State v. McLeod.

2018 UT App 52

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
TY WILLIAM MCLEOD,
Appellant.

Opinion
No. 20151062-CA
Filed March 29, 2018

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.
 State v. McLeod

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.

1. “In reviewing the [district] court’s ruling on a motion to
suppress evidence, we recite the relevant facts in the light most
favorable to the [district] court’s findings.” State v. Navarro, 2017
UT App 102, ¶ 2 n.1, 400 P.3d 1120 (citation and internal
quotation marks omitted).

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 State v. McLeod

¶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

2. The prior arrest and search is addressed in the companion case
of State v. McLeod, 2018 UT App 51, which we also decide today.

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 State v. McLeod

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
suppress. See Utah R. Crim. P. 11(j). This appeal followed.

ISSUE AND STANDARD OF REVIEW

¶9 McLeod contends that the district court erred in denying
his motion to suppress because the officer arrested him without
probable cause to believe McLeod was engaged in unlawful
drug activity, thereby tainting any evidence recovered during
the search incident to arrest. Specifically, McLeod contends that
given the distance from which the officer observed the hand-to-
hand transaction and the uncertainty regarding the items
exchanged, the officer’s observations supported only reasonable
suspicion to investigate, not probable cause to arrest.

¶10 “We review a [district] court’s decision to grant or deny a
motion to suppress for an alleged Fourth Amendment violation
as a mixed question of law and fact.” State v. Taylor, 2017 UT
App 89, ¶ 6, 402 P.3d 790 (citation and internal quotation marks
omitted). “While the court’s factual findings are reviewed for
clear error, its legal conclusions are reviewed for correctness,
including its application of law to the facts of the case.” Id.
(citation and internal quotation marks omitted).

ANALYSIS

¶11 A warrantless arrest is reasonable under the Fourth
Amendment to the United States Constitution if the officer has

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 State v. McLeod

probable cause to believe that the suspect “has committed even a
very minor criminal offense in [the officer’s] presence.” Atwater
v. City of Lago Vista, 532 U.S. 318, 354 (2001). Probable cause to
justify an arrest means “facts and circumstances within the
officer’s knowledge that are sufficient to warrant a prudent
person, or one of reasonable caution, in believing . . . the suspect
has committed, is committing, or is about to commit an offense.”
Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). In evaluating
whether probable cause existed, we “may consider an officer’s
particular experience and education.” State v. Lloyd, 2011 UT
App 323, ¶ 21, 263 P.3d 557 (citation and internal quotation
marks omitted).

¶12 The officer in this case was an experienced narcotics
officer who had participated in over one thousand drug-related
stops, had been trained to identify drug packaging, and was
familiar with the common characteristics of hand-to-hand
transactions. The officer testified that he had been looking for
hand-to-hand transactions in a high-crime area when he
watched McLeod approach a man on the street and give him
what appeared to be money. The officer believed it was money
because, with the aid of binoculars, he could see green paper.
The man then removed a small, black item from his mouth and
gave it to McLeod, who immediately placed it in his pocket and
departed. The officer testified that he initially stopped McLeod
because he believed the black item the man removed from his
mouth was a twist of a controlled substance.

¶13 Relying on State v. Anderson, 2013 UT App 272, 316 P.3d
949, McLeod contends that an officer’s observation of a hand-to-
hand exchange in an area known for drug trafficking supports
only reasonable suspicion justifying an investigative detention.
Id. ¶ 24. In Anderson, we were not asked to determine whether
the circumstances that gave rise to reasonable suspicion may
have also supported probable cause for an arrest. Indeed, we
have found no Utah appellate court decisions addressing

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whether and under what circumstances a hand-to-hand
transaction may give rise to probable cause. But other
jurisdictions have held that witnessing a hand-to-hand
transaction, under circumstances suggestive of drug activity,
may give rise to probable cause to arrest. See State v. Caicedo, 622
So. 2d 149, 150 (Fla. Dist. Ct. App. 1993) (determining probable
cause existed where an officer patrolling in an area known for
drug activity observed two men with prior drug arrests
exchange money for a small unknown item that the defendant
immediately placed into his mouth); State v. Moore, 853 A.2d 903,
907 (N.J. 2004) (determining probable cause existed where an
experienced narcotics officer using binoculars observed several
men exchange money for small unknown objects in an area
known for drug trafficking); People v. Spencer, 46 N.Y.S.3d 74, 74
(App. Div. 2017) (determining probable cause existed where an
experienced narcotics officer observed a known drug dealer
exchange an unidentified object for money in a drug-prone
location).

