Utah Case Law
STATE v. MERWORTH, 2006 UT App 489 State of Utah, Plaintiff
and Appellee, v. Aaron Merworth, Defendant and Appellant.
No. 20060354-CA. Utah Court of Appeals. Filed December 7,
2006.
Appeal from the Third District, Salt Lake Department,
051906869, The Honorable Stephen L. Henriod.
Sharla M. Dunroe, Salt Lake City, for Appellant.
James M. Cope, Salt Lake City, for Appellee.
Before Judges DAVIS, McHUGH, and THORNE.
OPINION
JAMES Z. DAVIS, Judge.
¶ 1 Defendant Aaron Merworth appeals from
convictions of unlawful possession of a controlled
substance, see Utah Code Ann. § 58-37-8(2)(a)(i)
(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 (2003). We affirm.
BACKGROUND
¶ 2 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. §
58-37-8(2)(a)(i), possession of drug paraphernalia, see id.
§ 58-37a-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 935
(Utah Ct.App. 1988), and timely appealed.
ISSUE AND STANDARD OF REVIEW
¶ 4 Defendant 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
¶ 5 There are generally three levels of
constitutionally permissible encounters between law
enforcement officers and the public:
(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 . . .; (3) 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 (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 force 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; Trujillo, 739 P.2d at
87. Therefore, “a seizure occurs only if, in view of all of
the circumstances 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 (“[A] level one encounter becomes a
level two stop and a seizure under the [F]ourth [A]mendment
occurs when a reasonable person, in view of all the
circumstances, 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 circumstances, 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; Trujillo, 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; (3) 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; Ray,
2000 UT App 55 at ¶ 11; Bean, 869 P.2d at 986;
Jackson, 805 P.2d at 767; Trujillo, 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.”[fn1]
¶ 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 UTApp 55, ¶ 14, 998 P.2d 274
(“[A]n 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. [fn2]
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 isn’t 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.
[fn1] The Utah Supreme Court’s recent decision in State v.
Alverez, 2006 UT 61, 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).
[fn2] 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 [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)).
CAROLYN B. MCHUGH, Judge (concurring).
¶ 12 I write separately to indicate that although I
agree with the dissent concerning the relevance of the Utah
Supreme Court’s recent decision in State v. Alverez, 2006
UT 61, I believe the facts of this case are distinguishable
for reasons not addressed in the main opinion. I do not
believe the Alverez court intended to create a per se rule
that accusatory questioning will always create a level two
encounter. Rather, the supreme court held that “[u]nder the
circumstances in [Alverez], where two uniformed police
officers waited for and then approached [d]efendant and
accused him of not one, but two illegal acts-lack of car
insurance and drug trafficking — a reasonable person
would not have felt free to leave.” Id. at ¶ 11.
Considering both the nature of the questioning in this case
and the totality of the circumstances, I agree with the
main opinion that Defendant reasonably would have believed
he was free to leave.
¶ 13 Although both Alverez and this case involve
police questioning of an accusatory nature, the factual
settings are different enough to justify disparate
conclusions as to the level of the encounter. In Alverez,
two uniformed and armed police officers concealed
themselves behind a van parked next to Alverez’s car. See
id. at ¶ 4. They then surprised and confronted
Alverez about his vehicle being uninsured and their belief
that he was dealing drugs, eventually wrestling with him
and causing him to spit out balloons of cocaine and heroin.
See id. at ¶¶ 4-6. The Utah Supreme Court did
not rely only on the accusatory nature of the questions
posed to Alverez. Instead, it noted that these questions
“originated from a pair of uniformed police officers who
waited for and then surprised Defendant alone in a
residential parking lot.” Id. at ¶ 12. Furthermore,
to leave the scene, Alverez would have had to walk past the
officers and enter the vehicle he admitted was uninsured.
¶ 14 Here, Defendant was neither alone nor
surprised. There were five suspects and two police
officers. Only one of those officers engaged in the
encounter with Defendant. The officer asked permission to
speak with Defendant when he was still approximately three
houses away. Defendant voluntarily agreed to the encounter
and walked to the officer to facilitate the discussion.
