ASRawlings.WriteSampAppBrief

IN THE SUPREME COURT OF UTAH
STATE OF UTAH,
Respondent/Appellee,
vs.
JOSEPH PAUL HOUSE,
Petitioner/Appellant
Supreme Court No: 20139999-SC
Trial Court No: 11999999999
ON CERTIFICATION FROM THE UTAH COURT OF APPEALS
BEFORE THE HONORABLE PRESIDING JUDGE CAROLYN B. MCHUGH
BRIEF OF RESPONDENT/APPELLEE
Interlocutory Appeal from order denying Defendant’s Motion to Suppress,
entered in the Third Judicial Court, in and for Salt Lake County,
the Honorable Judge Todd Shaughnessy, presiding.
ANDREW S. RAWLINGS (15235)
Assistant Utah Attorney General
JOHN E. SWALLOW (5802)
Utah Attorney General
160 East 300 South, Fifth Floor
P. O. Box 140858
Salt Lake City, Utah 84114-0858
Telephone: (801) 635-8842
Attorney for Respondent/Appellee
UTAH ATTORNEY GENERAL’S OFFICE
Salt Lake City, Utah 84112
Telephone: (801) 555-1221
Telephone: (801) 555-1221
Attorney for Petitioner/Appellant

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TABLE OF CONTENTS
TABLE OF AUTHORITIES ..............................................................................................iv
JURISDICTION.................................................................................................................. 1
ISSUES PRESENTED ON APPEAL................................................................................... 1
CONSTITUTIONAL PROVISIONS, STATUTES AND RULES....................................... 2
STATEMENT OF THE CASE.............................................................................................. 2
I. NATURE OF THE CASE, COURSE OF PROCEEDINGS
& DISPOSITION BELOW ....................................................................................... 2
II. STATEMENT OF RELEVANT FACTS ...................................................................... 3
A. Officer Daley’s Experience and The Break-In Investigation............. 3
B. The Consensual Encounter ................................................................ 3
C. The Investigative Detention; Pat-Down Search................................. 5
D. Procedural Facts................................................................................ 5
SUMMARY OF THE ARGUMENT..................................................................................... 5
ARGUMENT ...................................................................................................................... 8
I. THE DISTRICT COURT CONCLUDED CORRECTLY THAT THE INITIAL
ENCOUNTER BETWEEN OFFICER DALEY AND HOUSE WAS CONSENSUAL
BECAUSE OFFICER DALEY DID NOT RESTRICT HOUSE’S FREEDOM TO
LEAVE, AND HOUSE FELT FREE TO TERMINATE THE ENCOUNTER ....................... 9
A. House’s testimony that he felt free to leave is relevant in
determining the consensual nature of the encounter under the
reasonable person standard............................................................. 11
B. Officer Daley was the only officer interacting with House,
suggesting that the encounter was consensual rather than a
level two detention because there was no “threatening

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presence” of other officers that would compel a reasonable
person to stay ................................................................................... 13
C. Officer Daley did not use any show of force, such as drawing
his gun or flashing his police lights, which might compel an
individual to remain engaged with the police when he or she
would otherwise leave...................................................................... 13
D. Officer Daley spoke in a permissive, everyday tone, lacking
any authoritative forcefulness or commanding language that
would compel compliance................................................................ 15
E. Based on the totality of the circumstances, the district court
ruled correctly that the initial encounter between House and
Officer Daley was consensual.......................................................... 17
II. THE DISTRICT COURT CONCLUDED CORRECTLY THAT AFTER MAKING
INITIAL CONTACT WITH HOUSE, OFFICER DALEY REASONABLY
SUSPECTED HE WAS INVOLVED IN CRIMINAL ACTIVITY AND WAS ARMED
AND DANGEROUS, THUS JUSTIFYING THE WEAPONS PAT-DOWN SEARCH.......... 19
A. Officer Daley developed reasonable suspicion that House
was engaged in criminal activity because he was the only
individual within the vicinity after the suspicious break-in
call; he appeared to be evading police; and because he
claimed he was not carrying weapons, even though Officer
Daley had already seen the knife in his pocket and the bulge
beneath his coat ............................................................................... 21
1. The fact that House was the only individual in the
area after the officers investigated the break-in call
is a relevant factor in assessing Officer Daley’s
reasonable suspicion........................................................ 23
2. House’s evasive behavior, suggesting that he
wanted to avoid the police, also contributed to
Officer Daley’s reasonable suspicion that House
was engaged in criminal activity..................................... 24
3. House’s lie that he was not carrying any weapons,
the bulge beneath his coat where he was carrying
the gun, and the knife in his pocket all

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substantiated the officer’s suspicion that he was
engaged in criminal activity ............................................ 25
B. Officer Daley’s belief that House was armed and dangerous
was reasonable because of the bulge beneath House’s coat
and the knife in his pocket, despite House’s claim that he was
not carrying any weapons................................................................ 27
CONCLUSION ................................................................................................................. 30
CERTIFICATE OF COMPLIANCE.................................................................................. 31
CERTIFICATE OF SERVICE........................................................................................... 32

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TABLE OF AUTHORITIES
STATE CASES PAGE P
People v. McGowan,
370 N.E.2d 537 (Ill. 1977)........................................................................................... 26
People v. Myles,
(1975) 123 Cal.Rptr. 348, 50 Cal.App.3d 423.............................................................26
Salt Lake City v. Ray,
2000 UT App 55, 998 P.2d 274................................................................................... 13
State v. Adams,
2007 UT App 117, 158 P.3d 113..................................................................... 11, 13, 14
State v. Alvey,
2007 UT App 161, 2007 WL 1365457.............................................................17, 18, 19
State v. Applegate,
2008 UT 63, 194 P.3d 925......................................................................................... 1, 2
State v. Baker,
2010 UT 18, 229 P.3d 650........................................................................................... 12
State v. Brake,
2004 UT 95, 103 P.3d 699....................................................................................... 2, 26
State v. Carter,
707 P.2d 656 (Utah 1985)............................................................................................ 26
State v. Chapman,
921 P.2d 446 (Utah 1996)........................................................................................ 9, 20
State v. Gardner,
2011 UT App 192, 257 P.3d 1086........................................................................ 28, 29
State v. Gurule,
2013 UT 58, 2013 WL 5458959.................................................................................. 28
State v. Hansen,
2002 UT 125, 63 P.3d 650................................................................. 2, 8, 10, 14, 15, 17

