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State v. Bowdrey

Court of Appeals of Utah

January 10, 2019

State of Utah, Appellee,
Kenneth Morris Bowdrey, Appellant.

          Third District Court, Salt Lake Department The Honorable Mark S. Kouris No. 161905902

          Teresa L. Welch, Brenda M. Viera, and Tessa Hansen, Attorneys for Appellant

          Sean D. Reyes and Jonathan S. Bauer, Attorneys for Appellee

          Judge David N. Mortensen authored this Opinion, in which Judges Gregory K. Orme and Kate Appleby concurred.


         ¶1 In short, this is not a Long case.[1] A police officer (Officer), using a spotting scope in a surveillance operation to detect drug dealing, directed other officers (the Arrest Team) via police radio to detain Kenneth Bowdrey. Officer then joined the Arrest Team and confirmed that his colleagues had apprehended the correct suspect. Bowdrey argued that Officer's post-surveillance confirmation entitled him to a cautionary jury instruction-a Long instruction-about the limitations of eyewitness identification. The trial court denied his request. Bowdrey now appeals his conviction for drug distribution. We affirm.


         The Arrest

         ¶2 Around 10:00 p.m. on May 27, 2016, Officer was conducting surveillance of possible drug dealing near Salt Lake City's homeless shelter. In a concealed location about one hundred yards away, Officer used a spotting scope to observe the area near the shelter. The scope was not equipped with a recorder or night vision, but Officer reported he could see the area "very well" because he had an unobstructed view and the area around the shelter was "very well-lit . . . even at nighttime." His view of the area was interrupted only by the passing of an occasional light rail commuter train. Officer was accompanied by a new recruit, whom he was training. The recruit used her own spotting scope, and she and Officer discussed their observations.

         ¶3 After watching the area through his scope for about thirty minutes, Officer observed three men conducting what appeared to be drug transactions. Two of the men (the Sellers) spit items out of their mouths after people gave them cash. Officer observed the Sellers conduct about ten such transactions each. Officer stated that the Sellers' behavior was consistent with his knowledge of drug dealing practice. Officer explained that after a buyer gives a seller cash, the seller proceeds to spit twists[2] and hands over the drugs to the buyer. Drug sellers often work with a "holder." According to Officer, a holder stays at a distance from the sellers and retains the bulk of the drug inventory, while the sellers conceal small quantities of twists in their mouths as they conduct sales. Officer explained that sellers use this method so that they can swallow or spit out the drugs if approached by police officers.

         ¶4 Officer observed the Sellers approach a holder two times each between sales. Officer reported that the holder would take a pill bottle out of his jacket; the Sellers would receive the bottle, transfer its contents to their mouths, and then continue selling drugs. Officer noted that the holder appeared to be smoking a crack pipe when he was not resupplying the Sellers. Officer described the holder as a "tall black male approximately 50 years old who was wearing a red backpack."

         ¶5 Officer radioed the Arrest Team to stop the three men he had been observing, namely the Sellers and the holder. The Sellers ran when the Arrest Team approached them, but they were stopped about forty feet from where the holder was detained. The holder did not run when the Arrest Team approached him. Officer continued to watch through his scope as the Arrest Team detained the holder. Officer informed the Arrest Team members that they had "the right person at the time they made the initial stop."

         ¶6 After the three suspects were in custody, Officer left his place of concealment and joined the Arrest Team. Once there, Officer confirmed that the Arrest Team had detained the holder he had been watching. Officer stated that he "didn't further identify [the holder], because [Officer had] already done that. They held-detained him until [Officer] arrived on the scene."

         ¶7 The holder was identified as Bowdrey. Bowdrey had a crack pipe when the Arrest Team approached him. A search of Bowdrey, conducted by Officer, revealed a pill bottle inside a sock in Bowdrey's jacket. The pill bottle contained about thirty black and white twists of heroin and cocaine. The Sellers detained along with ...

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