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State v. Lafond4/3/2003
(For Official Publication)
Robin M. Lafond appeals her conviction of illegal possession of a controlled substance in violation of Utah Code Ann. § 58-37-8(2)(a)(i) (1998). Lafond contends that because the investigating officer had no reasonable suspicion to justify the frisk and resulting search of her person, the district court erroneously denied her motion to suppress. We agree and reverse.
BACKGROUND
"Because a determination of the reasonableness of . . . police conduct is highly factual in nature, we review the facts in detail." State v. Trujillo, 739 P.2d 85, 86 (Utah Ct. App. 1987). On March 23, 2001, at approximately 9:45 p.m., Utah Highway Patrolman Steve Salis observed a vehicle traveling east on Interstate 70. Officer Salis determined by radar that the car was traveling at the rate of four miles per hour over the speed limit, and as the car passed him he also noticed that the license plate light was not working. Officer Salis conducted a traffic stop, approached the vehicle on the driver's side, and asked the driver for his driver's license, vehicle registration, and proof of insurance. The driver told Officer Salis that he did not have a driver's license but that he did have an identification card. At this time, Lafond, the passenger in the vehicle, interjected that the vehicle was hers and that she was not driving because she was tired.
When Officer Salis asked the driver why he did not have a Utah driver's license, the driver explained that his license was previously suspended for a DUI, and that he was eligible to reapply for a license but had not yet done so. During his questioning of the driver, Officer Salis noticed that the driver was holding a large "refill" cup and that there was a Crown Royal bag on the front seat that appeared to have something in it. Officer Salis then informed the two that he had stopped them for speeding and for a defective license plate light and asked Lafond to produce the vehicle registration.
In response to this request, Lafond looked on the front seat and floorboard, retrieved a small leather coin purse and placed it between her legs, and then began searching through the glove compartment. Officer Salis, who was shining a flashlight in the direction of the glove box, noticed a cup holder on the console containing small green particles that he believed were marijuana. Officer Salis did not detect any odor of alcohol or marijuana, and the driver did not seem impaired.
In the meantime, Lafond had located the registration, which indicated the car was properly registered to her, and handed it to Officer Salis. Officer Salis then asked Lafond to produce proof of insurance, and Lafond resumed her search through the glove box. She was "moving very fast" and seemed nervous to Officer Salis. Officer Salis then asked the subjects if there was anything illegal in the vehicle. Lafond stated that there was not. Officer Salis asked if Lafond had any weapons or alcohol in the vehicle, and Lafond stated she did not. Officer Salis asked Lafond if she had any marijuana in the vehicle, and she said she did not. Officer Salis then asked Lafond if anyone had smoked marijuana in the vehicle lately, and Lafond stated she did not think so, but was not sure, as she had just retrieved the car that morning after loaning it to a friend for about a week.
Officer Salis then obtained permission from Lafond to search the vehicle and asked her to step outside. Before doing so, Lafond retrieved a pack of cigarettes and the coin purse that she had previously placed between her legs, as well as another small purse from the front seat. With these items, Lafond exited the vehicle. Once outside, O
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