We had an important case published by the Court of Appeals recently. There isn't really any new groundbreaking law established here, but there is some follow up language that is instructive to a prior decision in Harvey. It does a couple other things that are important, one less so after the passing of HB139 this year in the legislature, however. It states unequivocally that DUI is a strict liability offense, and no mens rea is required. It also states that reckless driving is not a lesser included offense of DUI. The summary is below.
Facts:
Defendant was slumped over asleep in his car, which was parked at an intersection, in the left turn lane, with his car slightly protruding out into the intersection and his engine running. Another vehicle passed by, noticing this, and tried to yell and honk his horn to awake the defendant, to no avail. This other driver called the police and multiple officers came to the scene.
Officer 1 arrived and noticed keys in the ignition, the engine running, and the manual transmission put in neutral, with no emergency brake engaged. Officer 1 had to physically jostle defendant's arm to get him to wake up. Officer 1 noted that defendant was drowsy and "just spaced out." Defendant admitted to using Xanex, but no other substances. Officer 2 performed field sobriety tests where the defendant showed many clues, showing many signs of impairment. Officer 2 testified about the correlation these clues and tests have to driving, including the need to preform divided attention tasks. (This was important testimony, as will be seen later.)
At trial the defendant's doctor testified that he had prescribed the substance to defendant for the last several years. The state toxicologist testified that the amount present would be in therapeutic ranges, but that the therapeutic ranges could still cause symptoms being seen by the officers. The defendant also testified about prior injuries to his ankles that have never healed that would account for the balance issues he exhibited during the field sobriety tests. The defendant asked for a lesser included offense instruction for reckless driving, which the court did not allow. Defendant was convicted of the DUI, among other charges.
Issues:
Defendant claimed he received ineffective assistance of counsel , that the court erred in not instructing the jury on the lesser included offense of reckless driving, and also made a procedural motion on Rule 23B to allow remand to supplement the record to show ineffective assistance of counsel. The Court of appeals affirmed.
Discussion:
First, defendant claimed that his trial counsel was ineffective for not filing a motion to arrest judgement on the conviction for DUI on the grounds that there was insufficient evidence to support the conviction. He cited the holding in Harvey to support this notion. In Harvey, the Court of Appeals had ruled that the clues exhibited by the defendant in that case were not sufficient on their own to show that defendant was incapable of safely operating a vehicle. There was some concerning language in the opinion for field sobriety tests, but when read in context, the issue was simply that the record was void of any information about why the standardized field sobriety tests are important in correlating the results to driving performance. In Harvey, the officer testified only to what was observed, not why it was important. The Court of Appeals was simply going off the record. The Court of Appeals noted the difference between the current case and Harvey by stating that Officer 2 had made the connection between the SFSTs and driving performance. Also, that the SFSTs did not stand alone in the present case due to all the other information. The biggest takeaway from this differentiation is how important it is for the officer to not only testify WHAT they saw, but WHY it is important. We must protect our records so if cases go up on appeal, the Court of Appeals has the ammunition needed to rule in our favor.
The Court of Appeals also disagreed with defendant's claim that the trial court erred for not giving the lesser included offense instruction. It noted that the elements for the offense are not the same, and therefore reckless driving is not a lesser included offense of DUI. One big differentiation made was that reckless driving requires someone to do it willfully or wantonly, whereas the Court of Appeals noted that DUI is a strict liability offense, and no mens rea is necessary. This is important language for those trial courts that have started to read an "inherent mens rea" into the law, but will also be assisted by the passing of HB139 this legislative session. The overall analysis here is helpful for any argument where a defendant is arguing a lesser included for a DUI offense.
Finally the Court rejected defendant's argument for the remand to supplement the record.
You can read the entire opinion here: State v. Higley
Please let me know if you have any questions or concerns.
Tyson
Monday, March 30, 2020
Monday, September 30, 2019
Chain of Custody - State v Moore
The Court of Appeals recently reiterated two principles articulated years ago in State v. Wynia and several other cases in regards to chain of custody. State v. Moore is a DUI case involving a blood draw where not every single person in the chain of custody was subpoenaed, and the defense was also making an argument that the blood vial was not stored properly. The two important notes are as follows:
First, that chain of custody goes to weight of the evidence and not to admissibility. This is an argument that defense attorneys regularly make even though it is very well established and settled case law.
