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State v. Justesen5/16/2002
two stop. Although the encounter occurred at night in an isolated area, the factual similarities between the present matter and Struhs end there. The confrontational and stealthy factors present in Struhs are not present in this case. Stefanoff did not approach Justesen's vehicle in a stealthy manner, and was not trying to surprise the occupants, nor was he trying to "catch" them at something. Further, Stefanoff had not observed the minivan for a prolonged period of time under the cloak of darkness, only then becoming suspicious of the occupants' pattern of activities.
Instead, Stefanoff came upon the minivan while on patrol, and, with his headlights on, approached Justesen's minivan. Stefanoff did not park "nose-to-nose" with Justesen's vehicle, but parked behind it. At that time, Stefanoff activated his take-down lights. Our review of the record leads us to conclude that Stefanoff used the take-down lights not as a show of authority, but to illuminate the area. In sum, we view this encounter as no different than an officer pulling behind a vehicle parked on the side of the road in the daylight hours. In both instances, the encounters are voluntary, and the motorist is free to leave. See 4 Wayne R. LaFave, Search and Seizure § 9.3 (a) (3d ed. 1996) (stating "if an officer merely walks up to a person . . . who is seated in a vehicle located in a public place . . . and puts a question to him, this alone does not constitute a seizure" (footnote and citations omitted). To decide otherwise would force an officer to choose between personal safety, in this case by simply illuminating the area, or not stopping to render assistance to a stranded motorist in an isolated area at night.
CONCLUSION
The trial court's conclusion that Stefanoff's activation of his overhead lights alone was sufficient to escalate the encounter to a level two stop, requiring a reasonable suspicion of criminal or potential criminal activity, was in error. We therefore reverse the trial court's decision and remand for proceedings consistent with our decision.
William A. Thorne Jr., Judge
WE CONCUR:
Judith M. Billings, Associate Presiding Judge
Russell W. Bench, Judge
Page 1 2 3 Utah DUI Attorneys
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