State v. Hinmon

2016 UT App 215

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
MATTHEW JAMES HINMON,
Appellant.

Memorandum Decision
No. 20150015-CA
Filed October 27, 2016

Third District Court, West Jordan Department
The Honorable Charlene Barlow
No. 131401457

John B. Plimpton, Heather J. Chesnut, and Alexandra
S. McCallum, Attorneys for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee

JUDGE KATE A. TOOMEY authored this Memorandum Decision, in
which JUDGE MICHELE M. CHRISTIANSEN and SENIOR JUDGE
PAMELA T. GREENWOOD concurred.1

TOOMEY, Judge:

¶1 In this memorandum decision, we determine whether the
trial court erred in denying Matthew James Hinmon’s motion to
suppress evidence. We affirm.

1. Senior Judge Pamela T. Greenwood sat by special assignment
as authorized by law. See generally Utah R. Jud. Admin. 11-
201(6).
State v. Hinmon

BACKGROUND

¶2 In September 2013, a grocery store employee (Employee)
noticed a small green passenger car backed into a parking stall in
the store parking lot. The car, which was next to Employee’s
own vehicle, caught his attention because the passenger side
door was welded shut and because it was parked on the west
side of the parking lot, ‚where most employees park.‛ Two
people were sitting in the car. As Employee approached his own
car, a man seated in the passenger seat saw him, ‚lurched
forward‛ to cover something in his lap, and looked over at
Employee ‚in a manner that struck [Employee+ as suspicious.‛
Looking through the window on the driver’s side of the vehicle,
Employee saw a towel on the man’s lap ‚with a bunch of pink
balloons‛ on top of the towel.

¶3 The number of balloons seemed too many ‚for just
personal use,‛ and Employee suspected a drug transaction. He
radioed the store manager and the security guard (Guard) to
‚come out and handle‛ the situation. Guard worked part time at
the grocery store and was a full-time peace officer with the Utah
Division of Wildlife Resources. He had worked with the Division
for twenty-five years. At the time of the incident, he was wearing
a gun belt, a gold name badge, and a dark blue uniform, which
‚looks like‛ ‚a police officer’s uniform.‛ Employee met the
manager and Guard as they emerged from the store, and
explained the situation to them. Employee described the car as a
‚little small green vehicle,‛ told them where it was parked, and
that it had been backed into the stall. He also described the
passenger’s ‚suspicious‛ reaction, and said the passenger had a
towel across his lap and was ‚twisting up‛ little pink balloons.
He disclosed his suspicions that the passenger was involved in a
drug transaction, and more specifically, that he assumed the
passenger was selling heroin to the driver.

¶4 Guard decided to investigate, and he and the manager
moved toward the car Employee had described. Guard
approached it from behind and peered into the window on the

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passenger’s side without being noticed by either occupant. As
Guard looked over the passenger’s shoulder, he saw a towel on
the man’s lap and observed him manipulating something ‚on
the towel in the middle of his lap.‛

¶5 The next events happened in rapid succession. As Guard
moved closer, the passenger looked up at him and froze. Guard
called out, ‚Don’t move.‛ The passenger briefly hesitated, then
grabbed what was in his lap and ‚thr*ew+ his hands toward the
floor of the vehicle.‛ He yelled at the driver to ‚take off, take off‛
and to ‚just drive, just drive‛ and reached toward the car’s
gearshift. When Guard saw the passenger’s hands shove
something towards the floor, he thought the passenger was
either ‚hiding contraband‛ or ‚going for a weapon.‛ Guard
reached inside the open passenger window to grab the
passenger’s hands and restrain him, saying, ‚Police, you are
under arrest.‛

¶6 A struggle ensued. Guard continued trying to restrain the
passenger’s hands and told him repeatedly to ‚quit resisting‛
and to ‚stop resisting arrest.‛ The passenger freed his right hand
and reached toward the driver with a clenched fist, telling her to
‚eat this,‛ but she shook her head. In an attempt to free himself
from Guard’s grip, the passenger ‚lurched really hard up over
the seat‛ so that his head was in the backseat and his feet were in
the passenger seat. He tried to ‚shov[e] something in his
mouth,‛ but ‚a little pink balloon bounce*d+ off and roll[ed] into
the backseat.‛ While Guard struggled to restrain the passenger,
the manager was on the driver’s side of the car. The manager
saw the balloon when it fell and immediately picked it up from
the backseat. Eventually, the manager and Guard restrained and
arrested the passenger, who was later identified as Hinmon. A
police officer soon arrived and field tested the contents of the
pink balloon, which tested positive for heroin.

