State v. Schlosser

Defendants Schlosser and Lowder were charged with unlawful possession of a controlled substance in violation of Utah Code Ann. § 58-37-8(2)(a)(i) (Supp.1988). Upon defendants’ motion, the trial court ordered the suppression of all evidence obtained during a search of the pickup truck the defendants were riding in. On appeal, the State argues that the evidence was improperly suppressed. We affirm.

I. THE FACTS

Officer Howard of the Utah Highway Patrol clocked a pickup truck traveling forty-two miles per hour in a thirty mile-per-hour zone in Nephi, Utah, and signaled the vehicle to pull over. As the vehicles were pulling over, Officer Howard observed defendant Schlosser, a passenger in the vehicle, bending forward, acting fidgety, turning to the left and to the right, and turning back to look at the officer. After stopping the vehicle, the driver, defendant Lowder, got out of the truck and met Officer Howard between the truck and the patrol car with a valid driver’s license and vehicle registration ready to show the officer. Schlosser continued to move about in the cab of the truck. Defendants’ behavior led the officer to conclude that Schlosser was trying to hide something. Officer Howard approached the passenger side of the vehicle, tapped on the closed window, immediately opened the passenger door, and asked Schlosser for identification. Officer Howard testified that he asked for identification as a pretense for trying to determine what Schlosser may have been hiding. Upon opening the door, Officer Howard scanned the interior of the truck for contraband and saw a bag of marijuana in the passenger door pocket. He also smelled marijuana smoke. Defendants were arrested, and in a subsequent search of the vehicle, additional bags of marijuana, drugs, drug paraphernalia, and two unloaded firearms were also found.

Defendants were charged with unlawful possession of a controlled substance. On defendants’ motion, the trial court suppressed all the evidence seized. In ruling on the motion, the trial court found that Officer Howard acted on “a mere suspicion that the defendant [Schlosser] was engaged in criminal activity,” had no legal basis for the search and seizure, and ordered the evidence taken from the automobile suppressed.

On this appeal, we employ the usual standard of review; we will not reverse the trial court’s findings of fact unless they are clearly erroneous. State v. Gallegos, 712 P.2d 207, 208-09 (Utah 1985); State v. Cole, 674 P.2d 119, 122 (Utah 1983).

II. SEARCH OF AN AUTOMOBILE STOPPED FOR TRAFFIC INFRACTION

The State contends that Officer Howard’s opening of the passenger door and questioning of Schlosser did not constitute an unlawful search of the passenger compartment of the car, and therefore, the discovery of the marijuana in the pouch of the door and the seizure of the contraband was not unlawful.

Although a person has a lesser expectation of privacy in a car than in his or her home, California v. Carney, 471 U.S. 386, 390-93, 105 S.Ct. 2066, 2068-70, 85 L.Ed.2d 406 (1985), one does not lose the protection of the Fourth Amendment while in an automobile. However, when an officer stops a vehicle for a traffic violation, he may briefly detain the vehicle and its occupants while he examines the vehicle registration and the driver’s license. See Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). An officer, for his own protection, may also order a driver out of a vehicle which has been stopped for a traffic violation. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). If no arrest is made, an officer may make a warrantless search of the automobile only if there is probable cause for the search, United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173, 72 L.Ed.2d 572 (1982); 1 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 3.1(a), at 542-43 (2d ed. 1987), or if the officer has a reasonable and “articulable suspicion that the suspect is potentially dangerous,” Michigan v. Long, 463 U.S. 1032, 1052-55 n. 16, 103 S.Ct. 3469, 3482-83 n. 16, 77 L.Ed.2d 1201 (1983) (search limited to a search for weapons).

Since Officer Howard’s investigative actions went beyond the scope of the traffic stop, we turn to the issue of whether his opening the passenger door for investigatory purposes constituted an unlawful “search” under the Fourth Amendment. In New York v. Class, 475 U.S. 106, 114-15, 106 S.Ct. 960, 966-67, 89 L.Ed.2d 81 (1986), the Supreme Court stated that “a car’s interior as a whole is ... subject to Fourth Amendment protection from unreasonable intrusions by the police.” The Court held that an officer’s opening the driver’s door of an automobile to examine the vehicle identification number constituted a “search” and that the search was justified because the officer sought only to uncover the VIN, or vehicle identification number, a number required by state law to be located in a place ordinarily in plain view from outside the vehicle. 475 U.S. at 114, 119, 106 S.Ct. at 966, 969. The Court warned, however, that “[i]f the VIN is in the plain view of someone outside the vehicle, there is no justification for governmental intrusion into the passenger compartment to see it.” 475 U.S. at 119, 106 S.Ct. at 969. Clearly, the State has no regulatory interest or justification in this case that is similar to the state’s interest in Class to justify the intrusion into the passenger compartment.