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State v. Higgins,
884 P.2d 1242 (Utah 1994).......................................................................................... 17
State v. Humphrey,
937 P.2d 137 (Utah Ct.App. 1997).............................................................................. 24
State v. Jackson,
805 P.2d 765 (Utah Ct.App. 1990).............................................................................. 10
State v. Markland,
2005 UT 26, 112 P.3d 507........................................................................... 9, 11, 22, 25
State v. Martinez,
2008 UT App 90, 182 P.3d 385................................................................................... 22
State v. Merworth,
2006 UT App 489, 153 P.3d 775................................................................................. 15
State v. Mogen,
2002 UT App 235, 52 P.3d 462................................................................................... 14
State v. Patefield,
927 P.2d 655 (Utah Ct.App. 1996).............................................................................. 11
State v. Perkins,
2009 UT App 390, 222 P.3d 1198..............................................................14, 15, 16, 19
State v. Peterson,
2005 UT 17, 110 P.3d 699........................................................................................... 28
State v. Rochell,
850 P.2d 480 (Utah Ct.App. 1993).............................................................................. 29
State v. Steward,
806 P.2d 213 (Utah Ct.App. 1991).............................................................................. 23
State v. Trujillo,
739 P.2d 85 (Utah Ct.App. 1987)................................................................................ 22
State v. Warren,
2001 UT App 346, 37 P.3d 270............................................................................ 20, 29
State v. Warren,
2003 UT 36, 78 P.3d 590............................................................................11, 20, 27, 28

vi
State v. White,
856 P.2d 656 (Utah Ct.App. 1993).............................................................................. 26
State v. Wilkinson,
2009 UT App 202, 216 P.3d 973........................................................................... 20, 28
FEDERAL CASES PAGE P
Adams v. Williams,
407 U.S. 143 (1972)..................................................................................................... 28
Elkins v. United States,
364 U.S. 206 (1960)....................................................................................................... 8
Florida v. Bostick,
501 U.S. 429 (1991)................................................................................................. 9, 10
Illinois v. Wardlow,
528 U.S. 119 (2000)......................................................................................... 23, 24, 25
Michigan v. Long,
463 U.S. 1032 (1983)................................................................................................... 22
Parker v. Matthews,
567 U.S. ____ (2012), 132 S.Ct. 2148, 183 L. Ed. 2d 32..................................... 20, 27
Schneckloth v. Bustamonte,
412 U.S. 218 (1973).............................................................................................. 10, 18
Terry v. Ohio,
392 U.S. 1 (1968)........................................................................... 10, 14, 19, 20, 21, 27
United States v. Arvizu,
534 U.S. 266 (2002)......................................................................................... 21, 25, 28
United States v. Cortez,
449 U.S. 411 (1981)......................................................................................... 22, 25, 29
United States v. Elliott,
107 F.3d 810 (10th Cir. 1997) ..................................................................................... 15

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United States v. Hill,
199 F.3d 1143 (10th Cir. 2003) ............................................................................ 10, 17
United States v. Mendenhall,
446 U.S. 544 (1980)......................................................................................... 14, 15, 24
United States v. Place,
463 U.S. 696 (1983)..................................................................................................... 22
United States v. Ringold,
335 F.3d 1168 (10th Cir. 2003) ........................................................................11, 13, 14
United States v. Sokolow,
490 U.S. 1 (1989)......................................................................................................... 28
STATUTES PAGE P
UTAH CODE ANN. § 78A-3-102(3)(b)................................................................................. 1
CONSTITUTIONAL PROVISIONS PAGE P
U.S. CONST. AMEND. IV ................................................................................................. 2, 8
OTHER AUTHORITIES PAGE P
4 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 9.6(a) (4th ed. 2004).............................. 29

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JURISDICTION
House seeks interlocutory review of the Third district Court’s April 5, 2012 denial
of his Motion to Suppress Evidence. The Utah Court of Appeals granted House’s Petition
for Interlocutory Review on November 1, 2012 and certified the case to the Utah
Supreme Court pursuant to UTAH R. APP. P. 23. This Court therefore has jurisdiction
under UTAH CODE ANN. § 78A-3-102(3)(b).
ISSUES PRESENTED ON APPEAL
Issue No. 1: Whether the district court correctly ruled that the initial encounter
between Officer Daley and House was consensual. E.g., (i) whether the district court
correctly found that Officer Daley did not use force or coercion when asking House’s
permission to speak with him; and (ii) whether the district court correctly found that
House felt free to leave or otherwise terminate the encounter.
Issue No. 2: Whether the district court correctly ruled that Officer Daley
developed reasonable suspicion to justify a stop-and frisk, where: (i) House was the only
visibly apparent individual in a neighborhood where a break-in had just been reported;
(ii) House appeared to be evading police; (iii) House had an uncharacteristic bulge
beneath his clothing and a knife partially visible in his pocket; and (iv) House lied about
carrying any weapons on his person.
Standard of Review and Preservation: Because “a district court is in a unique
position to assess the credibility of witnesses and weigh the evidence,” a reviewing court
“may not substitute its judgment as to a factual question unless the district court's finding

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is clearly erroneous.” State v. Hansen, 2002 UT 125, ¶ 48. Thus, this Court “review[s] for
clear error the factual findings underlying [the denial] of a motion to suppress.” State v.
Applegate, 2008 UT 63, ¶ 5. In search and seizure cases, however, no deference is given
to a trial court’s “application of law to the underlying facts.” State v. Brake, 2004 UT 95,
¶ 15. As such, this Court reviews a trial court’s legal conclusions in denying a motion to
suppress for correctness. Applegate, 2008 UT 63, ¶ 5. House preserved both issues in his
Motion to Suppress Evidence and oral arguments before the district court. R.3, 103.
CONSTITUTIONAL PROVISIONS, STATUTES AND RULES
U.S. CONST. AMEND. IV:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
UTAH CODE ANN. § 73A-3-102(3)(b):
The Supreme Court has appellate jurisdiction, including jurisdiction of
interlocutory appeals, over cases certified to the Supreme Court by the
Court of Appeals prior to final judgment by the Court of Appeals.
STATEMENT OF THE CASE
I. NATURE OF THE CASE, COURSE OF
PROCEEDINGS & DISPOSITION BELOW
The defendant, Joseph Paul House, was charged with being a felon in possession
of a firearm in violation of UTAH CODE § 76-10-503(3). R. 1, 140. Subsequently House
moved to suppress evidence, claiming that Officer Aaron Daley did not have the requisite

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reasonable suspicion to detain and frisk him for weapons, and thereby violated his Fourth
Amendment rights. R. 140. After hearing testimony from both Officer Daley and House,
R. 4-134, the district court concluded that the initial encounter between the two was
consensual and therefore did not require reasonable suspicion. R. 146. The court also
found that, based on safety concerns, Officer Daley’s pat-down search of House was
justified, and therefore denied House’s Motion to Suppress. R. 146. House thereafter filed
a Petition for Interlocutory Review of the district court’s denial, which the Utah Court of
Appeals granted and then certified to the Utah Supreme Court. R. 147-48.
I. RELEVANT FACTS
A. Officer Daley’s Training and Experience; the Break-In Investigation
Officer Aaron Daley is a police officer with over eleven years of law enforcement
experience. R. 10. He currently works in the community policing division of West Valley
Police Department. R. 10. He spent three years prior in the metro gang unit where he
received training in the suspicion and identification of armed individuals. R. 10-11, 93.
On November 20, 2009, the Officer Daley was dispatched to a neighborhood around
6200 South 4800 West in West Jordan, Utah to investigate a possible break in. R. 1, 11.
After investigating, Officer Daley and the other officers found no evidence of a break in
but could not rule out the possibility that an intruder had been in the home. R. 44.
B. Consensual Encounter
As Officer Daley began walking back to his car, he noticed House walking east on
Aspen Park Drive toward an intersection. R. 1, 13. Officer Daley noticed that House
changed his direction when another marked police car stopped at the intersection, giving

