Pubdate: Sat, 18 Aug 2001
Source: Salt Lake Tribune (UT)
Copyright: 2001 The Salt Lake Tribune
Contact:  http://www.sltrib.com/
Details: http://www.mapinc.org/media/383
Author: Elizabeth Neff

COURT UPHOLDS VEHICLE DRUG SEARCH

A Utah Highway Patrol officer did not violate a motorist's constitutional 
rights by using a cruiser to block in the man's car before searching it for 
drugs, the Utah Court of Appeals has decided.

The decision reverses 4th District Court Judge Ray M. Harding Sr.'s ruling 
throwing out a drug charge filed against 44-year-old Kevin R. Gronau. 
Harding had ruled Sgt. Paul Mangelson illegally seized the Weber County 
man's car when he pulled in behind the vehicle as it sat in a parking space 
outside a Nephi restaurant in 1998.

Twenty pounds of marijuana were found in the car's trunk.

The case began when Mangelson pulled Gronau over for speeding Dec. 16, 
1998, as Gronau and his 17-year-old son were driving in a rental car on 
Interstate 15 just south of Nephi. During the stop, Mangelson ran a 
computer check on Gronau's driving status and criminal history.

The first check showed Gronau had a valid driver license. When Gronau told 
Mangelson he had to go to the bathroom, Mangelson issued Gronau a written 
warning for speeding and told him he was free to go. Mangelson also told 
Gronau he would contact him if the second check showed a criminal history.

Mangelson followed Gronau as he pulled away, and the criminal history check 
came back showing a 1991 drug arrest. Mangelson then parked his cruiser 
behind Gronau's car, which was parked outside a Nephi restaurant.

Once there, Mangelson told Gronau the results of the criminal check and 
that he suspected him of transporting narcotics. When Mangelson asked to 
inspect the car, Gronau refused, and said he and his son were going to eat 
breakfast.

Mangelson told Gronau he planned to call a K-9 unit to inspect the outside 
of the car. Gronau told Mangelson to "do whatever you want," and went 
inside the restaurant.

A drug-sniffing dog then alerted officers to drugs inside the car. When 
Gronau returned, Mangelson told him he was seizing the vehicle and ordered 
the car towed to a sheriff's station. A search warrant was obtained and the 
drugs were found in a duffel bag in the trunk.

Gronau was charged with possession of marijuana with the intent to 
distribute within the presence of a person under 18.

"Mangelson did not meaningfully interfere with Gronau's possessory interest 
in his vehicle until after Mangelson had probable cause," William A. 
Thorne, Jr. wrote for the court Thursday.

Judge Gregory K. Orme dissented, arguing the circumstances of the situation 
clearly established Gronau's car had been seized before the dog arrived.

"Sgt. Mangelson's indication after the initial stop that he intended to 
maintain contact with Gronau, his continued surveillance, his subsequent 
prolonged partial blocking of the vehicle, and his indication that a 
drug-sniffing dog was on its way, sent a clear signal to Gronau that he was 
not free to take the vehicle and leave," Orme said.

H. Don Sharp, who represented Gronau in the appeal, said he agreed with Orme.

"I disagree with the opinion that he was free to leave," Sharp said. "I 
think if he had tried, Mangelson would have detained him or charged him 
with obstruction of justice. What's really scary about this is you can only 
nibble away at something for a little while before it's gone, and that's 
what's happening to our Fourth Amendment rights."

Sharp said he will ask the Utah Supreme Court to hear an appeal of the 
decision.

Assistant Attorney General Marian Decker said her office was pleased with 
the decision. "The defendant never tried to move his car. This might have 
turned out differently if he had. Having a drug dog come to the car does 
not indicate a seizure."
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MAP posted-by: Terry Liittschwager