State v. Harker

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| 2010 Ur 56 |

This opinion is subject to revision before final
publication in the Pacific Reporter.

IN THE SUPREME COURT OF THE STATE OF UTAH

- - - - 00000- - - -
State of Uah, No. 20090125
Plaintiff and Respondent,
Vv.
FILED
Jeff Brian Forker,
Defendant and Petitioner. Septenber 28, 2010

Second District, Farm ngton
The Honorable Darwn C. Hansen
No. 061700791

Attorneys: Mark L. Shurtleff, Att’y Gen., Kenneth A. Bronston,

Asst. Att’y Gen., Salt Lake City, for plaintiff
Scott L. Wggins, Salt Lake City, for defendant

On Certiorari to the Wah Court of Appeals
DURRANI, Associate Chief Justice:

I NTRODUCTI ON

41 This case is before us on wit of certiorari to the
court of appeals and requires us to determine the neaning of “in
the presence” as that phrase is set forth in section 77-7-2(1) of
the Uah Code, which allows an officer to make an arrest for a
class B msdeneanor only if the offense was committed “in the
presence” of an officer.! In addition, this case requires us to
determine whether evidence mist be excluded if it is obtained in
a search incident to an arrest that is supported by probable
cause but is not supported by statutory authority. W determne
that the “in the presence” language of Uah Code section 77- 7-
2(1) requires officers to have experienced, firsthand through one
of their physical senses, all of the elenents of the offense in
order to have statutory authority to make an arrest for a class B
msdeneanor. But ve hold, followng the United States Suprene

" Uah Code Ann. § 77-7-2(1) (2008).

2 553 U.S. 164 (2008).
No. 20090125 2
Court’s recent holding in Virginia v. Moore,2 that even when
officers do not have statutory authority, a warrantless arrest
based on probable cause does not violate the Fourth Amendment
and, therefore, evidence seized in a search incident to such an
arrest need not be excluded.
BACKGROUND
¶2 On the afternoon of May 30, 2006, Jeff Brian Harker was
traveling north on Highway 89 and, in the process of attempting
to turn left, collided with an oncoming vehicle. Thereafter,
North Salt Lake Police Officer Adam Osoro appeared at the scene.
Officer Osoro obtained driver licenses and vehicle registration
and insurance information from both Mr. Harker and the driver of
the other vehicle. The dates on Mr. Harker’s insurance card
indicated that the insurance was currently effective, but when
Officer Osoro ran a computer check, the insurance on Mr. Harker’s
car was “not found.” Assisting Officer Gwillam told Officer
Osoro that Mr. Harker had a history with the North Salt Lake
Police Department, so Officer Osoro decided to further
investigate Mr. Harker’s insurance. Officer Gwillam called Mr.
Harker’s insurance company and was informed that Mr. Harker’s
insurance had been canceled and told this to Officer Osoro. When
asked about the insurance, Mr. Harker explained that the policy
had been canceled because he had failed to make his payments.
Officer Osoro then arrested Mr. Harker for operating a motor
vehicle without owner’s or operator’s security (insurance) and
for providing false evidence of owner’s or operator’s security.
¶3 Officer Osoro proceeded to search Mr. Harker incident
to this arrest and found a substance in Mr. Harker’s pocket that
field tested positively for methamphetamine, which the Davis
County Crime Laboratory later confirmed. In addition, Officer
Osoro’s search revealed Mr. Harker to be in possession of cash,
Lortab pills, and a residue-tainted piece of glass pipe, which
Officer Osoro recognized as drug paraphernalia.
¶4 The State charged Mr. Harker with possession or use of
a controlled substance (methamphetamine), possession or use of a
controlled substance (Lortab), possession of drug paraphernalia,
having no evidence of security, making an illegal turn, and
failure to yield.
¶5 Mr. Harker initially pleaded not guilty to the charges.
At a preliminary hearing, he was bound over on all charges. Mr.
Harker then moved to suppress the evidence that was found during