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the impression that House was trying to avoid contact with the police. R. 1-2, 14, 136.
Officer Daley decided to see where House was going because of the break-in call to
which he had responded and House’s perceived avoidance of the police. R. 2, 44. Officer
Daley got into his car, Daley around the cul-de-sac, and began slowly following House.
R. 15. Officer Daley did not turn on his police lights or indicate to House that he was
trying to stop him. R. 57. The officer noticed that when he neared the intersection where
House was located, it appeared that House was avoiding eye contact with him. R. 16.
House continued to walk westbound, and Officer Daley then got out of his police
car and asked House if he could talk to him. R. 2, 16. House did not respond, so Officer
Daley began walking behind him, and asked a second time if he could speak with him:
“Hey, can I talk to you? Hey, can I ask you a few questions?” R. 2, 16-17, 137. House
heard the officer this time, turned around, and Officer Daley noticed that House had been
talking on his cell phone. R. 2, 16. Officer Daley then asked House to get off his phone
so he could answer the officer’s questions. R. 17, 137. House told the officer to “hold
on” to tell the person on the other end that he would call them back because a police
officer wanted to talk to him, and then hung up. R. 17, 57, 137. House testified that at
this point he felt free to leave but decided to stay because Officer Daley was trying to ask
him some questions. R. 57, 137. As Officer Daley continued approaching, he noticed that
House had his hand inside the left side of his coat pocket over some sort of bulge. R. 18,
38, 138. The Officer then asked House and if he had any weapons, to which House
replied no. R. 18, 38, 138.
C. The Investigative Detention – Pat-Down Search

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Despite House’s reply that he was not carrying any weapons, Officer Daley
noticed the tip of a black folding knife –similar to one he carries on duty– partially
sticking out of House’s right pocket. R. 18, 39-40. He then initiated a weapons frisk by
asking House to place his hands behind his back, and then patted down the areas of
House’s body that were “highly probable areas for weapons.” R. 40, 139. Prior to Prior
the pat-down, Officer Daley had not placed his hands on House or touched him in any
way. R. 20. Also, he never pulled his gun, Taser, or any of his other weapons that he
carries. R. 20. During this pat-down, Officer Daley felt the butt of a gun tucked into the
left side of House’s pants, hidden beneath his coat, where the officer had initially noticed
a bulge. R. 2, 19, 81. As Officer Daley continued the frisk, House stated that he wanted
an attorney. R. 20-21. Officer Daley replied that he was only conducting a weapons frisk
at this point, not an actual arrest, and then refrained from asking House any questions
about the weapons. R. 21, 23. When the sergeant arrived, Officer Daley told him in police
code that House had a gun on his person. R. 19. He then put House in handcuffs and
retrieved the gun from House’s waistband. R. 19, 139.
D. Procedural Facts
House was charged with being a felon in possession of a Daley, and he
subsequently moved to suppress the evidence on the grounds that Officer Daley had
violated his Fourth Amendment rights. R. 140. More specifically, House claimed that
Officer Daley unlawfully detained House by asking him to get off of his cell phone, and
that Officer Daley lacked reasonable suspicion that House was engaged in criminal
activity and lacked reasonable belief that he was armed and presently dangerous. R. 4.

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The district court denied the motion, ruling first that, “viewed in its totality,” the
encounter was consensual because “Officer Daley’s conduct would not have conveyed to
a reasonable person that he was not free to decline the officer’s requests or otherwise
terminate the encounter.” R. 143 (citation omitted). Second, the court ruled that,
“[c]onsidering the totality of the circumstances, especially when viewed from that
vantage point of those versed in law enforcement,… there was a sufficient basis to justify
Officer Daley’s minimally intrusive pat-down search of the defendant based on
reasonable officer safety concerns.” R. 146. House filed the present interlocutory appeal,
and the Utah Court of Appeals certified the case to this Court. R. 147-148.
SUMMARY OF THE ARGUMENT
The district court correctly denied House’s Motion to Suppress Evidence because
Officer Daley did not impermissibly violate House’s Fourth Amendment rights. The
district court correctly concluded: (1) that the initial encounter between House and
Officer Daley was consensual, and (2) Officer Daley developed reasonable suspicion,
after the initial contact, to justify a pat-down search.
Under the totality of the circumstances, the district court’s factual findings support
the legal conclusion that the initial encounter between House and Officer Daley was
consensual. Officer Daley initiated the encounter by asking House for permission to ask
him some questions. By asking permission, Officer Daley did not demonstrate any sort of
authoritative power that would suggest to a reasonable person that he/she was being
detained. Furthermore, Officer Daley refrained from using an authoritative tone, forceful

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threat or coercion when asking House to hang up the phone so he could ask some
questions. Though House argues to the contrary, these allegations are simply not
supported by the record. Therefore, due to the absence of clear error, the weight of the
evidence favors the district court’s ruling that House had consented to the initial
encounter with Officer Daley.
Having established the consensual nature of the initial encounter, the district court
also ruled correctly that Officer Daley was justified in conducting a weapons frisk
because he had the requisite reasonable suspicion to do so. The reasonability was rooted
in the officer’s suspicion that House had been engaged in unlawful activity, as well as his
belief that House was armed and dangerous. The suspicion was also reasonable because it
was based on the objective, articulable facts from which rational inferences can be made.
First, House was the only individual in an area where the officer had just investigated a
break-in. Second, the officer noticed that House appeared to be evading police. Third,
Officer Daley noticed that House had an uncharacteristic “bulge” beneath his coat and a
knife in his pocket. Even at this initial observation phase, years of experience and training
in recognizing concealed weapons informed Officer Daley’s opinion and rendered any
initial suspicion of weapons to be reasonable.
Nevertheless, Officer Daley did not escalate the encounter to a level two detention
at this point because he had not yet placed his hands on House, nor did he compel him to
continue the exchange. Rather, Officer Daley took permissible precaution for his own
safety, and asked House if he was carrying any weapons. Because House lied by stating
that he was not carrying any weapons, Officer Daley’s suspicion further solidified. These

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facts, taken together and considered in in the totality of their circumstances, justify
Officer Daley’s suspicion as reasonable. As such, the officer’s pat-down search of House
does not violate the Fourth Amendment, and this Court should affirm the district court’s
decision denying House’s Motion to Suppress.
ARGUMENT
The district court correctly denied House’s motion to suppress because Officer
Daley did not impermissibly impinge upon his constitutional rights. The Fourth
Amendment provides that “the right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated.”
U.S. CONST. AMEND. IV. Yet the Constitution does not forbid all searches and seizures,
but only those that are unreasonable. Elkins v. United States, 364 U.S. 206, 222 (1960).
Utah courts have identified “three permissible levels of police stops.” State v.
Markland, 2005 UT 26, ¶ 10, n. 1, 112 P.3d 507. The first level is consensual in nature,
where “an officer may approach a citizen at any time and pose questions so long as the
citizen is not detained against his will.” Id. Due to the voluntary nature of such an
encounter, “there is no seizure within the meaning of the Fourth Amendment.” State v.
Hansen, 2002 UT 125, ¶ 34, 63 P.3d 650. By contrast, the second level of police stop –
an investigative detention– is an involuntary seizure, and the detaining officer must
articulate specific, objective facts underlying the officer’s suspicion that the detained
person “has committed or is about to commit a crime,” Markland, 2005 UT 26, ¶ 10, n. 1,
or that the detained person is “armed and presently dangerous.” State v. Chapman, 921

