State v. Poole

HOWE, Justice:

This appeal is before us on certification from the court of appeals, pursuant to rule 43, Utah Rules of Appellate Procedure. The State appeals from the trial court’s dismissal of a criminal information against defendants for lack of evidence. This necessitates review of the trial court’s suppression order that led to the dismissal. The order is properly reviewable under State v. Troyer, 866 P.2d 528 (Utah 1993).

FACTS

Utah Highway Patrol Officers Bushnell and Mangleson observed defendants Mark Poole and John Wood driving north in a truck on Interstate Highway 15. Bushnell testified that Wood, the driver, appeared to have a “drawn look” on his face and bloodshot eyes. The officers decided to follow the vehicle and, during the next three minutes, noticed that it was weaving within its lane on the highway. These factors led Bushnell to suspect that the driver was intoxicated and prompted him to pull over and stop the vehicle. Mangleson also observed that the bed of the truck seemed “odd.” Bushnell testified that he asked Wood for his driver’s license and vehicle registration. Wood produced a driver’s license and a registration belonging to the vehicle’s owner, Michael Anello. Wood also showed Bushnell written permission from the vehicle’s owner allowing Poole to drive his truck. Bushnell asked Wood to step out of the vehicle to take field sobriety tests.

When Bushnell asked Wood if he had been drinking, he responded that he was just tired. Bushnell then inquired whether there were any drugs, alcohol, or weapons in the truck, to which Wood answered, “No.” The officers did not administer any field sobriety tests at the scene following the initial stop, nor did they issue any citations.

In checking for alcohol, Bushnell requested and received Wood’s voluntary consent to search the vehicle. Bushnell then proceeded to search the cab of the truck. He found tools behind the front seat but nothing that would confirm his initial suspicion of the presence of alcohol or of driving under the influence of alcohol.

Meanwhile, Mangleson spoke with Poole, the passenger. He asked Poole to step out of the vehicle and conducted a protective patdown during which he discovered a large wad of cash. Having found no evidence of alcohol in the cab of the truck, Bushnell asked and received Wood’s permission to search defendants’ duffel bags in the flatbed of the truck. That search revealed no incriminating evidence.

*533Mangleson testified that he started “exploring” the bed of the truck while Bushnell was searching the cab. He examined the top and bottom of the flatbed and measured lines that were six to eight inches apart. This discrepancy, indicating the possibility of a concealed compartment, prompted Mangle-son to continue his investigation on the theory that the concealed compartment likely contained contraband. Mangleson asked Poole to lift up a piece of plywood resting on the truck bed. Using a screwdriver, Mangle-son then pried open a section of metal sheeting and discovered a six- to eight-inch-high compartment beneath the flatbed. At this time, Poole withdrew his consent for a further search. However, Mangleson continued his search by removing the metal sheeting, which provided him with a clear view of contraband within the enclosed compartment. The officers ultimately retrieved almost 200 pounds of marijuana. Defendants were arrested and charged with unlawful possession of over 100 pounds of marijuana, a second degree felony, under Utah Code Ann. §§ 58-37-8(2)(a)(i) and (b)(i) (Supp.1993).

PROCEDURAL HISTORY

Defendants moved to suppress the seized evidence. Following a hearing, the trial court issued a memorandum decision granting defendants’ motion. The State agreed that defendants’ proposed written findings of fact and conclusions of law fairly reflected the content of the memorandum decision but nonetheless submitted objections to them. The State requested the inclusion of one additional finding, namely, that Mangleson had “discovered numerous similar concealed compartments” over his many years as a trooper and that these compartments had “nearly always contained controlled substances or other items of contraband.”

Refusing this request, the trial court issued its findings of fact and conclusions of law as per defendants’ original proposal. The court concluded that the officers had an articulable suspicion to stop and detain defendants and that defendants had originally given, and then withdrawn, their consent to search the vehicle. The court further ruled that Mangleson’s discovery of a concealed compartment in the truck did not constitute probable cause to continue the search absent defendants’ consent. The court ordered the suppression of the contraband evidence on the ground that it was discovered in an illegal search and then dismissed the case with prejudice for lack of evidence.

STANDARD OF REVIEW

We are asked to review the trial court’s determination that the surrounding facts did not constitute probable cause to continue, searching the vehicle after’ defendants withdrew consent. The State urges this court to apply the clearly erroneous standard of review to that ruling.

