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State v. Jervis

Court of Appeals of Utah

November 16, 2017

State of Utah, Appellee,
v.
Allen Miles Jervis, Appellant.

         Third District Court, Salt Lake Department The Honorable Keith A. Kelly No. 151900605

          Joan C. Watt, Brenda M. Viera, and Diana K. Pierson, Attorneys for Appellant

          Sean D. Reyes and Jeanne B. Inouye, Attorneys for Appellee

          Judge Jill M. Pohlman authored this Opinion, in which Judges Kate A. Toomey and Ryan M. Harris concurred.

          OPINION

          POHLMAN, Judge.

         ¶1 Allen Miles Jervis appeals his conviction for one count of possession of a controlled substance, a third degree felony, contending that the district court incorrectly concluded that his seizure by a police officer was constitutionally permissible. We affirm.

         BACKGROUND[1]

         ¶2 Early one afternoon, a Salt Lake City police officer (Officer) was patrolling "several motel parking lots" where he claimed there was often "a lot of criminal activity." One of the motels was located "just off the freeway, " accessible from public streets, and surrounded on the north, east, and west by adjacent parking lots. As Officer drove through the motel's north lot, he noticed a lone, parked vehicle backed into the parking stall "furthest away from the [motel's] available rooms." The vehicle was a Honda Civic, a make and model that, based on his experience, Officer knew to be "a frequently stolen car." Officer observed Jervis sitting alone in the driver's seat. He also observed that there was "no front license plate" on the vehicle, and that "there were oversized bolts in the front bumper, where the plate would normally be attached, " causing Officer to wonder whether "the front plate had just been ripped off."

         ¶3 Officer pulled up to the vehicle and parked his patrol car at a forty-five degree angle to the front of it. He requested backup, which arrived within "a couple of minutes." In the interim, Officer approached the passenger-side window of the vehicle and asked Jervis "if the car was his." Upon learning that "it was not, " Officer asked Jervis who owned the vehicle, and Jervis verbally provided the owner's name. Jervis also provided Officer his own name, birthdate, and identification.

         ¶4 While Officer was questioning Jervis, Officer noticed a license plate lying on the front floorboard in the vehicle. Officer then went to the back of the vehicle and verified that the license plate number on the plate lying inside the vehicle matched the plate number on the back. Officer proceeded to run both the license plate number and Jervis's information through his computer system. In doing so, he verified the identity of the vehicle's owner. He also learned that there were "a couple of warrants" for Jervis's arrest. Accordingly, he arrested Jervis.

         ¶5 Although Officer did not initially find anything on Jervis's person in a search incident to his arrest, one of the assisting officers pointed out that Jervis "had dropped a small vial of what appeared to be marijuana on the driver's seat" as he was removed from the vehicle. Officer retrieved the vial and, from experience, felt "confident" that the substance it contained was marijuana. After Officer placed Jervis in the patrol car, another assisting officer pointed out that Jervis "seemed to be movin' around a lot." After asking Jervis whether he had missed something during the previous search, Officer conducted a second search and discovered "a couple of small plastic bags with a clear, crystalline substance in them" in Jervis's pocket, which field-tested positive as methamphetamine. Officer also found "a single pill in a larger plastic bag" that an assisting officer identified as buprenorphine, "a Schedule Three (3) substance."

         ¶6 The State charged Jervis with three counts of possession or use of a controlled substance, one count for each of the substances discovered in the search incident to arrest. It charged the marijuana and the buprenorphine counts as class B misdemeanors, and the methamphetamine count as a third degree felony.

         ¶7 After the preliminary hearing, Jervis filed a motion to suppress the evidence, arguing that Officer had unlawfully detained him "without reasonable, articulable suspicion of wrongdoing." Jervis argued that the fact that he was lawfully parked in the parking stall in the Honda Civic without a front license plate was "insufficient" to provide justification for his seizure or for Officer to "investigate [him] personally" by running the warrants check.

         ¶8 In response, the State conceded that Officer had detained Jervis, but it argued that Officer had reasonable articulable suspicion to detain him for three reasons. First, Officer could have reasonably suspected that the vehicle Jervis was sitting in "may have been stolen, " because Honda Civics "are commonly stolen vehicles, " "the Civic was located in a high-crime area, " "there was no front license plate on the vehicle, " and there were "oversized bolt holes where the license plate would normally be fastened, " which would permit a reasonable suspicion that "the license plate may have been ripped from the vehicle." Second, the State argued Officer could have reasonably suspected that Jervis "had driven, or was about to drive, a vehicle without a front license plate, " which is a class C misdemeanor violation of Utah Code section 41-1a-1305(5). Finally, the State argued that Officer could have reasonably suspected that Jervis-the only occupant of a vehicle missing a front license plate-"had removed a license plate from a vehicle, " which is a class C misdemeanor violation of Utah Code section 41-1a-1305(2).

         ¶9 The district court denied Jervis's motion to suppress. The court made findings consistent with Officer's account; it found that Jervis was sitting in the driver's seat of a Honda Civic parked in the "far North side of the [motel's] parking lot, away from the motel rooms"; that "there was no license plate on the front of the Civic"; and that there were "oversized bolt holes where the license plate would normally be fastened." It also found that as a result of this encounter, Officer obtained Jervis's identifying information, discovered outstanding warrants for his arrest, and in a search incident to arrest discovered the controlled substances underlying Jervis's charges.

         ¶10 The court then concluded that the make and model of the vehicle and its parked position "on the North side of the parking lot" did not factually contribute "to a reasonable suspicion that [Jervis] was engaged in criminal activity" to justify the detention. However, the court concluded that "the absence of a front license plate on the Civic did establish a reasonable suspicion that [Jervis] had committed, or was about to commit, a crime" under Utah Code section 41-1a-1305. Specifically, it determined that the absence of the plate created a reasonable suspicion that Jervis either had operated or was about to operate the vehicle without the plate attached in violation of subsection 1305(5), or that Jervis had removed the license plate in violation of subsection 1305(2). The court also determined that "the absence of a license plate raised a question of whether the car may have been stolen." Accordingly, because "the Honda Civic appeared on its face to be in violation of Utah law, " the court concluded that "under a totality of the circumstances" Officer "had a reasonable articulable suspicion that [Jervis] had committed, or was about to commit, a criminal offense, " and that Officer was therefore "entitled to initiate a detention in order to investigate further."

         ¶11 Ultimately, Jervis entered a Sery plea to one count of third degree felony possession of a controlled substance, reserving his right to appeal the adverse suppression ruling. See generally State v. Toombs, 2016 UT App 188, ¶ 10 n.3, 380 P.3d 390 (explaining that a Sery plea is "a conditional guilty plea that reserves the right to appeal a court's decision on a motion" ...


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