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State v. Olivarez

Court of Appeals of Utah

March 9, 2017

State of Utah, Appellee,
v.
Romeo Lucero Olivarez, Appellant.

         Third District Court, Salt Lake Department The Honorable Randall N. Skanchy No. 131904665

          Teresa L. Welch and Ralph W. Dellapiana, Attorneys for Appellant

          Sean D. Reyes and Jeffrey S. Gray, Attorneys for Appellee

          Judge David N. Mortensen authored this Opinion, in which Judges Gregory K. Orme and Jill M. Pohlman concurred.

          OPINION

          MORTENSEN, Judge.

         ¶1 Romeo Lucero Olivarez activated his turn signal and, in one continuous movement, crossed two lanes of traffic. An officer stopped Olivarez for an illegal lane change. One thing led to another, heroin and methamphetamine were found, and Olivarez conditionally pled guilty to two counts of Possession or Use of a Controlled Substance, reserving a right to appeal the denial of his motion to suppress. On appeal, Olivarez contends that the evidence obtained during this stop, which included an inventory search of his car, should have been suppressed. We affirm.

         BACKGROUND

         ¶2 Driving alone, Olivarez exited Interstate 15 on a four-lane off-ramp toward 900 South in Salt Lake City. For clarity we refer to the lanes on the off-ramp, from left to right while facing the direction of the flow of traffic, as lane one, lane two, lane three, and lane four. While on the exit ramp, Olivarez activated his turn signal and in one motion moved from lane two, across lane three, into lane four on the far right of the ramp. An officer in an unmarked patrol car activated his emergency lights to stop Olivarez because he "went across all the traffic without leaving the appropriate two second signal." After making a right hand turn, Olivarez pulled over on the side of the road, "outside the lane of travel, " on 900 South.

         ¶3 The officer told Olivarez why he had stopped him and asked for Olivarez's driver license, registration, and proof of insurance. Olivarez first told the officer that he did not have his license with him. Later, when it became apparent that the officer would search Olivarez's name to check the status of his license, he told the officer that his license might be suspended. Indeed, the officer verified that Olivarez's license was "denied." The officer also verified that the car Olivarez was driving was registered to someone else. At this point, the officer decided to impound the car because Olivarez "was driving on a denied or he didn't have a valid driver's license" and because there was no other driver present to take possession of the car that Olivarez did not own.

         ¶4 The officer approached Olivarez to inform him that his license was "suspended or denied" and that the police were "going to impound the vehicle." Olivarez then told him that the car belonged to his brother and asked if he could call his brother to come get the car. The officer told Olivarez that "he could make his phone call once he was outside the vehicle so [the officer] could start the impound."

         ¶5 When Olivarez exited the car, the officer asked him if he was carrying any weapons. Olivarez informed the officer that he was carrying brass knuckles in his front pocket. Olivarez consented to a search of his person. The officer searched Olivarez and found the brass knuckles, whereupon the officer handcuffed and arrested Olivarez for carrying a concealed dangerous weapon.

         ¶6 After securing Olivarez in a patrol vehicle, the officer, along with other officers who had arrived, conducted an inventory search of the car in preparation for impound. The officers found "a blue flashlight . . . that contained . . . methamphetamine, heroin, and marijuana, " as well as "a glass pipe that appeared to have been used to smoke narcotics." After the officers completed the inventory search, a tow truck arrived and was hooked up to the car. The registered owner of the car then arrived to pick up the car, but the officers proceeded to impound the car rather than turn it over to the owner because the impound was almost complete.[1]

         ¶7 Olivarez was charged with multiple offenses based on the evidence gathered during the traffic stop and inventory search. Olivarez moved to suppress this evidence, arguing that "the method by which [he] changed lanes complied with applicable Utah law" and that the officer made a "mistake in law" by requiring that Olivarez pause "for any particular time in lane 3 before going over to lane 4." Olivarez further argued that the vehicle impound was improper under both the Fourth Amendment to the United States Constitution and the Salt Lake City Police Department's impound policy because the car "was [in] a safe place, not blocking traffic" and because "Olivarez had called his brother and told [the officer] he wanted his brother to come take possession of the car and the officer refused to do that."

         ¶8 The Salt Lake City Police Department's impound policy requires officers to "use discretion in determining whether or not a vehicle should be impounded" to "avoid needless expense and inconvenience to the vehicle owner." The policy also restricts officers from impounding vehicles solely due to a lack of insurance or for an expired registration of less than ninety days when the vehicle is occupied by the owner or a responsible party.

         ¶9 The district court denied the motion to suppress, concluding that (1) "the stop was justified at its inception" because the officer "directly observed a traffic offense"; (2) "the officer's decision to impound the vehicle did not exceed the scope of the purpose of the stop" because "the officer determined that the driver did not have a valid license[, ] that he was the only occupant[, ] and that the driver was not the owner"; and (3) the officer "conducted the impound pursuant to his department impound policy."

         ¶10 After the court denied his motion to suppress, Olivarez entered a conditional guilty plea to possession of methamphetamine and heroin, while ...


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