¶7 Hinmon was charged with possession of a controlled
substance and interfering with an arresting officer. He moved to
suppress the evidence of the pink balloon and the results of the

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field test as the fruit of an unconstitutional search. The trial court
held an evidentiary hearing at which Employee, the manager,
and Guard each testified. After hearing oral argument and
reviewing hearing transcripts, witness statements, and
memoranda from both sides, the court entered detailed findings
of fact and conclusions of law.

¶8 The court determined that Guard had initiated an
investigatory stop when he told Hinmon, ‚Don’t move.‛ It also
concluded that Guard had reasonable suspicion to make the
stop: Employee’s tip was from a citizen informant and ‚highly
reliable,‛ ‚sufficiently detailed,‛ and confirmed by Guard. Next,
the court determined that Guard arrested Hinmon when he
attempted to restrain Hinmon’s hands.2 The court also
concluded Guard had probable cause for this arrest because after
Guard told Hinmon not to move, Hinmon reacted by shoving
everything in his lap to the floor, reaching for the gearshift, and
yelling at the driver to ‚take off.‛ This reaction, combined with
Employee’s tip and Guard’s investigation, was enough to show
an objectively reasonable high probability of criminal activity.‛
Accordingly, the court denied Hinmon’s motion to suppress,
and Hinmon entered a Sery plea reserving the right to appeal the
trial court’s ruling.3

2. The trial court determined that Guard was acting under the
color of law when he detained and arrested Hinmon. This is not
disputed on appeal. Hinmon also does not contend that Guard
lacked the authority to detain or arrest him.

3. A Sery plea allows a defendant to enter a conditional guilty
plea while reserving the right to appeal a court’s decision on a
motion. See, e.g., State v. Rivera, 943 P.2d 1344, 1344–45 (Utah
1997).

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State v. Hinmon

ISSUES AND STANDARDS OF REVIEW

¶9 Hinmon contends the trial court erred when it denied his
motion to suppress. A trial court’s decision to grant or deny a
motion to suppress presents a ‚mixed question of law and fact.‛
State v. Fuller, 2014 UT 29, ¶ 17, 332 P.3d 937. The court’s factual
findings are reviewed for clear error, while its legal conclusions
are reviewed for correctness. Id. Hinmon further alleges the
court made four clearly erroneous findings of fact. We will set
aside the trial court’s factual findings as clearly erroneous only if
they are ‚against the clear weight of the evidence, or if *we+
otherwise reach[] a definite and firm conviction that a mistake
has been made.‛ Brown v. State, 2013 UT 42, ¶ 37, 308 P.3d 486
(alterations in original) (citation and internal quotation marks
omitted).

ANALYSIS

¶10 The United States Constitution protects citizens from
unreasonable searches and seizures. U.S. Const. amend. IV. Our
case law outlines three different types of permissible law
enforcement encounters: consensual encounters, investigatory
stops, and arrests. See State v. Applegate, 2008 UT 63, ¶¶ 8–9, 194
P.3d 925. Only the latter two types are at issue here. For an
investigatory stop, an officer must have reasonable, articulable
suspicion that criminal activity has taken place. State v. Worwood,
2007 UT 47, ¶ 23, 164 P.3d 397. To effect a reasonable,
warrantless arrest, an officer must have probable cause to
believe that a crime has been committed. State v. Hansen, 2011
UT App 242, ¶ 8, 262 P.3d 448 (citing Devenpeck v. Alford, 543
U.S. 146, 152 (2004)). ‚*E+vidence obtained in unreasonable
searches and seizures in violation of the Fourth Amendment is
excluded from criminal proceedings.‛ State v. Harker, 2010 UT
56, ¶ 17, 240 P.3d 780.