In Arizona v. Hicks, 480 U.S. 321, 325, 107 S.Ct. 1149, 1153, 94 L.Ed.2d 347 (1987), the Supreme Court held that even a small intrusion beyond the legitimate scope of an initially lawful search is unlawful under the Fourth Amendment. See also State v. Gallegos, 712 P.2d 207 (Utah 1985). Officer Howard’s testimony established that his opening the car door exceeded the legitimate objectives of a traffic stop. The officer’s “clear initial objective” in opening the car door was to see whether Schlosser was “hiding something.” However, without probable cause to justify it, that act clearly exceeded the lawful scope of a legitimate governmental interest.

Furthermore, it cannot be said that the discovery of the contraband was lawful because it was in “plain view.” Opening the door revealed to the officer portions of the passenger compartment that he could not otherwise see and which were not, therefore, in plain view. See State v. Lee, 633 P.2d 48 (Utah), cert. denied, 454 U.S. 1057, 102 S.Ct. 606, 70 L.Ed.2d 595 (1981). To remove a search from the limitations of the Fourth Amendment under the plain view doctrine, an officer must be able to observe what is in open or plain and lawful view when he is located where he has a lawful right to be. See Hicks, 480 U.S. at 326-28, 107 S.Ct. at 1153-54; Lee, 633 P.2d at 51. Since opening the car door constituted an unlawful search, the discovery of the contraband upon opening the door cannot be justified under the plain view doctrine.

This conclusion is also supported by Commonwealth v. O’Connor, 21 Mass.App. 404, 487 N.E.2d 238 (1986). There, the arresting officer observed the defendant “reaching down below the dash of the vehicle.” 21 Mass.App. at 405, 487 N.E.2d at 239. The officer opened the door to converse with the defendant and observed a piece of glass with a white powder on it, whereupon the officer conducted a search and arrested the defendant for possession of cocaine. The court held that “the officer had no right to open the car door” and that since he would not have discovered the cocaine had he not opened the door, the subsequent discovery was the product of an illegal search and should have been suppressed. 21 Mass.App. at 406, 487 N.E.2d at 240.

Likewise, in People v. Superior Court of Yolo County, 3 Cal.3d 807, 478 P.2d 449, 91 Cal.Rptr. 729 (1970), an officer lawfully stopped the defendants’ vehicle for speeding. The driver acknowledged the violation and produced a valid driver’s license. Because of furtive movements by the passenger, the officer walked to the passenger side of the car, opened the door, and looked inside, where he discovered marijuana. The officer admitted that he opened the door because he suspected that the passenger was hiding something. The California Supreme Court rejected the validity of the search because the officer, prior to opening the door, did not have probable cause to believe the occupants of the car possessed (1) instrumentalities used to commit a crime, (2) contraband or stolen goods, or (3) weapons which could be used to assault the officer. Since the contraband was not visible from outside the car and did not come into view until the officer had opened the door, its discovery did not fall within the plain view doctrine. 3 Cal.3d at 817, 478 P.2d at 454, 91 Cal.Rptr. at 734. Accordingly, the court held that the evidence was properly suppressed. See also United States v. Frisbie, 550 F.2d 335 (5th Cir.1977) (lowering of vehicle tailgate violated driver’s reasonable expectation of privacy); Commonwealth v. Podgurski, 386 Mass. 385, 436 N.E.2d 150 (1982), cert. denied, 459 U.S. 1222, 103 S.Ct. 1167, 75 L.Ed.2d 464 (1983) (officer’s poking his head inside slightly open sliding van door required suppression of evidence); People v. Aquino, 119 A.D.2d 464, 500 N.Y.S.2d 677, 679 (1986) (“[The officer] did not merely look into the vehicle from outside. He bent his head into the car to conduct a visual inspection of what would otherwise be hidden from plain view. This was improper.”). Cf. State v. Harder, 8 Kan.App.2d 98, 650 P.2d 724, 727 (1982) (evidence admissible because initial intrusion came within the plain view doctrine); State v. Lancaster, 64 Or.App. 607, 669 P.2d 377, 379 (1983) (evidence admissible because contraband was seen from lawful vantage of public street without entering the vehicle).