9
P.2d 446, 454 (Utah 1996). The third level of police stop is an actual arrest where the
police officer has “probable cause to believe an offense has been committed or is being
committed.” Markland, 2005 UT 26, ¶ 10, n.1.
Part I of this analysis explains the consensual nature of the initial encounter
between House and Officer Daley, rendering it a level one encounter. Part II explains
Officer Daley’s reasonable suspicion that House may have been involved in criminal
activity and that he was armed and dangerous, thus justifying the escalation the encounter
to a level two detention and the weapons pat-down search.
I. THE DISTRICT COURT CONCLUDED CORRECTLY THAT THE
INITIAL ENCOUNTER BETWEEN OFFICER DALEY AND HOUSE
WAS CONSENSUAL BECAUSE, UNDER THE TOTALITY OF THE
CIRCUMSTANCES, OFFICER DALEY DID NOT RESTRICT
HOUSE’S FREEDOM TO LEAVE, AND HOUSE FELT HE WAS ABLE
TO TERMINATE THE ENCOUNTER.
The initial encounter between House and Officer Daley was a level one consensual
encounter that does not implicate the Fourth Amendment. The Supreme Court has stated
that “a seizure does not occur simply because a police officer approaches an individual
and asks a few questions.” Florida v. Bostick, 501 U.S. 429, 434 (1991). Rather, “[o]nly
when the officer, by means of physical force or show of authority, has in some way
restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Id.; see
also Terry v. Ohio, 392 U.S. 1, 16 (1968) (courts cannot characterize an encounter
between a citizen and a police officer as a “seizure,” unless the officer “restrains [the
citizen’s] freedom to walk away…”).

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When an individual voluntarily cooperates with a police officer, however, no
seizure has taken place. State v. Hansen, 2002 UT 125, ¶ 34; cf. State v. Jackson, 805
P.2d 765, 767 (Utah App. 1990) (an interaction is consensual when “a citizen may
respond to an officer’s inquiries but is free to leave at any time.”). Still, when weighing
certain factors to determine if a stop is consensual, “no single factor can dictate whether a
seizure occurred.” United States v. Hill, 199 F.3d 1143, 1148 (10th Cir. 2003). Instead,
courts should make their determinations based on the “totality of the circumstances.” Id.
Under this test, “the burden of proof is by preponderance of the evidence,” Hansen, 2002
UT 125, ¶ 56, and courts “carefully scrutinize both the details of the detention, and the
characteristics of the defendant.” Id. (citing Schneckloth v. Bustamonte, 412 U.S. 218,
226, 248 (1973)). Therefore, “taking into account all of the circumstances surround the
encounter,” the inquiry turns on whether “the police conduct would have communicated
to a reasonable person that he was not at liberty to ignore the police presence and go
about his business.” Bostick, 501 U.S. at 437 (internal quotations omitted).
Under the totality of circumstances in this case, a reasonable person would have
felt free to terminate the encounter at any time prior to the detention, thereby solidifying
the encounter as a level-one stop. As the district court pointed out, (R. 141), several
factors may indicate if a reasonable person would not feel free to end a police encounter:
[T]he threatening presence of several officers; the brandishing of a weapon
by an officer; some physical touching by an officer; use of aggressive
language or tone of voice indicating that compliance with an officer’s
request is compulsory; prolonged retention of a person’s personal effects
such as identification and plane or bus tickets; a request to accompany the
officer to the station; interaction in a nonpublic place or small, enclosed
place; and absence of other members of the public.

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United States v. Ringold, 335 F.3d 1168, 1172 (10th Cir. 2003) (emphasis added); cf.
State v. Patefield, 927 P.2d 655, 659 (Utah App. 1996). The Utah Court of Appeals
echoed Ringold in State v. Adams, where it identified four factors that are particularly
relevant in this case: (1) the individual’s own perception of the circumstances, e.g.
whether he or she feels obligated to stay; (2) the number of officers present; (3) whether
an officer used any “show of force such by drawing his weapon or flashing his police
lights”; and (4) whether the officer speaks “in a commanding tone or with authoritative
language.” 2007 UT App 117, ¶ 14, 158 P.3d 1134. Each of these factors, considered in
the totality of the circumstances in the present case and “in light of common sense and
ordinary human experience,” Markland, 2005 UT 26, ¶ 26, indicates that a reasonable
person would have felt free to terminate the initial encounter with Officer Daley.
A. House’s testimony that he felt free to leave is relevant in
determining the consensual nature of the encounter under the
reasonable person standard.
The fact that House testified that he felt free to leave is informative in determining
that the initial encounter was consensual. Although such a determination is normally
made under a reasonable person standard, an individual’s subjective perception is also a
relevant factor. See State v. Warren, 2003 UT 36, ¶ 20, 78 P.3d 59 (this Court gives “an
officer’s subjective factual determination… due weight as part of the objective
analysis.”). For example, in State v. Baker, 2010 UT 18, 229 P.3d 650, this Court ruled
that the police officers’ subjective lack of fear for their safety mitigated the objective
presence of thirteen knives in the defendant’s vehicle. Id. at ¶ 47. The Court considered

12
this lack of fear alongside the other relevant facts, and concluded that the officers did not
have a “reasonably objective belief that [the defendant] was armed and dangerous.”
A variant of this analysis presents itself in the current case. House testified that
after Officer Daley had gotten his attention and asked him to hang up the phone, he still
felt free to leave. R. 57, 67. While this fact is not dispositive in assessing whether an
objectively reasonable person would have felt free to leave under the same
circumstances, it can be informative. In State v. Adams, the court noted that the
defendant never felt compelled to stay because he perceived the officer to be kind-
natured and cordial: “[The officer] was pretty much straight up nice with me. We had no
confrontations.” 2007 UT App 117, ¶ 14. While the Adams court did not consider the
defendant’s observation to be the controlling factor, it did consider his subjective
perception in the totality of all of the other circumstances (e.g., lack of multiple police
officers, lack of force, and lack of authoritative tone and language). Id.
Therefore, both the district court and this Court are allowed to give “due weight”
to House’s testimony that he felt free to terminate the encounter. In considering such
testimony in conjunction with the totality of the circumstances, this Court should affirm
the district court’s ruling that a reasonable person would have felt free to terminate
contact with Officer Daley, thereby indicating that the initial encounter was consensual.
B. Officer Daley was the only officer interacting with House,
suggesting that the encounter was consensual rather than a
level two detention because there was no “threatening
presence” of other officers that would compel a reasonable
person to stay.

