2015 UT App 49

_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

DENNIS GORDON ROSE,

Defendant and Appellant.

Memorandum Decision

No. 20121046-CA

Filed February 26, 2015

Fourth District Court, Nephi Department

The Honorable James M. Brady

No. 111600234

Edwin S. Wall, Attorney for Appellant

Sean D. Reyes and Marian Decker, 

Attorneys for Appellee

JUDGE JOHN A. PEARCE authored this Memorandum Decision, in

which JUDGES MICHELE M. CHRISTIANSEN and STEPHEN L. ROTH

concurred.

PEARCE, Judge:

¶1 Dennis Gordon Rose was convicted of driving under the

influence of alcohol and other related offenses. A sheriff’s deputy

had stopped Rose after receiving a tip that a child was driving a

motorhome erratically on Old Highway 91 in Mona, Utah. The

district court denied Rose’s motion to suppress evidence arising

from the traffic stop. Rose appeals, arguing that the deputy lacked

sufficient information to corroborate the tip at the time of the stop.

We disagree and affirm Rose’s convictions.

¶2 While driving between Nephi and Mona, Utah, a motorist

(Informant) pulled behind an older white motorhome. The
State v. Rose

motorhome weaved in and out of its lane and varied its speed

between 15 and 40 miles per hour. When Informant had the chance

to pass the motorhome, he observed a “little red-headed boy”

behind the wheel. Once in front of the motorhome, Informant

called a Juab County sheriff’s deputy he knew from a previous

interaction to tell him that something was amiss on Old Highway

91. Informant reported that a “kid” who was perhaps “eight to ten

[years old]” was at the helm of an old motorhome and was

“weaving around and going slow and fast.”

¶3 The deputy, who was at home nearby at the time of the call,

jumped into his patrol truck and drove within minutes to an

intersection where he could observe Old Highway 91. Shortly after

arriving, the deputy saw Informant drive past him; a thirty-foot

white motorhome followed about three blocks behind. There were

no other vehicles on the road. As the motorhome passed, the

deputy observed that the driver was not a red-haired boy but

rather an adult male with a goatee and a dark bandana on his head.

Nevertheless, the deputy pulled the motorhome over. The deputy

did not personally observe any traffic violations before he stopped

the motorhome.

¶4 The traffic stop revealed Rose as the motorhome’s driver.

The deputy noted the smell of alcohol and observed that Rose was

“flushed,” his eyes were “glassy” and “bloodshot,” and he was

“shaking uncontrollably.” The deputy also saw that Rose was

traveling with his wife and children, one of whom was a boy with

red hair.

¶5 The deputy administered field sobriety tests, which Rose

failed. Rose also failed a portable breath test. Rose admitted that he

had consumed a number of beers earlier that day and that he had

permitted his son to sit on his lap and steer the motorhome. A

computer check of Rose’s license revealed that he was an alcoholrestricted driver required to have an interlock device on his vehicle.

The deputy arrested Rose for, among other offenses, driving under

the influence.

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State v. Rose

¶6 At a pretrial conference, Rose moved to suppress all

evidence resulting from the traffic stop, arguing that the deputy

lacked reasonable suspicion to initiate the stop of the motorhome.

The district court denied the motion, and a jury later convicted

Rose of driving under the influence and a seat belt violation. The

court enhanced the DUI offense and, based upon a prior conditional guilty plea, convicted Rose of ignition interlock and alcoholrestricted-driver violations. Rose appeals from those convictions.

¶7 We review the denial of a motion to suppress as a mixed

question of law and fact. See State v. Fuller, 2014 UT 29, ¶ 17, 332

P.3d 937. We review the district court’s underlying factual findings

for clear error and its legal conclusions for correctness. See id.

¶8 Rose primarily argues that the district court should have

suppressed all evidence flowing from the traffic stop because the

deputy lacked reasonable suspicion to detain him. Specifically, 1

Rose argues that the Informant’s tip lacked sufficient detail to be

considered reliable and that the deputy did not corroborate the

information prior to the stop.

¶9 The Fourth Amendment’s prohibition of “unreasonable

searches and seizures” extends to temporary detentions, such as

traffic stops. See U.S. Const. amend. IV; Brendlin v. California, 551

U.S. 249, 255 (2007). To survive constitutional scrutiny, a traffic stop

must be (1) “lawful at its inception” and (2) “otherwise executed in

a reasonable manner.” Illinois v. Caballes, 543 U.S. 405, 408 (2005).

To be lawful at its inception, the traffic stop must be supported by

1. Rose also argues that the district court erred in taking judicial

notice that Mona, Utah, “is a smaller, rural community of about

1,500 people, which has view streets and does not usually have a

high volume of large, white, motorhome traffic on its city streets.”

Because we conclude that the deputy had reasonable suspicion to

stop Rose independent of these judicially noticed facts, we do not

need to reach and resolve this question.

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State v. Rose

a reasonable suspicion that a person has been, is, or is about to be,

engaged in criminal activity. See State v. Roybal, 2010 UT 34, ¶ 14,

232 P.3d 1016. The reasonable suspicion must be based upon

“specific and articulable facts and rational inferences.” State v.

