State v. Strickling

GARFF, Judge

(concurring):

I concur in the main opinion.

I comment to make clear my position on the standard of review for reasonable suspicion. In State v. Carter, 812 P.2d 460 (Utah App.1991), cert. denied, 836 P.2d 1383 (Utah 1992), I concurred with Judge Orme in the opinion written by Judge Billings on this same standard of review. We said

we are puzzled by what standard of review we should apply in reviewing a trial court’s determination of reasonable suspicion. The Utah Supreme Court has previously treated a determination of reasonable suspicion as a factual finding, indicating that determinations of reasonable suspicion are properly reviewed by appellate courts under a clearly errone*991ous standard. See State v. Mendoza, 748 P.2d 181, 183 (Utah 1987) (“In determining whether the facts support a reasonable suspicion ..., a trial court must consider the totality of the circumstances facing the officers. The reviewing court should not overturn the trial court’s determination unless it is clearly erroneous.”) ...
Analytically, however, we are inclined to agree with the trial court that a determination of reasonable suspicion more logically falls into the conclusion of law category.... See also Hayes v. State, 785 P.2d 33, 36 (Alaska Ct.App.1990) (reasonable suspicion is mixed question, factual findings upheld unless clearly erroneous, but ultimate conclusion is subject to de novo review).

Id. at 466, n. 6.

In State v. Munsen, 821 P.2d 13 (Utah App.1991), I authored an opinion, with Judge Russon concurring and Judge Jackson concurring in result only,1 where we said:

Munsen does not challenge the court’s findings, Rather she challenges the court’s application of the law to the findings. We “review the ultimate conclusions drawn from those findings as a matter of law, under a correction of error standard, affording no deference to the trial court.” State v. Taylor, 818 P.2d 561, 565 (Utah App.1991). See State v. Mendoza, 748 P.2d 181, 183 (Utah 1987); State v. Carter, 812 P.2d 460, 466 n. 6 (Utah App.1991). See also United States v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir.1989) (setting forth the generally held view that whether reasonable suspicion exists is a mixed question of fact and law, and the trial court’s ultimate conclusion regarding reasonable suspicion is a legal conclusion which is reviewed de novo).

Id. at 14-15.

I am still of the opinion that in a mixed question of law and fact, the final conclusion as to whether there is reasonable suspicion is a conclusion of law, and therefore the standard of review should be correction of error.

. In his concurring opinion, Judge Jackson agreed with the trial court that the officer had reasonable suspicion to justify detention, but thought the length and scope of the detention was not justified by the circumstances.