District Court, Salt Lake Department The Honorable Mark S.
Kouris No. 161905902
L. Welch, Brenda M. Viera, and Tessa Hansen, Attorneys for
D. Reyes and Jonathan S. Bauer, Attorneys for Appellee
David N. Mortensen authored this Opinion, in which Judges
Gregory K. Orme and Kate Appleby concurred.
In short, this is not a Long case. 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.
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
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 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
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."
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."
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."
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 ...