Thursday, June 15, 2017

State v. Taylor - The Importance of Credibility Findings

The Utah Court of Appeals recently issued a ruling in State v. Taylor pertaining to a pretext stop and consent search of the vehicle where the case turned on the trial court's finding that the officer's testimony was credible. See the summary below, including a link to the full opinion at the bottom.

________________________________________________________________________________

An officer matched the description of a vehicle with information provided by a confidential informant indicating that the suspect would be transporting methamphetamine. The officer followed Taylor until he observed Taylor commit a traffic violation, which was following too close. The officer admitted that this was a pretext stop designed to give him an opportunity to follow up on the informant's tip. Two other officers arrived on the scene after hearing about the stop over the radio, and while the initial officer was running Taylor's information, one of the officers asked Taylor if they could search his vehicle, and Taylor consented. During the search, the officers discovered a glass pipe with burn residue on it, clear plastic bags, and a digital scale. Taylor was arrested and transported to jail. The officers later discovered that Taylor had stashed a bag of meth in the police car on the way to the jail.

Taylor filed a motion contesting the stop, saying that the officer lacked reasonable suspicion for the stop. The District Court held that the officer's testimony that Taylor was following too closely was credible, and therefore the stop was proper. There was an outstanding issue of whether pretext stops were legal, but the defense conceded that they were so long as there was a legally valid reason for the stop, such as a moving violation. Taylor was convicted of possession with intent to distribute and possession of paraphernalia, and he appealed.

Taylor made the following arguments to the Court of Appeals: 1- The stop violated the 4th Amendment because the officer "fabricated" the reason for the stop; 2- The police request to search his vehicle broadened the scope of the stop and violated the 4th Amendment; and 3- Trial counsel was ineffective. (This summary will only cover the first two arguments.)

Taylor's first argument was that the officer in the case fabricated the reason for the stop, or in other words, the officer lied. To support this argument, Taylor cited “an officer’s subjective suspicions unrelated to the traffic violation for which he or she stops a defendant can be used by defense counsel to show that the officer fabricated the violation.” State v. Lopez, 873 P.2d 1127 (Utah 1994). The Court rejected Taylor's argument that the officer fabricated the reason for the stop, noting that the trial court judge, who was in the best position to determine witness credibility, made a specific finding of credibility. Trial courts get broad deference with regards to credibility, unless the record shows the finding is clearly erroneous. The record did not provide anything to dispute the officer's credibility, and therefore, the Court rejected Taylor's argument that the reason for the stop was fabricated.

Taylor's second argument was that the requests by other officers to search his vehicle while the initial officer was conducting record checks illegally extended the scope of the stop and violated the 4th Amendment. Taylor argued that the officer purposefully delayed issuing the citation to allow the other officers a chance to obtain consent to search the vehicle. The Court held that this allegation was not supported by the record. The record showed that the initial officer took approximately 3-5 minutes to conduct the record check, and the consent to search the vehicle was given during this same time. The initial officer's testimony stated that he did not do anything to delay the records check, and did not speak to the other officers about searching the vehicle during that time. The Court held that the duration of the stop was reasonable and the additional questioning did not measurably extend it. There was no 4th Amendment violation because the consent to search the vehicle was obtained before the original purpose of the stop was completed.

This case illustrates the importance of obtaining credibility findings for our officers at the trial court level when defendants make reasonable suspicion or probable cause challenges.

You can see the entire opinion here: State v. Taylor, 2017 UT App 89

Friday, June 9, 2017

THC Metabolite Prohibition Remains Constitutional - State v. Outzen

You may or may not have been aware that the constitutionality of 41-6a-517, better known as our “DUI metabolite” law, was challenged and argued before the Utah Supreme Court earlier this year. Lance Bastian with the Utah County Attorney’s Office argued this case and got a favorable ruling. The Court affirmed the convictions and upheld the constitutionality of the statute. Please see the summary below, which also has a link to the full opinion. 

Congratulations are in store for Lance. His argument was fantastic and he did a great job getting us a solid ruling on this issue. Well done Lance!

A summary for the case is below. 

_______________________________________________________________________


State v. Outzen, 2017 UT 30. 

