IN THE UTAH COURT OF APPEALS

‐‐‐‐ ooOoo

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State of Utah,

Plaintiff and Appellee,

v.

Christopher Duane Ellis,

Defendant and Appellant. )

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) MEMORANDUM DECISION

Case No. 20100563

‐ CA

F I L E D

(September 27, 2012)

2012 UT App 272

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Fourth District, Provo Department, 091402191

The Honorable David N. Mortensen

Attorneys: Margaret P. Lindsay and Matthew R. Morrise, Provo, for Appellant

Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee

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Before Judges Thorne, McHugh, and Roth.

ROTH, Judge:

¶1 Defendant Christopher Duane Ellis appeals the district court’s denial of his

motion to suppress evidence he alleges was seized when the detaining officer exceeded

the permissible scope of a protective frisk. We affirm.

¶2 If an officer has “reasonable suspicion that [a] detained individual is armed and

dangerous,” the officer may conduct a warrantless protective frisk, known as a Terry

frisk, to discover weapons that “might be used to harm the officer” so as to “ensure

officer safety” during the investigative detention. State v. Peterson

, 2005 UT 17, ¶¶ 9

‐ 10,

110 P.3d 699 (internal quotation marks omitted) (citing Terry v. Ohio

, 392 U.S. 1, 23

‐ 24,20100563

‐ CA 2 26

‐ 27 (1968)). For a Terry frisk to be permissible, “the officer’s action [must have been]

justified at its inception” and the protective frisk must be “reasonably related in scope

to the circumstances which justified the interference in the first place.” Id. ¶ 12 (citing

Terry

, 392 U.S. at 19

‐ 20). “Because the only permissible objective of the Terry frisk is the

discovery of weapons that may be used against the officer

. . . , ‘a protective search

[that] goes beyond what is necessary to determine if the suspect is armed

. . . is no[t]

. . . valid

. . . and [the] fruits [of that search] will be suppressed.’” Id. (quoting State v.

Warren

, 2003 UT 36, ¶ 14, 78 P.3d 590).

¶3 “The reasonableness of

. . . the frisk [is] evaluated objectively according to the

totality of the circumstances.” Warren

, 2003 UT 36, ¶ 14 (citing Terry

, 392 U.S. at 21).

“To determine reasonableness, a court should question whether the facts available to

the officer

. . . warrant a man of reasonable caution in the belief that the action taken

was appropriate.” Id. (internal quotation marks omitted). “[T]he officer must be able to

point to specific facts which, considered with rational inferences from those facts,

reasonably warrant the intrusion.” Id. “In determining reasonableness, due weight

must be given

. . . to specific reasonable inferences which [an officer] is entitled to draw

from the facts in light of his experience.” Id. (alteration in original) (internal quotation

marks omitted). “[T]his process allows officers to draw upon their own experience and

training to make determinations based on the cumulative facts before them

. . . .” Id.

¶4 Here, an officer encountered Ellis while investigating a suspected automobile

burglary. Upon approaching Ellis, the officer saw “a clip knife in his right pocket.” He

also noticed that Ellis’s pockets were “very bulky.” Concerned for his safety, the officer

frisked Ellis for weapons.

¶5 The officer began the Terry frisk by removing the knife that was clipped on Ellis’s

right, front pocket. That same pocket was “bulging,” so the officer felt the outside of

the pocket in an attempt to identify whether the items inside were benign or included

things that could be used as weapons. Touching the outside of the pocket, the officer

felt “numerous items,” several of which were “long objects that seemed to be sharp” or

pointed. Concerned that these objects might be weapons or objects that could be used

as weapons, such as pens, the officer reached into Ellis’s pocket to remove those items.

While his hand was in Ellis’s pocket, the officer felt several other objects, such as

“pouches and all kinds of stuff.” Because “there were so many items in the pocket

. . . it

was hard to

. . . pull out just

. . . one thing,” so the officer “just started taking everything1 It is unclear from the officer’s testimony whether the other pouch contained the

knife that was removed from Ellis’s pocket or whether the knife was unsheathed and

the other pouch was an additional item in the pocket.

20100563

‐ CA 3 out so [he] could

. . . determine what

. . . was dangerous and what wasn’t.” The officer

emptied the pocket in about “two or three handfuls” of items that included another

knife, pens, papers, and a couple of “pouches.” One of those pouches was described as

a “knife sheath”

‐‐ about three inches long, one to two inches wide, and the thickness of a

pencil. In the officer’s experience, such pouches could contain weapons like “[r]azor

blades, Leatherman tools, small pen knives

‐‐ things that have sharps on them” and can

be used as weapons. 1

¶6 Without opening or manipulating that pouch, another officer who had joined the

investigation could see that it contained an object that resembled a glass

methamphetamine pipe. When that officer asked what was in the pouch, Ellis admitted

that it contained drug paraphernalia and agreed that the pouch could be searched. That

officer then opened the pouch and found that it did in fact contain a glass

methamphetamine pipe. On further search, drugs were found in Ellis’s possession.

After charges were filed, Ellis filed a motion to suppress both the paraphernalia and the

drugs. The district court’s denial of that motion is the subject of this appeal.

