Opinion
Case No. 20060530-CA.
Filed June 7, 2007. NOT FOR OFFICIAL PUBLICATION.
Third District, Silver Summit Department, 041500254 The Honorable Bruce C. Lubeck.
Attorneys: Brent A. Gold, Park City, for Appellant Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee.
Before Judges Bench, McHugh, and Thorne.
MEMORANDUM DECISION
Defendant Jason B. Parkin appeals the trial court's denial of his motion to suppress evidence related to his charge of possession of cocaine, a third degree felony. See Utah Code Ann. § 58-37-8(2)(b)(ii) (Supp. 2006). Parkin argues that he was subjected to custodial interrogation without a Miranda warning and that he did not voluntarily consent to the officer's search of his car. Therefore, he argues that evidence of cocaine found in his car should be suppressed. We disagree and affirm the trial court's ruling.
We first note that Parkin's Miranda argument was not preserved at trial for appeal. Instead, Parkin asks this court to review theMiranda issue under the plain error doctrine and find that the trial court erred in failing to sua sponte suppress the evidence based on aMiranda violation. To succeed under a plain error claim, a defendant must initially establish that error occurred. See State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993) ("To establish the existence of plain error and to obtain appellate relief from an alleged error that was not properly objected to, the appellant must show the following: (i) An error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful. . . ."). Because we hold that no unlawful custodial interrogation occurred, we also hold that the trial court was correct in denying the motion to suppress the evidence.
Custodial interrogation occurs when there is both custody and interrogation. "Because both custody and interrogation must exist to warrant Miranda warnings, the absence of one element makes it unnecessary for the court to address the existence of the other."State v. Levin, 2007 UT App 65, ¶ 11, 156 P.3d 178.
The Utah Supreme Court has established four factors for "determining whether an accused who has not been formally arrested is in custody. They are: (1) the site of interrogation; (2) whether the investigation focused on the accused; (3) whether the objective indicia of arrest were present; and (4) the length and form of interrogation."
Id. at ¶ 14 (quoting Salt Lake City v. Carner, 664 P.2d 1168, 1171 (Utah 1983)).
Regarding the first factor, the fact that Parkin was questioned while in a patrol car does not necessarily indicate that he was in custody.See State v. Smith, 2006 UT App 69U, para. 3 (mem.) (noting that even though questioning took place in a patrol car, the site of interrogation did not indicate custody because defendant voluntarily sat in the car and was told she was welcome to leave at any time). Here, Parkin entered the patrol car voluntarily to aid the officer in his investigation of the accident. Although the officer did not specifically inform Parkin that he was free to leave at the conclusion of the accident investigation, the officer did nothing to suggest to Parkin that he was under arrest or that his freedom of action was "curtailed to a degree associated with a formal arrest." State v. Mirquet, 914 P.2d 1144, 1146 (Utah 1996) (quotations omitted); cf. id. at 1148 ("[E]ven if a person is a suspect and accusatory questioning takes place in a police station, the person is not necessarily `in custody' if there is no arrest or restriction on his freedom of movement and the interrogated person is free to terminate the interview and leave.").
With respect to the second factor, the bulk of the officer's investigation focused on the traffic accident. The record indicates that Parkin was in the officer's vehicle for approximately ten minutes and that about eight minutes were spent investigating the accident. See Smith, 2006 UT App 69U at para. 4 (holding that the focus of the officer's investigation moved to defendant only moments before her incriminating statement, weighing against a finding of custody). The officer's questions regarding Parkin's use of marijuana were brief, non-accusatory, and occurred at the very end of the encounter.
As to the third factor, no objective indicia of arrest, such as "readied handcuffs, locked doors[,] or drawn guns," Carner, 664 P.2d at 1171, were present at the time the officer questioned Parkin. And although the officer's car lights were flashing, they had been turned on for safety purposes related to investigating the accident and were not used to intimidate Parkin. Parkin argues that the officer's direct accusations that he had been smoking marijuana and had marijuana in his vehicle are sufficient indicia of arrest to constitute custody. The record shows, however, that the officer asked if Parkin had been smoking marijuana or if he had been around individuals who had been smoking marijuana that day. See Smith, 2006 UT App 69U at para. 5 ("W]e do not think . . . questioning . . . [a d]efendant about drug use rises to a level sufficient to establish custody".). The officer then requested permission to search Parkin's vehicle. His brief questions were investigatory instead of accusatory, were non-threatening, and did not rise to the level of "indicia of arrest." Carner, 664 P.2d at 1171.
