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State v. McLeod

Court of Appeals of Utah

March 29, 2018

State of Utah, Appellee,
v.
Ty William McLeod, Appellant.

          Third District Court, Salt Lake Department The Honorable James T. Blanch No. 141908935

          Alexandra S. McCallum, Attorney for Appellant

          Sean D. Reyes and Marian Decker, Attorneys for Appellee

          Judge Diana Hagen authored this Opinion, in which Judges Gregory K. Orme and Jill M. Pohlman concurred.

          HAGEN, Judge

         ¶1 Ty William McLeod appeals the district court's denial of his motion to suppress drug evidence discovered during a search incident to arrest. McLeod contends that the evidence should be excluded because the officer's subjective basis for the arrest was a mistaken belief that McLeod was the subject of an active arrest warrant. In denying the motion to suppress, the district court ruled that the arrest was objectively justified. Notwithstanding the officer's mistaken subjective basis for arrest, the officer's observation of a hand-to-hand transaction gave rise to probable cause to arrest McLeod for committing a drug crime. We affirm.

         BACKGROUND[1]

         ¶2 A Salt Lake City police officer was surveilling a high-crime area known for drug activity. The officer was stationed on the top of a parking structure, using binoculars to look for hand-to-hand drug transactions. As a nine-year veteran of the police force, the officer was familiar with the characteristics of such transactions. He had been involved in approximately one thousand drug-related stops and had completed multiple narcotics trainings. The officer testified at an evidentiary hearing that in his experience, when a hand-to-hand drug transaction occurs, a pedestrian will walk up to a potential drug dealer and engage in a short conversation. After the pedestrian pulls out money, the drug dealer will usually remove drugs from his or her mouth and hand them to the pedestrian. According to the officer, certain drugs are typically packaged in a "twist, " which is a pinky-sized bag that has been twisted and then melted on the end to prevent breaking. The color of the twist varies based on the type of drug it contains.

         ¶3 Through his binoculars, the officer noticed a suspicious interaction about sixty-five to seventy yards away from his location. He watched as a man, later identified as McLeod, approached a second man on the street and handed him green paper, which appeared to be money. The second man then reached into his mouth, grabbed a black item that appeared to be a twist of heroin, and handed it to McLeod. McLeod immediately put the black twist into his pocket and continued walking.

         ¶4 Believing he had witnessed a hand-to-hand drug transaction, the officer exited the parking structure and intercepted McLeod on the street. The officer immediately recognized McLeod as a suspect he had arrested four months earlier.[2] In connection with charges stemming from that prior arrest, the officer had appeared at McLeod's preliminary hearing twenty days earlier and had heard the court issue an arrest warrant when McLeod failed to appear. Unbeknownst to the officer, McLeod had appeared later that afternoon, and the court had recalled the warrant at that time.

         ¶5 Assuming that the warrant was still active, the officer arrested McLeod. He then conducted a search incident to arrest, which uncovered a syringe, heroin, and cocaine. When the officer later conducted a records check, he discovered that the warrant had been withdrawn.

         ¶6 The State charged McLeod with two counts of possession or use of a controlled substance, third degree felonies, and one count of possession of drug paraphernalia, a class B misdemeanor. McLeod moved to suppress the drug evidence, contending that the officer had neither probable cause to arrest McLeod for the alleged drug transaction nor a good-faith basis to arrest McLeod on a twenty-day-old warrant.

         ¶7 In denying the motion, the district court noted that "it is very unusual for a person to walk up to someone else on the street and give that person what appears to be money and then get something out of that person's mouth in return." The court determined that "a reasonably prudent person, especially with [the officer's] training and experience, would easily and reasonably believe he had witnessed a hand-to-hand drug transaction." Because the district court concluded the hand-to-hand transaction gave rise to objective probable cause to arrest, it did not reach McLeod's argument that the officer lacked good faith when he arrested McLeod on a recalled warrant.

         ¶8 McLeod pled guilty to one count of possession or use of a controlled substance, a class A misdemeanor, preserving his right to appeal the district court's denial of his motion to ...


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