Outzen fell asleep while driving his vehicle and caused a crash with another vehicle. The Utah Highway Patrol troopers that responded to the accident made observations that led them to believe that Outzen had recently used marijuana. They observed lack of convergence in defendant’s eyes and a green mucus covering defendant’s tongue. Outzen admitted to being a regular marijuana user and using marijuana the night before. A search of the vehicle resulted in no marijuana or paraphernalia. Troopers conducted SFSTs and concluded that Outzen was not too impaired to drive. Outzen was taken to the UHP office where he submitted breath, blood, and urine samples. The blood result returned positive for THC metabolite. Therefore, this case specifically addresses whether the statutory prohibition of the presence of non-psychoactive THC metabolite is constitutional. The Court affirmed the defendant’s conviction and ruled that this prohibition does not violate the Utah and United States Constitutions.

Outzen made three principle arguments to the Utah Supreme Court. First, defendant argued that the language contained in 41-6a-517 stating, “In cases not amounting to a violation of 41-6a-502” requires a showing of at least some measure of impairment. Second, defendant argued that 41-6a-517 punishes a status offense and violates the 8th and 14th Amendments. Finally, defendant argued that 41-6a-517 violates the Uniform Operation of Laws Provision of the Utah Constitution.
The Court dismissed Outzen’s first argument that some measure of impairment is required to violate 41-6a-517. To adopt this argument would require the Court to overlook the plain language of the statute. There is no statement in 41-6-517 at all regarding impairment, and, in fact, requiring impairment would negate the unambiguous prohibition of “any” amount of a controlled substance or metabolite of a controlled substance.

The Court also rejected Outzen’s argument that 41-6a-517 punishes a status offense and violates the 8th and 14th Amendments. The holding acknowledges that the statute does not criminalize simply having the metabolite of a controlled substance in the body, but requires the additional act of operating or being in actual physical control of a vehicle.


Finally, the Court analyzed the Uniform Operation of Laws provision of the Utah Constitution in relation to 41-6a-517. This required a three-pronged analysis. 1- Does the law create classifications? 2- Do these classifications impose any disparate treatment on persons similarly situated? 3- Does the legislature have any reasonable objective that warrants the disparity? The Court was skeptical that this statute imposes disparate treatment on persons similarly situation, but upheld the statute based upon the legislature’s broad authority to create laws, and the reasonable objectives the legislature had (or could have had) in enacting this law. Specifically, the Court held that the legislature could have passed this bill for the legitimate purposes of deterring illegal drug use and for promoting public safety on our roads. While the legislature may have had other legitimate purposes, these were sufficient under a rational basis review to hold the statute does not violated the Uniform Operations of Law provision of the Utah Constitution. 

You can access the full case through this link: State v. Outzen

Monday, March 13, 2017

What Constitutes a "Movement?" State v. Olivarez

Have you ever had a case where you had to determine what constituted a "movement?" Well, if so, the Utah Court of Appeals may have just helped you out! Recently, the Court held that one continuous movement across 2 lanes of traffic violated the law, and the officer that observed the conduct had reasonable suspicion for the stop. 

In State v. Olivarez, an officer in an unmarked car observed a driver turn on his turn signal for two seconds, and in one continuous movement, go from lane #2 to lane #4. The officer initiated a traffic stop due to the driver not signaling for the required two seconds once he was in lane #3 before proceeding to move into lane #4. Of course, we would not be talking about this case if it was just a traffic violation. The driver was the sole occupant of the vehicle, had a denied license, and the vehicle was registered to another person. The officer determined that he would impound the vehicle, and like in any good law school text book, brass knuckles were found on the driver and drugs and paraphernalia were found in the vehicle. There is some good analysis in this case on the reasonableness of an impound, but for our purposes here, I wanted to focus on the initial stop. 

Olivarez argued that he complied with the plain text of the statute, as he signaled for two seconds and then in one continuous movement, moved from lane #2 in one continuous motion lane #4. The Court rejected this argument, stating that the "movement" contemplated in the statute was singular, not plural. The Court held that for a person to comply with the law, they must signal for at least two seconds for each movement made, and that each singular lane change constituted a separate movement. 

While this may seem pretty clear, we now have this appellate decision confirming this requirement. The rationale used by the Court could apply to various traffic offenses for reasonable suspicion. Click on the link below if you would like to read the case.         