This court has yet to consider which standard appellate courts should apply when reviewing determinations of probable cause to continue a search in the absence of consent. In State v. Pena, 869 P.2d 932 (Utah 1994), we articulated, at length, the standard of review appropriate to reasonable-suspicion determinations. Although the legal standards and consequences of probable cause and reasonable suspicion are distinct, we believe that the standards for reviewing them should be the same. As explained in Pena, we review the underlying factual finding of the trial court for clear error. Id. at 539 n. 4. We review the legal conclusion of “probable cause” for correctness, and in so doing, we afford a “measure of discretion” which parallels that in Pena to the trial court’s legal determination of whether the officers had probable cause to search the truck bed. Id. at 535.

ANALYSIS

The trial court concluded that the officers had articulable suspicion to detain defendants. It also concluded that voluntary consent was given and then withdrawn prior to the discovery of contraband. Based on our review of the facts and testimony, we find that the trial court was correct in these particulars. The trial court further held that the presence of a concealed compartment did not constitute probable cause to continue the search without a warrant or consent. We *534will review that conclusion for correctness as set forth in Pena.

Through its conclusion as to the lack of probable cause, the trial court erroneously-elevated the probable-cause standard to unrealistic heights. As Justice Stewart reasoned in State v. Dorsey, 731 P.2d 1085 (Utah 1986):

[P]robable cause does not require more than a rationally based conclusion of probability: “In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of every day life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.”

Id. at 1088 (quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949)); see Illinois v. Gates, 462 U.S. 213, 243-44 n. 13, 103 S.Ct. 2317, 2334-35 n. 13, 76 L.Ed.2d 527 (1983).

In the course of a legitimate stop of the vehicle, Officer Mangleson discovered several facts which in their totality constitute probable cause. We need not and do not adopt a per se rule that a false bed and hidden compartment alone constitute probable cause to search, as the State urges and Justice Durham’s dissent mistakenly charges us with doing. Rather, we apply a totality-of-the-circumstances analysis. First and foremost, the truck had a significant and unusual alteration in its bed which was in plain view and which concealed a secret compartment. Second, this truck was traveling a known drug trafficking route.1 Third, the compartment was discovered by an officer with twenty-four years of experience in the field who had seen other false beds that contained contraband.2 Fourth, one of the vehicle’s passengers held a large wad of money. Fifth, both defendants appeared extremely nervous during the stop. Sixth, the cab of the truck contained a wrench with a socket that matched the bolt securing the secret compartment. The false bed in connection with these other enumerated factors gave rise to probable cause for a search. Practically speaking, it was probable that criminal activity was occurring.

The Fifth Circuit Court of Appeals has upheld similar searches. In United States v. Arredondo-Hernandez, 574 F.2d 1312 (5th Cir.1978), the court specifically stated the issue as “whether the discovery by a trained border patrolman of a structural discrepancy indicative of an unusually large secret compartment in a vehicle attempting to pass through a permanent immigration checkpoint is sufficient to provide probable cause for a search.” Id. at 1313. The court held that the structural discrepancy observed in the course of the officer’s duty formed the core of the probable cause justifying the continued search and that “the use of this discrepancy as the predicate for the subsequent search satisfied the requirements of probable cause.” Id. at 1315-16. The only articulable difference between that situation and the instant case is that Arredondo involved a permanent checkpoint for illegal aliens rather than an established drug route. That is not a significant distinguishing factor. As a matter of public policy, the threat of illegal drugs exceeds that of illegal immigrants. Also, in both Arredondo and the instant case, the initial stops were justified.

In United States v. Garcia, 616 F.2d 210 (5th Cir.1980), the Fifth Circuit again upheld a similar search under the Arredondo rationale: “[T]he patrolman’s observation in plain *535view of the specially attached secret compartment which was large enough to conceal illegal aliens (8' x 4' x 10"), combined with the permanent checkpoint location and the border patrolman’s experience, gave rise, mthout more, to probable cause for the search of the compartment itself.” Id. at 212 (emphasis added). The additional factors which were present and which are enumerated in a footnote in Garcia were not relied on to support probable cause in that case. Id. at n. 2.

Likewise, the Tenth Circuit Court of Appeals found probable cause where an officer discovered a false bed in a pickup truck which also concealed drugs. United States v. Arango, 912 F.2d 441 (10th Cir.1990). The court held that there was probable cause to arrest the driver after the officer found the false bed and an inadequate amount of luggage to support the defendant’s story of being on a two-week vacation. Id. at 447.

It is possible that a false bed containing a concealed compartment on a truck could be used for legitimate purposes such as storing camping gear and hunting equipment or even hiding jewelry. This, however, does not defeat the existence of probable cause. We have previously addressed such reasoning:

The court, in finding probable cause for the search, recognized that the individual details recited in the facts could also be consistent with innocent behavior since none of the acts observed were criminal. However, the court held that the circumstances, considered as a whole and in light of the experience of the narcotics agents, ... [formed] a valid basis for a reasonably prudent police officer’s belief that criminal conduct was afoot.

