State v. Paredez

2017 UT App 220

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
GREGORIO PAREDEZ,
Appellant.

Opinion
No. 20150873-CA
Filed November 30, 2017

Second District Court, Farmington Department
The Honorable John R. Morris
No. 141701755

Scott L. Wiggins, Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
JILL M. POHLMAN and RYAN M. HARRIS concurred.

TOOMEY, Judge:

¶1 Gregorio Paredez entered a Sery plea1 to one count of
attempted possession of a controlled substance, a class A

1. Defendants may enter pleas, “with the consent of the
prosecution and accepted by the trial judge,” that allow them to
appeal a denial of a motion to suppress and to withdraw the plea
“if [their] arguments in favor of suppression are accepted” on
appeal. See State v. Sery, 758 P.2d 935, 938–40 (Utah Ct. App.
1988), disagreed with on other grounds by State v. Pena, 869 P.2d 932
(Utah 1994); see also Utah R. Crim. P. 11(j) (“With approval of the
court and the consent of the prosecution, a defendant may enter
a conditional plea of guilty . . . reserving in the record the right,
(continued…)
State v. Paredez

misdemeanor, reserving the right to appeal the district court’s
denial of his motion to suppress evidence he claims was
obtained as a result of an unlawful search. On appeal, Paredez
contends the district court erred in denying his motion to
suppress because (1) the officer (Officer) exceeded the scope of
the traffic stop when he opened the passenger door to question
Paredez without reasonable, articulable suspicion of criminal
activity; and (2) it was not inevitable that the evidence Paredez
sought to suppress would have been discovered in the course of
investigating the traffic stop. Because Paredez does not challenge
two independent, alternative grounds for the district court’s
ruling—that it was lawful for Officer to open the passenger door
in order to impound the vehicle and it was inevitable that the
contraband would have been discovered when Paredez exited
the vehicle upon its impound—we affirm.

¶2 While on duty, Officer observed a vehicle with tinted
taillights and an excessively loud exhaust system. Officer
initiated a traffic stop based on these observed traffic violations.
The driver (Driver) initially evaded Officer’s signal to stop but
eventually complied. Officer ordered Driver to exit the vehicle
and told Paredez, the passenger, to remain in his seat. Officer
also called for backup. Driver turned off the vehicle’s engine,
exited the vehicle, sat on the curb, and answered Officer’s
questions. Driver stated he initially evaded Officer because he
was driving his wife’s vehicle to his house from a grocery store
without a valid driver license. He also said that Paredez was a
“buddy” he met in jail and that they both recently had been
released. Officer asked Driver whether he and Paredez had
stolen anything from the grocery store and if that was the reason
for his initial evasion. Driver denied this suggestion. Officer then
asked Driver whether his wife or Paredez had a valid driver

(…continued)
on appeal from the judgment, to a review of the adverse
determination of any specified pre-trial motion. A defendant
who prevails on appeal shall be allowed to withdraw the plea.”).

20150873-CA 2 2017 UT App 220
State v. Paredez

license so that he would not have to impound the vehicle, but
Driver said that they did not.

¶3 After obtaining Driver’s name and date of birth, which
Officer relayed to the police dispatch office, Officer placed
Driver in handcuffs and told him he was being detained until
Officer “figured out what was going on,” and that he was under
arrest for not initially complying with Officer’s signal to stop the
car. After the dispatch office informed Officer that Driver was an
“interlock restricted driver,” Officer determined that he would
have to impound the vehicle because it did not have an ignition
interlock system2 installed in it.

¶4 After arresting Driver and determining he would have to
impound the car as required by Utah Code section 41-6a-527(1),
Officer walked up to the passenger window to question Paredez
about Driver’s initial evasion of the stop and to investigate
whether Driver told Officer the truth. Paredez could not roll
down the window to answer Officer’s questions because the
windows were electronically powered, and Driver had turned
off the engine and removed the keys from the ignition. Officer
opened the passenger door and began speaking with Paredez,
who said Driver did not initially stop for Officer because Driver
did not have a valid driver license, not because they stole
anything from the grocery store. Paredez also confirmed that he
did not have a valid driver license. Officer provided Paredez’s
information to the dispatch office and requested a canine unit to
sniff the vehicle to determine whether it contained illegal
substances.

2. An ignition interlock system is “a constant monitoring device
or any similar device certified by the commissioner [of the
Department of Public Safety] that prevents a motor vehicle from
being started or continuously operated without first determining
the driver’s breath alcohol concentration.” Utah Code Ann. § 41-
6a-518(1)(c) (LexisNexis Supp. 2017).

20150873-CA 3 2017 UT App 220
State v. Paredez

¶5 At this point, a second officer observed a pipe in a small
side-pocket of Paredez’s pants. Officer wore a body camera, and
the video recording showed a bulge in the side pocket of
Paredez’s pants that was visible as soon as Officer opened the
door. Officer asked Paredez to exit the vehicle and placed him in
handcuffs while informing him that he was being detained for
possession of paraphernalia. Paredez admitted that the pipe was
in his pocket and that he had used it to smoke
methamphetamine. He also informed Officer that one of his
shoes contained a tinfoil packet that he picked up from the floor
of Driver’s car. He said he did not know what was in the packet
but tried to hide it in his shoe because he did not think Officer
would search him, as he was “merely the vehicle’s passenger.”
Officer removed the tinfoil packet from Paredez’s shoe and the
pipe from his pocket. Based on his training and experience,
Officer suspected the tinfoil packet contained heroin. Officer ran
a field test on the pipe to determine what was in it, and the test
results were positive for methamphetamine.