In this case, Officer Howard’s opening of the passenger door was a search that was not incidental to the routine traffic stop and not justified by any exception to the Fourth Amendment requirement of probable cause.

III. REASONABLE SUSPICION OF CRIMINAL ACTIVITIES

The State argues that the officer’s opening the door constituted an extension of an “investigative detention” and that the officer’s actions were lawful, because defendants’ activities gave rise to a reasonable suspicion either of criminal activities or of danger to the officer’s personal safety. Therefore, the State asserts that the judge erroneously applied a probable cause standard instead of a reasonable and artic-ulable suspicion standard in the hearing on the motion to suppress. As stated above, Officer Howard’s action of opening the car door constituted a search, not an investigative detention, and therefore, the probable cause standard was correctly applied by the trial court. However, even if the State’s premise were accepted that no search occurred, the facts do not support a reasonable and articulable suspicion of criminal activity which is necessary to support the State’s position. See State v. Dorsey, 731 P.2d 1085 (Utah 1986); State v. Carpena, 714 P.2d 674 (Utah 1986); State v. Swanigan, 699 P.2d 718 (Utah 1985).

An investigative detention is justified if a police officer has a reasonable and articulable suspicion that the automobile’s occupants are “involved in criminal activity.” United States v. Hensley, 469 U.S. 221, 226, 105 S.Ct. 675, 679, 83 L.Ed.2d 604 (1985); Dorsey, 731 P.2d at 1087, 1090. Additionally, an officer may search a vehicle for weapons if he has a reasonable belief that the suspect is dangerous and “may gain immediate control of weapons.” Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 3481, 77 L.Ed.2d 1201 (1983). In such instances, “due weight must be given, not to [the officer’s] inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968).

Here, Officer Howard had no warrant, no probable cause, and no articulable suspicion either that his safety was in danger or that the occupants were engaged in criminal activity. He cited no safety concerns as the basis for his actions; he sought only to investigate the possibility that defendants were engaged in illegal activity, and for that reason he opened the passenger door. Compare United States v. Pajari, 715 F.2d 1378, 1382 (8th Cir.1983) (driver’s nervousness coupled with information from multiple informants and previous police observations provided reasonable, articulable suspicion for investigative stop) with Jones v. United States, 391 A.2d 1188, 1191 (D.C.1978) (furtive gestures by a passenger and location of vehicle and time of stop did not “rise to the level of articulable suspicion”).

Officer Howard’s testimony does not support an articulable suspicion of criminal activity. Mere furtive gestures of an occupant of an automobile do not give rise to an articulable suspicion suggesting criminal activity. See People v. Superior Court of Yolo County, 3 Cal.3d at 821-24, 478 P.2d at 457-59, 91 Cal.Rptr. at 737-39 (passenger’s actions of turning and putting her arm over the back of the seat, then facing forward, bending down towards floor, and then resuming normal position did not support probable cause to search); Spence v. State, 525 So.2d 442 (Fla.App.1988) (leaning down as if putting something on floorboard did not justify officer’s suspicion); People v. Mills, 115 Ill.App.3d 809, 71 Ill.Dec. 247, 450 N.E.2d 985 (1983) (defendant’s fast movements and leaning forward as officer approached did not create reasonable suspicion). Cf. State v. Cyr, 501 A.2d 1303 (Me.1985) (occupant of vehicle, in heavy crime area late at night, ducking down as if to avoid detection as officer drove by constituted basis for artic-ulable suspicion).

Schlosser’s movements, turning to the left and to the right, appearing fidgety, bending forward, and turning to look at the officer, do not, without more, show a reasonable possibility that criminal conduct had occurred or was about to occur. Schlosser may have been attempting to locate a driver’s license. He could have been preparing for conversation with the officer by turning down the volume on the radio or extinguishing a cigarette. He may also have been putting away food and beverages, changing a baby’s diaper, putting on the parking brake or doing a host of other innocuous things. When confronted with a traffic stop, it is not uncommon for drivers and passengers alike to be nervous and excited and to turn to look at an approaching police officer. See State v. Mendoza, 748 P.2d 181, 184 (Utah 1987). A search based on such common gestures and movements is a mere “hunch,” not an articulable suspicion that satisfies the Fourth Amendment.

