded, the
canine unit left for Perkins’s location. Due to heavy snow on the
roads as well as the distance between the residence and Perkins’s
location, the drive took approximately twenty minutes. While
waiting for the canine unit to arrive, Officer Stirland allowed
Perkins to remove company-owned items from his truck and
wait inside his company’s office. According to the call records,
the canine unit arrived at Perkins’s location between 12:20 p.m.
and 12:30 p.m. The drug dog alerted to narcotics in Perkins’s
truck within five minutes of arriving.
¶8 Meanwhile, at the residence, Officer Pearce had begun
drafting an affidavit for a search warrant to obtain bodily fluids
from Perkins to test for recent drug use. When he was notified
1. Perkins testified at an evidentiary hearing and said that
Officer Stirland initiated the stop between 10:45 a.m. and
11:00 a.m. and that the canine unit arrived about thirty minutes
after the stop began. The court concluded that the call log
provided better evidence of the timeline than Perkins’s
testimony, which was based only on his recollection of the
events, and determined that the stop was initiated at 11:44 a.m.
20180154-CA 3 2019 UT App 117State v. Perkins
that the drug dog had alerted to the smell of narcotics in
Perkins’s truck, Officer Pearce revised his affidavit to include a
request to search the truck. The officers decided to wait for the
search warrant, which was already in progress, rather than
conduct a warrantless search of the truck based on the drug
dog’s alert or Perkins’s consent.
¶9 Officer Pearce concluded his investigation at the residence
at approximately 12:45 p.m. and then traveled to Perkins’s
location. Officer Pearce completed the affidavit for a search
warrant while another officer drove. Once they arrived on the
scene, Officer Pearce electronically submitted the affidavit for
the search warrant at 1:31 p.m. When he did not receive an
immediate response, Officer Pearce contacted the court and
learned that the magistrate judge who was in charge of signing
warrants that week was not available. Officer Pearce contacted
two other magistrate judges, but neither judge could access the
affidavit. After contacting different agencies to resolve the issue,
a magistrate judge was able to review the affidavit and the
search warrant was approved at 1:59 p.m.
¶10 Officer Pearce executed the search warrant and collected a
urine sample from Perkins, which tested positive for
methamphetamine. A search of the truck did not uncover drugs
or drug paraphernalia, but did lead to the discovery of an assault
rifle. The State charged Perkins with possession of an illegal
substance 2 and possession of a firearm by a restricted person.
¶11 Perkins moved to suppress the result of his urine analysis
and the discovery of the firearm in his truck, arguing that his
initial detention was illegal because it “was not based upon
reasonable suspicion” and, even if it were, “the duration of the
detention substantially exceeded what was reasonable given the
2. “Possession” of a controlled substance includes, among other
things, “inhalation, swallowing, [or] injection.” Utah Code Ann.
§ 58-37-2(1)(ii) (LexisNexis 2016).
20180154-CA 4 2019 UT App 117State v. Perkins
information available [to the officers] at the time.” Following an
evidentiary hearing, the district court denied Perkins’s motion to
suppress, concluding that “the officer had reasonable suspicion
that [Perkins] may have been in possession of illegal narcotics
and acted with due diligence in pursuing the investigation
thereof and obtained the necessary search warrants in a timely
manner.” The district court credited the call logs to establish the
timeline of events and determined that the length of the
detention was reasonable under the totality of the circumstances.
¶12 Following this denial, Perkins entered a conditional
no-contest plea to possession of a controlled substance,
preserving his right to appeal the denial of his motion to
suppress under rule 11(j) of the Utah Rules of Criminal
Procedure. Perkins now appeals.
ISSUES AND STANDARDS OF REVIEW
¶13 Perkins contends the district court should have granted
his motion to suppress for two reasons. First, he argues that the
officers did not have reasonable suspicion of criminal activity to
detain him. Second, he argues that the duration of the detention
was “considerably longer than necessary” to confirm or dispel
the officers’ suspicion of criminal activity. “We review a denial
of a motion to suppress as a mixed question of law and fact and
will disturb the district court’s factual findings only when they
are clearly erroneous, but we afford no deference to the district
court’s application of law to the underlying factual findings.”
