State v. Worwood

OPINION

DAVIS, Judge:

¶ 1 Mitchell Worwood appeals the district court’s ruling denying his motion to suppress evidence taken during sobriety tests. We affirm.

BACKGROUND

¶ 2 On June 20, 2003, Korey Wright, an off-duty Utah Highway Patrol trooper, and his friend, Skyler Fautin, were driving Wright’s pickup truck and horse trailer on a dirt road out of Deep Canyon in Juab County when they encountered a white pickup truck parked in the middle of the road. At the time, Worwood, the driver of the truck, had exited the vehicle, but soon reentered and drove it to the side of the road to allow Trooper Wright and his truck to pass. Trooper Wright noticed a large wet spot in the road, a beer can, and later an ice cooler that apparently had been recently emptied.

¶ 3 Trooper Wright pulled his vehicle alongside Worwood’s to speak to him. During the conversation, Trooper Wright noted *1267that Worwood, who was sitting in the driver’s seat, had bloodshot eyes and slurred speech. Trooper Wright exited his vehicle to continue the conversation and testified that he smelled alcohol on Worwood’s breath.1 All of these signs led Trooper Wright to believe that Worwood was likely intoxicated and could not safely operate a vehicle. Trooper Wright told Worwood that he would not allow him to drive until he had been checked out by a police officer. Worwood appeared to recognize that Trooper Wright was a law enforcement officer and complied with the request. Because Trooper Wright did not have a telephone or other means of communication, he instructed Fautin to drive Worwood’s vehicle to a nearby dairy and call for an officer to respond at Trooper Wright’s house. Trooper Wright then asked Worwood to accompany him there, to which Worwood agreed, and Trooper Wright drove him approximately a mile and a half to his house. There, they met an on-duty trooper who performed a field sobriety test, determined there was probable cause to arrest, and transported Worwood to the Juab County Jail where further tests revealed a breath alcohol concentration of .248.2

¶4 Before trial, Worwood moved to suppress the evidence obtained from the sobriety test, claiming it was obtained by means of an illegal seizure. The trial court held an evidentiary hearing and found that Trooper Wright had noticed signs of intoxication early in the encounter, including bloodshot eyes, slurred speech, and “[a]fter talking with Mr. Worwood at a closer proximity, Trooper Wright also smelled the odor of alcohol.” The trial court also found that testing Wor-wood at another location was necessary because “it was more fair to the defendant to conduct the field sobriety test in a location that would allow the officer to obtain accurate test results.” The trial court denied the motion, concluding that under these circumstances Trooper Wright had a reasonable suspicion to execute a level-two investigatory detention and that driving Worwood to Trooper Wright’s house was a reasonable extension of that detention. We agree and affirm.

ISSUES AND STANDARD OF REVIEW

¶5 On appeal, Worwood claims that the trial court erred in denying his motion to suppress because (1) Trooper Wright did not have a reasonable suspicion sufficient to effect an investigatory detention and (2) when Trooper Wright drove him to Trooper Wright’s house to perform the field sobriety test, the encounter became a de facto arrest for which there was no probable cause. We review the trial court’s legal basis for denying Worwood’s motion for correctness without deference to the trial court’s application of the law to the facts. See State v. Brake, 2004 UT 95, ¶ 15, 103 P.3d 699.

ANALYSIS

¶ 6 Worwood first contends that Trooper Wright did not have sufficient grounds to execute an investigatory detention. “[I]t is settled law that ‘a police officer may detain and question an individual when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity.’ ” State v. Markland, 2005 UT 26, ¶ 10, 112 P.3d 507 (quoting State v. Chapman, 921 P.2d 446, 450 (Utah 1996)). Although the officer’s suspicion must be based on “ ‘specific and articula-ble facts and rational inferences,’ ” it need not be supported by probable cause or even a preponderance of the evidence. Id. (quoting United States v. Werking, 915 F.2d 1404, *12681407 (10th Cir.1990)). In reviewing an officer’s conduct under the Fourth Amendment, we consider the facts in their totality and “ ‘judge the officer’s conduct in light of common sense and ordinary human experience and ... accord deference to an officer’s ability to distinguish between innocent and suspicious actions.’ ” Id. at ¶ 11 (alteration in original) (quoting United States v. Williams, 271 F.3d 1262, 1268 (10th Cir.2001)).