3 State v. Harker, 2008 UT App 455U, para. 1.
4 Id. paras. 4-5. Because the court of appeals concluded
that Mr. Harker was properly arrested for driving without
insurance, it did not reach whether Mr. Harker was properly
arrested for providing false evidence of security. Id. para. 4
n.1.
5 State v. Harmon, 910 P.2d 1196, 1199 (Utah 1995).
3 No. 20090125
the search incident to his arrest. After hearing argument on the
motion to suppress the evidence, the court denied the motion
because it determined that Officer Osoro “had probable cause to
arrest [Mr. Harker], and that probable cause is based upon the
Officer’s knowledge and his hearing and other senses.” Mr.
Harker then pleaded no contest to possession of methamphetamine
and possession of drug paraphernalia, and the remaining charges
were dismissed. Pursuant to the plea, Mr. Harker preserved his
right to appeal the district court’s denial of the motion to
suppress. The district court sentenced Mr. Harker to zero to
five years in prison on his conviction for possession of
methamphetamine and 180 days in jail on his conviction for
possession of drug paraphernalia. The court suspended the prison
and jail terms conditioned upon Mr. Harker’s serving one year in
the Davis County Jail and three years probation and participating
in the RSAT drug program.
¶6 Mr. Harker timely appealed, claiming that the district
court should have suppressed the evidence obtained in the search
incident to his arrest on the ground “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.”3 The court of appeals held that Mr. Harker’s arrest
for driving without insurance was supported by probable cause and
statutory authority and affirmed Mr. Harker’s convictions.4
¶7 Mr. Harker petitioned this court for certiorari review,
which we granted to determine whether the court of appeals erred
when it held there was probable cause and statutory authority to
arrest Mr. Harker. We have jurisdiction pursuant to Utah Code
section 78A-3-102(3)(a).
STANDARD OF REVIEW
¶8 “On certiorari, we review the decision of the court of
appeals, not the decision of the trial court.”5 We review the
court of appeals’ decision for correctness, “giving no deference

6 State v. Baker, 2010 UT 18, ¶ 7, 229 P.3d 650.
7 See Harmon, 910 P.2d at 1199.
8 Mr. Harker alleges that his arrest and the search incident
to his arrest violated article I, section 14 of the Utah
Constitution as well as the Fourth Amendment to the United States
Constitution. But Mr. Harker does not argue that the Utah
Constitution affords him greater protection than the United
States Constitution, nor does he provide any analysis of how the
two constitutional provisions differ, so we address the issue
only under the United States Constitution.
9 See, e.g., State v. Worwood, 2007 UT 47, ¶ 21, 164 P.3d
397.
No. 20090125 4
to its conclusions of law.”6 Further, issues regarding the
constitutionality of arrests and searches present questions of
law that we review for correctness.7
ANALYSIS
¶9 We granted certiorari to determine whether there was
statutory authority and probable cause to arrest Mr. Harker. We
begin our analysis by assessing whether Mr. Harker’s arrest was
supported by statutory authority. The answer depends on the
meaning of the requirement set out in Utah Code section 77-7-2(1)
that certain public offenses occur in the presence of an officer
in order for the officer to have authority to make an arrest. We
conclude that this statute requires an officer to have
experienced, firsthand through one of the officer’s physical
senses, all of the elements of the offense. We further conclude
that an admission of having committed a public offense does not
satisfy the “in the presence” requirement set out in section 77-
7-2(1). Thus, because an officer did not perceive Mr. Harker
driving without insurance firsthand, we conclude that Mr.
Harker’s arrest was not supported by statutory authority.
¶10 But the real dispute in this case centers around
whether the evidence obtained in the search incident to Mr.
Harker’s arrest is admissible. Whether the evidence is
admissible depends upon whether the arrest violated the Fourth
Amendment of the United States Constitution.8 An arrest violates
the Fourth Amendment when it is unsupported by probable cause.9
Here we must assess the admissibility of evidence seized during a
search incident to a warrantless arrest that is supported by
probable cause but not authorized by statute. Pursuant to the
United States Supreme Court’s recent holding in Virginia v.