State v. Sosa, 2018 UT App 97, ¶ 6, 427 P.3d 448 (quotation
simplified).
ANALYSIS
¶14 The Fourth Amendment to the United States Constitution
guarantees “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
20180154-CA 5 2019 UT App 117State v. Perkins
searches and seizures.” U.S. Const. amend. IV. “The touchstone
of the Fourth Amendment is reasonableness, which is measured
in objective terms by examining the totality of the
circumstances.” State v. Baker, 2010 UT 18, ¶ 10, 229 P.3d 650(quotation simplified); see also Ohio v. Robinette, 519 U.S. 33, 39
(1996). “Reasonableness under the Fourth Amendment depends
on a balance between the public interest and the individual’s
right to personal security free from arbitrary interference by law
[enforcement] officers.” Baker, 2010 UT 18, ¶ 10 (quotation
simplified).
¶15 There are “three different kinds of police-citizen
encounters, each permitting a different degree of intrusion and
requiring a different level of justification.” State v. Worwood, 2007
UT 47, ¶ 21, 164 P.3d 397. “A level one encounter occurs when a
police officer approaches a citizen and asks questions, but the
person is not detained against his will and remains free to
leave.” State v. Biggs, 2007 UT App 261, ¶ 10, 167 P.3d 544(quotation simplified). “A level two encounter,” otherwise
known as a Terry stop, “occurs when a police officer temporarily
seizes an individual because the officer has a reasonable,
articulable suspicion that the person has committed or is about
to commit a crime.” Id. (quotation simplified); see also Terry v.
Ohio, 392 U.S. 1, 26–27 (1968). “Finally, a level three [encounter]
occurs when a police officer has probable cause to believe that a
crime has been committed and effects an arrest of the suspect.”
Biggs, 2007 UT App 261, ¶ 10 (quotation simplified).
¶16 In this case, Officer Pearce ordered Officer Stirland to
initiate a Terry stop and detain Perkins until a canine unit
could arrive and conduct a dog sniff for narcotics. When
an officer initiates a Terry stop, courts apply a two-step inquiry
to determine whether the stop is constitutional: (1) whether
the stop was justified at its inception, and (2) whether the
resulting investigation was “carried out in a manner reasonably
related in scope to the circumstances that justified the
interference in the first place.” State v. McLeod, 2018 UT App 51,
¶ 16, 420 P.3d 122 (quotation simplified); see also United States v.
20180154-CA 6 2019 UT App 117State v. Perkins
Sharpe, 470 U.S. 675, 682 (1985). A stop is justified at its inception
when the officer has reasonable suspicion of criminal activity.
See State v. Simons, 2013 UT 3, ¶ 14, 296 P.3d 721. When officers
have reasonable suspicion of criminal activity, they “must
diligently pursue a means of investigation that is likely to
confirm or dispel their suspicions quickly.” See Baker, 2010 UT
18, ¶ 26 (quotation simplified). If officers unnecessarily prolong
the detention and do not act quickly to confirm or dispel their
suspicions, the once-lawful detention can become unlawful. See
McLeod, 2018 UT App 51, ¶ 17.
¶17 Here, Perkins first argues that the stop was not justified
at its inception because the officers did not have reliable
information to support their belief that Perkins had recently
engaged in criminal activity. Second, Perkins argues that
even if the stop was justified at its inception, the resulting
detention was unreasonable in length. We address each
argument in turn.