Second, the Court of Appeals reiterates the idea that the government is entitled to a presumption that once evidence is in the hands of the state that we assume that it is handled with regularity UNLESS there is an affirmative showing of bad faith or tampering by the defense. I'm sure we have all had cases where it feels like this threshold showing is a burden upon us as prosecutors, but that is not the case. Our burden is to make a sufficient showing that an exhibit is in the same condition as it was when it was collected, and if we can do that, the presumption is that the evidence/exhibit was handled with regularity. The court cited previous decisions that have stated that the party proffering evidence is not required to eliminate every conceivable possibility that evidence may have been altered. The fact remains that if the defense is going to make the argument that the evidence was mishandled or tampered with, they have to have evidence or information showing why they believe that. Simply not having one of the links in the chain of custody is not sufficient to make that argument.
The Court of Appeals affirmed the district court's decision in allowing the evidence to be presented at trial.
The defendant in this case was sentenced incorrectly for their traffic violation, and the case was remanded for the limited purpose of imposing sentence as an infraction instead of a class C misdemeanor. You can read the entire opinion here: State v Moore
First, that chain of custody goes to weight of the evidence and not to admissibility. This is an argument that defense attorneys regularly make even though it is very well established and settled case law.
Second, the Court of Appeals reiterates the idea that the government is entitled to a presumption that once evidence is in the hands of the state that we assume that it is handled with regularity UNLESS there is an affirmative showing of bad faith or tampering by the defense. I'm sure we have all had cases where it feels like this threshold showing is a burden upon us as prosecutors, but that is not the case. Our burden is to make a sufficient showing that an exhibit is in the same condition as it was when it was collected, and if we can do that, the presumption is that the evidence/exhibit was handled with regularity. The court cited previous decisions that have stated that the party proffering evidence is not required to eliminate every conceivable possibility that evidence may have been altered. The fact remains that if the defense is going to make the argument that the evidence was mishandled or tampered with, they have to have evidence or information showing why they believe that. Simply not having one of the links in the chain of custody is not sufficient to make that argument.
The Court of Appeals affirmed the district court's decision in allowing the evidence to be presented at trial.
The defendant in this case was sentenced incorrectly for their traffic violation, and the case was remanded for the limited purpose of imposing sentence as an infraction instead of a class C misdemeanor. You can read the entire opinion here: State v Moore
Thursday, June 27, 2019
Mitchell v Wisconsin - Implied Consent and Unconscious Drivers
Today the Supreme Court of the United States issued a plurality opinion on a Wisconsin case dealing with impaired/unconscious drivers and implied consent. In an interesting holding, the decision states that an unconscious driver is almost always an exigent circumstance, and an officer may do a warrantless blood draw under that exception. Here is a quick rundown of the case:
Mitchell was seen getting into his van and driving off after an onlooker observed he seemed "very drunk." Officer found Mitchell down near the lake, stumbling around and intoxicated. After determining that SFSTs would be futile and likely dangerous due to the level of intoxication, Officer had Mitchell blow into a PBT. The PBT result was .24. Officer arrested Mitchell and was taking him to the station for an evidentiary breath test. On the way Mitchell was loosing consciousness and by the time they got there, he was totally passed out drunk. Officer transported Mitchell to the hospital where he ordered a warrantless blood draw based upon the state's implied consent laws that state an unconscious person has not withdrawn their consent for a chemical test after driving.
Mitchell's motion to suppress was denied and he was convicted of Wisconsin's version of DUI. As the case came to the SCOTUS, Wisconsin did not advance any argument based upon exigency. The state actually conceded that it was not an exigency, and only advanced the argument that under implied consent, Mitchell had consented to the blood draw and was therefore not a violation of the Fourth Amendment. Neither party argued exigency, and the Court seemed to sua sponte advance the exigency argument it settled with the holding.
One thing the Court makes clear, however, is that BAC tests are searches. This follows the reasoning in prior cases, including the prior Birchfield case where breath tests were upheld without a warrant as searches incident to arrest.
Here are some important statements from the Court:
"Today, we consider what police officers may do in a narrow but important category of cases: this in which the driver is unconscious and therefore cannot be given a breath test. In such cases, we hold, the exigent-circumstances rule almost always permits a blood test without a warrant."