A driver’s leaving the vehicle to talk to the officer, as Lowder did, is also reasonable behavior and not indicative of criminal conduct. Pennsylvania v. Mimms, 434 U.S. at 110, 98 S.Ct. at 333, states that a driver’s exiting his vehicle to talk with a police officer may actually be safer for the officer than for him to talk to the driver who remains inside the vehicle. See also People v. Superior Court, 3 Cal.3d at 826-27, 478 P.2d at 462, 91 Cal.Rptr. at 742. Officer Howard did not point to anything which made Lowder’s exiting the truck unusual or suspicious. Lowder had his driver’s license and registration in hand, but that is neither unreasonable nor so suspicious as to give rise to an inference of illegal activity.

In short, the trial court did not err in ruling that the facts do not support an articulable suspicion of criminal activity.

IV. STANDING

Contrary to Justice Howe’s opinion, the issue of defendant Schlosser’s standing to assert a Fourth Amendment right of privacy in the interior of the vehicle and to move to suppress the controlled substance pursuant to the exclusionary rule is not before this Court and therefore need not be reached. Schlosser’s standing was not challenged at trial, nor indeed has the State asserted this argument on appeal. Furthermore, the standing doctrine referred to by Justice Howe is not a jurisdictional doctrine. It is a substantive doctrine that identifies those who may assert rights against unlawful searches and seizures. See 4 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 11.3(e) (2d ed. 1987).

It is all but axiomatic that a claim of error cannot be raised for the first time on appeal. State v. Loe, 732 P.2d 115 (Utah 1987); Lopez v. Shulsen, 716 P.2d 787 (Utah 1986); State v. Chancellor, 704 P.2d 579 (Utah 1985). Such an issue ought not to be addressed by this Court when it has not even been raised by the parties, either here or in the court below.

Although a court’s jurisdiction may be challenged at any time, even on appeal, Utah Rules of Criminal Procedure 12(b)(1); 1 C. Wright, Federal Practice and Procedure: Criminal § 193, at 693-94 (2d ed. 1982), standing to challenge the validity of a search under the Fourth Amendment is not jurisdictional. Since the issue of Schlosser’s standing to challenge the officer’s search has not been raised by the State, it has been waived and is not properly before us. See Brown v. United States, 411 U.S. 223, 230 n. 4, 93 S.Ct. 1565, 1569 n. 4, 36 L.Ed.2d 208 (1973); State v. Goodman, 42 Wash.App. 331, 334-35, 711 P.2d 1057, 1060 (1985); State v. Grundy, 25 Wash.App. 411, 415-16, 607 P.2d 1235, 1237 (1980).

V. GOOD FAITH

Finally, the State contends that even if the search was not based upon probable cause, it did not substantially violate Lowder’s or Schlosser’s Fourth Amendment rights because the officer acted in good faith. Therefore, the fruits of that search should not be suppressed. Utah Code Ann. § 77-35-12(g)(l) (1982). However, that provision has been held unconstitutional by this Court. State v. Mendoza, 748 P.2d 181 (Utah 1987). Officer Howard’s actions do not fall within the ambit of the federal “good faith” exception because there was no objectively reasonable reliance on a magistrate’s probable cause determination. See United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984). Furthermore, the trial court specifically held that Officer Howard did not act in good faith even under the lenient standard of § 77-35-12(g). Therefore, the evidence was properly excluded.

Affirmed.

DURHAM and ZIMMERMAN, JJ., concur.

. Officer Howard testified at the preliminary hearing as follows:

Q. What I’m getting at is: the fact, is it not, that you went around and approached the passenger and talked to him was because you suspected he was doing something wrong, is that right?

A. Or hiding something, yes.

Q. Or hiding something. You didn’t know what he may be hiding?

A. No, I also asked him for a driver’s license which he didn’t produce.

Q. And that’s not normal when you make a speeding stop to go ask all the passengers in the vehicle for their identification?

A. Not normal, no.

Q. So you were operating on this suspicion or hunch or whatever you want to call it that there was something not right on the passenger side of the vehicle?

