Professional Documents
Culture Documents
Filed: Patrick Fisher
Filed: Patrick Fisher
PUBLISH
JAN 31 2003
PATRICK FISHER
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
No. 01-4169
Clerk
I. BACKGROUND
The background facts are not in dispute, and we reiterate them as found by
the district court. On February 9, 2000, Detective Wally Perschon was assisting
other deputies from Utah County, Utah in trying to recover stolen property. The
property had been stolen in Utah County, but information from an informant
-2-
suggested that the property was (1) located in the West Valley-Kearns area of Salt
Lake County at a house located at 4560 West 5780 South, and (2) in the
possession of a man named Johnnie Green. Detective Perschon did not have a
physical description of Mr. Green, other than that he was a white male who drove
a truck.
Detective Perschon, accompanied by three other members of the Utah
County Sheriffs office, Detectives Richard Case, Darrin Durfey, and Sergeant
Jerry Monson, traveled to Salt Lake County to locate the property and to talk to
Mr. Green. No other officers from either Salt Lake County or the West Valley
City Police Department were contacted or present at any time during the Utah
County officers visit to Salt Lake County until after Mr. Mikulskis arrest.
Upon reaching the address at approximately 9:00 pm, Sergeant Monson and
Detective Case knocked on the door of the house at 4650 West 5780 South. The
occupants informed them that Mr. Green had just left, and the officers waited
inside the house. In order to avoid detection, Detectives Perschon and Durfey
waited for Mr. Green approximately one block down the street from the residence
in an unmarked green vehicle.
After about fifteen minutes, a man and a woman exited the house to smoke
cigarettes on the porch. During this time, a pickup truck approached the house
and pulled to the side of the street opposite to oncoming traffic, right before the
-3-
houses driveway. An individual exited the passengers side and approached the
house. According to testimony from Detective Perschon, the individuals on the
porch appeared to wave the passenger off, and the individual returned to the
truck.
Detective Perschon, with Detective Durfey, suspecting that Johnny Green
was in the truck, drove up to the truck. Detective Perschon did not use emergency
lights and he did not block the truck. The detectives, dressed in plainclothes,
approached the truck, one on each side of the pickup. While approaching the
vehicle, Detective Perschon noticed the truck lacked a front license plate. The
detectives identified themselves and showed the trucks occupants, a male driver
and a female passenger, their badges. Detective Perschon testified that he was
uncertain at what point in time Detective Durfey and Sergeant Monson joined him
around the truck. Detective Perschon testified that as he approached the vehicle,
Mr. Mikulski appeared very nervous but [n]ot aggressive. Rec. vol. II, at 47
(Motion to Suppress Hrg, dated Aug. 4, 2000). Detective Perschon asked the
driver who he was, and the driver identified himself as Joseph, but stated that he
had no identification.
Detective Perschon asked again for identification, and the driver again
stated that he had none. At this point, Detective Perschon suspected that the
driver was hiding his identity. Detective Perschon testified that other than the
-4-
missing front plate and a potential parking violation, he had no reason to believe
that Mr. Mikulski had committed a crime.
Detective Perschon testified that he then asked the driver to step out of the
truck to search him for identification and to check for weapons. Detective
Perschon admitted that although he had no reason to believe that the driver was
armed, his standard practice was to conduct a frisk in the interest of officer
safety. Detective Perschon also testified that Mr. Mikulskis nervous demeanor
made the detective concerned for his own safety.
Before conducting a pat-down search, Detective Perschon asked the driver
if he had any weapons on his person. The driver responded that he had a knife on
his belt. Detective Perschon told Mr. Mikulski to put his hands on the vehicle
where the detective could see them. Detective Perschon performed a pat-down
search, which also revealed a pistol in the drivers left front pocket. Detective
Perschon placed the driver under arrest for carrying a concealed firearm.
Detective Perschon told the driver not to move, and requested assistance in
securing the weapon. After handcuffing Mr. Mikulski, Detective Perschon
conducted a further pat-down search that revealed drugs in the drivers left shirt
pocket. Detective Perschon also found a wallet on the driver with several pieces
of identification, with various names. Mr. Mikulski identified himself as Joseph
Mikulski. Detective Perschon directed another officer to run a records check,
-5-
United States v. Wood , 106 F.3d 942, 945 (10th Cir. 1997).