A. Reasonable Suspicion of Criminal Activity
¶18 To lawfully initiate a Terry stop, an officer must have
reasonable suspicion that “the person has committed or is about
to commit a crime.” State v. Baker, 2010 UT 18, ¶ 16, 229 P.3d 650(quotation simplified). Under these circumstances, “‘the
likelihood of criminal activity need not rise to the level required
for probable cause, and it falls considerably short of satisfying a
preponderance of the evidence standard.’” State v. Simons, 2013
UT 3, ¶ 21, 296 P.3d 721 (quoting United States v. Arvizu, 534 U.S.
266, 274 (2002)).
¶19 Perkins’s argument that the stop was unlawful at
its inception focuses almost exclusively on whether the
information provided by the concerned citizen was sufficiently
reliable and timely to give rise to reasonable suspicion that
Perkins had recently used methamphetamine. But this was
not the only information on which the officers based the
detention. The officers corroborated the tip when the girlfriend
20180154-CA 7 2019 UT App 117State v. Perkins
confirmed that she had consistently sold methamphetamine to
Perkins and had recently seen Perkins using methamphetamine,
possibly as recently as that morning. Also, during the search of
the residence, the officers found drug paraphernalia and a drug
dog alerted to narcotics in a bathroom used by Perkins and
his sister. Based on this information, Officer Pearce had
reasonable, articulable suspicion that Perkins had recently
committed a crime and was therefore justified in instructing
Officer Stirland to detain him. 3 See State v. Biggs, 2007 UT App
261, ¶ 10, 167 P.3d 544.
B. Length of Detention
¶20 Having determined that there was reasonable suspicion
to detain Perkins, we must now determine whether the length
of his detention was reasonable. Perkins argues that the district
court should have granted his motion to suppress because
the officers did not “diligently pursue a method of investigation
that would quickly confirm or dispel the basis for the
[detention].”
¶21 Although Perkins’s detention was continuous from the
initial Terry stop to his arrest, once the dog alerted to narcotics in
his truck, the nature of the detention changed. We therefore look
at two distinct time periods: (1) the time between Perkins’s initial
detention and the dog alert on the truck (reasonable suspicion
detention), and (2) the time between the dog alert on the truck,
which established probable cause to search, and the execution of
the search warrant (probable cause detention).
3. Perkins acknowledges that, under vertical collective
knowledge, an officer who has reasonable suspicion of criminal
activity can instruct another officer to detain an individual, even
if “the corpus of information known to the first officer” was not
communicated to the detaining officer. See State v. Talbot, 2010
UT App 352, ¶ 15, 246 P.3d 112 (quotation simplified).
20180154-CA 8 2019 UT App 117State v. Perkins
1. Reasonable Suspicion Detention
¶22 Perkins argues that even if the officers had reasonable
suspicion to detain him, his detention was unreasonably
prolonged waiting for the canine unit to arrive. When
determining whether the length of a detention was reasonable,
we do not look at the length of the detention alone. Instead, we
look to the totality of the circumstances surrounding the
detention, see State v. Baker, 2010 UT 18, ¶ 17, 229 P.3d 650, and
“examine whether the police diligently pursued a means of
investigation that was likely to confirm or dispel their suspicions
quickly, during which time it was necessary to detain the
defendant,” United States v. Sharpe, 470 U.S. 675, 686 (1985).
¶23 Here, Officer Pearce was conducting parallel
investigations into both Perkins and the girlfriend. Officer Pearce
was still in the process of searching the residence when he
ordered Officer Stirland to locate and detain Perkins. At
11:44 a.m., Officer Stirland informed Officer Pearce that Perkins
had been detained, and Officer Pearce told Officer Stirland to
detain Perkins until a canine unit arrived. At that time, the drug
dog being used in the investigation was still finishing its work at
the residence. As soon as the dog completed its sniff at the
residence, Officer Pearce immediately sent the dog and its
handler to Perkins’s location. Given the distance between the
two locations and the heavy snow, it took about twenty minutes
for the canine unit to arrive. Based on the call records, the canine
unit arrived somewhere between 12:20 p.m. and 12:30 p.m. and
the dog alerted to the presence of narcotics within five minutes
of arrival.