13
The lack of other officers present is one of several factors indicating a lack of
threatening presence, and thus suggesting a consensual encounter. As noted above, the
“threatening presence of several officers” is one factor that may aid a court in
determining whether a seizure has occurred. Ringold, 335 F.3d at 1172. In Salt Lake City
v. Ray, 2000 UT App 55, 998 P.2d 274, the defendant moved to suppress evidence of
drug paraphernalia, arguing that the officers who pulled her over had conducted a level
two stop without reasonable suspicion. Id. at ¶ 1. The Court of Appeals agreed with the
defendant, and held that “[g]iven the totality of the circumstances,” including the
presence of more than one officer, “it is clear that a reasonable person in [the
defendant’s] position would not feel free to just walk away....” Id. at ¶ 13. In State v.
Adams, the court placed further emphasis on the presence of multiple officers when it
held that the encounter between the defendant and the officer was consensual: “Unlike
Ray, only one officer was involved in the encounter with Adams.” 2007 UT App 117, ¶
14. Similarly, in the present case Officer Daley was the only police officer engaged with
House, R. 17), and without “threatening presence of other officers,” a reasonable person
would have felt free to terminate the encounter with Officer Daley.
C. Officer Daley did not use any show of force, such as drawing
his gun or flashing his police lights, which might compel an
individual to remain engaged with the police when he or she
would otherwise leave.
The district court correctly ruled that Officer Daley did not use any show of force
during the initial encounter with House. If an officer, “by means of physical force or
show of authority, has in some way restricted the liberty of a person,” then that person

14
has been detained. United States v. Mendenhall, 446 U.S. 544, 552, (1980) (citing Terry,
392 U.S. at 19). A “show of force, such as [a police officer] drawing his weapon or
flashing his police lights,” is an important factor in determining whether an individual has
been detained. Adams, 2007 UT App 117, ¶ 14; see also Ringold, 353 F.3d at 1172 (“the
brandishing of a weapon” would indicate to a reasonable person that he is detained.).
In State v. Hansen, the court concluded that the “circumstances [in the case] would
not have indicated to a reasonable person that he or she was free to leave” because the
police “vehicles remained parked behind [the defendant] with their emergency lights
flashing…” 2000 UT App 353, ¶ 15; cf. State v. Mogen, 2002 UT App 235, ¶ 17, 52 P.3d
462 (defendant did not feel free to leave because the officer left his overhead emergency
lights on during the entire encounter). Contrarily, in State v. Perkins, the court ruled that
the defendant had voluntarily consented to an officer’s request to talk because “nothing in
the record indicates that [the officer] brandished his gun or made any other show of
force.” 2009 UT App 390, ¶ 28, 222 P.3d 1198.
In the present case, nothing in the record indicates that Officer Daley used any
show of force during his encounter with House. Officer Daley testified that he never
pulled his gun or any other weapon he carries during the initial encounter. R. 20.
Furthermore, House testified that Officer Daley “didn’t turn on his lights or nothing. He
didn’t –like he wanted to stop me or nothing. So I just kept walking.” R. 57. Therefore,
because Officer Daley refrained from showing any force, a reasonable person would not
have felt compelled to stay.

15
D. Officer Daley spoke in a permissive, everyday tone, lacking
any authoritative forcefulness or commanding language that
would compel compliance.
Officer Daley’s permissive, everyday tone further supports the district court’s
conclusion that the initial encounter was consensual. On the other hand, an officer’s “use
of a commanding tone of voice indicating that compliance might be compelled… weighs
against de-escalation.” Hansen, 2002 UT 125, ¶ 41 (quoting United States v. Elliott, 107
F.3d 810, 814 (10th Cir. 1997)); accord Mendenhall, 446 U.S. at 554. In State v.
Merworth, the court found that “a reasonable person would have felt free to leave” the
police encounter because “there is nothing in the record that indicates that… the officer…
used an intimidating or even stern tone of voice.” 2006 UT App 489, ¶ 9, 153 P.3d 775.
Similarly in Perkins, the court found that officer’s tone of voice was that of a
request rather than a command that compelled compliance. 2009 UT App 390, ¶ 28.
There, the officer knocked on the defendant’s door and said, “Hey let me talk to you,”
later clarifying, “I didn’t yell, I just said, ‘Hey, let me –come talk to me.’” Id. The court
ruled that officer’s tone and language did not compel involuntary compliance, and
therefore held the encounter to be consensual. Id.
The facts in the present case support the same conclusion. The record shows that
Officer Daley’s tone and language were of an “everyday” nature. R. 17. He initiated the
encounter by asking, “Hey, can I talk to you? Hey, can I ask you a few questions?” R. 2,
16, 137. No reasonably objective person would consider such questions to be an assertion
of authority or right to detain someone, and according to Perkins, such questions do not
escalate encounters to level two detentions. Furthermore, House testified that after

16
Officer Daley asked him to hang up the phone to ask him some questions, House
responded, “Hold on, because I was talking to somebody at that point.” R. 57. It is
difficult to fathom that a person who reasonably believes he or she is detained would then
tell the detaining police officer to hold on, rather than hanging up immediately and
following the officer’s instructions.
Nevertheless, House still alleges that Officer Daley’s tone would have made any
reasonable person feel obligated to continue the interaction, despite the fact that the
record is devoid of any suggestion that the officer’s language was anything but cordial
and of everyday character. Officer Daley testified that his tone was that of “[j]ust an
everyday encounter. Just asked if I could talk to him.” R. 17. And when House’s counsel
tried to make this argument before the district court, and the judge found that the
argument was unsupported by the evidence. R. 142-143. Instead, the district court found
that “Officer Daley’s request to speak with [House] was presented in a non-intrusive,
non-aggressive manner.” R. 142.
Furthermore, the characterization of Officer Daley’s requests as “commands” is
also suspect. In its factual findings, the district court stated that “Officer Daley told the
defendant that he needed to get off his cell phone…” R. 137. However, Officer Daley
testified that he “asked [House] if he would get off the phone so I could talk to him.” R.
17 (emphasis added); see also R. 73 (“I asked him could you put the cell phone down.”)
(emphasis added). Officer Daley made this request once, not repeatedly and persistently
as House claims. Also, House testified that he heard Officer Daley ask to speak with him
only once before asking him to hang up the phone. R. 57. Because House did not hear the

17
first request, the repetition of the request cannot be considered a forceful show of
authority as House contends.
These facts weigh heavily in favor of the district court’s conclusion that Officer
Daley did not speak forceful language or a tone that compelled compliance. Therefore,
because House has not claimed any of these factual findings to be “clearly erroneous,”
this Court must not “substitute its judgment” for that of the trial court, see Hansen, 2002
UT 125, ¶ 48, and House cannot rely on any arguments based on alleged facts contrary to
or absent from the record.
E. Based on the totality of the circumstances, the district court
ruled correctly that the initial encounter between House and
Officer Daley was consensual.
All of the factors analyzed above, when considered in the totality of the
circumstances in the present case, indicate that the initial encounter between House and
Officer Daley was consensual. In United States v. Hill, the Tenth Circuit made clear that
“no single factor can dictate whether a seizure occurred.” 199 F.3d at 1148. Rather,
courts must “consider[...] the totality of the circumstances” to determine if “the police
conduct would have communicated to a reasonable person that the person was not free to
decline the officer’s requests or otherwise terminate the encounter and go about his or her
business.” State v. Higgins, 884 P.2d 1242, 1244 (Utah 1994).
Although House relies on State v. Alvey, 2007 UT App 161, to argue that the
exchange began as a level two encounter, he stretches Alvey’s language beyond its
contextual limits, applying it outside and independent from the totality of circumstances.
As explained in Alvey, the inquiring court must “carefully scrutinize… the details of the