¶11 Hinmon contends that the trial court erred in concluding
Guard had reasonable suspicion to initially detain Hinmon, and

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that the court erred in concluding Guard had probable cause to
arrest him. Hinmon also alleges that the court clearly erred in
making four particular findings of fact. We address Hinmon’s
challenges to these findings of fact within our discussion of the
ultimate issues of reasonable suspicion and probable cause.

I. Reasonable Suspicion

¶12 First, Hinmon claims Guard ‚lacked reasonable suspicion
when he performed an investigatory detention of [him].‛4
Reasonable suspicion requires that officers ‚be able to point to
specific facts which, considered with rational inferences from
those facts, reasonably warrant‛ the detention. State v. Warren,
2003 UT 36, ¶ 14, 78 P.3d 590. Reasonable suspicion ‚is
dependent upon both the content of information possessed by
police and its degree of reliability.‛ Navarette v. California, 134
S. Ct. 1683, 1687 (2014) (quoting Alabama v. White, 496 U.S. 325,
330 (1990)). ‚Both factors—quantity and quality—are considered
in the totality of the circumstances.‛ White, 496 U.S. at 330
(citation and internal quotation marks omitted).

¶13 Here, Guard relied on a tip provided by an identified
citizen informant—Employee. Reasonable suspicion may be
based on an informant’s tip. See State v. Roybal, 2010 UT 34,
¶¶ 14–15, 20, 232 P.3d 1016. The Utah ‚Supreme Court has
declined to adopt a ‘rigidly exact*ing+’ standard in assessing an
informant’s tip and instead undertakes a ‘flexible, common sense

4. Hinmon contends the trial court clearly erred when found that
Guard did not identify himself as the police when he said,
‚Don’t move.‛ There is conflicting testimony in the record on
this point, but neither party disputes that Guard’s words
initiated an investigatory stop. Because this fact has no bearing
on whether Guard had reasonable suspicion at the time he
detained Hinmon, we need not decide whether the finding is
clearly erroneous.

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State v. Hinmon

test’ with a view toward the ‘totality of the facts and
circumstances.’‛5 State v. Lloyd, 2011 UT App 323, ¶ 15, 263 P.3d
557 (alteration in original) (quoting State v. Saddler, 2004 UT 105,
¶¶ 10–27, 104 P.3d 1265). When determining whether a tip was
sufficiently reliable to support a conclusion that reasonable
suspicion existed, we look to the ‚‘indicia of veracity, reliability,
and basis of knowledge’‛ as ‚‘non-exclusive elements.’‛ Id.
(quoting Saddler, 2004 UT 105, ¶ 11). Officer corroboration of the
tip may also be considered. See State v. Keener, 2008 UT App 288,

5. Hinmon relies on a case from this court that uses a three-factor
test to determine whether reasonable suspicion may be based on
a citizen informant’s tip. State v. Rose, 2015 UT App 49, ¶ 10, 345
P.3d 757 (A citizen informant’s tip ‚creates reasonable suspicion
if the information (1) is reliable, (2) provides sufficient detail of
the criminal activity, and (3) is confirmed by the investigating
officer.‛); see also State v. Street, 2011 UT App 111, ¶ 7, 251 P.3d
862 (applying the same test). But in light of the Utah Supreme
Court’s decision State v. Saddler, 2004 UT 105, 104 P.3d 1265,
rigid application of these three factors is not mandated. Id. ¶¶ 9–
10. Saddler determined that this court had ‚developed th*e+
three-factor analysis in the absence of any direction‛ from the
Utah Supreme Court and that ‚such an exacting analysis is ill-
suited to conducting a commonsense probable cause
determination . . . .‛ Id. ¶ 10. While these factors may be useful in
determining whether a tip creates reasonable suspicion, they are
not mandatory—not all three factors are required to find
reasonable suspicion, and they are not the only relevant factors
that may be considered in the totality of the circumstances. See
Illinois v. Gates, 462 U.S. 213, 230–31, (1983); Saddler, 2004 UT 105,
¶ 11; see also State v. Roybal, 2010 UT 34, ¶ 20, 232 P.3d 1016
(discerning reasonable suspicion based solely on a citizen
informant’s report, without officer corroboration). Although
these three factors are relevant to our inquiry here, Saddler
requires we apply a totality of the circumstances analysis instead
of the three-part test.