Later:
"Thus, when a driver is unconscious, the general rule is that a warrant is not needed."
And in its concluding remarks:
"When police have probable cause to believe a person has committed a drunk-driving offense and the driver's unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer and standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver's BAC without offending the Fourth Amendment."
Justice Thomas' concurrence, which put the plurality over the top, would have us overturn McNeely where the Court previously stated that the natural dissipation of alcohol in the body over time alone is not an exigency without other factors in play. Justice Thomas dissented to that notion then, and reaffirmed his dissent to that principle in his concurrence with the result. He would have all DUI cases be able to have a warrantless blood draw under the exigency doctrine due to the natural dissipation of alcohol in the body.
Two dissents were written in the case. One by Justice Sotomayor, which was joined by Justices Ginsburg and Kagan. Justice Gorsuch also wrote a dissenting opinion.
The short version of this holding is that the Court ignored the implied consent argument, and held that the warrantless blood test of an unconscious person where an officer has probable cause that the person was DUI is almost always permissible under the Fourth Amendment. This is the general rule. The Court left open a small possibility that a driver in individual cases could show exigency did not apply, and that is why the case was remanded back to Wisconsin state courts to go through those proceedings.
Here is a link to the opinion: Mitchell v. Wisconsin
As always, please let me know if you have questions or concerns.
Tyson
Mitchell was seen getting into his van and driving off after an onlooker observed he seemed "very drunk." Officer found Mitchell down near the lake, stumbling around and intoxicated. After determining that SFSTs would be futile and likely dangerous due to the level of intoxication, Officer had Mitchell blow into a PBT. The PBT result was .24. Officer arrested Mitchell and was taking him to the station for an evidentiary breath test. On the way Mitchell was loosing consciousness and by the time they got there, he was totally passed out drunk. Officer transported Mitchell to the hospital where he ordered a warrantless blood draw based upon the state's implied consent laws that state an unconscious person has not withdrawn their consent for a chemical test after driving.
Mitchell's motion to suppress was denied and he was convicted of Wisconsin's version of DUI. As the case came to the SCOTUS, Wisconsin did not advance any argument based upon exigency. The state actually conceded that it was not an exigency, and only advanced the argument that under implied consent, Mitchell had consented to the blood draw and was therefore not a violation of the Fourth Amendment. Neither party argued exigency, and the Court seemed to sua sponte advance the exigency argument it settled with the holding.
One thing the Court makes clear, however, is that BAC tests are searches. This follows the reasoning in prior cases, including the prior Birchfield case where breath tests were upheld without a warrant as searches incident to arrest.
Here are some important statements from the Court:
"Today, we consider what police officers may do in a narrow but important category of cases: this in which the driver is unconscious and therefore cannot be given a breath test. In such cases, we hold, the exigent-circumstances rule almost always permits a blood test without a warrant."
Later:
"Thus, when a driver is unconscious, the general rule is that a warrant is not needed."
And in its concluding remarks:
"When police have probable cause to believe a person has committed a drunk-driving offense and the driver's unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer and standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver's BAC without offending the Fourth Amendment."
Justice Thomas' concurrence, which put the plurality over the top, would have us overturn McNeely where the Court previously stated that the natural dissipation of alcohol in the body over time alone is not an exigency without other factors in play. Justice Thomas dissented to that notion then, and reaffirmed his dissent to that principle in his concurrence with the result. He would have all DUI cases be able to have a warrantless blood draw under the exigency doctrine due to the natural dissipation of alcohol in the body.
Two dissents were written in the case. One by Justice Sotomayor, which was joined by Justices Ginsburg and Kagan. Justice Gorsuch also wrote a dissenting opinion.
The short version of this holding is that the Court ignored the implied consent argument, and held that the warrantless blood test of an unconscious person where an officer has probable cause that the person was DUI is almost always permissible under the Fourth Amendment. This is the general rule. The Court left open a small possibility that a driver in individual cases could show exigency did not apply, and that is why the case was remanded back to Wisconsin state courts to go through those proceedings.
Here is a link to the opinion: Mitchell v. Wisconsin
As always, please let me know if you have questions or concerns.
