State v. Malloy

2019 UT App 55

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ROBERT DENNIS MALLOY,
Appellant.

Opinion
No. 20170538-CA
Filed April 11, 2019

Third District Court, Salt Lake Department
The Honorable Todd M. Shaughnessy
No. 161903789

Andrea J. Garland and Elise C. Lockwood, Attorneys
for Appellant
Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N.
MORTENSEN concurred.

HAGEN, Judge:

¶1 Robert Dennis Malloy entered a conditional guilty plea
under rule 11(j) of the Utah Rules of Criminal Procedure to one
count of driving under the influence in exchange for the State
dismissing one count each of possession of drug paraphernalia
and possession or use of a controlled substance. On appeal,
Malloy contends the district court erred in denying his motion to
suppress the paraphernalia and controlled-substance evidence
that he alleges was discovered in violation of his Fourth
Amendment rights. Because the officer had the authority to open
the door to Malloy’s vehicle to investigate whether Malloy was
an impaired driver, we affirm.
 State v. Malloy

BACKGROUND

¶2 After receiving a report from an eyewitness, police
dispatch notified an officer of “a DUI accident” in a fast food
parking lot. The caller who reported the accident told dispatch
that the driver had fallen asleep and hit a light pole. According
to the caller, the driver then awoke, backed away from the pole,
and fell asleep again. The officer arrived at the scene and parked
behind the vehicle described in the report. Still on the scene, the
eyewitness provided his identifying information and confirmed
his report. The eyewitness also told the officer that he thought
the driver was unconscious and might be dead.

¶3 The officer approached the vehicle and peered into the
window “just long enough” to see that the driver was “kind of
slumped, slouched forward” and appeared to be unconscious.
Without knocking or announcing his presence, the officer
opened the door to check on the welfare of the driver, Malloy.
According to the officer, upon opening the door, Malloy awoke
and the officer observed a drug pipe on the floor between
Malloy’s feet.

¶4 After waiving his Miranda 1 rights, Malloy explained to
the officer that he had taken some narcotics for foot pain.
Malloy underwent a series of field sobriety tests, which
showed “[i]ndications of drug impairment.” Malloy was
arrested for driving under the influence and a search incident
to arrest revealed that Malloy was in possession of heroin.
Malloy was charged with driving under the influence,
possession of drug paraphernalia, and possession of a controlled
substance.

1. Miranda v. Arizona, 384 U.S. 436, 471–74 (1966) (explaining that
an individual who is subject to arrest and interrogation “must be
clearly informed” that he has the right to remain silent and “the
right to consult with a lawyer and to have the lawyer with him
during interrogation”).

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 State v. Malloy

¶5 Malloy moved to suppress the possession charges,
arguing that the officer searched his vehicle without probable
cause in violation of his Fourth Amendment rights. He argued
that the emergency aid doctrine was the “appropriate analysis to
apply” but that “the intrusion [was] not justified under the facts
of this case.” He further argued that the officer should have
knocked on the door or window of the vehicle, because doing so
would have provided a “simple, non-intrusive” means of
attempting to determine whether a medical emergency existed,
and if Malloy “had not stirred or responded, those facts would
have supported [the officer’s] search of the vehicle.” In its
opposition, the State argued that the emergency aid exception to
the Fourth Amendment allowed the officer to open the door to
Malloy’s vehicle and investigate whether he required medical
attention.

¶6 Following an evidentiary hearing, the district court
denied Malloy’s motion to suppress. The court concluded that
the evidence—including “the nature of the information that was
provided to the officer in connection with being dispatched on
the call, coupled with the information that was provided to the
officer on scene,” and the officer’s own observation of a driver
who appeared unresponsive—“warranted . . . a minimal
intrusion of simply opening the door” to see if Malloy required
emergency aid. 2

2. Below, the State argued that the community caretaking
doctrine also applied as an exception to the Fourth
Amendment’s warrant requirement. The district court explained
that it was “not sure” that the community caretaking doctrine
was “clearly as applicable, but to the extent it does apply, . . . the
facts here are appropriate under that doctrine as well.” Although
Malloy challenges this decision on appeal, we do not address it,
because we affirm the denial of Malloy’s motion to suppress
based on an alternate ground apparent on this record. See State v.
McLeod, 2018 UT App 51, ¶ 21, 420 P.3d 122.

20170538-CA 3 2019 UT App 55
 State v. Malloy

¶7 A few months later, Malloy entered a conditional guilty
plea under rule 11(j) of the Utah Rules of Criminal Procedure in
which he agreed to plead guilty to driving under the influence
and reserved the right to appeal the denial of his motion to
suppress. In exchange, the State offered to dismiss the
possession charges, which the court accepted. The court
suspended Malloy’s sentence and placed him on supervised
probation.

¶8 Malloy now appeals the denial of his motion to suppress.

