State v. Welker

2014 UT App 284
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
BRENT MICHAEL WELKER,
Defendant and Appellant.

Memorandum Decision
No. 20131063-CA
Filed December 4, 2014

Third District Court, Salt Lake Department
The Honorable Elizabeth A. Hruby-Mills
No. 125900439

Joshua C. Snow, Attorney for Appellant

Simarjit S. Gill and Dawn W. Emery, Attorneys
for Appellee

JUDGE JAMES Z. DAVIS authored this Memorandum Decision, in
which JUDGES J. FREDERIC VOROS JR. and JOHN A. PEARCE
concurred.

DAVIS, Judge:

¶1 Brent Michael Welker appeals from his conditional guilty
plea to driving under the influence (DUI). See State v. Sery, 758 P.2d
935, 938–39 (Utah Ct. App. 1988) (permitting a defendant to enter
a conditional guilty plea to preserve a suppression issue for
appeal). We affirm.

¶2 Welker challenges the district court’s denial of his motion to
suppress and its ruling that the police officer had reasonable
State v. Welker

suspicion to stop his vehicle.1 A stop is justified “when the officer
has reasonable, articulable suspicion that the person has been, is, or
is about to be engaged in criminal activity.” State v. Alverez, 2006
UT 61, ¶ 14, 147 P.3d 425 (citations and internal quotation marks
omitted). “It is well-established in this state that the articulable facts
supporting reasonable suspicion may come from an officer’s own
observations as well as external information such as an informant’s
tip via police dispatch . . . .” State v. Kohl, 2000 UT 35, ¶ 13, 999 P.2d
7 (emphasis omitted). We review the district court’s ruling for
correctness. State v. Markland, 2005 UT 26, ¶ 8, 112 P.3d 507.

¶3 Here, the officer that stopped Welker’s vehicle testified at
the hearing on Welker’s motion to suppress and explained that
dispatch had received a call from a woman in an apartment
complex reporting a suspicious person in a vehicle that she
believed may have been trying to enter a carport of a vacant
“apartment or was burglarizing [the caller’s] apartment and
possibly trying to steal a trailer.” According to the officer, the caller
indicated that the suspicious person also “had a flashlight and was
looking in the windows” of a vacant apartment. The officer testified
that the caller identified herself by name and provided dispatch
with her contact information. The officer stated that the caller
described the suspicious person as driving a loud diesel truck that
was gray and white or red and gray and had a camper shell on the
back. He testified that he stopped a red and gray truck with a
camper shell as it was leaving the caller’s cul-de-sac. Upon
stopping the vehicle, the officer observed signs that the driver,
Welker, was impaired, prompting the officer to conduct a DUI
investigation and ultimately arrest Welker.

¶4 The district court ruled that “the initial tip came from an
identified citizen informed with a high degree of reliability” and

1. We reject the State’s argument that Welker has not properly
marshaled the evidence. See State v. Nielsen, 2014 UT 10, ¶¶ 33–44,
326 P.3d 645 (explaining marshaling).

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State v. Welker

that the caller’s reliability was bolstered by the level of detail she
provided, which was then corroborated by the officer. See State v.
Lloyd, 2011 UT App 323, ¶ 15, 263 P.3d 557 (“[I]n determining
whether an informant’s tip is sufficiently reliable to support a
reasonable suspicion or probable cause determination, the Utah
Supreme Court has indicated that we are to look to ‘[t]he indicia of
veracity, reliability, and basis of knowledge’ as ‘nonexclusive
elements to be evaluated in reaching the practical, common-sense
decision whether, given all the circumstances,’ reasonable suspicion
or probable cause exists.” (second alteration in original) (quoting
State v. Saddler, 2004 UT 105, ¶ 11, 104 P.3d 1265)). The court
concluded that the caller’s reliability in conjunction with the caller’s
belief that someone appeared to be stealing her trailer gave law
enforcement “reasonable articulable suspicion of criminal activity
to justify the stop.”

¶5 Welker argues that the officer lacked reasonable suspicion
because the officer “did not testify about any specific” conduct
“that could be considered criminal,” that he did not receive a report
that any crime had actually occurred, and that he did not
independently observe Welker commit any traffic violations.
Additionally, Welker notes, the caller merely “offered her own
speculation that the occupants of the vehicle might be trying to
steal her trailer” and that the caller did not indicate how close the
truck came to the trailer, whether there was a tow hitch attached to
the truck, or whether anyone exited the truck to attempt to connect
the trailer to the truck. However, under the reasonable suspicion
standard, the responding police officer is not faulted “for not
connecting his own testimonial dots” by indicating “what crime he
suspected had been committed or how [the defendant] was
connected to that crime.” Markland, 2005 UT 26, ¶ 19. “[S]uch rigid
formalities” are not required and “impose[] something akin to a
preponderance of the evidence standard,” which the “United States
Supreme Court has made . . . clear . . . is inappropriate in the
investigatory detention context.” Id. ¶¶ 18–19 (citing United States
v. Arvizu, 534 U.S. 266, 277 (2002)). Rather, “[a]s long as the
underlying facts, and reasonable inferences drawn from those facts,

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State v. Welker

justify the conclusion that reasonable suspicion existed at the
inception of a level-two stop, the Fourth Amendment is satisfied.”
Id. ¶ 19. See generally id. ¶ 10 n.1 (describing the three permissible
levels of police stops).

¶6 Welker compares his case to State v. Carpena, 714 P.2d 674
(Utah 1986) (per curiam). There, our supreme court determined
that an officer did not possess sufficient reasonable suspicion that
the occupants of “a car with out-of-state license plates [that] was
moving slowly through a neighborhood late at night . . . were
involved in criminal activity” even though “a rash of burglaries
had recently occurred” in that neighborhood. Id. at 675. Welker
contends that he was stopped based on similarly innocuous
information—“that there was a vehicle in the complainant’s
neighborhood that appeared to not belong there.”

¶7 We disagree. This case is more like State v. Markland, 2005
UT 26, 112 P.3d 507. There, a police officer responded to a call that
someone was crying out for help near an apartment complex. Id.
¶ 2. The officer proceeded down a poorly-lit dead-end street next
to the complex, where he encountered the defendant. Id. The
defendant informed the officer that he was walking to his home,
which was about twenty blocks away. Id. ¶ 3. Knowing that the
defendant was proceeding down a dead-end street, the officer’s
suspicion was raised, prompting the officer “to momentarily detain
the individual in order to run checks that could potentially provide
information relevant to his investigation into the cries for help, as
well as information relevant to [the officer’s] own safety.” Id. ¶¶ 2,
21. Our supreme court concluded that “viewing the facts in their
totality and considering the rational inferences drawn from those
facts, [the officer’s] detention of [the defendant] . . . was justified at
its inception by a reasonable suspicion that crime was afoot and
that [the defendant] was connected to that crime.” Id. ¶ 21.

¶8 Like the defendant in Markland, Welker was stopped late at
night in an area in which the officer was investigating “a

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State v. Welker

contemporaneous report of suspicious circumstances.” See id. ¶ 25.
The officer here had more information than the mere presence of
an unfamiliar vehicle in the complainant’s neighborhood—the
caller had reported suspicious and potentially criminal activity and
described the activity as involving a vehicle that matched the one
the officer stopped. In Welker’s own words, the officer responded
to the call received by dispatch “immediately.” The vehicle the
officer stopped was the only vehicle in the area and was the only
vehicle leaving the caller’s apartment complex at the time the
officer stopped it. Accordingly, we affirm the district court’s ruling
denying Welker’s motion to suppress because the officer had
reasonable suspicion sufficient to justify stopping Welker.

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