Tyson
Thursday, April 11, 2019
Community Caretaker - State v. Malloy
*Update - January 2021 - This case was heard on appeal and the Utah Supreme Court gave updated guidance on the issue, it can be seen here: http://upc-tsrp.blogspot.com/2021/01/state-v-malloy-update-to-view-on.html I'm leaving the prior analysis up for historical purposes.
The issue of this case is boiled down simply by the court: "[W]hether having lawfully detained [a suspect] on suspicion of impaired driving, the officer violated the Fourth Amendment by opening the car door."
A concerned citizen had called in a DUI crash in a parking lot. The citizen informant had reported that a driver had fell asleep and then hit a light pole. He woke up, began to back out, and fell asleep again. Officer arrived and parked his patrol car behind the suspect's car, essentially blocking him from backing out any further or moving anywhere. Officer observed suspect slumped and slouched over in the driver's seat unconscious. Officer opened the door to check on the suspect, and suspect awoke. Officer observed drug paraphernalia on the floor between suspect's feet when he opened the door. Suspect made admissions about taking narcotics, showed many indications of impairment on SFSTs, and was arrested for DUI. Suspect also ended up being charged for possession of heroin that was discovered in a search incident to arrest.
Defendant argued that the opening of the door of the car was a violation of his Fourth Amendment rights. Defendant argued that officer should have knocked on the window first to determine if this was a true emergency that required the officer opening the door. The State argued and the District Court agreed that this was permissible under the "emergency aid" exception to the warrant requirement, and the motion to suppress was denied.
The Court of Appeals did not reach a decision whether the emergency aid exception applied here. The Court of Appeals affirmed the District Court's order on the basis that opening the car door was a permissible act under a lawful Terry stop, and therefore no warrant would be required.
In citing State v James, 2000 UT 80, the Court of Appeals articulated that opening a door as part of a lawful Terry stop to investigate the driver is not akin to opening a door to investigate the vehicle, and therefore, the additional step of obtaining a warrant is not necessary. In James, the opening of a door as part of a lawful detention to investigate the driver himself was an incidental factor in the investigation of the driver's impaired condition. This seemed to be the important designation of the case. Because the officer was investigating the driver and not searching the car itself for evidence, the opening of the door was not a Fourth Amendment violation and an incidental factor in the otherwise lawful investigation.
You can find the case here if you'd like to read it: State v. Malloy
A concerned citizen had called in a DUI crash in a parking lot. The citizen informant had reported that a driver had fell asleep and then hit a light pole. He woke up, began to back out, and fell asleep again. Officer arrived and parked his patrol car behind the suspect's car, essentially blocking him from backing out any further or moving anywhere. Officer observed suspect slumped and slouched over in the driver's seat unconscious. Officer opened the door to check on the suspect, and suspect awoke. Officer observed drug paraphernalia on the floor between suspect's feet when he opened the door. Suspect made admissions about taking narcotics, showed many indications of impairment on SFSTs, and was arrested for DUI. Suspect also ended up being charged for possession of heroin that was discovered in a search incident to arrest.
Defendant argued that the opening of the door of the car was a violation of his Fourth Amendment rights. Defendant argued that officer should have knocked on the window first to determine if this was a true emergency that required the officer opening the door. The State argued and the District Court agreed that this was permissible under the "emergency aid" exception to the warrant requirement, and the motion to suppress was denied.
The Court of Appeals did not reach a decision whether the emergency aid exception applied here. The Court of Appeals affirmed the District Court's order on the basis that opening the car door was a permissible act under a lawful Terry stop, and therefore no warrant would be required.
In citing State v James, 2000 UT 80, the Court of Appeals articulated that opening a door as part of a lawful Terry stop to investigate the driver is not akin to opening a door to investigate the vehicle, and therefore, the additional step of obtaining a warrant is not necessary. In James, the opening of a door as part of a lawful detention to investigate the driver himself was an incidental factor in the investigation of the driver's impaired condition. This seemed to be the important designation of the case. Because the officer was investigating the driver and not searching the car itself for evidence, the opening of the door was not a Fourth Amendment violation and an incidental factor in the otherwise lawful investigation.