18
detention….” Schneckloth, 412 U.S. at 248. The level of an encounter is therefore
determined by the total effect of all of these details interplaying with one another rather
than the effect of any one factor viewed independently from the rest. Id.
In Alvey, the police officer recognized the defendant as an individual he had
arrested before, engaged him in conversation, and then instructed him to stand in front of
the patrol car in order to be illuminated by the lights. 2007 UT App 161, ¶ 2. The court
found that the encounter was not consensual because “we simply do not believe a
reasonable person would feel free to leave once a police officer ordered him to move to a
different location from where he was standing.” Id. at ¶ 6 (emphasis added).
The Alvey court did not base its decision on the fact that the officer had asked the
defendant to do just anything, as House implies. Rather, the court based its reasoning on
multiple factors, which considered together, connoted a detention. Specifically, the
officer had ordered the defendant to move from one location to another, thereby
restricting his freedom to physically leave the scenario. Id. The court also noted that the
officer had instructed Alvey to “remove his hands from his pockets, and left Alvey
standing in front of the vehicle for over two minutes...” with patrol lights shining on him.
Id. Therefore, “[b]ased on the totality of the circumstances,” the court concluded “that a
reasonable person… would not feel that he was free to leave.” Id. (emphasis added).
None of the circumstances in Alvey have a direct factual counterpart in the present
case that is sufficiently similar to imply detention. While Officer Daley asked House to
hang up the phone as part of his initial request for permission to talk to him, such a
request does not rise to a level two detention because it did not restrict House’s freedom

19
to decline to answer Officer Daley’s questions or walk away. R. 57, 142-43; Perkins,
2009 UT App 390, ¶ 28 (officer’s request that the defendant come to the door and speak
to the officer did not amount to an authoritative command of a level two detention); see
also INS v. Delgado, 466 U.S. 210, 216 (1984) (“While most citizens will respond to a
police request, the fact that people do so, and do so without being told they are free not to
respond, hardly eliminates the consensual nature of the response.”).
Furthermore, Officer Daley did not restrict House’s movement as the police
officer in Alvey did. House was not ordered to stand in a particular area, hands out of
pockets, with the coercive threat of police lights flashing down on him. Thus, a request to
hang up the phone cannot, alone, arise to a restriction on an individual’s freedom to
leave. In order to implicate the Fourth Amendment, the request to hang up the phone
must be made in conjunction with several other factors, that would compel an individual
to continue the interaction, and these factors are simply not present in this case.
Therefore, given the applicable case law, and considering the facts in “light of the
particular circumstances,” Terry, 392 U.S. at 21, the district court ruled correctly that a
reasonable individual in House’s position would not have felt improperly compelled to
stay with Officer Daley, and that the encounter was therefore consensual.
II. THE DISTRICT COURT CONCLUDED CORRECTLY THAT AFTER
MAKING INITIAL CONTACT WITH DEFENDANT, OFFICER Daley
REASONABLY SUSPECTED THAT HOUSE WAS INVOLVED IN
CRIMINAL ACTIVITY AND WAS ARMED AND DANGEROUS, THUS
JUSTIFYING THE PAT-DOWN WEAPONS SEARCH.
Officer Daley’s suspicion of House was reasonable, thereby justifying the stop-
and-frisk without violating the Constitution. The protections of the Fourth Amendment

20
do not insulate private citizens from all searches and seizures, but only from those which
are “unreasonable.” Terry, 392 U.S. at 9. Therefore, a police officer may “detain and
question an individual when the officer has a reasonable, articulable suspicion that the
person has been, is, or is about to be engaged in criminal activity.” Chapman, 921 P.2d at
450. During the course of the detention, if the officer “reasonably believes that the
individual may be armed and dangerous, the officer may conduct a ‘frisk’ or ‘pat-down’
search of the individual to discover weapons that might be used against him. State v.
Warren, 2001 UT App 346, ¶ 15, 37 P.3d 270; cf. State v. Wilkinson, 2009 UT App 202,
¶ 16, 216 P.3d 973 (a frisk is justified “when the particular facts and circumstances lead
the investigating officer to reasonably believe that a suspect is armed and dangerous even
though the crime being investigated does not itself suggest the suspect is likely to be
armed.”).
Utah courts evaluate an officer’s reasonableness in search and seizure cases
“objectively according to the totality of the circumstances.” Warren, 2003 UT 36, ¶ 14.
Therefore, the reasonableness of the officer’s suspicion turns on whether the “specific
and articulable facts, taken together with the rational inferences from those facts” would
objectively support the belief that the individual is engaged in criminal activity and is
armed and dangerous. Id. at ¶ 29 (quoting Michigan v. Long, 463 U.S. 1032, 1049
(1983)). Courts must not consider the facts independently from one another in a sort of
“divide-and-conquer analysis,” but rather in conjunction with one another –evaluating the
sum of all of the facts together. See United States v. Arvizu, 534 U.S. 266, 267 (2002).

21
In the present case, the reasonable suspicion inquiry applies in two separate
contexts: First (A), Officer Daley developed reasonable suspicion that House was
engaged in criminal activity because (1) House was the only individual in the vicinity
after a suspicious break-in call; (2) it appeared that House was deliberately avoiding
contact with the police; (3) House claimed he was not carrying any weapons, even after
Officer Daley noticed the knife in pocket and the bulge beneath his coat where he was
carrying the gun. This last fact is also relevant to the second determination: (B) After
House denied carrying any weapons, Officer Daley vhad reasonable suspicion that he
was armed and dangerous because he had already seen the knife in House’s pocket and a
bulge beneath his coat that appeared to be a gun. Therefore, Officer Daley was justified
in detaining House and conducting a pat-down search.
A. Officer Daley developed a reasonable suspicion that House
was engaged in criminal activity because he was the only
individual within the vicinity after the suspicious break-in
call; he appeared to be evading police; and because he
claimed he was not carrying weapons, even though Officer
Daley had already seen the knife in his pocket and the bulge
beneath his coat.1
Officer Daley’s suspicion that House was engaged in criminal activity was
reasonable because it was based on “specific and articulable facts which, taken together
with rational inferences from those facts, warrant[ed]” the detention. Terry, 392 U.S. at
21; see also United States v. Place, 463 U.S. 696, 702-03 (1983) (an officer may detain
an individual “when the officer has reasonable, articulable suspicion that the person has
1
The district court did not address the issue of reasonable suspicion of criminal activity. However, this Court may
affirm the district court’s denial of House’s motion to suppress based on the facts contained in the record.

22
been, is, or is about to be engaged in criminal activity.”). In addition to being specific and
articulable, the facts underlying an officer’s suspicion must also be “objective facts” in
order for the suspicion to be deemed reasonable. State v. Martinez, 2008 UT App 90, ¶ 4,
182 P.3d 385 (quoting State v. Trujillo, 739 P.2d 85, 88 (Utah Ct.App. 1987)). However,
“an officer is not obligated to rule out innocent conduct prior to initiating an investigatory
detention.” Markland, 2005 UT 26, ¶ 17. The Supreme Court further clarified the
meaning of “reasonable, articulable suspicion of criminal activity”: the officer’s
suspicion “must be based upon all of the circumstances... proceed[ing] with various
objective observations… From these data, a trained officer draws inferences and makes
deductions –inferences and deductions that might well elude an untrained person.” United
States v. Cortez, 499 U.S. 411, 418 (1981).
During the course of events in the present case, Officer Daley developed
reasonable suspicion based on the following objective, articulable facts: (1) House was
the only visible person in a neighborhood where the police had just investigated a
possible break-in; (2) House’s behavior suggested that he was trying to evade police,
specifically by turning and walking in the opposite direction of travel when he noticed a
police car and then refraining from making eye contact with the police; (3) House denied
he was carrying any weapons, even though Officer Daley had already noticed a knife in
his pocket and a bulge beneath House coat that suggested he was possibly concealing a
weapon.
1. The fact that House was the only individual in the area
after the officers investigated the break-in call is one
factor in assessing Officer Daley’s reasonable suspicion.