¶ 7 Here, Trooper Wright effected a level-two investigative detention after seeing an empty beer can, a large wet spot, and later an empty cooler. He also noticed signs that Worwood was intoxicated, including bloodshot eyes, slurred speech, and the odor of alcohol on his breath. These indicators, combined with the fact that Worwood apparently intended to continue driving, justify the reasonable and common sense inference that Worwood had been or was about to drive a motor vehicle while intoxicated.

¶ 8 Second, Worwood contends that when Trooper Wright drove him to another location to perform a field sobriety test he exceeded the scope of the investigative detention and effected a de facto arrest. After commencing an investigative detention, officers must “1 “dilligently [pursue] a means of investigation that [is] likely to confirm or dispel their suspicions quickly, during which time it [is] necessary to detain the defendant.” ’ ” State v. Lopez, 873 P.2d 1127, 1132 (Utah 1994) (alterations in original) (citations omitted). Defendant correctly observes that an investigative detention may become a de facto arrest requiring probable cause when police transport a suspect to a new location. See, e.g., Dunaway v. New York, 442 U.S. 200, 216, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). However, while courts acknowledge that the precise point at which an investigative detention becomes a de facto arrest is not clear, an important factor in determining when an arrest has occurred is whether the degree of intrusion is not “reasonably related to the facts and circumstances at hand.” State v. Leonard, 825 P.2d 664, 669-70 (Utah Ct.App.1991). We recognize the “ ‘important need to allow authorities to graduate their responses to the demands of any particular situation,’ ” and the fact that we could conceive of less intrusive means to resolve a suspicion does not alone render an officer’s efforts to resolve the suspicion unreasonable. United States v. Sharpe, 470 U.S. 675, 686-87, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) (citation omitted). Rather, we consider only whether the officer’s failure to pursue such other means was unreasonable. See id.

¶ 9 We appreciate the concerns expressed by our colleague in his dissent and note that Trooper Wright’s mode of investigation would be permissible only in the rarest of circumstances and that this case ultimately turns on the unique set of facts it presents, albeit on a sparse record. Upon review of the known facts, we cannot conclude that an off-duty law enforcement officer exceeds the permissible scope of an investigatory detention when he transports a driver he suspects to be intoxicated a short distance from an uninhabited area to meet an on-duty officer for further investigation. Trooper Wright testified that he was returning from horseback riding in a pickup truck with an attached horse trailer, had no means of communication, and was not equipped to make a formal arrest. Trooper Wright indicated to Worwood that the detention was temporary and for investigatory purposes by explaining that he could not allow him to drive “until he had been checked out by an officer.” Although Trooper Wright may have been able to perform a sufficient field sobriety test on Worwood at the point of the initial encounter in Deep Canyon and possibly to transport him to the Juab County Jail, it was not unreasonable for him to drive Worwood to a nearby location in the town to permit an on-duty officer to perform a field sobriety test and, if necessary, effect a formal arrest. Further, the trial court found that conducting the sobriety test in town would “allow the officer to obtain accurate test results.” Wor-wood has not challenged this finding and has not alleged that the results of the sobriety test would have been substantially different if conducted minutes earlier. Finally, there is no evidence that the change of location significantly extended the encounter, and the record gives no indication that under these unique circumstances Trooper Wright was motivated by any purpose other than quickly *1269and effectively resolving his suspicion that Worwood was intoxicated.

¶ 10 Accordingly, we affirm.

¶ 111 CONCUR: CAROLYN B. McHUGH, Judge.

. Worwood claims on appeal that Trooper Wright smelled alcohol on Worwood's breath only after Worwood was seated in Trooper Wright’s pickup truck, but fails to challenge the trial court’s finding that Trooper Wright smelled the odor of alcohol on Worwood’s breath ''[a]fter talking with Mr. Worwood at a closer proximity" but before asking him to ride with him in the truck. See State v. Arguelles, 2003 UT 1, ¶ 67, 63 P.3d 731 (noting that a trial court's finding of fact is conclusive unless appellant proves the trial court committed clear error and marshals all the record evidence in support of and against the finding).

. The arresting officer testified that Worwood had a blood alcohol content of ".248 liters,” which presumably means a level of .248 grams per 210 liters of breath. See Utah Code Ann. § 41-6-44(2)(c) (Supp.2002) (renumbered as Utah Code Ann. § 41-6a-502 (2005)).