10 553 U.S. 164, 176-78 (2008) (holding that statutory
authority is not required for a warrantless arrest to be
considered constitutionally permissible under the Fourth
Amendment).
11 LPI Servs. v. McGee, 2009 UT 41, ¶ 11, 215 P.3d 135
(quoting Savage v. Utah Youth Vill., 2004 UT 102, ¶ 18, 104 P.3d
1242).
12 Id. (quoting Martinez v. Media-Paymaster Plus/Church of
Jesus Christ of Latter-day Saints, 2007 UT 42, ¶ 46, 164 P.3d
384).
13 Martinez, 2007 UT 42, ¶ 46 (quoting State v. Barrett,
2005 UT 88, ¶ 29, 127 P.3d 682).
5 No. 20090125
Moore,10 we conclude that, under the Fourth Amendment, courts
need not exclude evidence if it is uncovered in a search incident
to a constitutionally permissible arrest, even if the arrest is
not authorized by statute, and that an arrest is constitutionally
permissible if it is based on probable cause. We conclude that
Mr. Harker’s arrest was constitutional under the Fourth Amendment
because it was based on probable cause. Accordingly, the
evidence seized in the search incident to Mr. Harker’s arrest is
admissible regardless of the arresting officer’s lack of
statutory authority.
I. MR. HARKER’S ARREST FOR DRIVING WITHOUT INSURANCE WAS NOT
AUTHORIZED BY STATUTE BECAUSE HE DID NOT DRIVE “IN THE PRESENCE”
OF AN OFFICER
¶11 There was no statutory authority to arrest Mr. Harker
for driving without insurance because all of the elements of the
offense did not actually occur in the presence of a peace
officer. Utah Code section 77-7-2(1) permits an officer to
arrest a person for “public offense[s],” which include class B
misdemeanors like driving without insurance, only if the offense
was committed “in the presence” of the officer. Determining what
“in the presence” means in the context of this provision is an
issue of statutory interpretation.
¶12 Our “‘primary objective’” when interpreting statutes
“‘is to give effect to the legislature’s intent.’”11 “To discern
legislative intent, ‘we look first to the statute’s plain
language.’”12 Also, when interpreting statutes, “‘[w]e presume
that the legislature used each word advisedly’ and read ‘each
term according to its ordinary and accepted meaning.’”13
Additionally, “‘[w]e read the plain language of [a] statute as a

14 LPI Servs., 2009 UT 41, ¶ 11 (quoting Miller v. Weaver,
2003 UT 12, ¶ 17, 66 P.3d 592).
15 Id. (citing Martinez, 2007 UT 42, ¶ 47).
16 Utah Code Ann. § 77-7-2(1)(a) (2008). “The term ‘public
offense’ under section 77-7-2(1) generally includes
misdemeanors.” State v. Trane, 2002 UT 97, ¶ 29, 57 P.3d 1052.
17 Utah Code Ann. § 77-7-2(1)(b).
18 Compare Utah Code Ann. § 77-7-2(1) with Utah Code Ann.
§ 77-7-2(2).
19 We have treated the term “reasonable cause,” as employed
by section 77-7-2, as synonymous with “probable cause.” See
State v. Banks, 720 P.2d 1380, 1383 (Utah 1986). Probable cause
(continued...)
No. 20090125 6
whole and interpret its provisions in harmony with other statutes
in the same chapter and related chapters.’”14 Furthermore, if
“the plain meaning of the statute can be discerned from its
language, no other interpretive tools are needed.”15 Here, the
plain meaning of the statute can clearly be discerned from its
language.
¶13 Section 77-7-2 explicitly states that “[a] peace
officer . . . may, without warrant, arrest a person . . . for any
public offense committed or attempted in the presence of any
peace officer.”16 In addition, the statute explicitly defines
what “presence” means: “‘presence’ includes 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.”17 The meaning of these provisions is
clear: this statute requires an officer to witness the public
offenses in the manner described before making an arrest.
Further, when section 77-7-2 is read as a whole, it is apparent
that the legislature intended to impose a higher burden on
officers wishing to arrest without a warrant for lower-level
offenses, like class B misdemeanors, than for higher-level
offenses. The Utah Code authorizes an officer to make an arrest
for a class B misdemeanor, like driving without insurance, only
if the offense is committed “in the presence” of an officer, but
the remaining subsections of section 77-7-2 authorize an officer
to make an arrest for a more serious offense, such as a felony or
a class A misdemeanor, when there is a showing of “reasonable
cause.”18 Unlike the “reasonable cause” requirement, which
allows an officer to make inferences based on facts known to the
officer,19 an “in the presence” requirement does not allow

