State v. Chapman

JACKSON, Judge:

Defendant Chapman filed this interlocutory appeal from an order denying his motion to suppress evidence obtained as a result of a police stop. We affirm.

FACTS

On January 25, 1991, at about 10:00 to 10:30 p.m., Officer Rasmussen of the Granite School District saw a Jeep Wagoneer parked in the parking lot of Central High School. The Wagoneer was the only vehicle on the school grounds, and Chapman and a young woman were sitting in the back seat of the Wagoneer.

Officer Rasmussen believed the two people in the Wagoneer were violating a Salt Lake County ordinance that prohibits any person from loitering, idling, wandering, strolling, or playing about school grounds without “lawful business.”

Officer Rasmussen pulled behind the Wagoneer with his emergency lights on, approached the vehicle, and identified himself as a police officer. The officer observed no suspicious behavior from Chapman or the young woman. He questioned them about their presence on school property and they answered that they were parked there just “talking and stuff.” Officer Rasmussen asked them for identification. The young woman, who owned the Wagoneer, provided her driver's license. Chapman, who had no identification, spelled his name for the officer.

The officer told the two to remain seated and returned to his cruiser where he initiated a driver’s license and warrants check. Another patrol officer, Ellertson, heard Chapman’s name over his radio and promptly radioed Officer Rasmussen to inform him that three weeks earlier, he had been told that Chapman was a gang member, known to carry a weapon. Officer Ellertson warned Rasmussen to be careful and drove to the school to assist him.

When Ellertson arrived a few minutes later, the two officers approached the car and asked Chapman to step out of the car. Officer Rasmussen informed Chapman of the information they had that he was a gang member, known to carry a weapon. The officer conducted a pat-down search and found no weapon. Officer Rasmussen then asked Chapman if he was armed. Chapman replied that he did not have a weapon on him, but that a weapon was in the fanny pack on the floor under the front seat of the car.

The officers asked permission to search the vehicle for the weapon. The owner of the car consented to the search. When the officers located the fanny pack, they held it up and Chapman nodded. The officers opened the fanny pack and removed a weapon. The gun clip contained bullets but no bullet was in the firing chamber of the weapon.¹

Chapman was then arrested, handcuffed, and given his Miranda warnings. Officer Rasmussen testified that he arrested Chapman for violation of the trespass ordinance. The officers ran a computer check on the weapon and received notice that it had been stolen. The Officers again gave Chapman the Miranda warnings and he agreed to talk with them. Chapman stated he had stolen the weapon in a residential burglary. He then pointed out the burglary site to the officers. Chapman was taken to the police station, where Miranda warnings were repeated, and he again admitted to the burglary. He was then booked into jail and charged with burglary, a second degree felony, in violation of Utah Code Ann. § 76-6-202 (1990).

ISSUES

Chapman raises the following challenges to the trial court’s findings and conclusions on appeal: (1) his detention and arrest were unlawful because the county ordinance is unconstitutional; (2) Officer Rasmussen did not have reasonable suspicion to stop and detain him; and (3) the officer did not have probable cause to arrest him.

CONSTITUTIONALITY OF THE ORDINANCE

Chapman contends the officer could not have had reasonable suspicion that he violated the county ordinance because the ordinance is void for vagueness under the Fourteenth Amendment and is in conflict with general state law in violation of the Utah Constitution. Chapman also argues the officer lacked probable cause to arrest him under the ordinance simply because the officer should have known the ordinance was invalid and would be judicially declared unconstitutional.

Even if this court were to determine the ordinance unconstitutional, Chapman’s stop and subsequent arrest under the ordinance would still be valid. A stop or arrest made pursuant to an officer’s good faith reliance on an ordinance not yet declared unconstitutional is valid, regardless of a subsequent judicial determination of its unconstitutionality. Illinois v. Krull, 480 U.S. 340, 349-50, 107 S.Ct. 1160, 1167, 94 L.Ed.2d 364 (1987); Michigan v. DeFillippo, 443 U.S. 31, 37-38, 99 S.Ct. 2627, 2632, 61 L.Ed.2d 343 (1979); United States v. Landry, 903 F.2d 334, 339 (5th Cir.1990). Moreover, police are charged to enforce laws unless and until they are declared unconstitutional. DeFillippo, 443 U.S. at 38, 99 S.Ct. at 2632. Chapman presented no justification for finding Officer Rasmussen lacked a good faith belief that the ordinance was valid. Thus, Officer Rasmussen’s reliance on the county ordinance to detain and subsequently arrest Chapman was valid. Accordingly, we need not reach the issue of whether the ordinance is unconstitutional.

LEGALITY OF STOP: REASONABLE SUSPICION

Chapman contends that even if the ordinance is constitutional, the trial court clearly erred in finding that the initial detention by Officer Rasmussen was supported by reasonable suspicion.² Whether the required reasonable suspicion is present to support an investigatory detention by a police officer presents a question of fact. State v. Mendoza, 748 P.2d 181, 183 (Utah 1987). We review factual findings underlying the grant or denial of a motion to suppress under the “clearly erroneous” standard. State v. Ashe, 745 P.2d 1255, 1258 (Utah 1987); State v. Robinson, 797 P.2d 431, 435 (Utah App.1990). An officer has reasonable suspicion to stop any person when objective facts exist that “would lead a reasonable person to conclude [the subject] had committed or was about to commit a crime.” State v. Trujillo, 739 P.2d 85, 88 (Utah App.1987); accord Utah Code Ann. § 77-7-15 (1990).