Morris, 2011 UT 40, ¶ 16, 259 P.3d 116 (citation and internal

quotation marks omitted). In reviewing a suppression ruling, we

do not look at the information the officer possessed at the time of

the stop in isolation, but “look to the totality of the circumstances

to determine whether, taken together, the facts warranted further

investigation by the police officer.” State v. Alverez, 2006 UT 61,

¶ 14, 147 P.3d 425 (citation and internal quotation marks omitted).

¶10 The reasonable suspicion standard does not require that the

officer actually observe the violation. Morris, 2011 UT 40, ¶ 16.

Reasonable suspicion may be based upon a tip. Roybal, 2010 UT 34,

¶¶ 14–20. An informant’s tip creates reasonable suspicion if the

information (1) is reliable, (2) provides sufficient detail of the

criminal activity, and (3) is confirmed by the investigating officer.

State v. Prows, 2007 UT App 409, ¶ 14, 178 P.3d 908. The tip upon

which the deputy relied in this case met these requirements.

¶11 When an identified—i.e., non-anonymous—citizen informant provides a tip, we presume its reliability. Roybal, 2010 UT 34,

¶ 19; accord State v. Purser, 828 P.2d 515, 517 (Utah Ct. App. 1992)

(“[R]eliability and veracity are generally assumed when the

informant is a citizen who receives nothing from the police in

exchange for the information.”). Rose does not contest that Informant’s tip should be given this presumptive reliability, but he does

rely on State v. Roybal, 2010 UT 34, 232 P.3d 1016, to argue that

Informant’s personal acquaintance with the deputy should not

enhance the presumptive reliability of the tip.

¶12 In Roybal, the Utah Supreme Court opined, “[W]e find it

inappropriate to attach a presumption of either greater or lesser

reliability to a tip from a personally involved informant.” Id. ¶ 19.

That case, however, examined an informant personally acquainted

with the suspect and did not address the situation presented when

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State v. Rose

an informant is personally acquainted with the police officer.

Because the ordinary presumption of reliability suffices to support

reasonable suspicion in this case, we need not address the question

of how an officer’s personal acquaintance with an informant may

affect the reliability analysis.

¶13 Rose’s arguments primarily speak to the second two factors

that allow a tip to support reasonable suspicion. He argues that the

tip, even with the presumption of reliability, was insufficient to

give rise to reasonable suspicion because it lacked sufficient detail

of the criminal activity and because the information the deputy had

at the time he stopped Rose did not adequately confirm the tip.

Rose contends that Informant did not provide the deputy with the

“make, model, license plateor any other unique physical characteristics of the motorhome.” Rose also maintains that because the

deputy did not personally observe any traffic violations and

because the deputy saw a grown man with a bandana covering his

hair, not a “little red-headed boy,” behind the wheel of the

motorhome, the deputy failed to corroborate the criminal activity.

In other words, Rose argues that the tip may have provided the

deputy with reasonable suspicion that some motorhome had been

engaged in criminal activity, but the deputy lacked reasonable

suspicion to believe that the motorhome he pulled over was that

motorhome. 

¶14 Rose’s arguments disregard the totality of the information

the deputy possessed at the time he stopped the motorhome. The

deputy arrived at the intersection with Old Highway 91 mere

minutes after he received Informant’s call. While at the intersection,

he saw Informant’s vehicle pass by, followed immediately by a

motorhome. The deputy observed no othertraffic on the highway.

On the totality of these facts, it was reasonable for the deputy to

conclude that the motorhome following Informant was the same

vehicle Informant had described minutes earlier.

¶15 We reached a similar conclusion in State v. Prows, 2007 UT

App 409, 178 P.3d 908. In Prows, a citizen called 911 at 2:30 a.m. to

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State v. Rose

report a suspected burglary. He told the dispatcher that the

suspects had climbed into “a Jeep or a truck” and were traveling

south out of a subdivision. Id. ¶ 16. We concluded that this tip was

sufficiently descriptive to support a police stop of the defendant’s

vehicle, given the lack of traffic on the road at the time. Id. ¶¶ 2, 17.

We also concluded that the officer had sufficiently corroboratedthe

tip because “almost contemporaneously, [one officer] spotted a

vehicle traveling south and called [another officer] and told him to

travel in the direction of the vehicle and intercept it.” Id. ¶ 18. We

decided that based “on these factors, i.e., the description of the

vehicle, the direction it was traveling, the time and location, and

the fact that there were no other cars in the area, the third factor

regarding corroboration [was] satisfied.” Id. Similarly, here, where

the deputy observed Informant followed closely by a motorhome

and saw no other motorhomes on the road, the deputy possessed 2

reasonable suspicion to make the stop.

¶16 Examining the totality of the information the deputy

possessed at the time of the stop, we conclude that he had reasonable suspicion to stop Rose’s motorhome and that the district court

did not err in denying Rose’s motion to suppress. We affirm.

2. As noted earlier, Rose also challenges the district court’s finding,

based on judicial notice, that there are generally few motorhomes

on Old Highway 91 in Mona, Utah. We do not need to analyze

Rose’s judicial notice argument because the deputy testified that

there were no other motorhomes on the road at the time of the

stop. The fact that Rose’s motorhome was the only such vehicle

visible to the deputy at the time of the stop creates the reasonable

inference that Rose’s was the motorhome that Informant had

reported, without the need to consider the normal traffic patterns

in Mona or the city’s size or configuration. The district court’s

decision to take judicial notice, even if erroneous, does not change

that calculus.

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