¶7 Ellis does not dispute that, under the circumstances, the officer was justified in

detaining him and conducting a protective Terry frisk, nor does he dispute that the

officer was justified in expanding the Terry frisk by reaching into his pocket to further

investigate the items felt during the pat down. Rather, Ellis argues that the officer

exceeded the permissible scope of the Terry frisk by removing everything from Ellis’s

pocket

‐‐ more particularly, by removing objects from Ellis’s pocket that the officer did

not believe to be weapons. However, in making this argument, Ellis concedes that the

officer could investigate the objects in his pocket that the officer reasonably believed to

be weapons or to contain a weapon, such as the long pointed objects and the pouch or

knife sheath. Indeed, Ellis does not dispute that the officer felt the pouch in Ellis’s

pocket during the Terry frisk and identified that pouch as an object that could contain a

weapon. Ellis accordingly concedes that if the officer reasonably believed that the

pouch contained a weapon, removal of the pouch from his pocket would fall within the

scope of a Terry frisk. Rather, Ellis’s argument is a much more narrow challenge to the20100563

‐ CA 4 facts supporting the officer’s belief that the pouch contained a weapon. Specifically, he

argues that

[the o]fficer

. . . did not testify that he believed the black

knife sheath which contained the meth pipe to be a weapon.

. . . [The o]fficer

. . . testified that Ellis’s pockets contained

pouches, and that these pouches were a cause for concern

because they could contain weapons. However, whether the

pouches could contain weapons is not the relevant question.

The question is, rather, whether [the o]fficer

. . . believed that

the pouches did contain weapons, and in particular, whether

he believed that the black knife sheath which contained the

meth pipe was a weapon.

. . . [The o]fficer

. . . did not testify

that he believed that the sheath was a weapon or contained a

weapon. [The o]fficer

. . . did not testify to the contours of

the sheath, or provide any specific, articulable facts which

indicated that that particular sheath was a weapon or

contained a weapon.

Thus, Ellis argues, in effect, that the officer did not articulate sufficient facts to support a

belief that the pouch actually contained a weapon.

¶8 Ellis’s distinction between whether the officer thought the pouch “ could contain

[a] weapon[]” and whether he “believed that the pouch[] did contain [a] weapon[]” is of

little significance, however, because the allowable scope of a Terry frisk is determined

by the reasonableness of the officer’s belief that an object might be a weapon or might

contain one, not by the degree of his certainty that an object is or contains a weapon.

See generally State v. Zearley

, 468 N.W.2d 391, 392 (N.D. 1991) (“Weapon verification is

essential if safety is to be preserved and a potentially volatile situation neutralized. We

cannot impose a condition of certainty that the object is a weapon before allowing an

officer to continue the

. . . search

. . . . We can impose a condition that an officer’s belief

that the object is a weapon be reasonably grounded and not a mere subterfuge for a

random search.” (internal quotation marks omitted)); North Dakota v. Heitzmann

, 231

ND 136, ¶ 13, 632 N.W.2d 1, 8 (citing Zearley

, 468 N.W.2d at 392 (“[W]hen a[]

. . . search

reveals the presence of an object of a size and density that reasonably suggests the20100563

‐ CA 5 object might be a weapon, the searching officer is entitled to continue the search

. . . in

order to determine whether the object is in fact a weapon.”).

¶9 Here, the officer testified that in his experience, pouches, such as the pouch he

felt and then removed from Ellis’s pocket, commonly contain weapons. The officer’s

identification of the pouch and the nature of his experience with such pouches gives his

belief that this particular pouch might contain a weapon a basis in reason. That belief

was further supported by the attendant circumstances: the officer had already observed

a knife in plain sight in the same pocket and then detected by feel other hard, pointed

objects that, based on his experience, could have been weapons or objects that could be

used as weapons. Some of those objects turned out to be weapons or potential weapons

when they were removed from the pocket and identified as another knife and several

pens. Under the totality of the circumstances, then, the officer was justified in removing

the pouch from Ellis’s pocket as part of the Terry frisk because he had a reasonable

concern that it could contain another weapon. See State v. Warren

, 2003 UT 36, ¶ 14, 78

P.3d 590 (“The reasonableness of

. . . the frisk [is] evaluated objectively according to the

totality of the circumstances.

. . . In determining reasonableness, due weight must be

given

. . . to specific reasonable inferences which [an officer] is entitled to draw from the

facts in light of his experience.

. . . [T]his [approach] allows officers to draw upon their

own experience and training to make determinations based on the cumulative facts

before them that may elude an untrained person.” (second alteration in original)

(citations and internal quotation marks omitted)).

¶10 Having reached this conclusion, we need not address the broader contention

raised by Ellis that the officer expanded the search beyond the permissible scope of a

Terry frisk by removing everything from Ellis’s pocket, including items that the officer

did not believe to be weapons. See generally United States v. Campa

, 234 F.3d 733, 736,

739 (1st Cir. 2000) (concluding that an officer expanded a search beyond the appropriate

scope of a Terry frisk by intentionally removing objects from the defendant’s pocket

‐‐ particularly, a wallet, which yielded the contraband at issue

‐‐ where the officer did not

even assert that he thought that object was or contained a weapon); State v. Fowler

, 883

P.2d 338, 339

‐ 40 (Wash. Ct. App. 1994) (concluding that an officer expanded a search

beyond the appropriate scope of a Terry frisk by intentionally removing “two soft

objects of indeterminate shape” that the officer knew were not weapons and turned out

to be cigarette packages containing drugs). We do not reach this issue, however,

because we have already concluded that the officer was justified in removing the pouch,20100563

‐ CA 6 which he identified independently from the indistinguishable mass of objects that he

also removed from the pocket. Thus, the contraband that Ellis was charged with

possessing was not extracted from that mass but was found in the pouch, the discovery

of which then led to the discovery of other contraband.

¶11 Ellis also argues that the officers exploited an illegal Terry frisk to obtain Ellis’s

consent to further search. However, because we have concluded that the officer did not

exceed the scope of the Terry frisk, we need not address this argument.

¶12 We affirm.

____________________________________ Stephen L. Roth, Judge

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¶13 WE CONCUR:

____________________________________ William A. Thorne Jr., Judge

____________________________________ Carolyn B. McHugh, Judge