The trial court found Officer Rasmussen reasonably suspected unlawful activity as he approached Chapman. The trial court also found the officer justifiably detained Chapman because of his belief that Chapman was in violation of a county ordinance prohibiting a person from being on school property without a “lawful purpose.”

Chapman asserts that all the factors justifying reasonable suspicion listed by the trial court are consistent with innocent behavior and thus, cannot amount to reasonable suspicion. The factors enumerated by the trial court were “the lateness and darkness of the hour, the emptiness of the school grounds, the presence of a young teenage female in the vehicle and the fact that Chapman had no apparent lawful business at the school.” The trespass ordinance clearly prohibits people from loitering about school grounds in vehicles without any lawful business. The trial court’s findings of fact show that a reasonable person would conclude Chapman had violated the ordinance.³

PROBABLE CAUSE TO ARREST

Chapman further claims that even if the ordinance is constitutional, the officers did not have probable cause to arrest him. The determination of whether probable cause exists “depends upon an examination of all the information available to the searching officer in light of the circumstances as they existed at the time the [arrest] was made.” State v. Dorsey, 731 P.2d 1085, 1088 (Utah 1986); see also Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). “The trial court’s findings as to the facts and circumstances pertaining to probable cause will not be overturned on appeal unless it appears that the trial court clearly erred.” Dorsey, 731 P.2d at 1088; accord State v. Rocha, 600 P.2d 543, 545 (Utah 1979); State v. Bartley, 784 P.2d 1231, 1236 (Utah App.1989).

Utah Code Ann. § 77-7-2 (1990) provides that officers can make an arrest with or without a warrant. An arrest may be made without a warrant if “from the facts known to the officer, and the inferences which fairly might be drawn therefrom, a reasonable and prudent person in his position would be justified in believing that the suspect had committed the offense.” State v. Leonard, 825 P.2d 664, 669 (Utah App.1991) (quoting State v. Hatcher, 27 Utah 2d 318, 495 P.2d 1259, 1260 (1972)).

The trial court determined Officer Rasmussen had probable cause to believe Chapman had committed a public offense of “unlawful acts about schools” when he arrested him. Chapman claims the officer did not have probable cause because the officer did not know Chapman’s purpose for being on the grounds and had no information that he was there for illegal purposes.

When the officer arrested Chapman, he knew the county ordinance provided that a person commits an offense if that person loiters or idles on or about school grounds, either on foot or in a vehicle, without having some lawful business to be there. The officer observed Chapman’s presence on the school grounds, the lateness of the hour, the emptiness of the school grounds, and the presence of a young teenage female in the vehicle. Moreover, Chapman’s response that he was there just “talking and stuff” indicated he had no lawful business at the school. The trial court did not commit clear error in finding this information justified Officer Rasmussen’s belief that Chapman was violating the county ordinance in his presence.

Thus, we conclude the trial court was correct in its denial of Chapman’s motion to suppress and in its finding of probable cause for his arrest.⁴

CONCLUSION

Accordingly, we affirm the trial court’s denial of Chapman’s motion to suppress evidence.

GARFF, J., concurs.

1 . Officer Rasmussen testified that he received a negative result on the warrants check on portable radio after the search of Chapman and possibly after discovery of the weapon.

2 . Defendant’s claim that the stop or “detention" for violation of the ordinance was a pretext to search for evidence of a more serious crime also fails because a reasonable officer would have detained the defendant for the violation absent any unconstitutional motivation. See State v. Lopez, 831 P.2d 1040, 1044 (Utah App.1992). Officer Rasmussen testified that it was "standard operating procedure” for persons believed to be violating the trespass ordinance to be stopped, for the officer to run a license and "wants and warrants” check, and then for the officer to warn or cite them for trespassing. Officer Rasmussen did not deviate from that procedure. Accordingly, we determine the stop was not a pretext stop.

3 . Chapman also contends that even if the stop was lawful at its inception, Officer Rasmussen lacked reasonable suspicion of criminal activity sufficient to detain him longer while initiating an information check. Because we agree with the trial court that reasonable suspicion, if not probable cause, existed from their initial encounter, we conclude the further detention was permissible.

4 . Officer Rasmussen’s search of Chapman after the initial stop was also constitutional because if an officer has probable cause to arrest, he is entitled to search the person without any additional justification. United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973). An officer’s conduct is not unreasonable if he makes the search before instead of after the arrest. Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 2564, 65 L.Ed.2d 633 (1980). Officer Rasmussen had probable cause to arrest Chapman even before receiving the information concerning the weapon and before the search of Chapman. Therefore, regardless of the information concerning a possible weapon, Officer Rasmussen was entitled to conduct the search.