¶24 Under the circumstances, the thirty-six- to forty-six-
minute delay until the commencement of the dog sniff was
reasonable. Although we have little Utah case law directly on
point, other courts have consistently held that comparable
delays are reasonable where the officers promptly requested a
drug dog to be transported to the scene of the stop. See, e.g.,
United States v. Mendoza, 468 F.3d 1256, 1261 (10th Cir. 2006)
20180154-CA 9 2019 UT App 117State v. Perkins
(“Given the distance between the scene of the detention and the
nearest handler, as well as [the trooper’s] diligence in promptly
calling the dog handler and the handler’s speedy arrival, a
40-minute detention was reasonable.”); United States v. Cervine,
347 F.3d 865, 872–73 (10th Cir. 2003) (holding that the length of
the detention was reasonable where “the traffic stop, detention,
and canine search of [the defendant’s] vehicle lasted
approximately fifty minutes”); United States v. Villa-Chaparro, 115
F.3d 797, 802–03 (10th Cir. 1997) (holding that the officer “acted
reasonably in detaining [the defendant] for five minutes from the
time he stopped [the defendant] . . . and for an additional
thirty-eight minutes while he waited for the canine unit to
arrive”).
¶25 Perkins contends that those cases, in which reasonable
suspicion arose during the course of the stop, are
distinguishable. For instance, he argues that in Villa-Chaparro, the
officer “did not know prior to stopping the defendant that he
was going to be needing a drug dog,” whereas in this case the
officer knew that “the very purpose of stopping [Perkins] was to
investigate drugs” and had “prior knowledge that the drug dog
would be needed.” However, Perkins ignores the fact that the
officers did not know if or when Perkins would be located. As
soon as Officer Stirland confirmed that Perkins had been
stopped, and Officer Pearce knew that a dog sniff could take
place, he promptly sent a canine unit to Perkins’s location.
Nothing in the record suggests that another canine unit was
available that could have arrived more quickly. See United States
v. Donnelly, 475 F.3d 946, 954 (8th Cir. 2007) (holding that a
fifty-nine-minute detention awaiting a drug dog was reasonable
where nothing suggested that the officer “exercised suboptimal
diligence” or that “a similarly trained canine unit could have
reached the scene sooner”). “When police need the assistance of
a drug dog in roadside Terry stops, it will in general take time to
obtain one; local government police forces and the state highway
patrol cannot be expected to have drug dogs immediately
available to all officers in the field at all times.” United States v.
Bloomfield, 40 F.3d 910, 917 (8th Cir. 1994). Given the parallel
20180154-CA 10 2019 UT App 117State v. Perkins
investigations taking place some distance apart, as well as the
road conditions at the time, Perkins’s thirty-six- to forty-six-
minute detention while awaiting the drug dog’s arrival was
reasonable.
¶26 Finally, Perkins claims that his detention was
unreasonable because Officer Stirland was not actively
questioning him or otherwise investigating the suspected drug
activity while waiting for the canine unit to arrive. While
“officers must diligently pursue a means of investigation that is
likely to confirm or dispel their suspicions quickly,” State v.
Simons, 2013 UT 3, ¶ 17, 296 P.3d 721 (quotation simplified),
Perkins does not explain how subjecting him to questioning
would have dispelled the officers’ reasonable suspicion or
reduced the length of the detention. The decision to forgo further
questioning until the dog sniff was particularly reasonable in
this case where the officer making the stop was not privy to the
details of the investigation. Given that the police had reasonable
suspicion of drug activity and promptly requested a canine unit
to conduct a minimally invasive sniff to confirm or dispel their
suspicions, Perkins’s thirty-six- to forty-six-minute detention
was reasonable.
2. Probable Cause Detention
¶27 Perkins also challenges the length of the detention
between the dog alert and the time the search warrant was
executed, again arguing that the officers did not diligently
pursue a method of confirming or dispelling their suspicion of
criminal activity. Specifically, Perkins argues that once the drug
dog alerted, the officers should have conducted a search of his
truck rather than waiting for a search warrant. We disagree.
