2015 UT App 49

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### T H E 

### U TA H 

### C O U RT O F 

### A P P E A L S

S TAT E OF U TAH

, Plainti ff and Appellee,

v. D E N N I S G OR

D ON R O S E, Defendan t and Appellant.

Memor andumDeci si on No. 20121046-CA Filed February 26, 2015

Four th Di stric t Co urt, Nephi D epart ment The Honorable James M. Brady No. 111600234

Edwin S. Wall, Att or ney for Appellant Sean D. Reyes and Mar i an Dec ker , Att or neys for Appellee

J UD G E J O H N A. P E ARC Eauthore d thi s Memorandum Dec i si on, i n whi ch J UD G E S M I C H E L E M. C HRI ST I AN S E N and S T E PH E N L. R OT H
concu rr ed.

PEARCE, Judge:

¶1 Denni s Gordo n Rose was convic ted o f d r i ving under the influ ence of alcohol and other relat ed offenses . A sheri ff’s d eputy had stopped Rose after receiving a tip that a chi ld was driving a moto r ho me err atic ally on Old Hi ghway 91 in Mona, Utah. The di stric t co ur t deni ed Rose’s motion to supp ress evidenc e aris ing from the tr affi c stop. Rose appeals, arg uing that the deputy lacked suffi ci ent information to corr obor ate the tip at the tim e of the stop. We di sagree and affi rm Rose’s convic tions

. ¶2 Whi le driving between Nephi and Mona, Utah, a mot o r i st (I nf or mant) pulled behind an older whi te moto rhome. TheState v. Rose

moto rhome weaved in and out of i ts lane and var i ed i ts speed between 15 and 40 mi les per hour. When Informant had the chanc e to pass the moto rhome, he observe d a “li ttle red-headed boy” behind the wheel. Once in front of the moto rhome, Informant called a Juab County sheri ff’s deputy he knew from a prev i ous interaction to tell hi m that somethin g w as ami ss on Old Hi ghway 91. Informant repo rt ed that a “kid” who was perhaps “ei ght to ten [years o l d ]” was at the helm of an old moto rhome and was “weavi ng aro und and going slow and fast.”

¶3 The deputy, who was at home nearby at the tim e of the call, jumped into hi s patro l tr uck a nd d ro ve wi thi n minutes to an intersection where he could observe Old Hi ghway 91. Shor tly after

ar r iv ing, the deputy saw Informant drive past hi m; a thi rt y-foot whi te moto rhome followed about three blocks behind. There were
no other vehic les on the ro ad. As the moto rhome pass ed, the deputy observe d that the driver was not a r e d -haired boy but rat her an adult male wi th a goat ee and a dark bandana on hi s head. Never theless, the deputy pulled the moto rhome ov er. The deputy di d not personally observe any tr affi c violati ons before he stopped the moto rhome.

¶4 The tr affi c stop rev ealed Rose as the moto rhome’s driver. The deputy noted the smell of alcohol and observe d that Rose was “flus he d , ” hi s eyes were “glassy” and “bloodshot,” and he was “shaking unc ontr o l l a bl y .” The deputy also saw that Rose was tr aveling wi th hi s wi fe and chi ldren, one of whom was a boy wi th red hair.

¶5 The deputy admini stered fi eld sobri ety tes t s, whi ch Rose fai led. Rose also fai led a port able breath test. Rose admi tte d that he had consu med a numb er of beers earli er t hat day and that he had permi tte d hi s son to si t on hi s lap and steer the moto rhome. A computer check of Rose’s li cens e rev ealed that he was an alcoholrestr i cted d rive r required to have an interlo ck devic e on hi s vehic le. The deputy arr ested Rose for, among other offenses, driving under the in fluenc e.

20121046-CA 2 2015 UT App 49State v. Rose

¶6 At a pre t r ia l conference, Rose moved to supp ress all evidenc e resulti ng from t he t raffi c stop, arg uing that the deputy lacked reasonable sus pi ci on to ini tiate the stop of the moto rhome. The di stric t court deni ed the motion, and a jury later convic ted Rose of driving under the influ ence and a seat belt violati on. The court enhanc ed the DUI o ffens e and, based upon a prior condi

tional gui lty plea, convic ted Rose of i gni tion interlo ck and alcoholrestr i cted-dri ver violati ons. Rose appeals from those convic tions

. ¶7 W e r eview the deni al of a motion to supp ress as a mix e d questi on of law and fact. See State v. Ful ler , 2 014 UT 29, ¶ 17, 332 P.3d 937. We rev i ew the di stric t court’s underlyin g factual findings for clear er ro r and i ts legal conclus i ons for cor rectness. See id.