Rather than being outnumbered in a residential parking lot
and needing to proceed past the officers to leave the scene
by car, Defendant could simply have turned around and walked
back to the house from which he had emerged. Under the
totality of the circumstances, I concur with the main
opinion that this case involves a level one encounter and
that, therefore, the decision of the trial court should be
affirmed.
THORNE, Judge (dissenting):
¶ 15 I respectfully dissent from the majority
opinion in this matter. The Utah Supreme Court’s recent
opinion in State v. Alverez, 2006 UT 61, held that
accusatory questioning can elevate a consensual encounter
with police into a level two detention. See id. at
¶¶ 10-12. Because I conclude that the facts
of Defendant’s encounter with the police are functionally
indistinguishable from the facts of Alverez, I conclude
that Defendant was subject to a level two detention. The
State has not established that the police officers had a
reasonable suspicion that Defendant was engaged in criminal
activity, and thus, I would find his detention to be a
violation of the Fourth Amendment. See Salt Lake City v.
Ray, 2000 UT App 55, ¶ 10, 998 P.2d 274 (stating that
“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” (quotations and citation
omitted)).
¶ 16 In Alverez, police suspected Alverez of
trafficking drugs and believed that he would be visiting a
particular condominium complex at a certain time of day.
See Alverez, 2006 UT 61 at ¶¶ 3-4. They waited
there for Alverez and observed him arrive and enter the
complex. See id. at ¶ 4. The officers then exited
their vehicle and concealed themselves behind a van parked
next to Alverez’s car. See id.
When [Alverez] returned to his car less than five minutes
later, just as he had done the day before, Officers Wahlin
and Steed approached him from behind the van.
Officer Wahlin first asked [Alverez] whether he knew that
his vehicle was uninsured, to which [Alverez] replied,
“How’d you know that?” Officer Wahlin then explained to
[Alverez] that the vehicle was suspected of being
connected to drug dealing. [Alverez] denied any knowledge
of drug dealing.
Id. at ¶¶ 4-5. Shortly thereafter, the
officers recovered drugs that Alverez had concealed in his
mouth, leading to Alverez’s arrest and conviction. See id.
at ¶¶ 5-7.
¶ 17 The supreme court held that Alverez had been
subjected to a level two stop: “Under the circumstances in
this case, where two uniformed police officers waited for
and then approached [Alverez] and accused him of not one,
but two illegal acts-lack of car insurance and drug
trafficking-a reasonable person would not have felt free to
leave.” Id. at ¶ 11. The court explained that
accusatory questioning can, in some circumstances, elevate
a consensual encounter into a level two detention:
[W]e think the manner of questioning, the content of the
questions, and the context in which the questions are
being asked can convert “mere questioning” into a level
two seizure if, under all of the circumstances, a
reasonable person would not feel free to leave. In this
case, the officers’ inquiries exceeded “mere questioning”
and created a confrontational encounter. The
questions”[d]id you know your car was uninsured?”
and”[d]id you know your car is suspected as being involved
in drug dealing?” were accusatory in nature. These
questions, which originated from a pair of uniformed
police officers who waited for and then surprised[Alverez]
alone in a residential parking lot, would not leave a
reasonable person with the impression that he was free to
disregard the questions, get in his car, and drive away.
The accusatory nature of the questions and the context in
which they were asked demonstrated a “show of authority”
sufficient to restrain [Alverez]’s freedom of movement.
Id. at ¶ 12 (second and third alteration in original)
(footnote omitted).
¶ 18 The facts of Defendant’s encounter with police
are strikingly similar to those in Alverez. Like Alverez,
Defendant entered a building for a short period of time and
exited the building to find two uniformed police officers
waiting for him. Defendant was startled to see the police,
and when one of the officers asked to speak with him he
replied affirmatively. [fn1] After initially asking
Defendant what he was doing, the officer immediately told
Defendant that Defendant’s friends had told the officer
that Defendant had gone in the house to get them drugs.
When Defendant denied this accusation, the officer
elaborated that “[t]hey told me that they gave you money
and you were suppose [sic] to bring them back some drugs.”