¶28 Absent an exception to the warrant requirement, officers
must obtain a warrant prior to conducting a search. U.S. Const.
amend. IV; see also State v. James, 2000 UT 80, ¶ 9, 13 P.3d 576(explaining that there “are a number of exceptions to the
presumptive rule” that “searches may not be conducted without
20180154-CA 11 2019 UT App 117State v. Perkins
a warrant supported by probable cause” (quotation simplified)).
One exception to the warrant requirement is the automobile
exception. James, 2000 UT 80, ¶ 10. This exception allows officers
to conduct a warrantless search of a car “so long as there [is]
probable cause for the search.” State v. Rigby, 2016 UT App 42,
¶ 12, 369 P.3d 127; see also Pennsylvania v. Labron, 518 U.S. 938,
940 (1996) (per curiam) (“If a car is readily mobile and probable
cause exists to believe it contains contraband, the Fourth
Amendment thus permits police to search the vehicle without
more.”).
¶29 In this case, once the drug dog alerted to the scent of
narcotics in the truck, the officers had probable cause to conduct
a warrantless search under the automobile exception. 4 See Rigby,
2016 UT App 42, ¶ 12. Nevertheless, the officer chose to take the
more prudent course of obtaining a search warrant. And, as the
United States Supreme Court has explained, “[g]iven probable
cause to search, either course is reasonable under the Fourth
Amendment.” Chambers v. Maroney, 399 U.S. 42, 52 (1970) (“For
constitutional purposes, we see no difference between on the one
hand seizing and holding a car before presenting the probable
cause issue to a magistrate and on the other hand carrying out
an immediate search without a warrant.”). And here, where a
search warrant affidavit for a urine sample was already in
progress, the officers’ decision to concurrently seek judicial
approval for the automobile search afforded Perkins greater
Fourth Amendment protection. See Illinois v. Gates, 462 U.S. 213,
236–37 & n.10 (1983) (explaining “the Fourth Amendment’s
strong preference for searches conducted pursuant to a
warrant”); State v. Ashe, 745 P.2d 1255, 1267 n.59 (Utah 1987)
(“The government should actively encourage its law
4. The officers may have also had Perkins’s valid consent to
search, another exception to the warrant requirement. See State v.
Bisner, 2001 UT 99, ¶ 43, 37 P.3d 1073 (noting that one exception
to the warrant requirement “includes searches conducted
pursuant to consent”).
20180154-CA 12 2019 UT App 117State v. Perkins
enforcement agents to seek search warrants whenever possible
and by any available means provided by statute. Judicial officers
should cooperate to the utmost in promoting this policy.”).
¶30 We further conclude that the time between the drug dog
alert on Perkins’s truck and the issuance of the warrant was not
unreasonably lengthy. As detailed above, Officer Pearce was
conducting a dual investigation of two people at two locations
during the relevant time period. When Officer Pearce was
notified of the drug dog alert, he was still at the residence. As
soon as the search of the residence was completed at
approximately 12:45 p.m., Officer Pearce went directly to
Perkins’s location, working on the affidavit for the search
warrant during the twenty-minute drive. The warrant was
submitted at 1:31 p.m., shortly after Officer Pearce arrived on the
scene. Officer Pearce placed calls to the court to locate an
available magistrate to ensure that the warrant would be
promptly reviewed. Under these circumstances, we agree with
the district court that the officers acted with due diligence and
obtained a search warrant in a timely manner.
CONCLUSION
¶31 We conclude that the officers had reasonable suspicion of
criminal activity that justified detaining Perkins for further
investigation. We further conclude that the detention was not
unreasonably lengthy, given the simultaneous investigations, the
distance between the locations, the road conditions at the time,
and the developing information. Accordingly, we affirm the
denial of the motion to suppress.
20180154-CA 13 2019 UT App 117