State v. Merworth

OPINION

DAVIS, Judge:

T1 Defendant Agron Merworth appeals from convictions of unlawful possession of a controlled substance, see Utah Code Ann. § 58-37-8(2)(a)) (Supp.2005), possession of drug paraphernalia, see id. § 58-37a-5(1) (2002), and possession of tobacco by a minor, see id. § 76-10-105 (2008). We affirm.

BACKGROUND

12 On September 25, 2005, Officer Olsen and Officer Flores were patrolling the area around Liberty Park when they saw Defendant and four other males approach an intersection near the park. At the intersection, three of the men sat on the curb while Defendant and one other male walked to a house down the street. When the Officers asked the men what they were doing, the three men stated that they were waiting for a friend while he used the bathroom. A few minutes later, Defendant and the other male came out of the house, at which time Officer Olsen casually asked Defendant, "Can I talk to you for a minute?" Defendant agreed and, when asked what he was doing, stated that he had just come from his house. At that stage, Officer Olsen falsely stated that the three men sitting on the curb had informed him that they had given Defendant money to purchase drugs from the house down the street. When first presented with this false accusation, Defendant stated, "I wasn't doing that." When presented again with the accusation, Defendant merely shrugged his shoulders. Officer Olsen thereafter asked Defendant if he had any drugs in his possession, to which Defendant responded that he had "a little marijuana."

¶ 3 Defendant was arrested and charged with unlawful possession of a controlled substance, see id. § 58-87-8(2)(a)(1), possession of drug paraphernalia, see id. § 58-372-5(1), and possession of tobacco by a minor, see id. § 76-10-105. Defendant moved to suppress the evidence seized during the search of his person, including the marijuana and drug paraphernalia. The trial court denied the motion. Defendant then entered a conditional guilty plea to all charges, see State v. Sery, 758 P.2d 985 (Utah Ct.App.1988), and timely appealed.

ISSUE AND STANDARD OF REVIEW

¶ 4Defendant appeals the trial court's denial of his motion to suppress, arguing that his Fourth Amendment rights were violated because he was subjected to a level two stop unsupported by a reasonable articulable suspicion that he was engaged in criminal activity. The State, on the other hand, argues that Defendant's interaction with the police was nothing more than a level one encounter and therefore did not amount to a seizure under the Fourth Amendment. "On appeal from the denial of a motion to suppress, we review the trial court's factual findings for clear error." Salt Lake City v. Ray, 2000 UT App 55, ¶ 8, 998 P.2d 274.

However, because the determination of whether an encounter with law enforcement officers constitutes a seizure under the. Fourth Amendment calls for consistent application from one police encounter to the next, regardless of the particular individual's response to the actions of the police, such determination is a legal conclusion that we review for correctness.

Id. (quotations and citation omitted); see also State v. Gronau, 2001 UT App 245, ¶ 9, 31 P.3d 601; State v. Bean, 869 P.2d 984, 985 (Utah Ct.App.1994).

ANALYSIS

15 There are generally three levels of constitutionally permissible encounters between law enforcement officers and the pub-lie:

(1) an officer may approach a citizen at anytime [sic] and pose questions so long as the citizen is not detained against his will; (2) an officer may seize a person if the officer has an articulable suspicion that the person has committed or is about to commit a crime ...; (8) an officer may arrest a suspect if the officer has probable cause to believe an offense has been committed or is being committed.

Ray, 2000 UT App 55 at ¶ 10, 998 P.2d 274 (first alteration' in original) (quotations and citation omitted); see also State v. Deitman, 739 P.2d 616, 617-18 (Utah 1987); Bean, 869 P.2d at 986; State v. Jackson, 805 P.2d 765, 766-67 (Utah Ct.App.1990).

¶ 6 Our analysis here turns on whether Defendant's interchange with the police was a level one encounter or a level two stop.

A level one citizen encounter with a law enforcement official is a consensual encounter wherein a citizen voluntarily responds to non-coercive questioning by an officer. Since the encounter is consensual, and the person is free to leave at any point, there is no seizure within the meaning of the Fourth Amendment.

State v. Hansen, 2002 UT 125, ¶ 34, 63 P.3d 650 (internal citation omitted); see also Bean, 869 P.2d at 986 ("A level one stop is a voluntary encounter where a citizen may respond to an officer's inquiries but is free to leave at any time.... Such consensual, voluntary discussions between citizens and police officers are not seizures subject to Fourth Amendment protection." (quotations and citation omitted)); State v. Trujillo, 739 P.2d 85, 87-88 (Utah Ct.App.1987) ("[A] seizure within the meaning of the [F]ourth [A]mendment does not occur when a police officer merely approaches an individual on the street and questions him, if the person is willing to listen. However, the person approached is not required to answer the officer's questions ...." (internal citation and footnote omitted)).

¶ 7 "In contrast, a level two stop, or a seizure within the meaning of the Fourth Amendment, occurs when the officer by means of physical foree or show of authority has in some way restrained the liberty of a person." Bean, 869 P.2d at 986 (quotations and citation omitted); see also Ray, 2000 UT App 55 at ¶ 11, 998 P.2d 274; Trujillo, 739 P.2d at 87. Therefore, "a seizure occurs only if, in view of all of the cireumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." State v. Struhs, 940 P.2d 1225, 1227 (Utah Ct.App.1997) (quotations and citation omitted); see also Ray, 2000 UT App 55 at ¶ 11, 998 P.2d 274 ("[A] level one encounter becomes a level two stop and a seizure under the [FjJourth [(AJmendment occurs when a reasonable person, in view of all the cireum-stances, would believe he ... is not free to leave." (quotations and citation omitted)); Bean, 869 P.2d at 986 ("When a reasonable person, based on the totality of the cireum-stances, remains, not in the spirit of cooperation with the officer's investigation, but because he believes he is not free to leave a seizure occurs." (quotations and citation omitted)); Jackson, 805 P.2d at 767; Truillo, 739 P.2d at 87.

