Officer Talked Nicely, Thought Tactically, And Avoided Suppression of Evidence

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State v. Questo, 2019 (Mt. 2019)

Two citizens called police to report Randall Questo had just picked up his minor children from the Boys and Girls Club, and he smelled of alcohol. The callers provided their names, identified Questo by name, and gave a vehicle description. Courts have long held citizens who provide specific information and offer their names to police are generally presumed to be reliable citizen-informants.

An officer familiar with Questo drove to the area. He saw a truck matching the description provided parked at a gas pump and recognized the man pumping gas as Questo. The officer drove into the gas station, parking at the curb in a location that did not obstruct traffic or block Questo’s truck. The officer did not activate his emergency lights.

The officer walked up to Questo and explained a citizen reported Questo smelled like alcohol when he picked up his kids. The officer “did not use harsh language or speak in a harsh tone, but rather used a neutral tone to inform Questo about the citizen report” (talk nice, think mean!). Questo admitted to driving and picking up his kids, who were still in the truck, but denied drinking since the night before. When the officer told Questo he could smell alcohol, Questo suggested the odor was coming from empty beer cans in the bed of the truck.

The officer asked Questo if he would perform field sobriety tests and Questo agreed. After the tests, the officer told Questo he detected impairment. Only then did Questo admit that “he’d had a couple beers a few hours prior” and had recently consumed DayQuil. After a portable breath test showed a level about the legal limit, the officer transported Questo to the station for a breath test. That test showed Questo had a blood alcohol content of 0.12.

Though the officer had reasonable suspicion to detain Questo and investigate the citizen report, the court did not need to rule on the “stop” simply because there was none.

Questo was charged with criminal endangerment and driving under the influence of alcohol. He asked the court to suppress the evidence of the field sobriety tests and alcohol tests, arguing the officer lacked reasonable suspicion to investigate him for DUI: “There is zero evidence of observable impairment prior to his arrest and therefore no probable cause for his arrest.”

Questo acknowledged he was not “stopped” by police, though he claimed to have been seized by detaining him at the gas station. The court initially ruled the officer had reasonable suspicion to investigate whether Questo was driving under the influence of alcohol, based on the reliable information from the citizen-informants.

The court also ruled there was no seizure. The officer “did nothing to restrain Questo’s liberty.” When the officer approached Questo, Questo was parked in a public place where he chose to stop. The officer used no commands and no emergency lights or siren, and he parked his patrol car a significant distance from the front of Questo’s truck. The officer approached Questo alone and on foot, didn’t display a weapon and politely told Questo about the citizen report. The officer asked—didn’t demand or command—Questo to answer a few questions and to voluntarily perform field sobriety tests. Questo consented to all of this.

The officer politely approached Questo in a manner that was plainly a voluntary encounter. Though the officer had reasonable suspicion to detain Questo and investigate the citizen report, the court did not need to rule on the “stop” simply because there was none. Thus, Questo was not entitled to suppression of the evidence. Talking nice and thinking tactically permitted an easy win for the state.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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