19 (...continued)
arises out of “facts and circumstances within the officer’s
knowledge.” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979).
20 93 P.2d 455, 460 (Utah 1939) (interpreting Utah Rev.
Stat. § 46-7-17 (Supp. 1939)).
7 No. 20090125
inferences to be drawn. Rather, this requirement is only
satisfied if the officer actually witnesses the offense. Had the
legislature intended to enable officers to make arrests for class
B misdemeanors based on a showing of reasonable cause, they could
have written the statute accordingly. Therefore, based on the
ordinary meaning of “presence,” the statutory definition of
“presence,” and a reading of section 77-7-2 as a whole, it is
clear that the plain meaning of the “in the presence” requirement
contained in section 77-7-2(1) is that an officer must have
experienced, firsthand through one of his physical senses, all of
the elements of the offense.
¶14 The State urges us to find that an admission of having
committed a public offense satisfies the “in the presence”
requirement set out in Utah Code section 77-7-2(1). The State
relies on Utah Liquor Control Commission v. Wooras, where this
court held that an admission of having committed an offense
satisfied the “in the presence” requirement set forth under the
State Liquor Control Act.20 But where a statute explicitly
defines a term, we do not need to look to case law interpreting
an unrelated seventy-year-old statute for guidance. Here, the
plain language of Utah Code section 77-7-2(1) is clear. The
statute specifically defines the term “presence” and this
definition does not include an exception for an admission of an
offense made prior to an arrest. Because the legislature
explicitly defined the term “presence” and could have, but did
not, include an exception to the “in the presence” requirement
for admissions of guilt, we decline the State’s invitation to
read such an exception into the statute’s plain language.
¶15 In this case, Mr. Harker was arrested for violating
Utah Code section 41-12a-302, which makes operating a motor
vehicle on a Utah highway without insurance a class B
misdemeanor. Thus, the “in the presence” requirement set forth
in section 77-7-2(1) means that an officer must have experienced,
through the officer’s physical senses, that Mr. Harker was
driving on a Utah highway without insurance. Here, it is not
disputed that the officers arrived at the scene of the automobile
accident around ten minutes after Mr. Harker ceased driving his
vehicle. Thus, Mr. Harker did not drive “in the presence” of the
officers.