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¶ 12 n.4, 191 P.3d 835 (explaining that officer corroboration may
be used to establish probable cause).

¶14 Information from identified citizen informants ‚is
generally considered highly reliable,‛ Roybal, 2010 UT 34, ¶ 16
(citation and internal quotation marks omitted), and ‚needs no
independent proof of reliability or veracity,‛ State v. Comer, 2002
UT App 219, ¶ 22, 51 P.3d 55 (citation and internal quotation
marks omitted). Reliability can also be assumed when a citizen
‚receives nothing from the police in exchange for the
information.‛ See State v. Purser, 828 P.2d 515, 517 (Utah Ct. App.
1992).

¶15 Hinmon argues Employee’s tip was unreliable because
‚there was no evidence that he ‘had a sufficient basis of
knowledge for concluding that the occupants of the car’ were
engaged in drug activity.‛ (Quoting Lloyd, 2011 UT App 323,
¶ 17.) In State v. Lloyd, a caller identified only by her first name
told the police that people were ‚smoking drugs‛ in a car
outside her apartment building. 2011 UT App 323, ¶ 2. Although
the caller told the police she could see and smell that the
individuals were smoking drugs, there was not enough
information to determine whether she had a sufficient basis of
knowledge to support that conclusion. Id. ¶ 17. This court
therefore concluded the informant’s tip alone was not enough to
justify reasonable suspicion. Id.

¶16 The facts in this case differ from those in Lloyd. Employee
was an identified citizen informant, as he had worked at the
grocery store for seven years and Guard had known him for a
number of those years. Employee was not compensated or given
any other incentive for his report. Thus, his report is given
‚presumptive reliability.‛ State v. Rose, 2015 UT App 49, ¶ 11,
345 P.3d 757. Furthermore, Employee supplied Guard with
detailed information about what was happening. This allowed
Guard to determine from his own experience, based on the facts
given, whether a crime was taking place, instead of relying on
Employee’s experience or basis of knowledge for that

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conclusion.6 See Warren, 2003 UT 36, ¶ 14 (explaining that due
weight must be given to specific reasonable inferences drawn
from an officer’s experience, which allows officers to make
determinations based on facts that may elude an untrained
person).

¶17 Employee provided a reliable, detailed tip. The tip
described the car, its location, and its position. The tip also
described in detail the activity of the car’s occupants, including
that Hinmon had been manipulating pink balloons on a towel in
his lap and that he had ‚lurched forward‛ to hide what he was
doing when Employee walked by. Guard’s investigation
corroborated Employee’s report. Although Guard did not see
any balloons before he detained Hinmon, he found the car
exactly as Employee had described it: a small, green vehicle,
parked on the west side of the grocery store, and backed into the
parking stall.7 Hinmon also matched Employee’s description—

6. Hinmon claims the trial court erred when it found that
Employee told Guard he believed the balloons contained drugs
and thought a drug transaction was occurring ‚based upon his
experience.‛ Hinmon contends that although Employee gave his
opinion on the nature of the activity, he never mentioned having
any experience with drugs to Guard. But because Employee
gave sufficient detail about the activity, Guard could have relied
on his own experience to reach similar conclusions. See State v.
Warren, 2003 UT 36, ¶ 14, 78 P.3d 590. Therefore, even if
Employee did not mention his experience to Guard, Guard still
had enough information to reasonably suspect criminal activity.

7. Hinmon also alleges the trial court erred by finding that
Employee told Guard ‚he believed the *car+ was backed into the
stall for a quick get-away.‛ (Emphasis added.) Because there is
reasonable suspicion without factoring in this particular finding,
we need not determine whether the court clearly erred in
making it.