Finally, as to the fourth factor, there is no evidence that the officer conducted an extensive or lengthy interrogation of Parkin. As previously noted, the officer's questions were brief and were investigatory rather than accusatory. The officer did not insist that Parkin had been smoking marijuana, did not demand to search the car, and did not assert that Parkin had contraband hidden in the car. Cf. Mirquet, 914 P.2d at 1148 (holding that an officer's accusations that defendant had contraband in his car, and his insistence that the defendant admit to having the marijuana, weighed in favor of custody).
Taken together, these factors do not establish that Parkin was in custody when the officer questioned him and asked to search his car. Accordingly, the officer was not required to inform Parkin of hisMiranda rights and the trial court did not commit plain error in failing to suppress evidence based on a Miranda violation.
Parkin next argues that although he gave the officer consent to search his vehicle, his consent was not voluntary. We disagree. Factors that may indicate that consent was voluntarily given include
1) the absence of a claim of authority to search by the officers; 2) the absence of an exhibition of force by the officers; 3) a mere request to search; 4) cooperation by the owner of the vehicle; and 5) the absence of deception or trick on the part of the officer.
State v. Hansen, 2002 UT 125, ¶ 57, 63 P.3d 650 (quoting State v. Whittenback, 621 P.2d 103, 106 (Utah 1980)).
Here, the officer did not expressly or impliedly claim any authority to search Parkin's car. He was the only officer present, he did not use intimidating words or threaten Parkin in any way, and he used no force. Further, he specifically made a request, rather than a demand, to search Parkin's car, and the record shows that Parkin fully cooperated with the officer's request. There is no evidence that the officer deceived or tricked Parkin into consenting to the search. Accordingly, we agree with the trial court that Parkin's consent to search was voluntary.
Finally, Parkin argues that he was illegally detained in the officer's patrol car, in violation of his Fourth Amendment rights, and that the illegal detention was a prior illegality that tainted his consent to search. We disagree.
Parkin initially argued that the Miranda violation was the prior illegality that tainted his consent to search. Because aMiranda violation does not constitute a "'prior illegality'" under the exploitation analysis, State v. Kiriluk, 1999 UT App 30, ¶ 16 n. 4, 975 P.2d 469 (quoting State v. Thurman, 846 P.2d 1256, 1262 (Utah 1993)), and because no Miranda violation occurred, we need not address this claim.
Assuming, without deciding, that Parkin was seized for purposes of the Fourth Amendment once the officer began asking Parkin if he had been smoking marijuana, we conclude that his detention was lawful. An officer may lawfully seize a person without violating the individual's Fourth Amendment rights if the officer has reasonable articulable suspicion that the person has committed or is about to commit a crime. See State v. Bean, 869 P.2d 984, 988 (Utah 1994). Under Utah law, the odor of marijuana is enough to create a reasonable articulable suspicion of criminal activity that justifies law enforcement's brief detention of an individual for investigatory purposes. See State v. Delaney, 869 P.2d 4, 7 (Utah Ct.App. 1994) (holding that the odor of marijuana provided reasonable suspicion to prolong the detention of an individual during a traffic stop); State v. Dudley, 847 P.2d 424, 426 n. 1 (Utah Ct.App. 1993) (same).
Accordingly, the officer had sufficient reasonable articulable suspicion to briefly detain Parkin and therefore no prior illegality tainted Parkin's voluntary consent to search.
Parkin also argues that the search of his car was invalid because no exigent circumstances existed. Because we conclude that Parkin's consent to search was voluntary, we need not address this argument.
Affirmed.
Carolyn B. McHugh, Judge
I CONCUR:
William A. Thorne Jr., Judge
I CONCUR IN THE RESULT:
Russell W. Bench, Presiding Judge