State v. Beckstrom

2013 UT App 104_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
TANGA BECKSTROM,
Defendant and Appellant.
Opinion
No. 20110227‐CA
Filed April 25, 2013
Fourth District, Provo Department
The Honorable James R. Taylor
No. 101400296
Aaron P. Dodd and Dustin Parmley, Attorneys for Appellant
John E. Swallow and Kris C. Leonard, Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
CAROLYN B. MCHUGH and J. FREDERIC VOROS JR. concurred.
ORME, Judge:
¶1 Defendant Tanga Beckstrom appeals her conviction on one
count of driving under the influence (DUI) resulting in serious
bodily injury to another, a third degree felony, see Utah Code Ann.
§ 41‐6a‐502, ‐503(2)(a) (LexisNexis 2010), to which she pled guilty.
We affirm.
BACKGROUND
¶2 A husband and wife were driving on a snowy night on State
Street in Lehi. Defendant collided head‐on with their vehicle after
she entered the four‐lane street going the wrong direction. The
State v. Beckstrom
couple was seriously injured in the accident. LifeFlight was
dispatched, but the snowstorm became so severe that the flight had
to be cancelled, and the couple was instead taken to the hospital by
ambulance.
¶3 The police officer responding to the scene did not
immediately identify any behavior by Defendant that led him to
believe she was impaired. But he soon observed that Defendant’s
“speech was slurred, slow, [and] deliberate”; her eyes were “glossy
and glazed over”; the odor of alcohol emanated from her person;
and she was stumbling as she walked. Defendant told the officer
that the couple had been driving without their lights on, a
statement that was inconsistent with the accounts of other
witnesses. Suspicious that Defendant was impaired, the officer
asked her to perform several field sobriety tests. Defendant readily
agreed. The officer was concerned about administering the tests
outside because Defendant, who was wearing jeans, light shoes,
and a light jacket, was not adequately dressed for the worsening
weather and cold. He considered administering the tests inside a
nearby convenience store, but he determined that he would have
been unable to position his vehicle so that the tests could be
recorded with his dashboard video camera. The store was also full
of employees and customers.1
¶4 Administering the tests under the cover of an awning
outside the convenience store, which the officer also considered,
presented problems of its own. Testing would have blocked
customers from using the gas pumps and, even with the awning,
Defendant still would have been subjected to “blowing snow” and
frigid temperatures. Importantly, the validity of sobriety tests can,
in the words of the officer, “be greatly affected by a person’s
condition from the cold.” The officer determined that “even with
1
There is no indication in the record whether, in any
event, store management would have been receptive to police
field work being conducted within their premises.
20110227‐CA 2 2013 UT App 104State v. Beckstrom
that awning, the [weather] conditions would not have been
appropriate for standardized field sobriety tests.” Meanwhile, the
police station with “heat, level concrete, [and] no snow” was just
a couple of blocks away, so the officer asked Defendant if he could
take her there to complete the tests. He specifically informed
Defendant that she was not under arrest. Defendant agreed to the
relocation and rode with the officer in his police car for less than 90
seconds during their two‐block journey. She was apparently not
handcuffed or otherwise restrained—except, perhaps, by her
seatbelt.
¶5 Upon arriving at the police station, the officer did not call for
other officers but immediately administered the tests in a lighted,
heated, secured parking garage. Defendant failed the sobriety tests,
confirming the officer’s suspicion that she was impaired.
Defendant was then placed under arrest. Defendant admitted to
drinking vodka shots earlier that night, and subsequent intoxilyzer
testing revealed her blood alcohol content to be .228—almost three
times the legal limit. Defendant was charged with DUI and a traffic
offense. Defendant pled not guilty.
¶6 Defendant filed a motion to suppress, arguing that the
results of the field sobriety testing, intoxilyzer testing, and other
evidence should be suppressed because her detention amounted to
a de facto arrest without probable cause or because the scope of her
detention exceeded the permissible limits of an investigatory
detention. The trial court denied the motion, concluding that
transporting Defendant to the police station to conduct the sobriety
tests did not exceed the permissible scope of an investigative
detention under all the circumstances.2 Defendant then entered a
2
The trial court also resolved the de facto arrest argument.
Although the officer assured Defendant that she was not under
arrest at that time, the court concluded that probable cause
existed to justify Defendant’s arrest before she was transported
(continued...)