¶8 Rose prim arily arg ues that the di stric t court should have supp ressed all evidenc e flowing from the tr affi c stop becau se the deputy lacked reasonable sus pi ci on to detain hi m. Speci fi cally, 1 Rose arg ues that the Informant ’ s tip lacked suffi ci ent detail to be consi dered reliab le and that the deputy did not corr obor ate the information pri or to t he stop.

¶9 The Four t h Amendment’s prohibi tion of “unreasonable searches and se izures” ext ends to tempor ary detentions, such as tr affi c stops. See U

. S

. C o nst. amend. IV; Brendli n v. California , 551 U.S

. 2 4 9 , 2 55 (2007). To survive consti tutional scrutiny, a tr affi c stop
mus t be (1) “lawfu l at i ts incepti on” and (2) “other wi se executed in
a reason a ble manner.” Illinois v. Caballes , 543 U.S. 405, 408 (2005). To be lawfu l at i ts incepti on, the tr affi c stop mus t be supp or ted by

1. Rose also arg ues that the di stric t co ur t e r red in taking judi ci al notic e that Mona, Utah, “i s a small er, rural commun i ty of about 1,500 people, whi ch has view street s and does not usu ally have a hi gh vo lume of large , whi te, moto rhome tr affi c on i ts ci ty street s.” Becaus e we conclu de that the deputy had reasonable sus pi ci on to stop Rose independent of these judi ci ally noticed f acts, we do not need to r each and resolve thisquesti on.

20121046-CA 3 2015 UT App 49State v. Rose

a reasonable sus pi ci on that a person has been, i s, or i s about to be, engaged in cri minal acti vity. See State v. Roybal, 2010 UT 34, ¶ 1 4 , 232 P.3d 1016. The reasonable sus pi ci on mus t be based upon “speci fi c and art i culab le facts and rat i onal inferences.” State v. Morris , 2011 UT 4 0 , ¶ 1 6 , 259 P.3d 116 (ci tation and internal quo t a t io n marks omi tte d). In rev i ewing a supp ressi on ruling, we do not look at the information the offi cer possess ed at the t i me of the stop in i solation, b ut “look to t he tot ali ty o f t he ci rcums tances to determine whether, take n tog ether , the f acts warrante d further investigati on by the poli ce offi cer

. ” S tate v. Alverez , 2006 UT 61, ¶ 14, 147 P.3d 425 (ci tation and internal quotat i on marks omi tte d).

¶10 The reasonable sus pi ci on standard does not require that the offi cer actually o bs e r v e the violati on. Morris , 2011 UT 40, ¶ 16. Reasonable sus pi ci on may be based upon a tip. Roybal, 2010 UT 34, ¶¶ 14–20. An informant’s t ip cr eates reasonable sus pi ci on i f the information (1) i s reliab le, (2) p r o vides suffi ci ent detail of the cri minal acti vity, and (3) i s confi rmed b y the investigating offi cer. State v. Prows , 2007 UT App 409, ¶ 14, 178 P.3d 908. The tip upon whi ch the deputy relied in thi s cas e met these re qui rements.
¶11 When an i denti fi ed—i .e., non-anonymous—c itizen informant prov i des a tip, we presume i ts reliab i li ty. Roybal, 2010 UT 34, ¶ 19; accord State v. Purser, 828 P.2 d 5 1 5 , 517 (Utah Ct. App. 1992) (“[R]eli abi li ty and v e r a ci ty are gener ally assu med when the informant is a ci tizen who receives nothin g from the poli ce in exchange for the information.”). Ro se do es no t contest that I nformant’s tip should be given thi s presumpti ve reliab i li ty, but he does rely on State v. Roybal , 2 010 UT 34, 232 P.3d 1016, to arg ue that In fo rmant’s personal acquaintance wi th the deputy should not enhance the presumpti ve r eli abi li ty o f the tip.