You can find the case here if you'd like to read it: State v. Malloy
Monday, February 11, 2019
Extension of the Scope - State v. Miller
The Utah Court of Appeals recently released its opinion in State v. Miller, which is a case about extending the scope of a traffic stop.
Facts:
Defendant was stopped for going 70 mph in a 65 mph zone, a fact that the Trooper acknowledged he usually does not stop people for, but will many times on drivers with out of state plates due to possible drug trafficking activity. Trooper asked Defendant to come back to the patrol car with him. Trooper stated he does this about 90% of the time for two purposes: 1- sometimes he needs additional information to process the stop and this takes away the need to walk back and forth between vehicles; and 2- so Trooper can potentially gain additional reasonable suspicion while actively filling out the citation. Defendant had a noticeable limp as he walked back to Trooper's car, but did not take an "excessive amount of time." After Defendant got into Trooper's car, Trooper asked Defendant, "What'd you do to your ankle?" Trooper walked around to his side of the car after Defendant's response.
Over the next 7 minutes the two conversed about things other than the stop, but Trooper was actively filling out the citation this entire time. Most of the small talk was initiated by Defendant during this period. Trooper had finished all but one portion of the citation before asking dispatch to run a records check on Defendant. Trooper deployed a K9 while waiting for the records check, including a Triple I to come back. About 60 seconds after the dispatch, but before dispatch reported back the records check, the K9 alerted to the presence of a controlled substance. It was "several minutes" after the alert that dispatch finally reported back the criminal history check. 71 pounds of marijuana were found in the car and Defendant was charged with Possession with intent to distribute, along with the speeding violation. Defendant filed a motion to suppress evidence based upon the extension of the scope of the stop.
The question addressed at the district court level was whether the unrelated investigations, including the some of the questioning not related to the speeding violation and the dog sniff, extended the scope of the stop for speeding. The district court denied the motion to suppress, Defendant pleaded guilty and appealed based upon both the Utah and United States constitutions. The court of appeals noted that the state constitutional argument was not sufficiently briefed, so the analysis proceeded based upon the federal issues only.
Issues:
Defendant argued that Trooper illegally extended the scope of the stop in the following three ways: 1- Asking defendant to walk back to the patrol car; 2- engaging him in unrelated questioning before and during the citation process; and 3- waiting to run a criminal history check until later in the stop.
Asking Defendant to Walk Back to Patrol Car:
It is long established case law that an officer may ask occupants of vehicles to exit for officer safety purposes. Courts have long held that traffic stops are "especially fraught with danger to police officers" and "an officer may take certain negligible burdensome precautions in order to complete his mission safely." (internal cites omitted) The court held that the additional request to come back and sit in the patrol car follows this same line of reasoning, and does not require any further reasonable articulable suspicion.
Unrelated Questioning:
The court of appeals acknowledged the Supreme Court has held that officers may ask questions unrelated to the purpose of the traffic stop so long as those inquiries do not measurably extend the duration of the stop. So the ultimate question here is not whether the questioning is always related to the scope of the stop, but if it adds time to the stop. The court acquiesced that there was a de minimis extension in the time it would have taken to complete the stop if some of the questioning would not have happened. We have previous case law stating that even de minimis extension after the scope of the stop is finished. The Court here makes the distinction of when the de minimis extension takes place. Here, this was while the citation process was being completed, whereas prior cases the de minimis extension took place after the stop had been completed. This is an important distinction for this issue, and the court held that Trooper's unrelated questioning did not illegally extend the scope of the stop.
Records Check:
Defendant argued that Trooper's waiting to ask for the record check until that portion of the citation process was just an attempt to get "bonus time" to do other things while dispatch was conducting the criminal history check. Defendant argued that this needs to take place at the beginning so dispatch can be doing the records check while Trooper was filling out the citation. While the court agreed that there could be more efficient ways of completing the citation process, the ultimate issue is whether Trooper "pursued his investigation in a diligent and reasonable manner, not whether the investigation may have been accomplished by a less intrusive means." The court held that Trooper's actions were diligent, and even more important under a 4th Amendment analysis, that they were reasonable. As such, the dog sniff while waiting on the records check results to come back was permissible. Importantly on this issue, the court uses language and other decisions to say that a background check is a "mission-related activity," it could not unlawfully prolong the stop regardless of the order an officer completes each task. This is not new language, but reinforces what was existing in case law and is helpful for officers.