A. Yes, that’s correct.

Q. So, based on that suspicion, you walked around. Did you ask through the window or did you ask him to step out?

A. No, I knocked on the door and at that time I opened the door and asked the gentleman if he had any identification.

Q. So you opened the door and he sat there. Was the window closed?

A. As I recall, it was closed.

Q. Didn't talk to him at all through that window?

A. Not that I recall.

Q. You opened it up and is that when you asked him for identification?

A. Yes sir.

Q. By what authority were you asking the passenger of this vehicle to identify himself? A. At the time of the stop I'm asking the passenger for identification check as well as the driver for identification check.

Q. But, as you testified earlier, it’s not normal or customary or routine to check passengers of the vehicle for identification?

A. I've checked numerous passengers for it.

Q. I’m sure you have. I'm asking if that’s normal and customary when you pull someone over for speeding to ask the passenger for identification.

A. Not normally for just speed, no.

Q. But you had this other hunch. Suspicion?

A. Well, I was going on what he was doing in the vehicle and, yes, I did walk up and see who he was.

Q. Tell me what your present state of mind was? What was it you thought he was doing? What did you suspect?

A. Hiding something.

Q. Did you have any idea what he was hiding?

A. No sir.

Q. Did you have any suspicion of what he was hiding?

A. No sir.

. The trial court made the following findings in support of its suppression order:

1. The police officer had no valid reason to order the defendant Schlosser out of the automobile or to request Schlosser to empty his pocket and search the automobile.

2. Any action taken by the police officer with regards to Defendant Schlosser was based on a mere suspicion that the defendant was engaged in criminal activity.

3. All evidence [which is the] subject of the motion to suppress was discovered as a direct consequence of the illegal detention and search of Defendant Schlosser and the automobile.

4. The Court finds, as required by Utah Code Ann. § 77 — 35—12(g)(1) that the violation of the defendants’ constitutional rights was substantial and finds that the officer did not act in good faith, and so finds by a preponderance of the evidence.

The basis for these findings is that the police officer acted without a legitimate law enforcement purpose and that to allow the conduct of a peace officer under the circumstances of this case would significantly erode Fourth Amendment protections.

. The Supreme Court expressly limited this holding to the "driver” of a vehicle stopped lawfully pursuant to a traffic violation. Mimms, 434 U.S. at 110 n. 5, 111 n. 6, 98 S.Ct. at 333 n. 5, 333 n. 6.

. State v. Perez, 181 Conn. 299, 435 A.2d 334 (1980), is also factually similar. An investigating officer stopped a car because the front license plate was missing, a violation of Connecticut law. After talking to the driver and noting a television set in the back seat, the officer attempted to talk to the defendant, a passenger. He asked the defendant to roll down the window so they could talk, but the defendant replied that the window was broken. The officer then asked him to open the door, whereupon both the defendant and the officer opened the door together. The ensuing discovery of stolen goods resulted in arrests. In upholding the conviction, the Connecticut Supreme Court emphasized the acquiescence of the defendant: "[The officer] asked Perez to open the door. This was a reasonable request in view of the circumstances.... It was also a request in which Perez acquiesced; Perez and [the officer] together opened the door." 435 A.2d at 338. Since the case turned on this factual point, it is distinguishable from O’Connor and the present case.

State v. Ferrise, 269 N.W.2d 888 (Minn.1978), appears at first glance to be contrary to the rule stated in the text, but it is also distinguishable. In that case, the officer’s apparent purpose for talking with the passenger was to identify the driver because the driver was unable to produce a driver’s license. The officer opened the passenger door because snow covered most of the vehicle and the officer could not see the passenger to communicate. Thus, the intrusion was solely to identify the driver, a clearly legitimate purpose. See also Class, 475 U.S. at 118-19, 106 S.Ct. at 968-69.

. If furtive gestures are coupled with prior reliable information indicating possible criminal conduct, further investigative action may be justified. See United States v. Pajari, 715 F.2d 1378 (8th Cir.1983) (officers knew that the defendant had been identified by four reliable informants as a major cocaine trafficker, that quantities of cocaine could be traced to his house, that he was to make a cocaine purchase that day, and that a search warrant had been issued to search his residence); People v. Jiminez, 143 Cal.App.2d 671, 673, 300 P.2d 68, 70 (1956) (downward motion of a juvenile sitting with others in a car parked in an area where officers had been told by an informant to expect a gang fight involving weapons); State v. Williams, 371 So.2d 1074 (Fla.App.1979) (officers received a tip concerning the presence of a gun in the vehicle).