ISSUE AND STANDARDS OF REVIEW

¶9 Malloy contends the district court erred in denying his
motion to suppress the evidence discovered during a search of
his vehicle based on the emergency aid exception to the Fourth
Amendment’s warrant requirement. The denial of “a motion to
suppress for an alleged Fourth Amendment violation [is] a
mixed question of law and fact.” State v. Adams, 2017 UT App
205, ¶ 11, 407 P.3d 1027 (quotation simplified). We review the
district court’s factual findings for clear error and its legal
conclusions for correctness, “including its application of law to
the facts of the case.” Id. (quotation simplified). Although we are
“limited to the findings of fact made by the trial court,” we may
affirm “on any legal ground or theory apparent on the record,”
as long as we do not “reweigh the evidence in light of the new
legal theory or alternate ground.” State v. McLeod, 2018 UT App
51, ¶ 21, 420 P.3d 122 (quotation simplified).

ANALYSIS

¶10 Malloy contends the district court erroneously denied his
motion to suppress in violation of his Fourth Amendment rights.
The Fourth Amendment to the United States Constitution
guarantees “the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and

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 State v. Malloy

seizures.” U.S. Const. amend. IV. “[T]he ‘touchstone of the
Fourth Amendment is reasonableness,’ which ‘is measured in
objective terms by examining the totality of the circumstances.’”
State v. Baker, 2010 UT 18, ¶ 10, 229 P.3d 650 (quoting Ohio v.
Robinette, 519 U.S. 33, 39 (1996)). “Reasonableness under the
Fourth Amendment depends on a balance between the public
interest and the individual’s right to personal security free from
arbitrary interference by law officers.” Id. (quotation simplified).

¶11 The parties have presented this case as involving two
separate Fourth Amendment intrusions—a seizure followed by a
search. As an initial matter, the parties agree that the officer
initiated a seizure by parking behind Malloy thereby blocking
his ability to leave the scene. In order to justify such an
investigative detention, known as a Terry stop, the officer must
have reasonable articulable suspicion of criminal activity. See
Terry v. Ohio, 392 U.S. 1, 21 (1968). Malloy does not contest the
lawfulness of his seizure. Although the district court had no
need to rule on this undisputed issue, the facts found by the
district court unquestionably demonstrate that the Terry stop
was justified to investigate the officer’s reasonable suspicion that
Malloy was operating or in actual physical control of a vehicle
while under the influence or otherwise impaired. State v. James,
2000 UT 80, ¶ 11, 13 P.3d 576 (determining that an officer had
“more than adequate reasonable suspicion” to detain a driver
and investigate based “on a citizen’s detailed report of a reckless
driving pattern that was consistent with driving under the
influence”).

¶12 The disputed issue in this case is whether, having
lawfully detained Malloy on suspicion of impaired driving, the
officer violated the Fourth Amendment by opening the car door.
Malloy characterizes this action as a warrantless search. 3 The

3. In the automobile context, officers may conduct a warrantless
search of a vehicle if there is probable cause to believe that a
readily mobile vehicle contains evidence of a crime. See
(continued…)

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 State v. Malloy

State argued below, and the district court agreed, that opening
the car door was justified under the emergency aid exception to
the warrant requirement. However, we “may affirm the
judgment appealed from if it is sustainable on any legal ground
or theory apparent on the record,” even if “such ground or
theory is not urged or argued on appeal by appellee, was not
raised in the lower court, and was not considered or passed on
by the lower court.” Bailey v. Bayles, 2002 UT 58, ¶ 10, 52 P.3d
1158 (quotation simplified). Based on the record before us, we
conclude that it is unnecessary to reach the issue of whether the
emergency aid doctrine applies, because opening the car door to
investigate Malloy’s condition was within the scope of a lawful
Terry stop. It was not a separate search for which a warrant—or
an exception to the warrant requirement—would be necessary.

¶13 A Terry stop based on reasonable articulable suspicion of
criminal wrongdoing must be both “(1) lawful at its inception
and (2) otherwise executed in a reasonable manner.” State v.
Binks, 2018 UT 11, ¶ 14, 416 P.3d 1168 (quotation simplified).
Once a lawful stop is initiated, “the detention must be temporary
and last no longer than is necessary to effectuate the purpose of
the stop.” State v. Morris, 2011 UT 40, ¶ 18, 259 P.3d 116
(quotation simplified). “Both the length and the scope of the
detention must be strictly tied to and justified by the
circumstances which rendered its initiation permissible.” Id.
(quotation simplified).

¶14 During the course of a lawful Terry stop involving a
motor vehicle, “police officers may order the driver out of the
vehicle to promote safety, even in the absence of reasonable
suspicion, without violating the Fourth Amendment’s
proscription against unreasonable searches and seizures.” State

(…continued)
Pennsylvania v. Labron, 518 U.S. 938, 940 (1996). This separate
exception to the warrant requirement, known as the automobile
exception, is not at issue in this case.