23
After investigating the break-in, Officer Daley noticed that House was the only
individual walking in the area, and he was walking “toward the location of the earlier
‘suspicious activity’ call.” R. 136. This is one articulable fact that, taken together with
the other relevant facts, justifies Officer Daley’s suspicion as reasonable. While House’s
“presence in an area of [suspected] criminal activity,… alone, is not enough to support a
reasonable, particularized suspicion…, officers are not required to ignore the relevant
characteristics of a location in determining whether the circumstances are sufficiently
suspicious to warrant further investigation.” Illinois v. Wardlow, 528 U.S. 119, 124
(2000) (emphasis added). Thus, Officer Daley was allowed to consider the fact that
House was a lone individual walking toward a house where a break-in had just been
reported. However, a suspect’s presence in an area must be accompanied by other facts as
well. In State v. Steward, 806 P.2d 213 (Utah Ct.App. 1991), police detained the driver of
a pick-up truck who pulled into a cul-de-sac that the S.W.A.T. team had secured in order
to investigate houses suspected of drug trafficking. Id. at 214. The court held that without
other articulable facts, “[t]he mere driving of a pickup truck, on a public road, at 11:50
p.m., is insufficient, without more, to raise reasonable suspicion that its occupant was
involved in criminal activity.” Id. at 216 (emphasis added).
The state would agree. If Officer Daley had detained House immediately after
seeing him walking down the street, with no other supporting facts, then his suspicion
would not be reasonable. However, there were other facts that, taken together, justified
Officer Daley’s suspicion. House’s presence in the neighborhood was only one fact, and

24
according to Wardlow, Officer Daley did not need to ignore that fact in “determining
whether the circumstances are sufficiently suspicious to warrant further investigation.”
528 U.S. at 124. Furthermore, Officer Daley did not detain House until other facts added
to his suspicion. In State v. Humphrey, 937 P.2d 137 (Utah Ct.App. 1997), the
defendant’s presence an area of suspected criminal activity was one of the facts that made
the police suspicious. Id. The court stated that “[a]lone, each of the factors… cannot
support a reasonable suspicion,” but when “combined,… they justify a reasonable
suspicion of criminal activity.” Id. at 134. Likewise, House’s presence in the area where
the break-in had been reported could not support reasonable suspicion on its own.
However, combined with the other facts, his presence in the area justified the detention.
2. House’s evasive behavior, suggesting that he wanted to
avoid the police, also contributed to Officer Daley’s
reasonable suspicion that House was engaged in criminal
activity.
House’s change in walking direction, seemingly to avoid police contact, qualifies
as an articulable fact that supports reasonable suspicion. See Illinois v. Wardlow, 528
U.S. 119, 125 (2000). When evaluating suspicion, “[l]aw enforcement officers may rely
on the characteristics of an area, and the behavior of a suspect who appears to be evading
police contact.” Mendenhall, 446 U.S. at 564.
In Wardlow, police officers first spotted the defendant standing next to a building
while they were patrolling an area known for high drug trafficking. Id. at 121. The
officers noticed that the defendant immediately left after looking in their direction. Id.at
122. The Court noted that this sort of “evasive behavior is a pertinent factor in

25
determining reasonable suspicion.” Id. at 124. The Court further stated that unprovoked
departure “is the consummate act of evasion: It is not necessarily indicative of
wrongdoing, but it is certainly suggestive of such.” Id. The Court therefore concluded
that the officers’ belief was sufficiently “based on commonsense judgments and
inferences about human behavior” to rise to the level of reasonable suspicion. Id.
(quoting Cortez, 449 U.S. at 418).
The same analysis and conclusions apply in the present case. Officer Daley
noticed that House changed his direction and avoided eye contact for no other
perceivable reason than to avoid crossing paths with the police. R. 13-14. Although
House’s behavior did not amount to “headlong flight,” it was still a form of evasion
described by the Wardlow court. 528 U.S. at 124. And although House’s abrupt change
in direction did “not necessarily indicat[e]… wrongdoing, id., Officer Daley did not need
to “rule out the possibility of innocent conduct,” Arvizu, 534 U.S. at 277, before deciding
whether to make contact with House. Rather, he satisfied the test for reasonability by
simply relying on his “common sense and ordinary human experience.” Markland, 2005
UT 26, ¶ 11.
3. House’s lie that he was not carrying any weapons, the
bulge beneath his coat where he was carrying the gun, and
the knife in his pocket all substantiated the officer’s
suspicion that he was engaged in criminal activity.
Officer Daley’s suspicion grew after he noticed the bulge beneath House’s coat
and the knife in his pocket, further justifying the detention. Utah courts have held that
“the appearance of a suspicious bulge in the outer clothing of a suspect may be a factor”

26
in determining whether an individual is involved in criminal activity. State v. White, 856
P.2d 656, 661 (Utah Ct.App. 1993). More particularly, the circumstances surrounding the
encounter “may trigger the officer’s reasonable suspicion, such as seeing a bulge… [or]
the nature of the crime being investigated… such as a murder or robbery.” State v. Brake,
2004 UT 95, ¶ 32. In State v. Carter, 707 P.2d 656 (Utah 1985), a police officer heard
dispatch report a car burglary in the area he was patrolling. Within a half hour of the
dispatch and “less than a block away from the burglary scene,” the officer saw the
defendant in the street and noticed he “had a large bulge in his front pocket.” Id. at 660.
The court concluded that based “[o]n these facts, [the officer] had some reason to believe
that the defendant had committed a burglary and might be armed.” Id.
In supporting its conclusion, the Carter court stated that “[i]t is not unreasonable
for an officer to believe that a [potential] burglar may be armed with weapons, or tools
such as knives and screwdrivers which could be used as weapons.” Id. (emphasis added)
(quoting People v. Myles, 50 Cal.App.3d 423, 430, 123 Cal.Rptr. 348, 352 (1975)).
Furthermore, “[i]t is not unlikely that a person engaged in stealing another person’s
property would not arm himself…” Id. (quoting People v. McGowan, 370 N.E.2d 537,
540 (Ill. 1977)). The same reasoning applies in the present case. Because Officer Daley
had just come from investigating a possible break-in, he was not unreasonable in
suspecting the bulge in House’s coat to be a gun –especially given his years of experience
in recognizing concealed weapons. (R. 11). As noted, Officer Daley’s “subjective factual
determination based on experience and special experience” should be given “due weight
as part of the objective analysis.” Warren, 2003 UT 36, ¶ 20.