See id.
beyond the limits of their jurisdiction in violation of Utah Code Ann. 77-9-3;
(2) the initial encounter was not consensual; and (3) the subsequent detention and
pat-down search were also unlawful. First, we consider Mr. Mikulskis charge
that the officers acted unlawfully in exceeding their jurisdiction. We then turn to
the balance of Mr. Mikulskis arguments.
A.
Extra-jurisdictional activities
Mr. Mikulski contends that when the Utah County officers decided to
venture into Salt Lake County to locate Johnnie Green, that they were required to
notify Salt Lake County authorities, pursuant to Utah Code Ann. 77-9-3, which
adopts the Uniform Act on Fresh Pursuit. The statute provides that:
(1) Any peace officer authorized by any governmental entity of this
state may exercise a peace officer's authority beyond the limits of such
officer's normal jurisdiction as follows:
(a) when in fresh pursuit of an offender for the purpose of arresting and
holding that person in custody or returning the suspect to the
jurisdiction where the offense was committed;
(b) when a public offense is committed in such officers presence;
(c) when participating in an investigation of criminal activity
which originated in the officer's normal jurisdiction in cooperation
with the local authority; or
(d) when called to assist peace officers of another jurisdiction.
(2) (a) Any peace officer, prior to taking any action authorized by
Subsection (1), shall notify and receive approval of the local law
enforcement authority, or if the prior contact is not reasonably
possible, notify the local law enforcement authority as soon as
reasonably possible.
(b) Unless specifically requested to aid a peace officer of another
jurisdiction or otherwise as provided for by law, no legal responsibility
for a peace officer's action outside his normal jurisdiction, except as
-7-
1990), where we noted that an arrest made in hot pursuit would likely be
constitutionally valid.
before the district court, it admitted that the officers did not comply with Utah
State law in coordinating their investigation with local law enforcement in Salt
Lake County. Aples Br. at 22, n.8
Here, the magistrate judge and the district court did not conclude that
exigent circumstances existed, but, rather, determined that the officers violation
-8-
of state law did not rise to the level of a federal constitutional violation. In so
finding, the district court relied upon
citations omitted), and that the fact that the arrest, search, or seizure may have
violated state law is irrelevant as long as the standards developed under the
Federal Constitution were not offended.
Green
original), and that Green involved a warranted search. We noted that [a]
warrantless arrest is vastly different from a warranted search, and reiterated
Rosss holding that a warrantless arrest outside the arresting officers jurisdiction
is presumptively invalid.
warranted searches.).
The officers violation of state law is not, without more, necessarily a
federal constitutional violation.
(8th Cir. 1994) (A police violation of state law does not establish a Fourth
Amendment violation. However, the question of compliance with state law may
-9-
well be relevant in determining whether police conduct was reasonable for Fourth
Amendment purposes.). We thus must determine whether the officers actions
amounted to a federal violation.
The Seventh Circuit recently distinguished
Pasiewicz v. Lake County Forest Preserve Dist.
See id. By
Id. at 526
Id. (emphasis added); compare with Ross , 905 F.2d at 1354 (holding that [t]he
borrowing provision of [the Assimilative Crimes Act] . . . does not grant states
independent authority to enforce their own laws over Indians on Indian land)
and
with United States v. Baker , 894 F.2d 1144, 1147 (10th Cir. 1990) (suppressing
evidence because county district court exceeded its jurisdiction when it issued a
-10-
search warrant for property on a tribal reservation because the state had no
jurisdiction over the reservation to enforce state law, including to execute a
search warrant, unless Congress consented to the states jurisdiction).
Here, the situation is analogous to that in
been avoided through adherence to the statute, via notification of the Salt Lake
County authorities. Although it might not be reasonable to expect an officer to
anticipate the events that ensue during a traffic stop, the Utah County officers
here had complete control of the parameters of the investigation, when and where
it occurred, and who was involved. It
officers will comply with the relevant laws so as to avoid the manufacture of
exigencies.
(noting that in the context of a warrantless arrest, [p]olice officials . . . are not
free to create exigent circumstances to justify their warrantless intrusions.).
Despite the apparent violation of state law, we cannot say that the officers
actions amounted to a federal violation. Detective Perschon, upon noticing that
the pickup truck lacked a front license plate, had probable cause to believe that a
public offense had been committed.
31055998, at *8, 57 P.3d 1052 (Utah Sept. 17, 2002) (holding officer authorized
to make arrest for misdemeanor and noting that [t]he term public offense under
section 77-7-2(1) generally includes misdemeanors).