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he was seated in the passenger seat, manipulating something on
a towel in his lap. Guard had twenty-five years of experience as
a peace officer, during which time he gained extensive patrol,
citation, and arrest experience. Considering the totality of the
circumstances—including the information that Guard was given
and his personal observations—it was reasonable for Guard to
suspect criminal activity was taking place. See State v. Worwood,
2007 UT 47, ¶ 23, 164 P.3d 397. The trial court was thus correct in
determining that reasonable suspicion justified the detention.

II. Probable Cause

¶18 Next, Hinmon claims Guard lacked probable cause to
make the arrest. Probable cause justifying arrest requires that the
facts and circumstances within the arresting officer’s knowledge
be sufficient to warrant a prudent person in believing that a
crime has been committed. State v. Hansen, 2011 UT App 242,
¶ 10, 262 P.3d 448 (citing Michigan v. DeFillippo, 443 U.S. 31, 37
(1979)). The inquiry is a ‚practical, common-sense decision
whether, given all the circumstances . . . , there is a fair
probability that contraband or evidence of a crime will be found
in a particular place.‛ Illinois v. Gates, 462 U.S. 213, 238 (1983).
‚Whether probable cause exists depends upon the reasonable
conclusion to be drawn from the facts known to the arresting
officer at the time . . . .‛ Devenpeck v. Alford, 543 U.S. 146, 152
(2004). ‚We must examine the ‘totality of the circumstances’ to
determine whether the informant[’s] tip[], together with police
observations, provided probable cause to arrest [the defendant+.‛
State v. Anderson, 910 P.2d 1229, 1233 (Utah 1996) (quoting Gates,
462 U.S. at 238).

¶19 Between the time Guard detained Hinmon by ordering
him not to move and arrested him by attempting to restrain his
hands, the trial court found that Hinmon shoved what was on
his lap to the floor, told the driver to ‚take off‛ and ‚just drive,‛
and reached toward the gearshift. Our inquiry is whether these
actions, in combination with the information Guard already had,

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are enough to give Guard probable cause to believe that criminal
activity was taking place.

¶20 Hinmon contends the trial court clearly erred when it
made these particular findings of fact. He does not dispute that
these three things occurred, but disputes the court’s finding of
the order in which they occurred. Specifically, Hinmon asserts
that he did not tell the driver to ‚take off‛ and ‚just drive‛ or
reach for the gearshift until after Guard had attempted to restrain
him. Hinmon also claims the trial court’s other findings were
inconsistent with this particular order of events—finding that
Hinmon said ‚start the car‛ and ‚go, go‛ while he and Guard
were already struggling, and finding that Guard reached for
Hinmon’s hands ‚*a+s soon as *Hinmon+ lunged to the floor‛ and
‚push[ed] everything off of his lap.‛

¶21 We defer to a trial court’s findings of fact unless they are
clearly erroneous. State v. Green, 2005 UT 9, ¶ 25, 108 P.3d 710.
‚For a reviewing court to find clear error, it must decide that the
factual findings made by the trial court are not adequately
supported by the record, resolving all disputes in the evidence in
a light most favorable to the trial court’s determination.‛ Id.
(citation and internal quotation marks omitted). This is a ‚highly
deferential‛ standard because the trial court is ‚considered to be
in the best position to assess the credibility of witnesses and to
derive a sense of the proceeding as a whole, something an
appellate court cannot hope to garner from a cold record.‛ Id.
(citation and internal quotation marks omitted).

¶22 In reviewing the record on the precise order of events,
there are inconsistencies among the testimonies and in the
factual findings. But according to the manager’s testimony, after
Guard ordered Hinmon not to move, Hinmon ‚moved forward,
shoved everything that was in his lap to the ground and started
yelling to the driver to take off, take off.‛ When the prosecutor
asked him what happened next, the manager testified that
Hinmon ‚started screaming, *t+ake off, take off, and it looked
like he was reaching for the gearshift.‛ The record thus

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adequately supports the trial court’s finding as to the order of
events. The court therefore did not clearly err, and any
inconsistencies can be resolved in a light most favorable to this
determination. See id.