¶ 19 Although there are minor factual differences
between the two encounters, I see no meaningful distinction
between either the context or the questioning presented by
Defendant’s encounter in comparison to Alverez’s. In both
cases, a citizen made a brief visit to a building and
exited to be surprised by multiple police officers. [fn2] In
both cases, the police accused the citizen of a serious
crime, drug trafficking. The other facts distinguishing the
two cases are insufficient to convince me that Alverez was
detained under these circumstances but that Defendant was
not. [fn3]
¶ 20 I conclude that Alverez is determinative here
despite the other cases cited by the majority opinion. Two
of the three cases relied upon by the majority address
accusatory questioning in the context of coerced
confessions. See State v. Galli, 967 P.2d 930 (Utah 1998);
State v. Bunting, 2002 UT App 195, 51 P.3d 37. The standard
in coerced confession cases requires that a defendant’s
free will be overcome, see Bunting, 2002 UT App 195 at
¶ 14, a standard that is much higher than the
standard in seizure cases, which requires merely the
reasonable belief that one is not free to leave. The only
seizure case cited by the majority is State v. Gronau, 2001
UT App 245, 31 P.3d 601, a case from this court in which
the accusation of drug transportation was, at most,
tangential to the analysis. See id. at ¶ 24. In any
event, Alverez is newly binding authority in the context of
seizure determinations, overruling any inconsistent aspect
of Gronau, and I believe that we are obligated to employ
its analysis. [fn4]
¶ 21 In this case, “[t]he accusatory nature of the
questions and the context in which they were asked
demonstrated a `show of authority` sufficient to restrain
Defendant’s freedom of movement.” State v. Alverez, 2006 UT
61, ¶ 12 (quoting United States v. Mendenhall, 446
U.S. 544, 553 (1980)). Accordingly, Defendant was subject to
a level two detention, which requires reasonable suspicion
on the part of the police. See Salt Lake City v. Ray, 2000
UT App 55, ¶ 10, 998 P.2d 274. Because the State has
not demonstrated that reasonable suspicion existed here, I
would reverse the district court’s denial of Defendant’s
motion to suppress and remand this matter for Defendant to
pursue the withdrawal of his conditional guilty plea. See
State v. Sery, 758 P.2d 935 (Utah Ct.App. 1988).
[fn1] Officer Olsen testified that “[j]ust as soon as we saw
him I actually asked him if I could speak with him.”
[fn2] The concurring opinion places great weight on the
different number of officers and civilians present in this
case and in State v. Alverez, 2006 UT 61. Although I agree
that the ratio of officers to civilians at any given
questioning is a relevant circumstance in determining the
level of the encounter, it seems to be a relatively minor
detail in the circumstances of this case. One officer, or
twenty, still represents the entire power of the State, and
if a single officer communicates to a large crowd that they
are not free to leave, then the entire crowd is subject to
a level two detention. In this case, one of two officers
present clearly accused Defendant of having just committed
a felony offense. I would hold that this accusation, and
the surrounding circumstances, subjected Defendant to a
level two detention despite the presence of Defendant’s
companions. See id. at ¶¶ 11-12.
[fn3] For example, I see no significance to the fact that
Alverez may have been reluctant to leave the scene in his
uninsured vehicle, as suggested by the concurring opinion.
Alverez, like Defendant in this case, could have avoided
the police by simply returning to the building from which
he had just exited. However, after the police accused him
of criminal activity, he no longer reasonably believed that
he could do so.
[fn4] I also take issue with footnote two of the majority
opinion, which interprets Defendant’s shoulder-shrugging in
response to an accusation of drug-dealing to be evidence of
a level one encounter. To the extent that the majority
interprets Defendant’s response as an indication of his
subjective belief that he was not being detained, it is
irrelevant, as the standard for determining detention is an
objective one. See State v. Struhs, 940 P.2d 1225, 1227
(Utah Ct.App. 1997). To the extent that the majority
interprets State v. Trujillo, 739 P.2d 85, 87 88 (Utah
Ct.App. 1987) as requiring citizens to answer police
questions in a level two encounter, this is not a complete
statement of the law. See, e.g., Hiibel v. Sixth Judicial
Dist. Court, 542 U.S. 177, 187 (2004) (“[A] suspect
detained during a Terry stop is not obliged to respond to
questions.” (quotations omitted)).