20110227‐CA 3 2013 UT App 104State v. Beckstrom
no‐contest plea to the DUI charge, conditioned on her right to
appeal her motion to suppress. See generally State v. Sery, 758 P.2d
935, 937–941 (Utah Ct. App. 1988). Defendant was sentenced to a
term of probation and fined $2,883. She now appeals.
ISSUE AND STANDARD OF REVIEW
¶7 Defendant argues that prolonging her detention was
impermissible. She insists that her rights were violated when she
was transported to the nearby police station for field sobriety
testing. She requests that this court reverse the denial of her motion
to suppress and vacate her conditional plea.
¶8 “In cases involving Fourth Amendment questions under the
United States Constitution, we review mixed questions of law and
fact under a correctness standard,” and “[f]actual findings
underlying a motion to suppress are evaluated for clear error.”
State v. Worwood, 2007 UT 47, ¶¶ 11, 12, 164 P.3d 397. No deference
is given to the trial court’s application of law to underlying factual
findings in search and seizure cases. State v. Brake, 2004 UT 95, ¶ 15,
103 P.3d 699.
ANALYSIS
¶9 “Probable cause exists where ‘the facts and circumstances
within [the officers’] knowledge and of which they had reasonably
trustworthy information [are] sufficient in themselves to warrant
a man of reasonable caution in the belief that’ an offense has been
2
(...continued)
to the police station. In view of our affirmance as explained in
this opinion, we decline to render an advisory opinion on
whether the State established that probable cause existed even
before the field sobriety tests were performed.
20110227‐CA 4 2013 UT App 104State v. Beckstrom
or is being committed.” State v. Menke, 787 P.2d 537, 542 (Utah Ct.
App. 1990) (alterations in original) (quoting Brinegar v. United
States, 338 U.S. 160, 175–76 (1949)). “Utah courts generally find that
probable cause for DUI exists when slurred speech, bloodshot eyes,
and the smell of alcohol are accompanied by failed field sobriety
tests.” Worwood, 2007 UT 47, ¶ 35. Of course, when some but not all
of these factors are present, an officer may at least have a
reasonable, articulable suspicion that a suspect has been driving
under the influence, and that suspicion will warrant prolonging a
suspect’s detention for further investigation so that the officer’s
suspicion can be dispelled or confirmed. See Terry v. Ohio, 392 U.S.
1, 21, 28 (1968).
¶10 Defendant argues that probable cause could not have existed
prior to her transportation and testing because Worwood establishes
that without additional evidence, bloodshot eyes, slurred speech,
and the smell of alcohol do not provide sufficient trustworthy
information to support probable cause for a DUI arrest. See 2007 UT
47, ¶ 35. Even assuming she is correct in her key assumption—and
we do not mean to imply that she is—it only serves to underscore
the good police work done in this case by the officer who chose not
to arrest Defendant on the spot but rather to first administer the
field sobriety tests that are the typical lynchpin in establishing the
probable cause needed to support a DUI arrest, as Worwood
recognizes. See id.
¶11 We conclude that the brief further detention of Defendant to
facilitate field sobriety testing was permissible under all the
circumstances, including the harsh weather conditions and
Defendant’s expressed consent to move to a more protected setting
less than two minutes away.3 “In evaluating the scope of a stop, the
court should foremost consider ‘whether the police diligently
3
Defendant contends that her consent was involuntary.
The trial court, however, found that Defendant’s consent was not
coerced, and Defendant has not demonstrated that this
determination was erroneous.
20110227‐CA 5 2013 UT App 104State v. Beckstrom
pursued a means of investigation that was likely to confirm or
dispel their suspicions quickly.’” Id. ¶ 28 (quoting United States v.
Sharpe, 470 U.S. 675, 686 (1985)). In doing so, officers do not have to
employ the least intrusive means available; they must merely act
reasonably in choosing an alternative. See id. Reasonableness is
determined by evaluating the “totality of the circumstances facing
the officer.” Id. Among the circumstances that can be taken into
account are an “officer’s concerns about safety and security,” id.
¶ 29, as well as physical conditions that would prevent accurate
sobriety testing, see id. ¶ 31.
¶12 The totality of the circumstances supports the trial court’s
determination that the officer acted reasonably in moving the
testing venue from the inclement roadside to a warm and well‐lit
nearby parking garage, albeit one that was part of the police
station. Weather conditions were so terrible just after the accident
that the intended deployment of LifeFlight had to be cancelled.