Ultimately, the court rejected all of Defendant's arguments and affirmed the district court's denial of Defendant's motion to suppress. The dissent in this case is worth reading, but seems to ignore several prior precedents in the analysis. It seems the dissent felt this stop was simply a pretext stop and that should not be allowed, even though our courts have rejected that principle pretty clearly.
The full decision can be found here: State v. Miller
Facts:
Defendant was stopped for going 70 mph in a 65 mph zone, a fact that the Trooper acknowledged he usually does not stop people for, but will many times on drivers with out of state plates due to possible drug trafficking activity. Trooper asked Defendant to come back to the patrol car with him. Trooper stated he does this about 90% of the time for two purposes: 1- sometimes he needs additional information to process the stop and this takes away the need to walk back and forth between vehicles; and 2- so Trooper can potentially gain additional reasonable suspicion while actively filling out the citation. Defendant had a noticeable limp as he walked back to Trooper's car, but did not take an "excessive amount of time." After Defendant got into Trooper's car, Trooper asked Defendant, "What'd you do to your ankle?" Trooper walked around to his side of the car after Defendant's response.
Over the next 7 minutes the two conversed about things other than the stop, but Trooper was actively filling out the citation this entire time. Most of the small talk was initiated by Defendant during this period. Trooper had finished all but one portion of the citation before asking dispatch to run a records check on Defendant. Trooper deployed a K9 while waiting for the records check, including a Triple I to come back. About 60 seconds after the dispatch, but before dispatch reported back the records check, the K9 alerted to the presence of a controlled substance. It was "several minutes" after the alert that dispatch finally reported back the criminal history check. 71 pounds of marijuana were found in the car and Defendant was charged with Possession with intent to distribute, along with the speeding violation. Defendant filed a motion to suppress evidence based upon the extension of the scope of the stop.
The question addressed at the district court level was whether the unrelated investigations, including the some of the questioning not related to the speeding violation and the dog sniff, extended the scope of the stop for speeding. The district court denied the motion to suppress, Defendant pleaded guilty and appealed based upon both the Utah and United States constitutions. The court of appeals noted that the state constitutional argument was not sufficiently briefed, so the analysis proceeded based upon the federal issues only.
Issues:
Defendant argued that Trooper illegally extended the scope of the stop in the following three ways: 1- Asking defendant to walk back to the patrol car; 2- engaging him in unrelated questioning before and during the citation process; and 3- waiting to run a criminal history check until later in the stop.
Asking Defendant to Walk Back to Patrol Car:
It is long established case law that an officer may ask occupants of vehicles to exit for officer safety purposes. Courts have long held that traffic stops are "especially fraught with danger to police officers" and "an officer may take certain negligible burdensome precautions in order to complete his mission safely." (internal cites omitted) The court held that the additional request to come back and sit in the patrol car follows this same line of reasoning, and does not require any further reasonable articulable suspicion.
Unrelated Questioning:
The court of appeals acknowledged the Supreme Court has held that officers may ask questions unrelated to the purpose of the traffic stop so long as those inquiries do not measurably extend the duration of the stop. So the ultimate question here is not whether the questioning is always related to the scope of the stop, but if it adds time to the stop. The court acquiesced that there was a de minimis extension in the time it would have taken to complete the stop if some of the questioning would not have happened. We have previous case law stating that even de minimis extension after the scope of the stop is finished. The Court here makes the distinction of when the de minimis extension takes place. Here, this was while the citation process was being completed, whereas prior cases the de minimis extension took place after the stop had been completed. This is an important distinction for this issue, and the court held that Trooper's unrelated questioning did not illegally extend the scope of the stop.
Records Check:
Defendant argued that Trooper's waiting to ask for the record check until that portion of the citation process was just an attempt to get "bonus time" to do other things while dispatch was conducting the criminal history check. Defendant argued that this needs to take place at the beginning so dispatch can be doing the records check while Trooper was filling out the citation. While the court agreed that there could be more efficient ways of completing the citation process, the ultimate issue is whether Trooper "pursued his investigation in a diligent and reasonable manner, not whether the investigation may have been accomplished by a less intrusive means." The court held that Trooper's actions were diligent, and even more important under a 4th Amendment analysis, that they were reasonable. As such, the dog sniff while waiting on the records check results to come back was permissible. Importantly on this issue, the court uses language and other decisions to say that a background check is a "mission-related activity," it could not unlawfully prolong the stop regardless of the order an officer completes each task. This is not new language, but reinforces what was existing in case law and is helpful for officers.