¶6 Paredez was charged with two counts of possession or
use of a controlled substance, third degree felonies, and one
count of possession of drug paraphernalia, a class B
misdemeanor. He moved to suppress this evidence arguing that
(1) Officer questioned him without reasonable, articulable
suspicion of criminal behavior; and (2) Officer engaged in an
unlawful search when he opened the passenger door, which
enabled him to see paraphernalia that would not have been
visible with the door closed. In an oral ruling, the district court
denied the motion to suppress on three independent grounds.

¶7 First, the court found that under the totality of the
circumstances, Officer “had [a] reasonable articulable suspicion
of criminal activity” regarding Driver’s initial flight, which was
“sufficient for him to approach and question [Paredez]” to
investigate Driver’s account of the events leading to his arrest.
Driver said he initially attempted to evade Officer and, when he
was pulled over, admitted he was driving without a valid driver
license. Driver told Officer they were driving home from a

20150873-CA 4 2017 UT App 220
State v. Paredez

grocery store and that both he and Paredez recently had been
released from jail. Thus, the court found it was reasonable for
Officer to approach Paredez to investigate whether Driver’s
account of the events was truthful and whether they had
shoplifted from a grocery store. The court further found that it
was reasonable under the circumstances to open the passenger
door when speaking with Paredez rather than try to speak with
him through a closed window or while standing in the street
from the driver’s side of the vehicle.

¶8 Second, the court found that Officer was justified in
opening the passenger door “not only because he’s investigating
a crime, but also because [Paredez] would have been forced to
exit the vehicle upon its being impounded.” The court once
again reiterated that Officer could not have questioned Paredez
without opening the door because the vehicle’s engine had been
turned off, leaving the electronically powered windows
inoperable. And once the passenger door was open, the pipe was
in plain view, which Paredez did not dispute.

¶9 Third, the court then addressed the inevitable discovery
doctrine and explained that “evidence will not be suppressed if
it ultimately or inevitably would have been discovered by lawful
means.” The court stated that “[r]outine or standard police
procedures are often a compelling and reliable foundation for
inevitable discovery” of evidence and, after a driver is arrested,
law enforcement officers routinely impound a vehicle and
conduct an inventory search. The court found that, because
Driver was “interlock restricted,” Officer was required to
impound the vehicle, and Paredez “would have been required to
exit [the vehicle] at some point.” The court further found that,
had Paredez stood up, Officer “would have inevitably observed”
a bulge in Paredez’s pants pocket, justifying a pat-down search
“for safety purposes.” Therefore, the court determined that, even
if Officer was not justified in opening the passenger door to
question Paredez, the paraphernalia and other contraband
inevitably would have been lawfully discovered when Paredez
emerged from the vehicle prior to its impoundment.

20150873-CA 5 2017 UT App 220
State v. Paredez

¶10 Following the denial of his motion to suppress, the State
amended the charges against Paredez, and he entered a Sery
plea. Paredez pled guilty to attempted possession or use of a
controlled substance, a class A misdemeanor, and reserved his
right to appeal the ruling on the motion to suppress. Paredez
now appeals.

¶11 We review a denial of a motion to suppress as a mixed
question of law and fact and will disturb the district court’s
factual findings “only when they are clearly erroneous,” but we
afford “no deference to the district court’s application of law to
the underlying factual findings.” State v. Martinez, 2017 UT 43,
¶¶ 8–9.

¶12 Paredez contends the district court erred in determining
(1) that Officer’s opening of the passenger door to question him
“did not constitute an unlawful search beyond the scope of the
initial traffic stop” and (2) that the evidence of “paraphernalia
would have inevitably been discovered” in connection with
questioning him about the initial traffic stop. Significantly,
however, Paredez does not address the district court’s
alternative determinations that Officer was otherwise justified in
opening the passenger door to speak with Paredez about
impounding the vehicle or that Officer would have inevitably
discovered the contraband when Paredez exited the vehicle so
that it could be impounded. Although Paredez does make an
inevitable discovery argument, that argument does not account
for, and does not address, the district court’s alternative
conclusion that the vehicle’s impoundment would have
inevitably led to the relevant discovery. The district court
concluded that because Officer was statutorily required to
impound the vehicle, Officer was justified in opening the door to
speak with Paredez about the impound, at which point the pipe
would have been in plain view. Paredez also “would have been
forced to exit the vehicle upon its being impounded, regardless.”
Paredez does not address these independent grounds in his
briefing and does not argue that the district court’s findings or
conclusions regarding these independent grounds are erroneous.

20150873-CA 6 2017 UT App 220
State v. Paredez

¶13 We will not reverse a district court’s denial of a motion
when the appellant fails to challenge the district court’s
independent alternative grounds for denying that motion. See
State v. Roberts, 2015 UT 24, ¶ 38, 345 P.3d 1226 (citing Salt Lake
County v. Butler, Crockett & Walsh Dev. Corp., 2013 UT App 30,
¶ 28, 297 P.3d 38 (“This court will not reverse a ruling of the
[district] court that rests on independent alternative grounds
where the appellant challenges only one of those grounds.”)).
“Consequently, we may affirm if [Paredez] failed to challenge
each of the grounds for the district court’s” denial of his motion
to suppress. See generally Wm. Douglas Horne Family Revocable
Trust v. Wardley/McLachlan Dev., LLC, 2013 UT App 129, ¶ 9, 304
P.3d 99 (holding that this court “may affirm if the [appellant]
failed to challenge each of the grounds for the district court’s
grant of summary judgment”).

¶14 Paredez has failed to challenge whether Officer was
statutorily required to impound the vehicle and whether Officer
was justified in opening the passenger door to discuss the
impoundment with Paredez or what effect the impoundment
had on the inevitable discovery analysis. Accordingly, we affirm
the district court’s judgment on these unchallenged alternative
grounds without reaching the merits of the court’s decision.

20150873-CA 7 2017 UT App 220