-12-
learned that Mr. Mikulski was armed. Under the totality of the circumstances,
any contact with the local law enforcement authority at this time was not
reasonably possible. Utah Code Ann. 77-9-3(2)(a). We hold, that under the
facts before us, he was then authorized to arrest Mr. Mikulski. Furthermore. the
record indicates that the officers contacted the Salt Lake County officials soon
after Mr. Mikulskis arrest.
We, like the Utah Supreme Court, do not condone the officers violation of
the law or their failure to comply with proper law enforcement procedures,
particularly in an area where several municipalities must work together in order to
protect the rights of citizens and achieve the purposes of cooperative and
effective law enforcement.
B.
suspicion when they approached Mr. Mikulski and questioned him. The district
Separately, we note that Utah has evaluated a violation of 77-9-3 and
determined that the legislature has not seen fit to enact any statutory remedy for
such misconduct. Fixel , 744 P.2d at 1369. It is only where the violation also
implicates fundamental, constitutional concerns, is conducted in bad-faith or has
substantially prejudiced the defendant that exclusion
may be an appropriate
remedy. Id. (internal quotation marks omitted) (emphasis in original). Here, in
contrast, we have determined that the violation does not implicate constitutional
deprivation of rights, there has been no allegation of bad faith, and there has been
no suggestion of prejudice.
4
-13-
court, however, determined that the initial interaction between Detective Perschon
and Mr. Mikulski was a consensual encounter. We agree. The officers did not
make a sufficient showing of authority to sufficiently convey to Mr. Mikulski that
his liberty was restrained. The detectives, dressed in plainclothes, walked up to
the truck that was stopped. The detectives vehicle did not block the Mr.
Mikulskis path or exit. While the detectives displayed their badges to identify
themselves, they did not display a weapon or use any coercive language or tone.
The questioning took place in a public setting in full view of two people on the
porch of 4560 West 5780 South and in front of the trucks passenger. Although
[Mr.] Mikulski was never informed by Detective Perschon that he need not
answer the detectives questions, Rec. vol. I, doc. 49, at 16 (Magistrate Judges
Report and Recommendation, filed Feb. 15, 2001), Detective Perschon gave Mr.
Mikulski no reason to believe that [he was] required to answer the [detectives]
questions. United States v. Drayton , 122 S. Ct. 2105, 2112 (2002). Finally, the
record does not indicate that the officers behaved in a manner that was
threatening. We agree with the district court that the initial encounter was
consensual. See United States v. Lambert,
(holding that a police officers encounter with the defendant had been consensual,
and stating that a seizure does not occur simply because a police officer
-14-
Florida v. Bostick ,
(10th Cir. 1999). Upon de novo review of the legal question presented,
see
United States v. Caro , 248 F.3d 1240, 1243 (10th Cir. 2001), we agree with the
district courts ultimate determination of reasonableness.
As noted above, Detective Perschon had already noted the lack of a front
license plate on the pickup truck when he approached Mr. Mikulski. In addition,
Mr. Mikulski seemed nervous and was unable to confirm his identity. Detective
Perschon testified that, in his experience, such reticence often results from a
driver whose license has been suspended or who may have an outstanding
warrant. Based on the totality of the circumstances, Detective Perschon was
justified in asking Mr. Mikulski to step out of the truck. In addition, we agree
-15-
with the district court that Detective Perschons inquiry about the presence of
weapons and subsequent protective frisk were reasonable.
U.S. 1, 30 (1968) (officer may pat-down suspect for weapons when he suspects
criminal activity and he has a reasonable fear for his own or others safety). Mr.
Mikulski told Detective Perschon he had a knife in his belt. The frisk was
justified. Cf. Terry , 392 U.S. at 27 (The officer need not be absolutely certain
that the individual is armed; the issue is whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety or that of others
was in danger.) (citations omitted).
Under the totality of these circumstances, we agree with the district court
that there was a particularized and objective basis for suspecting Mr. Mikulski of
criminal activity and that Detective Perschons actions during the detention were
reasonably related in scope to the circumstances that justified the extended
detention. As a result, Mr. Mikulskis detention did not violate the Fourth
Amendment.
III. CONCLUSION
For the reasons stated above, we AFFIRM the district courts denial of Mr.
Mikulskis motion to suppress.
-16-