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 State v. Malloy

v. Warren, 2003 UT 36, ¶ 24, 78 P.3d 590 (citing Pennsylvania v.
Mimms, 434 U.S. 106, 109–11 (1997) (per curiam)). Asking a
lawfully seized person to exit the vehicle during a traffic stop
will result in an “additional intrusion that can only be described
as de minimis” because “[t]he driver is being asked to expose to
view very little more of his person than is already exposed.”
Mimms, 434 U.S. at 111.

¶15 In State v. James, 2000 UT 80, 13 P.3d 576, the Utah
Supreme Court extended the holding in Mimms to allow an
officer to open a car door to initiate a face-to-face encounter with
the detained driver. The facts of James are strikingly similar to
those in the case at hand. In James, an eyewitness reported to an
officer that he had witnessed a reckless driver who was driving
“all over the road and had hit or almost struck three other
vehicles.” Id. ¶ 2 (quotation simplified). The eyewitness
provided the vehicle’s “license number, approximate location,
and direction of travel.” Id. The officer confirmed the
information with dispatch, obtained the driver’s address, and
drove to that address where he observed a vehicle matching the
description given by the eyewitness and dispatch. Id. The officer
pulled up behind the vehicle and approached the driver’s side
door. Id. When he looked through the window, the officer saw
the driver and a passenger. Id. ¶ 3. The officer opened the door
and asked the driver to step out of the vehicle. Id. Once the door
was open, the officer observed an open can of beer in the car. Id.
After the driver failed a field sobriety test, the State charged the
driver with driving under the influence and having an open
container of alcohol in his vehicle. Id. The driver “moved to
suppress evidence of his intoxicated condition,” arguing, among
other things, that the officer did not have probable cause to open
the vehicle’s door. Id. ¶ 5.

¶16 The district court denied the motion to suppress, and the
Utah Supreme Court affirmed. Id. ¶ 13. The officer had a
“detailed report of a reckless driving pattern that was consistent
with driving under the influence” and therefore “had the right
and authority to temporarily detain [the driver]” and order him

20170538-CA 7 2019 UT App 55
 State v. Malloy

to step out of the vehicle, in order to investigate the report of
reckless driving. Id. ¶ 11. Our supreme court explained that
there is a difference between “opening of doors or searches of
vehicles to search for physical evidence . . . [and] lawful
detention and questioning of individuals.” Id. ¶ 13. Because the
officer “was investigating [the driver] himself” and not the
vehicle, “the opening of the door was an incidental factor in the
investigation of [the driver’s] impaired physical condition, and
not an independent search of a vehicle.” Id. Thus, “[c]ausing the
door to be opened in some manner was a reasonable and
practical means for obtaining compliance with [the officer’s]
authority to lawfully require [the driver] to step from the
vehicle.” Id. “To draw distinctions as to who actually opened the
door and the nature of any conversation or notification occurring
beforehand would elevate form over substance.” Id. The officer’s
“investigation into the reasons for [the driver’s] reckless driving”
therefore did not amount to a violation of the driver’s Fourth
Amendment rights. Id.

¶17 In this case, the officer testified at the hearing on the
motion to suppress that he had responded to a report of “a DUI
traffic accident” at a fast food restaurant. He had been given a
report from dispatch that the driver had nodded off, hit a light
pole, awakened, backed away from the light pole, and nodded
off again. The officer also confirmed the report with the
eyewitness at the scene, where the eyewitness also stated that
the driver appeared either unconscious or dead. With this
information, the officer approached the vehicle, saw that Malloy
was slouched forward and not moving, and opened the door to
check on Malloy’s condition. Upon opening the door, the officer
observed drug paraphernalia and ordered Malloy out of the
vehicle. Further investigating Malloy’s condition, the officer
performed a field sobriety test, which Malloy failed. Just as in
James, it is irrelevant “who actually opened the door and the
nature of any conversation or notification occurring
beforehand.” See id. Because the officer “was investigating
[Malloy] himself, and was not searching [Malloy’s] vehicle,”
opening the door “was an incidental factor in the investigation

20170538-CA 8 2019 UT App 55
 State v. Malloy

of [Malloy’s] impaired physical condition, and not an
independent search of a vehicle.” See id.

¶18 We agree with the State’s argument on appeal that James
controls the outcome of this case. As in James, there is no dispute
that the officer had reasonable suspicion to detain Malloy and
investigate his impaired condition. Opening the door of Malloy’s
car was a reasonable form of investigation into Malloy’s
condition and within the scope of the lawful detention. See id.
Because the officer was investigating Malloy’s condition and not
conducting an independent search, he did not violate Malloy’s
Fourth Amendment rights, and the district court properly
denied the motion to suppress.

CONCLUSION

¶19 We conclude that the officer had reasonable suspicion to
seize Malloy’s vehicle and detain him for further investigation
into an eyewitness report that Malloy was driving under the
influence. The officer’s opening of the vehicle door was
incidental to his investigation into Malloy’s impaired condition
and therefore did not violate Malloy’s Fourth Amendment
rights. Accordingly, we affirm the district court’s denial of
Malloy’s motion to suppress.

20170538-CA 9 2019 UT App 55