¶ 8 The distinction, therefore, between a level one encounter and a level two stop depends on whether, through an official show of physical force or authority, a reasonable person would believe that his freedom of movement is restrained. See Struhs, 940 P.2d at 1227. Even where, as here, a defendant did not attempt to leave, a seizure may be found where there was: (1) the threatening presence of several officers; (2) the display of a weapon by an officer; (8) physical touching of the defendant by an officer; or (4) the use of language or tone of voice that indicated that compliance with the officer's request might be compelled. See Hansen, 2002 UT 125 at ¶ 41, 63 P.3d 650; Ray, 2000 UT App 55 at ¶ 11, 998 P.2d 274; Bean, 869 P.2d at 986; Jackson, 805 P.2d at 767; Truillo, 739 P.2d at 87.

¶ 9 Examining the factors delineated above, we believe that the encounter between the police and Defendant was consensual and voluntary. There were only two officers present, whereas five males were questioned. Defendant's interaction with the police began when Officer Olsen asked Defendant if he could talk to him for a minute. Defendant replied "sure" and approached Officer Olsen from three houses away. Once there, Defendant readily answered questions about what he had been doing and openly admitted that he had "a little marijuana" when asked if he had any drugs in his possession. Quite simply, there were not several officers present, and the officers' presence certainly was not threatening. Furthermore, the language used by both Defendant and Officer Olsen suggests that the encounter was consensual and voluntary. And there is nothing in the record that indicates that either officer displayed a weapon, touched Defendant, or used an intimidating or even stern tone of voice. We therefore agree with the trial court that "a reasonable person would have felt free to leave." ¹

¶ 10 Defendant argues that his encounter with the police constituted a level two stop because "Officer Olsen engaged in threatening and offensive conduct when he accused [Defendant] of being a drug distributor." See Salt Lake City v. Ray, 2000 UT App 55, ¶ 14, 998 P.2d 274 ("[AJn encounter becomes a seizure if the officer engages in conduct which a reasonable [person] would view as threatening or offensive even if performed by another private citizen." (second alteration in original) (quotations and citation omitted)). During the encounter with Defendant, Officer Olsen falsely stated that the three men sitting on the curb informed him that they had given Defendant money to purchase drugs from the house down the street. In response, Defendant initially stated, "I wasn't doing that," and later shrugged his shoulders.² Shortly thereafter, Defendant admitted to having marijuana in his possession. Defendant now contends that he was subjected to a level two stop because Officer Olsen's misrepresentations were "offensive" and led Defendant to believe that he was not free to leave. However, "[a] defendant's will is not overborne simply because he is led to believe that the government's knowledge of his guilt is greater than it actually is." State v. Galli, 967 P.2d 930, 936 (Utah 1998) (alteration in original) (quotations and citation omitted); see also State v. Bunting, 2002 UT App 195, ¶¶ 16-20, 51 P.3d 37; State v. Gronau, 2001 UT App 245, ¶¶ 23-26, 31 P.3d 601 (holding no seizure occurred even though police openly accused defendant of possessing drugs). We therefore hold that Defendant's encounter with the police was a level one encounter despite Officer Olsen's misrepresentations.

CONCLUSION

¶ 11 Defendant's convictions of unlawful possession of a controlled substance, possession of drug paraphernalia, and possession of tobacco are affirmed.

1 . The Utah Supreme Court's recent decision in State v. Alverez, 2006 UT 61, 147 P.3d 425, is factually distinguishable from the present case. In Alverez, a level two encounter occurred because two uniformed police officers "waited for and then surprised" the defendant in a residential parking lot and immediately asked him questions that were "accusatory in nature." Id. at ¶ 12. The facts in Alverez created a "confrontational encounter" sufficient to constitute a level two Fourth Amendment seizure. Id. The only relevant similarity between this case and Alverez is Officer Olsen's misrepresentation, which amounted to an indirect accusation. As we have said, none of the factors supporting a level two encounter exist here; and a misrepresentation, without more, is insufficient to establish a level two encounter. See State v. Galli, 967 P.2d 930, 936 (Utah 1998); State v. Gronau, 2001 UT App 245, ¶¶ 23-26, 31 P.3d 601. Thus, under the totality of the circumstances, a reasonable person would have felt free to leave. See State v. Jackson, 805 P.2d 765, 767 (Utah Ct.App.1990).

2 . The fact that Defendant shrugged his shoulders in response to Officer Olsen's accusations of drug dealing is further evidence that the encounter between Defendant and the police was a level one encounter. See State v. Trujillo, 739 P.2d 85, 87-88 (Utah Ct.App.1987) ("[A] seizure within the meaning of the [Flourth [Amendment does not occur when a police officer merely approaches an individual on the street and questions him, if the person is willing to listen. However, the person approached is not required to answer the officer's questions ...." (internal citation and footnote omitted)).