State v. Harker, 2008 UT App 455 (Utah App. 12/11/2008), Case No. 20070139-CA.

Page 1

2008 UT App 455

State of Utah, Plaintiff and Appellee, v. Jeff Brian Harker, Defendant and Appellant.

Case No. 20070139-CA.

Court of Appeals of Utah.

Filed December 11, 2008.

Not For Official Publication

Appeal from the Second District, Farmington Department, 061700791 The Honorable Darwin C. Hansen.

Scott L. Wiggins, Salt Lake City, for Appellant.

Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee.

Before Judges Bench, Billings, and Orme.

MEMORANDUM DECISION

BENCH, Judge:

Defendant Jeff Brian Harker appeals his convictions for possession or use of a controlled substance, see Utah Code Ann. § 58-37-8(2)(a)(i) (Supp. 2008), and possession of drug paraphernalia, see Utah Code Ann. § 58-37a-5(1) (Supp. 2008), arguing that the trial court erred in denying his motion to suppress because the search of his person was not incident to a lawful arrest. More specifically, Defendant asserts that his arrest for operating a vehicle without insurance and for providing false evidence of insurance was not supported by probable cause because he did not commit the offenses in the presence of the arresting officer (the Officer). "In search and seizure cases, we review the district court's factual findings under a clearly erroneous standard" and "[w]e review the trial court's legal conclusions for correctness, giving no deference to the court's application of the law to the facts." State v. Ranquist, 2005 UT App 482, ¶ 5, 128 P.3d 1201 (internal quotation marks omitted).

An arrest underlying a search "is lawful if it is supported by probable cause and authorized by statute." State v. Trane, 2002 UT 97, ¶ 25, 57 P.3d 1052. An officer has probable cause to justify an arrest where the "facts and circumstances within the officer's knowledge . . . are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." Id. ¶ 27 (internal quotation marks omitted). "In making [a probable cause] determination, a police officer is entitled to rely on information gained from other police officers." State v. Alverez, 2005 UT App 145, ¶ 17, 111 P.3d 808 (internal quotation marks omitted).

Additionally, Utah Code section 77-7-2(1) authorizes an officer to make an arrest without a warrant "for any public offense committed or attempted in the presence of any peace officer." Utah Code Ann. § 77-7-2(1) (2003). This section specifically defines "presence" as including "all of the physical senses or any device that enhances the acuity, sensitivity, or range of any physical sense, or records the observations of any of the physical senses." Id. "The meaning of `acts committed in the presence of the arresting officer' [also includes] . . . the arresting officer's knowledge of them, such knowledge being obtained through his sight, hearing, or other senses, or by the offender's admission of the facts made before his arrest." Utah Liquor Control Comm'n v. Wooras, 97 Utah 351, 93 P.2d 455, 461 (1939).

Here, the Officer had probable cause and statutory authorization to arrest Defendant for driving without insurance. Although the Officer did not observe Defendant driving, the...