¶23 The State argues that Hinmon’s attempt to conceal the
evidence and flee, in conjunction with Employee’s tip and
Guard’s own observations, gave rise to probable cause. It asserts
that furtive movements, when coupled with other facts, can
support probable cause. The United States Supreme Court has
stated that

deliberately furtive actions and flight at the
approach of strangers or law officers are strong
indicia of mens rea, and when coupled with
specific knowledge on the part of the officer
relating the suspect to the evidence of crime, they
are proper factors to be considered in the decision
to make an arrest.

Sibron v. New York, 392 U.S. 40, 66–67 (1968).

¶24 Hinmon disagrees with the State and cites four cases,
claiming that the furtive movements of the defendants were not
enough to justify an arrest or a search. See State v. Schlosser, 774
P.2d 1132, 1138 (Utah 1989) (holding that defendant’s ‚turning to
the left and to the right, appearing fidgety, bending forward, and
turning to look at the officer‛ were not enough to ‚show a
reasonable probability that criminal conduct had occurred‛);
State v. Parke, 2009 UT App 50, ¶¶ 3, 10–11, 18, 205 P.3d 104
(holding that defendant’s shoulder movement, which appeared
to show him reaching for his waistband, was not enough to
support a reasonable suspicion that he was armed); State v.
Martinez, 2008 UT App 90, ¶ 2 n.3, 182 P.3d 385 (stating that
behavior like moving arms and bending forward as if putting
something on the floorboard does not alone establish reasonable
suspicion); State v. Holmes, 774 P.2d 506, 511–12 (Utah Ct. App.

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1989) (holding that a defendant’s ‚attempt to stuff [a] roll of
paper towels down between the car seat and the console,‛
standing alone, was not enough to establish probable cause).

¶25 These cases are distinguishable. Schlosser, Parke, and
Holmes all involved traffic stops, where the defendant’s furtive
movements or acts of concealment alone were not sufficient to
give reasonable suspicion or probable cause of a separate crime.
In this case, Guard already had reasonable suspicion that
Hinmon was involved in drug activity. From Employee’s report
and his own observations, Guard had a reasonable suspicion
that Hinmon was in possession of contraband. Hinmon’s
reaction to Guard’s commands—trying to conceal what was on
his lap, and trying to flee from Guard’s presence—was enough
to support a reasonable probability that Hinmon was involved in
criminal activity, when considered with the information that
Guard already had. In Martinez, while the defendant made
furtive movements, the combination of the information the
officer received from a dispatch report and his own observations
was enough to give the officer reasonable suspicion of criminal
activity. 2008 UT App 90, ¶¶ 8, 9. None of these cases
undermines our conclusion that furtive movements, acts of
concealment, and attempts to flee, in conjunction with other
information that criminal activity is taking place, can support a
finding that probable cause exists. See Sibron, 392 U.S. at 66–67.

¶26 In sum, when Guard detained Hinmon, he had reasonable
suspicion that Hinmon was involved in drug activity. As soon as
Guard detained him by telling him not to move, Hinmon’s
reaction—shoving what was in his lap to the floor, reaching for
the gearshift, and yelling at the driver to take off—showed that
Hinmon was attempting to conceal evidence and flee. This
provided a ‚fair probability‛ of a crime—enough that a prudent
person would believe a crime was being committed. See Illinois v.
Gates, 462 U.S. 213, 238 (1983); State v. Hansen, 2011 UT App 242,
¶ 10, 262 P.3d 448. Thus the trial court did not err in determining
that Guard had probable cause to arrest Hinmon.

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CONCLUSION

¶27 To the extent that we rely on the trial court’s contested
findings of fact, we conclude the court’s findings were not
clearly erroneous. We further conclude that Guard had
reasonable suspicion to detain Hinmon and probable cause to
arrest him.

¶28 Affirmed.

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