Opinion
Case No. 981805-CA.
Filed January 17, 2002. (Not For Official Publication)
Appeal from the Fifth District, St. George Department, The Honorable James L. Shumate.
Jim R. Scarth, St. George, for Appellant.
Mark L. Shurtleff and Laura B. Dupaix, Salt Lake City, for Appellee.
Before Judges Billings, Orme, and Thorne.
MEMORANDUM DECISION
We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3).
Running a computer check on defendant's publicly displayed license plate while his vehicle was in a public area did not implicate defendant's Fourth Amendment rights because it preceded any stop, search, or seizure. It is inarguable that, having learned there was an outstanding warrant against the registered owner of the vehicle, the officer had an objectively reasonable suspicion that justified his stop of the vehicle and brief detention of the driver to investigate whether the driver was, in fact, the owner.
The chain of custody argument advanced on appeal was not preserved below and thus we do not reach it. The same is true for the argument about the alleged discrepancy between the officers' suppression hearing and trial testimony.
Insofar as defendant seeks to characterize this argument as one concerning ineffective assistance of counsel, it comes too late, and we decline to address the argument in that context.
We conclude the constructive possession instruction given to the jury was adequate under State v. Layman, 1999 UT 79, 985 P.2d 911, for essentially the reasons outlined by the State in its brief. As we understand defendant's sufficiency-of-the-evidence challenge, it is entirely dependent on our first finding some problem with the jury instruction. Because we conclude the instruction was legally adequate, we have no occasion to address the challenge to the sufficiency of the evidence.
In so stating, we do not agree, as the State suggests, that had the text redacted by the trial court been included in the instruction, it would have misled the jury. In the context of this case, at least, it would not likely have done so. Nonetheless, under Layman it was not necessary to include the redacted language.
With respect to the inventory search, defendant is correct that the written procedures, at first blush, seem ambiguous concerning whether closed containers should be opened and the contents individually inventoried, or whether, instead, the written procedures contemplate merely inventorying the closed containers — e.g., "one closed briefcase," "two closed knapsacks," "one closed tool kit," etc. To protect the police from false claims, surely the better practice would be to inventory the contents of closed containers that are not actually locked. Indeed, there is an indication in the definitions in the written procedures that this is what was intended. Thus, "CLOSED CONTAINERS" is defined to exclude locked containers, which would not need to be opened to protect the police from false claims — the lock itself being adequate protection in that regard.
Defense counsel conceded at the suppression hearing that the latter interpretation would be "almost ludicrous."
While greater clarity in the written procedures themselves would be desirable, the practical import of the policy's language seems clear, and any possible ambiguity is foreclosed in thiscase by the uncontradicted testimony of the two officers that they had received training about the department's inventory procedure and both understood closed containers had to be opened and the contents inventoried. One officer specifically testified there was no officer discretion, which was the primary evil addressed in State v. Shamblin, 763 P.2d 425, 427-28 (Utah Ct.App. 1988). On balance, we believe the written procedures, coupled with the officers' testimony, are sufficient to satisfy Shamblin's mandate of "a standardized, specific procedure." Id. at 427.
In view of our disposition, the State's post-briefing motion is denied as moot.
WE CONCUR: Judith M. Billings, Associate Presiding Judge, William A. Thorne, Jr., Judge.