27
Furthermore, House’s lie about the weapons is particularly relevant. While it is
true that an “individual can lawfully possess many things that can be used as weapons,”
Long, 463 U.S. at 1061, lying about weapons seems indicative of some sort of illegal
activity. In Parker v. Matthews, 132 S.Ct. 2148, 183 L. Ed. 2d 32, the Supreme Court
held a suspect’s efforts to “hide the gun” and “giving false statements to police” were
relevant facts to consider. Id. at 2153. House’s lie suggests illegal activity because an
ordinary person would not feel the need to lie about lawful conduct. Combined with his
efforts to avoid police, therefore, House’s lie about the weapons further grounded Officer
Daley’s suspicion as reasonable. As a result, Officer Daley was entitled to conduct a frisk
because he also believed reasonably that House was armed.
B. Officer Daley’s belief that House was armed and dangerous was
reasonable because of the bulge beneath House’s coat where he
was concealing the handgun, the partially-visible knife in his
pocket; and House’s lies about not carrying any weapons.
The bulge in House’s coat and the knife in his pocket provided Officer Daley with
reasonable suspicion that he was armed, especially because House lied about carrying
any weapons. The Supreme Court has explained that a pat-down search is justified by the
“immediate interest of the police officer in taking steps to assure himself that the person
with whom he is dealing is not armed with a weapon that could unexpectedly and fatally
be used against him.” Terry, 392 U.S. at 23. However, this Court has held that “the only
permissible objective” during the frisk “is the discovery of weapons that may be used
against the officer or others.” State v. Gurule, 2013 UT 58, ¶ 27, 2013 WL 5458959
(quoting State v. Peterson, 2005 UT 17, ¶ 12, 110 P.3d 699).

28
Thus, in carrying out this safety precaution, officers must articulate specific facts
and conditions, the inferences from which rationally and objectively support the
suspicion. See Warren, 2003 UT 36, ¶ 29. Nevertheless, because of the important interest
in officer safety, see Adams v. Williams, 407 U.S. 143, 146 (1972), the threshold for
reasonable suspicion justifying a weapons pat-down has been described as a “minimum
level of objective justification.” United States v. Sokolow, 490 U.S. 1, 7, (1989); followed
by United States v. Rice, 483 F.3d 1079, 1083 (10th Cir. 2007). In this sense, because the
facts are reviewed in the totality of their circumstances, the Court has considerable
leeway in its appraisal of the reasonability. Id. (citing Arvizu, 534 U.S. at 274). And while
the court’s assessment generally leans toward an objective analysis, it may also take into
account “an officer’s reasonable inferences based on training, experience, and common
sense.” Arvizu, 534 U.S. at 273; cf. Warren, 2003 UT 36, ¶ 15 (“[T]he officer’s
subjective belief may be a factor in the objective analysis.”).
In the present case, the bulge beneath House’s coat and the knife in his pocket
both provided a reasonable basis for suspicion. First of all, “the known presence of a
weapon would seem to inevitably weigh heavily in favor of a determination that a person
is armed and dangerous.” State v. Gardner, 2011 UT App 192, ¶ 10, n. 4, 257 P.3d 1086.
Officer Daley knew that House was carrying a knife, even though House denied it.
Regarding the bulge in House’s pocket, in State v. Wilkinson, the court cited examples of
what might constitute reasonable suspicion that an individual is armed and dangerous,
“includ[ing] a characteristic bulge in the suspect's clothing; observation of an object in
the pocket which might be a weapon;… an apparent effort to conceal something under [a]

29
jacket;” and others. 2009 UT App 202, ¶ 16 (citing 4 WAYNE R. LAFAVE, SEARCH AND
SEIZURE § 9.6(a), at 628–30 (4th ed. 2004) (footnotes omitted)). Furthermore, the Warren
court stated that an officer’s suspicion that an individual is armed is reasonable when the
suspect has “a bulge in his clothing that appears to be a weapon or a suspect [is] hesitant
in denying that he is armed…” Warren, 2001 UT App 346, ¶ 16 (citing State v. Rochell,
850 P.2d 480, 483 (Utah Ct.App. 1993)).
The facts in the present case match these examples perfectly. Officer Daley knew
that House was carrying a knife, the known presence of which would already suggest that
House was armed and dangerous. See Gardner, 2011 UT App 192, ¶ 10, n. 4. Plus, not
only was House “hesitant” about denying having any weapons, he flat-out lied, which
also heavily supports reasonable suspicion. Warren, 2001 UT App 346, ¶ 16. Finally,
regarding the bulge in House’s clothing, Officer Daley had had years of training and
inexperience in recognizing concealed weapons. R. 11. He therefore drew “inferences
and [made] deductions… that might well elude an untrained person.” Cortez, 499 U.S. at
418. This, along with the knife and House’s lie, Officer Daley was completely justified in
conducting a weapons frisk for his own safety under the totality of the circumstances test.
Therefore, the district court correctly ruled that Officer Daley’s suspicion was
reasonable, and that both the detention of House and the weapons frisk did not violate the
protections of the Fourth Amendment.
CONCLUSION

30
For the reasons specified above, the State respectfully requests that this Court
affirm the district court’s denial of House’s Motion to Suppress Evidence.
SUBMITTED this 15th day of November, 2013
/S/ Andrew Scott Rawlings
ANDREW SCOTT RAWLINGS
Office of the Utah Attorney General
Attorney for Appellee (State of Utah)

31
CERTIFICATE OF COMPLIANCE
1. Pursuant to Rule 24(f)(1)(C) of the Utah Rules of Appellate Procedure, I
hereby certify that this Brief contains ---- words, exclusive of the items set forth in Rule
24(f)(1)(B), and therefore complies with the type-volume limitation set forth in Rule
24(f)(1)(A).
2. Pursuant to Rule 27(b) of the Utah Rules of Appellate Procedure, this brief
complies with the stated typeface requirements: the brief has been prepared in a
proportionally spaced typeface by using Microsoft Word 2010 in 13-point Times New
Roman.

32
CERTIFICATE OF SERVICE
I hereby certify that on the 15th day of November, 2013, copies of the foregoing
BRIEF OF RESPONDENT/APPELLEE were properly served via U.S. mail, postage prepaid,
on the following:
Adam James Knorr
S.J. Quinney College of Law
332 South 1400 East
Telephone: (801) 555-1221
Email: adam-2375@hotmail.com
Attorney for Appellant

33
IN THE SUPREME COURT OF UTAH
STATE OF UTAH,
Respondent/Appellee,
vs.
JOSEPH PAUL HOUSE,
Petitioner/Appellant
CERTIFICATE OF SERVICE
FOR
BRIEF OF RESPONDENT/APPELLANT
Supreme Court No: 20139999-SC
Trial Court No: 11999999999
ON CERTIFICATION FROM THE UTAH COURT OF APPEALS
BEFORE THE HONORABLE PRESIDING JUDGE CAROLYN B. MCHUGH
CERTIFICATE OF SERVICE FOR
THE STATE OF UTAH’S RESPONDENT BRIEF
Interlocutory Appeal from order denying Defendant’s Motion to Suppress Evidence,
entered in the Third Judicial Court, in and for Salt Lake County,
the Honorable Judge Todd Shaughnessy, presiding.
I hereby certify that on the 15th day of November, 2013, copies of the foregoing
BRIEF OF RESPONDENT/APPELLEE were properly served via U.S. mail, postage prepaid,
on the following:
Adam James Knorr
S.J. Quinney College of Law
332 South 1400 East
Telephone: (801) 555-1221

ASRawlings.WriteSampAppBrief

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