Dorsey, 731 P.2d at 1089; see Gates, 462 U.S. at 243-44 n. 13, 103 S.Ct. at 2334-35 n. 13 (noting relevant inquiry in determining probable cause is “not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noneriminal acts”). The standard for determining probable cause in the instant case is not whether the compartment could be used for legitimate purposes. “[T]he mere possibility of innocent explanations ‘would not suffice to diminish the reasonable likelihood of illegality appearing, from the circumstances, to prudent men possessing the knowledge and experience of the officers’.... ” Tobias v. United States, 375 A.2d 491, 494 (D.C.Ct. App.1977) (quoting Peterkin v. United States, 281 A.2d 567, 569 (D.C.Ct.App.1971), cert. denied, 406 U.S. 922, 92 S.Ct. 1788, 32 L.Ed.2d 122 (1972)). Although there might be innocent explanations for particular conduct, it is not necessary that all legitimate reasons be absent before an officer finds probable cause. See id.; Wood v. United States, 498 A.2d 1140, 1144 (D.C.Ct.App.1985). “The quantum of evidence needed for probable cause is significantly less than that needed to prove guilt.” State v. Bartley, 784 P.2d 1231, 1235 (Utah Ct.App.1989) (citing State v. Ayala, 762 P.2d 1107, 1112 (Utah Ct.App.1988)).

In reviewing the existence of probable cause, we should always take into account the experience of the particular law enforcement officers. They are entitled to draw reasonable inferences from the surrounding facts in light of their knowledge of the area and their prior experience with drug smugglers. Arredondo, 574 F.2d at 1315. “Police officers by virtue of their experience and training can sometimes recognize illegal activity where ordinary citizens would not. Some recognition should appropriately be given to that experience and training where there are objective facts to justify the ultimate conclusion.” Dorsey, 731 P.2d at 1088; see Bartley, 784 P.2d at 1235. Mangleson has been an officer for many years and has seen similar concealed compartments used to transport contraband. This fact is probative. An officer’s knowledge of common methods of smuggling contraband is an oft-cited factor in decisions finding probable cause for a search. See Arredondo, 574 F.2d at 1315.

In refusing to find probable cause, the trial court established a standard that is too rigid and runs afoul of practical everyday life. The United States Supreme Court has frequently remarked that probable cause is a flexible, common-sense standard. It does not matter if the officer’s belief was “correct or more likely true than false.” Texas v. *536Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983).

“The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.”

Id. at 742, 103 S.Ct. at 1543 (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). The highway patrolmen here were confronted with an unusual adaption to a vehicle quite different from the standard characteristics of nearly every other truck on the road. Simply stated, people ordinarily do not carry legal items in the hidden compartment of a gas tank, the concealed portion of a hubcap, or, for that matter, in a secret compartment in the false bed of a pickup truck. See State v. Bolton, 111 N.M. 28, 801 P.2d 98, 114 (Ct.App.1990) (finding probable cause to search vehicle when experienced officer discovered false gas tank and defendants appeared nervous). In light of the discovery of the compartment and the other enumerated factors, it was probable that a crime was being committed. That is sufficient to find probable cause, and the proper standard requires nothing more.

A warrantless search was justified here. Clearly, had the officers released defendants and proceeded to obtain a search warrant, defendants could have easily driven off the interstate highway and disposed of the marijuana. A wrench to remove the bolt securing the secret compartment was in the truck and could have been used to swiftly open the compartment, allowing defendants to dispose of the incriminating evidence.

We uphold the search and reverse the trial court’s suppression of the evidence and dismissal of the case.

HALL, J., concurs.

HALL, J., acted on this case prior to his retirement.

. The fact that Interstate 15 is an established route for illegal drug trafficking is evidenced by numerous Utah appellate court decisions. See, e.g., Sims v. State Tax Comm’n, 841 P.2d 6, 7 (Utah 1992); State v. Dudley, 847 P.2d 424, 425 (Utah Ct.App.1993); State v. Naisbitt, 827 P.2d 969, 970-71 (Utah Ct.App.1992); State v. Park, 810 P.2d 456, 456-57 (Utah Ct.App.1991); State v. Sims, 808 P.2d 141, 142-43 (Utah Ct.App. 1991). See United States v. Thompson, 928 F.2d 1060, 1061 n. 2 (11th Cir.1991), where the district court took judicial notice that the Windward Passage is the most common route taken by drug smugglers in the Western Hemisphere.

. Although the State specifically requested this fact to be included in the trial court's findings, the judge refused, reasoning that he could not recall such evidence during the suppression hearing. This is clear error. Officer Mangleson did testify to it, and this was not challenged by defense counsel on cross-examination.