(concurring in part and dissenting in part):
'I 21 I concur in the main opinion's analysis of the consent issue. The trial court's finding that Defendant consented to Officer Knight's entry into Defendant's apartment is not clearly erroneous. See State v. Hansen, 2002 UT 125, ¶ 48, 63 P.3d 650. However, I respectfully dissent from the main opinion's conclusion that Officer Knight was not lawfully present in the room where the evidence was seized because "[wle disagree with the trial court's determination that [the facts] justified the protective sweep."
122 The main opinion gives only lip service to the appropriate standard of review. In determining whether the facts justified a protective search, we grant the trial court discretion to apply the legal standard to the facts. See State v. Moreno, 910 P.2d 1245, 1247 (Utah Ct.App.1996) (citing State v. Pena, 869 P.2d 932, 935-40 (Utah 1994). "Only when the trial judge crosses an existing [legal] fence or when the appellate court feels comfortable in more closely defining the law by fencing off a part of the pasture previously available does the trial judge's decision exceed the broad discretion granted." Pena, 869 P.2d at 938. In simply disagreeing with the trial court, the main opinion fails to recognize that it must conclude that the trial court abused its discretion in a particular way.
123 "A 'protective sweep' is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding." Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 1094, 108 L.Ed.2d 276 (1990). According the trial court the proper measure of discretion in the present case, I cannot say that the trial court abused its discretion in concluding that the facts justified a protective search.
124 Officers Knight and Beauchaine returned to secure, at Defendant's request, what they thought was an empty apartment. Both officers entered through the front door, and Officer Beauchaine went to lock "the back entrance to the apartment." As Officer Knight attempted to lock the front door, Ms. Karren unexpectedly emerged from the bedroom. Surprised to find Karren inside and suspecting that she might be burglarizing the apartment, he detained Karren to find out why she was there. Karren explained that she had returned to retrieve her coat, but "ghe was acting definitely a lot more nervous than she was when" she reported the assault of her friend. Concerned that Karren may have retrieved a weapon, Officer Knight conducted a quick pat down search. He then conducted a "security check of the residence" out of concern for his own safety and "to make sure no one else was in there," including the victim who could have "come back through the cellar door that was in the rear of the building." Aided by a flashlight, Officer Knight seanned the bedroom from which Karren had emerged and observed "numerous drug items in plain sight."
125 Given Karren's behavior and the unknown status of the victim, Officer Knight's "cursory visual inspection" of the bedroom where "a person might be hiding" was an appropriate protective search. Id. The trial court properly applied the legal standard to the facts in concluding that this protective search was warranted by Officer Knight's *692reasonable belief that Defendant's home may have "harbored an individual posing a danger to the officer or others." Id., 110 S.Ct. at 1095.
126 In my view, the trial court did not abuse its discretion in holding that the protective search was justified by the facts. Officer Knight had Defendant's consent to be in the apartment and performed a justifiable sweep of the bedroom from which Karren unexpectedly emerged and he saw the contraband in plain view. The trial court therefore properly denied Defendant's motion to suppress the evidence.
T 27 I would affirm Defendant's conviction.