Wednesday, February 22, 2017

Officer's Conversation with Driver was Consensual - Wyoming Supreme Court

Here is a good case law result out of Wyoming regarding extension of the scope of the stop and consensual encounters. Summary provided by IMLA. Here is a link to the case: http://www.courts.state.wy.us/Documents/Opinions/2017WY9.pdf

____________________________________________________________________________

Search and Seizure:  Detention Ended after Officer Delivered Speeding Ticket and Said "Have a Safe Day;" Driver's Conversation Thereafter was Consensual 

Tibbetts v. State of Wyoming, 2017 WY 9 (Wyo. Feb. 1, 2017).

The detention created when a police officer pulls over a driver concludes after the officer issues a citation (or not) and indicates that the driver is free to go.  If the driver then agrees to continued conversation with the officer, that interaction is deemed to be voluntary and outside the scope of the original stop.

On May 3, 2013 a state trooper stopped Michael Scott Tibbetts (Tibbetts) for speeding outside Gillette, Wyoming. The trooper obtained Tibbetts' driver's license and proof of insurance, wrote the speeding citation, handed it to Tibbetts and told him to "drive safe and have a safe day." As the trooper was walking away from Tibbetts' truck, and while the lights on the police cruiser were still flashing, he turned around and asked Tibbetts if he would mind answering a few questions. Tibbetts said he had no issues with answering further questions.

The trooper made a variety of inquiries, including Tibbetts' travel plans and whether he had anything he should not have in the car. Tibbetts handed over prescription pills for which he did not have a prescription and, ultimately, methamphetamine. Tibbetts filed a motion to suppress arguing his statements and the methamphetamine were the product of an unlawful detention that exceeded the scope of the trooper's original justification for the traffic stop. The district court concluded a reasonable person in Tibbett's situation would have felt free to leave after the trooper bade him farewell and turned to go, meaning Tibbetts consented to answering further questions voluntarily. Tibbetts appealed.

The Wyoming Supreme Court noted Tibbetts did not contest the trooper's initial reasonable suspicion for speeding, but rather that the trooper unlawfully extended the detention without reasonable suspicion of criminal activity after the speeding investigation was complete. The Court disagreed with this contention, finding instead that the investigative detention ended when the trooper wished Tibbetts a good day and told him to drive safely. At that point a new, consensual interaction began because Tibbetts was free to leave, but agreed to speak further with the trooper at his request; he was under no obligation to do so according to the Court. Tibbetts focused on the fact that the trooper's overhead lights were still on and that the officer did not let him begin to leave, e.g. begin to drive away. These arguments fell on deaf ears as the Court noted no authority was cited for these arguments and pointed out that the trooper clearly indicated he could leave: he bid him a good day, turned away and began walking toward his cruiser. The overhead lights are but one factor in the totality of the circumstances analysis and in this case they were not "coercive." The Court affirmed the lower court.

Monday, January 30, 2017

Helpful Drugged Driving Opinion

The Ohio Supreme Court recently issued a ruling that I believe is a great example prosecutors can look to in difficult DUI cases. Check out the summary below that was completed by Holly Reese, TSRP in Ohio, and Beth Barnes, TSRP in Arizona. Notice especially that the conviction was secured without a toxicology result. This is a fantastic example of a prosecutor utilizing all the resources available to get a conviction in a difficult DUI case. The training and experience of so many of our officers are powerful tools in our cases. Are we utilizing these tools effectively? Or are we simply hitching our wagons to a chemical test result? The reasoning in this opinion is helpful on many fronts to us here in Utah. Let me know if you have any questions or want to talk about these issues in more detail.

-Tyson

_______________________________________________________________

State v. Richardson, No. 2016-Ohio-8448, 2016 WL 7645344, a case of interest recently issued by the Ohio Supreme Court.

In a 4-3 decision, the court held expert testimony is not required for a conviction of driving under the influence of a drug.  Evidence establishing the defendant’s impairment, together with his admission to taking hydrocodone, was sufficient to sustain the conviction. 

This opinion may be useful for its persuasive value in any state that does not have a published opinion addressing the necessity of expert testimony in a DUI drug case.  Further, even though it was not the focus of the opinion, it is worth noting that there were no blood or urine toxicology results in this case.  Nonetheless, the evidence was sufficient for conviction.  This is a good example of the fact that we prove impairment in a DUI drug case through the officer and that thorough documentation of impairment and the use of the SFSTs leads to and sustains convictions.