¶12 In Roybal, the Utah Sup r e me Court opin ed, “[W]e find i t inappropr i ate to attach a presumpti on of ei ther gr eater or lesser reliab i li ty to a tip from a personally involv ed informant.” Id. ¶ 19. That case, however , exami ned an informant personally acquainted wi th the sus pect and di d not address the si tuation presented when

20121046-CA 4 2015 UT App 49State v. Rose

an informant i s personally acquainted wi th the poli ce offi cer. Becaus e the or dinary presumpti on of reliab i li ty suffi ces to supp or t reasonable sus pi ci on in thi s case, we need not address the questi on of how an o ffi cer’s personal acquaintance wi th an informant may affec t the r eli abi li ty analy si s.
¶13 Rose’s arg uments prim arily speak to the second two factors that allow a tip to supp or t reasonable sus pi ci on. He arg ues that the tip, e v en wi th the presumpti on of reliab i li ty, was insu ffi ci ent to give ris e to reasonable sus pi ci on becau se i t lacked suffi ci ent detail of the cri minal acti vity and becau se the information the deputy had at the tim e he stopped Rose di d not adequatel y confi rm the tip. Rose contends that Informant di d not prov i de the deputy wi th the “make, model, li cens e plate or any other uni que physi cal characteri sti cs o f t he moto rhome.” Rose also maintai ns that becau se the deputy di d not personally observe any tr affi c violati ons and becau se the deputy saw a gr own man wi th a bandana cover ing hi s hai r, not a “li ttle red-headed boy,” behind the wheel o f the moto rhome, the deputy fai led to corr obor ate the cri minal acti vity. I n other words, Rose arg ues that the tip may have prov i d e d t he deputy w i th reasonable susp i ci on that some moto rhome had been engaged in cri minal acti vity, but the deputy lacked reasonable

sus pi ci on t o be li eve that the moto rhome he pulled ov er was that moto rhome.

¶14 Rose’s arg uments di sregar d the tot ali ty of the infor ma t io n the deputy posses sed at the t i me he stopped the moto rhome. The deputy arr i ved at the intersection wi th Old Hi ghway 9 1 mere minutes after he received Informant’s call. Whi le a t the inte rs e c ti on , he saw I nfo rmant’s vehic le pass by, followed i mmedi ately by a moto rhome. The deputy observe d no other tr affi c on the hi ghway. On the tot ali ty of these fact s, it wa s reasonable for the deputy to conclu de that the moto rhom e fo l l owing Informant was the same vehic le Informant had described minutes earli er.
¶15 We reached a si mi lar conclu si on in State v. Prows , 2007 UT App 409, 178 P.3d 908. In Prows , a ci tizen called 911 at 2:30 a.m. to

20121046-CA 5 2015 UT App 49State v. Rose

repo rt a sus pected burglary

. He told the di spatcher that t he

sus pects had cli mbed into “a Jeep or a tr uck” and were tr a veling south out of a sub di vis i on. Id. ¶ 16. We conclu ded that thi s tip was suffi ci ently descri ptive to supp or t a poli ce stop of the defendant’s vehic le, given the lack of tr affi c on the ro ad at the tim e. Id. ¶¶ 2, 17. We also conclu ded that the offi cer had suffi ci ently corr ob or a te d the tip becau se “almost contemporaneo usly, [one offi cer] sp o t t ed a vehic le tr aveling south and called [another offi cer] and told hi m to tr avel in the di rection of the vehic le and intercept it.” Id. ¶ 18. We deci ded that based “on these factors, i .e., the descri ption of the vehic le, the di rection i t was tr a v e l ing , the tim e and location, and the fact that there were no other cars in the ar e a , t he thi rd factor reg ardin g corr obor ation [was ] sati sfi ed.” Id. Sim i larly, here, where the depu ty observe d Informant followed closely by a moto rhome and saw no other moto rhomes on the ro ad, the deputy possess ed 2 reasonable sus pi ci on to make the sto p.
¶16 Examining the tot ali ty of the information the deputy possess ed at the tim e of the stop, we conclu de that he had reasonable sus pi ci on to stop Rose’s moto rhome and that the di stric t court di d not er r in d enyin g Ro se’s moti on to supp ress. We affi rm.

2. As noted earlier, Rose also challen ges the di stric t court’s finding, based on judi ci al notic e, that there are gener ally few motor homes

on O l d Hig hw ay 91 in Mona, Utah. We do not need to analyze Rose’s judi ci al notic e arg ument because the deputy testifi ed that there were no other moto rhomes on the r oad at the tim e of the stop. The fact t hat Rose’s moto rhome was the only such vehic le vis ible to the deputy atthe time of the s top creates the reasonable inference that Rose’s was the moto rh ome that Informant had repo rt ed, wi thout t he need to consi der the normal traffi c patter ns in Mona or the ci ty’ s si ze or confi gurat i on. The di stric t cour t ’ s deci si on to take judi ci al notic e, even i f err oneous, does not change that calculu s.

20121046-CA 6 2015 UT App 49