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State v. Cushing10/9/2003
(For Official Publication)
The State of Utah appeals the trial court's order dismissing with prejudice enhanced counts of possession of methamphetamine, a second degree felony, and possession of marijuana, a class A misdemeanor, in violation of Utah Code Ann. §§ 58-37-8(2)(a)(i), -8(4)(c) (1998); and interference with a peace officer, a class B misdemeanor, in violation of Utah Code Ann. § 76-8-305 (1999). We affirm.
BACKGROUND
On May 1, 2001, Detective Jensen of the West Jordan City Police Department observed a white Nissan nearly collide with another car, as well as his own unmarked patrol car. Detective Jensen followed the Nissan and initiated a traffic stop. When Detective Jensen turned on his "wig-wag" and red and blue lights, he recognized the driver of the Nissan to be Rita Morrison, a known drug offender. He did not, however, recognize the passenger in Morrison's car.
Morrison did not immediately pull over, and Detective Jensen activated his siren. Detective Jensen observed Morris looking back at him, but she continued driving several seconds until she reached the parking lot of an apartment complex known by Detective Jensen as one of the worst complexes in the city for criminal activity. Before Morrison's car came to a complete stop, the passenger door opened and Defendant Charles Bryan Cushing jumped out and began "almost [jogging]" toward the complex.
Detective Jensen identified himself as a police officer and asked Cushing to stop and stay with the car as a safety precaution. Cushing ignored Detective Jensen's request, instead looking back at Detective Jensen and immediately "launching into a full sprint." Detective Jensen pursued Cushing, but did not apprehend him before he ran into apartment number four. Detective Jensen worried that Cushing was attempting to evade detection of contraband or to obtain a weapon inside the apartment. This worry stemmed from Cushing's association with a known drug offender in an area known for violent crime, and from Detective Jensen's experience that "the propensity for violence among . . . drug users is higher than the norm."
Detective Jensen remained at the door of the apartment to wait for backup officers to arrive. Five minutes later, another man exited the apartment in a nervous and suspicious manner, carrying a garbage bag. The man identified himself as Edward Majera and claimed that another man named Cameron Larsen was also in the apartment, but that no one had run into the apartment. The officers knocked on the apartment door, and Larsen responded, identifying himself as the leaseholder. Larsen also denied that anyone had run into the apartment or that anyone else remained inside. Detective Jensen explained that he had observed Cushing, as yet unidentified by name, run into the apartment, and Larsen nervously admitted that Cushing was hiding under a bed in the apartment.
Detective Jensen obtained Larsen's permission to enter the apartment, and Larsen responded, "Yeah, I don't want him in my apartment. . . . ou can go get him out but I'm not going to help you. This guy will kill me." Larsen further informed Detective Jensen that Cushing always had a gun on him and expressed further concern for his safety if Cushing discovered Larsen's cooperation with the police. Majera expressed similar concerns.
Rather than entering the apartment immediately, Detective Jensen opened the front door and called to Cushing inside the apartment. Detective Jensen further indicated that a police dog would be sent in shortly to find Cushing. Several minutes later, Cushing exited the apartment, was handcuffed and placed in a patrol car. He was detained there
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