Here is a summary of the opinion.

FACTS:  Richardson rear-ended a vehicle stopped at a red light.  When the driver of the other vehicle approached, she noted his speech was slurred and that Richardson dropped all his documents as he attempted to exchange information.  After the victim returned to her car, she felt it move as though nudged by Richardson’s truck.

When the investigating officer arrived, he noticed Richardson had slurred speech and that he singed his hair as he tried to light a cigarette.  The officer had to put Richardson’s truck in park because Richardson had failed to do so.  When asked to exit the truck, Richardson slid out.  He failed the SFSTs, admitted he had taken pain medication (30 milligrams of hydrocodone) and refused the offered blood test. 

During trial, Richardson testified he had a prescription for hydrocodone acetaminophen, but claimed he had taken the medication two days before the collision.  He asserted he was merely suffering from withdrawal at the time of the collision and that he had been taking the hydrocodone for so long that he no longer experienced its side effects.  A doctor who specialized in chemical dependence testified Richardson’s behavior on the date of violation was consistent with the effects of hydrocodone withdrawal but inconsistent with impairment.  The trial judge convicted Richardson who later appealed.

ANALYSIS AND HOLDING:  Finding the evidence sufficient to sustain the conviction, the Ohio Supreme Court reversed the 2nd District Court who had vacated the conviction.  The Ohio Supreme Court found the evidence established Richardson ingested hydrocodone which impaired his driving. 

Richardson’s admissions proved he had ingested hydrocodone.  Additionally, the evidence of impairment was “significant and sufficient.” This included evidence that Richardson rear-ended another vehicle, had slurred speech, slid out of his truck, and singed his hair while attempting to light a cigarette.  He exhibited 7 of 8 cues on the walk and turn and showed signs of impairment on the one leg stand.  Based on his experience, the officer testified it was his belief Richardson was under the influence of narcotics.

The court specifically noted that “When the effects of a drug are sufficiently well known - as they are with hydrocodone - expert testimony linking ingestion of the drug with indicia of impairment is unnecessary. “In this case, the testimony of the experienced, well-trained officer was sufficient lay testimony connecting Richardson’s impairment to the hydrocodone.”

Friday, February 6, 2015

Noteworthy Spice Decision

     When Spice appeared as a street drug five or so years ago, state legislatures, including Utah’s, responded by listing the known kinds of Spice on their schedules of controlled substances, thus making those kinds of Spice illegal. Spice producers then changed the molecular structure of their products so they no longer matched the kinds on the schedules, thus their new products were not illegal. Thereafter, state legislatures added the new kinds of Spice to their schedules, and Spice producers responded as they did the first time. That cycle has continued for the last few years. At some point, state legislatures, including Utah’s, added a catch-all provision, the effect of which was to make illegal the listed kinds of Spice plus any unlisted “synthetic equivalent” of cannabis. Recently, the Iowa Court of Appeals upheld that language as providing sufficient notice to a defendant who argued his due process rights were violated on void-for-vagueness grounds in State v. Heinrichs, 845 N.W.2d 450 (Iowa Ct. App. 2013). Since we have identical catch-all language in Utah Code Ann. § 58-37-4.2, Heinrichs may be worth citing if you litigate this issue.

Spice and Bath Salts Testing Options

     The Utah Bureau of Forensic Services Laboratory (i.e., the State Crime Lab) can test for synthetic marijuana, i.e., Spice, and bath salts seized outside of the human body. So your officers can submit a seized baggie of Spice or bath salts and get a test result back for later use in a prosecution. However, the Tox Lab does not test for Spice and bath salts in human body fluids.  This is mainly a resource issue.  So if you have a DUI Spice or bath salts case for which you want a toxicology final report for a prosecution, the best option is for the arresting agency to submit the biological sample to NMS Labs in Pennsylvania. http://nmslabs.com  (last accessed Feb. 6, 2015) Spice tests cost between $62.00 to $530.00, depending on what the arresting and prosecuting agency want done. The test cost, plus the cost of flying the NMS Labs expert to Utah, and then paying them $250.00 an hour to testify, makes this option cost prohibitive for most DUI prosecutions. However, in DUIs where there is compelling reason to spend those amounts of money, NMS Labs appears to be the best option.