21 See Virginia v. Moore, 553 U.S. 164, 176-78 (2008). Mr.
Harker does not argue that mere violation of section 77-7-2(1)’s
“in the presence” requirement (apart from any constitutional
violation) requires exclusion of evidence obtained in a search
incident to an arrest not authorized by that statute.
Accordingly, we do not consider whether there is some basis other
than the Fourth Amendment for excluding evidence obtained in a
search incident to an arrest made by an officer without the
authority this statute grants.
22 U.S. Const. amend. IV.
23 367 U.S. 643, 655 (1961).
24 State v. Trane, 2002 UT 97, ¶ 22, 57 P.3d 1052 (quoting
State v. Brown, 853 P.2d 851, 855 (Utah 1992)).
No. 20090125 8
¶16 Because Mr. Harker did not drive “in the presence” of
an officer, and because an admission of having committed a public
offense does not satisfy section 77-7-2’s “in the presence”
requirement, we hold that Mr. Harker’s arrest for driving without
insurance was not authorized by statute. But as discussed below,
even though Mr. Harker’s arrest for driving without insurance was
not authorized by statute, the presence or absence of statutory
authority is not determinative of the constitutional
permissibility of an arrest under the Fourth Amendment, which
requires only that arrests be supported by probable cause.
Because probable cause supported Mr. Harker’s arrest, the
evidence obtained during the search incident to Mr. Harker’s
arrest is still admissible.21
II. MR. HARKER’S ARREST WAS “LAWFUL” UNDER THE CONSTITUTION AND,
THEREFORE, THE SEARCH INCIDENT TO THE ARREST WAS VALID AND THE
EVIDENCE OBTAINED DURING THE SEARCH IS ADMISSIBLE
¶17 The Fourth Amendment to the United States Constitution
provides to the people the right to be secure against
unreasonable searches and seizures.22 Pursuant to the
exclusionary rule announced by the United States Supreme Court in
Mapp v. Ohio, evidence obtained in unreasonable searches and
seizures in violation of the Fourth Amendment is excluded from
criminal proceedings.23 Under the Fourth Amendment,
“‘warrantless searches are per se unreasonable unless undertaken
pursuant to a recognized exception to the warrant
requirement.’”24 One of these exceptions is a search incident to
a lawful arrest. The Supreme Court has made it clear that “in
the case of a lawful custodial arrest a full search of the person

25 United States v. Robinson, 414 U.S. 218, 235 (1973).
26 553 U.S. 164, 174-78 (2008).
27 2002 UT 97, ¶ 25.
28 553 U.S. at 176.
29 Id. at 166.
30 Id. at 176.
9 No. 20090125
is not only an exception to the warrant requirement of the Fourth
Amendment, but is also a ‘reasonable’ search under that
Amendment.”25 At issue here is whether Mr. Harker’s arrest was
“lawful” under the exception to the Fourth Amendment’s warrant
requirement for searches incident to a lawful arrest even though
it was not authorized by Utah statute.
¶18 We recognize the potential for confusion when we and
the United States Supreme Court refer to an arrest not authorized
by statute as a “lawful” arrest. Throughout this opinion, the
term “lawful” refers only to an arrest’s lawfulness under the
United States Constitution. It does not refer to whether the
arrest occurred in violation or without authorization of any
statute. In other words, “lawful,” as used in this context,
means only constitutionally permissible.
¶19 The recent United States Supreme Court decision in
Virginia v. Moore makes it clear that for an arrest to be
“lawful” in the context of searches incident to a lawful arrest,
all that is required is that the arrest be constitutional; and
all the Constitution requires for an arrest to be “lawful” is for
the arrest to be based on probable cause.26 Before the decision
in Moore and without the guidance that case provided, this court
stated in State v. Trane that for an arrest to be “lawful” in the
context of searches incident to a lawful arrest, the arrest must
be supported by the United States Constitution and be authorized
by statute.27 But in Moore, the United States Supreme Court made
clear that statutory authority is not required for a warrantless
arrest to be considered “lawful” under the Fourth Amendment.28
In Moore, the Court addressed, for the first time, the issue
presented here: “whether a police officer violates the Fourth
Amendment by making an arrest based on probable cause but
prohibited by state law.”29 The Court stated that “officers may
perform searches incident to constitutionally permissible arrests
in order to ensure their safety and safeguard evidence.”30 The
Court then defined a constitutionally permissible arrest as “an