Defendant was wearing only light clothing and was unprepared for
such severe weather. According to his undisputed testimony, the
officer was concerned about Defendant’s wellbeing as well as the
resulting impact the cold could have on the validity of the sobriety
testing. Although the officer briefly considered the possibility of
conducting the sobriety tests inside the nearby convenience store,
the officer would have been unable to position his dash cam to
record the testing,4 and as the trial court noted, testing inside
“would have plainly intruded upon that business.” While not
mentioned by the trial court, subjecting Defendant to sobriety
testing inside a busy convenience store would also have subjected
her to possible embarrassment or humiliation. It was therefore
reasonable for the officer to find an alternative location to
administer the sobriety tests.
¶13 While officers may employ reasonable detention
alternatives, the detention must still comport with constitutional
4
The video recording of field sobriety tests, if possible, is
in the best interest of the State, DUI suspects, and the public.
20110227‐CA 6 2013 UT App 104State v. Beckstrom
requirements. See State v. Worwood, 2007 UT 47, ¶¶ 29–30, 164 P.3d
397. Transporting a suspect can increase the intrusiveness of an
investigative detention and potentially escalate it to the level of a
de facto arrest. See id. ¶ 30. For instance, transporting a suspect can
be “benign when the movement does not change the level of
coercion involved in the stop,” but moving a suspect “from a
public place to an enclosed, police‐dominated location can change
the level of justification required from reasonable suspicion to
probable cause.” Id. In Worwood, the Utah Supreme Court
determined that transporting a suspect from the side of the road to
a police officer’s private residence located more than a mile away
where the suspect was met by additional law enforcement officers
exceeded the permissible scope of an investigatory detention
because there was “no indication that [the officer] was concerned
about his safety.” Id. ¶ 31. See id. ¶ 5. Additionally, the Worwood
court noted that the record before it was silent regarding physical
factors that could have impacted sobriety testing such as the grade
and pitch of the dirt road, weather conditions, or time of day. See
id. ¶ 31. Worwood held that if just one of those factors had been
present, “a more expansive detention may have been justified
under reasonable suspicion.” Id.
¶14 The case at hand meets the requirements of Worwood. Severe
weather was the primary impetus for the officer’s decision to
relocate the testing venue. Concerns about harsh weather,
Defendant’s inadequate clothing for the conditions, and the
infeasibility of using the convenience store as a testing site all
reasonably informed the officer’s decision to transport
Defendant—with her permission and with the assurance that she
was not under arrest—for less than 90 seconds to a better testing
location. And any concern about intrusiveness and coercion is
minimal in this case, given that Defendant consented both to being
transported and to having the testing completed at the police
station. While the new location could be characterized as an
“enclosed, police‐dominated location,” there is no evidence that the
level of coercion or intrusiveness increased once Defendant arrived
at the parking garage. Backup was not called for, and Defendant
20110227‐CA 7 2013 UT App 104State v. Beckstrom
was not taken inside the police station. The tests were conducted
promptly and out of view of other officers or passersby. The new
location offered Defendant the benefits of “flatter pavement,”
warmth, and light, as opposed to the potential adverse impacts on
her testing from either severe weather at the roadside or gawking
customers at the convenience store. And its close proximity did not
lengthen Defendant’s detention much beyond what would have
been entailed in relocating to the convenience store. Cf. State v.
Simons, 2013 UT 3, ¶ 33, 296 P.3d 721 (analyzing reasonableness of
extension of detention “objectively and in its totality,” with a
primary focus on whether the extension was “reasonably directed
toward the proper ends of the stop”). We conclude that under the
totality of the circumstances, the officer “diligently pursued a
means of investigation that was likely to confirm or dispel” his
suspicion quickly, Worwood, 2007 UT 47, ¶ 28 (citation and internal
quotation marks omitted), and that Defendant’s brief additional
detention, with her permission, did not exceed the permissible
scope of an investigative detention.
CONCLUSION
¶15 The arresting officer had a reasonable, articulable suspicion
that Defendant was guilty of DUI following his initial investigation
of her accident. Under all the circumstances, including Defendant’s
express consent, it was reasonable to prolong her detention for a
few more minutes to administer field sobriety tests in order to
confirm or dispel that suspicion and to do so in a more appropriate
setting than the snowy roadside. The tests confirmed the officer’s
suspicion, and with probable cause now firmly established,
Defendant was arrested. The trial court ruled correctly in denying
Defendant’s motion to suppress, and her conviction is affirmed.
20110227‐CA 8 2013 UT App 104