¶14 Here, under the totality of the circumstances, the district
court correctly determined that the officer had probable cause to
arrest McLeod based solely on his observations of the hand-to-
hand transaction. First, McLeod did not simply engage in a
hand-to-hand exchange—McLeod accepted and placed into his
pocket a small, black item that another man had just removed
from his mouth. The officer testified that it is common for drug
dealers to “pull [drugs] out of their mouth.” While it may be
possible to imagine innocent explanations for this peculiar
conduct, none is remotely as likely as the conclusion that
McLeod had engaged in a hand-to-hand drug transaction. See
Caicedo, 622 So. 2d at 150 (“An observation as to a known mode
of transportation of drugs is a factor properly considered in a
probable cause determination.”).

¶15 Second, even though the officer observed the transaction
from sixty-five to seventy yards away, he had an unobstructed

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view, and with the aid of binoculars, he was able to see the color
of the items exchanged. Specifically, he saw McLeod give green
paper to the second man, and he saw the second man hand
something small and black to McLeod. The indeterminate nature
of these items does not negate a probable cause determination,
because the officer’s belief that McLeod took possession of a
controlled substance “need not be characterized as a certainty.”
State v. Griffith, 2006 UT App 291, ¶ 7, 141 P.3d 602; see also Texas
v. Brown, 460 U.S. 730, 742 (1983) (stating that probable cause
“does not demand any showing that such a belief be correct or
more likely true than false”).

¶16 Finally, the exchange occurred in a high-crime area where
the officer had previously observed many hand-to-hand
transactions. While officers may not stop pedestrians for merely
being present in a high-crime area, see State v. Trujillo, 739 P.2d
85, 89 (Utah Ct. App. 1987), the United States Supreme Court has
noted that “the fact that the stop occurred in a ‘high-crime area’
[is] among the relevant contextual considerations in a Terry
analysis,” Illinois v. Wardlow, 528 U.S. 119, 124 (2000); see also
Terry v. Ohio, 392 U.S. 1 (1968). And courts have similarly
reasoned that a location’s reputation for being a high-crime area
is a relevant factor in determining whether there was probable
cause to arrest after observing a hand-to-hand transaction. See
Caicedo, 622 So. 2d at 150; Moore, 853 A.2d at 907; Spencer, 46
N.Y.S.3d at 74.

¶17 We conclude that under the facts of this case, it was
objectively reasonable for an experienced narcotics officer to
believe that McLeod had committed an offense in his presence,
giving rise to probable cause to arrest. The officer’s subjective
reason for arresting McLeod—the mistaken belief that there was
an outstanding warrant for his arrest—does not undermine the
district court’s conclusion that the arrest was nevertheless
constitutional. See Devenpeck v. Alford, 543 U.S. 146, 155 (2004)
(explaining that an officer’s subjective reason for making an

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arrest is “no basis for invalidating an [otherwise lawful] arrest”).
Accordingly, we do not reach McLeod’s contention that the
officer’s reliance on a recalled warrant was objectively
unreasonable. Because the officer had probable cause to arrest
McLeod after witnessing a hand-to-hand transaction, McLeod’s
arrest was lawful under the Fourth Amendment and there is no
basis to exclude the evidence obtained during the subsequent
search. See State v. Harker, 2010 UT 56, ¶ 19, 240 P.3d 780
(“Because arrests based on probable cause are ‘lawful’ under the
Fourth Amendment, the evidence obtained in a search incident
to such an arrest is not excluded.”).

¶18 Affirmed.

20151062-CA 8 2018 UT App 52