31 Id. at 177.
32 Michigan v. DeFillippo, 443 U.S. 31, 37 (1979); see also
Gerstein v. Pugh, 420 U.S. 103, 111 (1975); Adams v. Williams,
407 U.S. 143, 148 (1972); Beck v. Ohio, 379 U.S. 89, 91 (1964);
Brinegar v. United States, 338 U.S. 160, 175–76 (1949); Carroll
v. United States, 267 U.S. 132, 162 (1925).
No. 20090125 10
arrest based on probable cause.”31 Because arrests based on
probable cause are “lawful” under the Fourth Amendment, the
evidence obtained in a search incident to such an arrest is not
excluded.
¶20 The United States Supreme Court has repeatedly defined
probable cause as “facts and circumstances within the officer’s
knowledge that are sufficient to warrant a prudent person, or one
of reasonable caution, in believing . . . that the suspect has
committed, is committing, or is about to commit an offense.”32
While probable cause certainly exists if an offense occurs in the
presence of an officer, it may still exist even if an offense did
not occur in the officer’s presence because an officer could know
of facts that could lead a reasonable and prudent person in the
officer’s position to fairly infer and be justified in believing
that a suspect had committed an offense. Put differently, it is
clearly established that probable cause to support an arrest
under the Fourth Amendment can exist even if the crime is
committed outside the officer’s presence. Indeed, Moore
establishes that a state law requiring an officer’s presence does
not impact the constitutionality of such an arrest.
¶21 In Mr. Harker’s case, even though Officer Osoro did not
see Mr. Harker driving without insurance, a reasonable and
prudent person in Officer Osoro’s position could fairly infer
from the facts known to him, and be justified in believing, that
Mr. Harker had driven his vehicle without insurance. Officer
Osoro responded to a report of a traffic accident and upon
arrival saw two vehicles, one of which was Mr. Harker’s, blocking
traffic on Highway 89. Witnesses told Officer Osoro that Mr.
Harker’s Bronco turned left in front of the oncoming traffic and
caused the accident. There was no indication that any other
person could have been the driver of Mr. Harker’s vehicle. And
when Officer Osoro asked the individuals he believed were
involved in the accident to provide documentation, Mr. Harker
gave Officer Osoro his license, registration, and evidence of
insurance. Furthermore, there is no question that Mr. Harker did
not have valid insurance on the vehicle involved in the accident
because a computer check indicated a lack of insurance, and
Officer Gwillam confirmed that Mr. Harker did not have insurance

33 The court of appeals did not reach the question of
whether Mr. Harker was properly arrested for providing false
evidence of security. Similarly, because we hold that Mr.
Harker’s arrest for driving without insurance was “lawful” under
the United States Constitution and that therefore, the search
incident to Mr. Harker’s arrest was valid under the Fourth
Amendment, we need not address whether Mr. Harker was also
justifiably arrested for providing false evidence of security.
11 No. 20090125
on the vehicle by calling the insurance company listed on the
insurance card that Mr. Harker provided the officers. These
facts certainly satisfy the “reasonable and prudent person”
probable cause standard.
¶22 The only infirmity underlying Mr. Harker’s arrest is
the statutory provision that requires “presence.” While the lack
of presence means that the arrest was made without statutory
authority, Moore makes clear that statutory authority is
irrelevant to an arrest’s constitutionality and, therefore, also
irrelevant to the exclusion of evidence under the Fourth
Amendment.
¶23 So, because the facts known to Officer Osoro, and the
inferences that can fairly be drawn from those facts, could lead
a reasonable and prudent person in Officer Osoro’s position to be
justified in believing that Mr. Harker had committed the offense
of driving without insurance, Officer Osoro had probable cause to
arrest Mr. Harker. Thus, Mr. Harker’s arrest was lawful in the
Fourth Amendment context and the evidence obtained in the search
incident to that arrest is admissible.33
CONCLUSION
¶24 Although Mr. Harker’s arrest did not satisfy the “in
the presence” requirement set forth in Utah Code section 77-7-
2(1), pursuant to Virginia v. Moore, the arrest was nevertheless
“lawful” under the United States Constitution because it was
based on probable cause. Because Mr. Harker’s arrest was
“lawful” under the United States Constitution, the search
incident to Mr. Harker’s arrest was not a violation of the Fourth
Amendment and the evidence obtained during that search need not
be excluded. Accordingly, we affirm.
---
¶25 Chief Justice Durham, Justice Parrish, Justice Nehring,
and Judge Dever concur in Associate Chief Justice Durrant’s
opinion.

126 Justice Wlkins does not participate herein; Dstrict
Judge L. A Dever sat.

No. 20090125 12