Ultimately, the court rejected all of Defendant's arguments and affirmed the district court's denial of Defendant's motion to suppress. The dissent in this case is worth reading, but seems to ignore several prior precedents in the analysis. It seems the dissent felt this stop was simply a pretext stop and that should not be allowed, even though our courts have rejected that principle pretty clearly.
The full decision can be found here: State v. Miller
Thursday, November 15, 2018
GRAMA and Running License Plates
"May a police officer, without reasonable suspicion of criminal activity, run a license plate check on a passing vehicle?"
That is a question that has been argued in justice and district courts all around Utah for several years now. This issue stemmed originally from a ruling out of the West Valley Justice Court saying that an officer running a license plate without already having reasonable suspicion was a violation of privacy under GRAMA, and the argument spread quickly throughout the state. Almost every court where this was argued around the state ruled in favor of the government, but, until now we never had a case go up on appeal above the district court level to confirm the legality of such police action. Well, now we do! And as expected, the ruling is in the government's favor. Officers may, without reasonable suspicion, run a license plate and complete vehicle and driver license record checks on passing vehicles.
_________________________________________________________________________________
State v. Oryall
Oryall was driving on State Road 198 in Payson when she passed an officer on the side of the road that was running licence plate checks on passing cars. Officer ran Oryall's plate through the government-managed electronic database and revealed Oryall as the registered owner. Officer then ran Oryall's driver license record, discovering she had a suspended driver license. After watching the car park at a nearby convenience store, officer watched the driver got out and walk into the convenience store, allowing the officer to confirm that the person driving the car was in fact Oryall. Oryall came back out and resumed driving, and officer initiated a traffic stop. Oryall exhibited many clues of impairment and after completing field sobriety tests, Oryall was arrested for DUI and other related crimes.
Oryall filed a motion to suppress the evidence based upon the Utah Constitution and her expectation of privacy in motor vehicle and driver records, and that GRAMA recognized that expectation of privacy. Oryall's argument contended that to overcome that reasonable expectation of privacy that an officer must possess reasonable suspicion of criminal activity prior to accessing the records, even though those records are kept by governmental agencies. The district court denied her motion, and Oryall appealed.
Oryall relied upon a state constitutional argument only since federal courts "have unanimously determined that law enforcement officers may conduct warrantless and suspicionless checks on passing motorists' vehicle registration and driver's license information." (quoted from State v. Oryall, see United States v. Miranda-Sotolongo, 827 F.3d 663, 667 (7th Cir. 2016). In addition to recognizing the federal law relating to this argument, the Court in Oryall stated it was aware of no other state that has interpreted their own constitution to require a warrant or reasonable suspicion before running similar vehicle record checks.
Oryall pointed the court to the fact that, on rare occasion, the Utah Supreme Court has interpreted Utah's constitution to apply more broad protections from search and seizure than the federal courts have in interpreting the federal constitution. The Court of Appeals rejected this argument and distinguished the case cited in support of Oryall's argument. The Court held that a person does not possess a reasonable expectation of privacy against government intrusion to a record that the same government they are attempting to prevent intruding already lawfully possesses the record itself.
Oryall's next argument was around GRAMA itself. Oryall argued that the legislative intent section of GRAMA recognized the citizenry's constitutional right to privacy in relation to personal data gathered by governmental entities. The Court points out, however, that this right to privacy is against the public accessing private information held by the government, not prohibiting the government from accessing information held by another governmental agency. The Court further notes that there are three separate subsections in GRAMA itself that specifically allow this exact sharing of information between governmental agencies to occur.
Ultimately the Court ruled that Oryall had failed to meet the required threshold showing that she even possessed a reasonable expectation of privacy in her motor vehicle record, and therefore affirmed the decision to deny the motion to suppress made in the district court. We have been waiting for an appellate court to hear this matter for several years now as the overwhelming majority of justice and district courts around the state had ruled in the government's favor, with only a very small number recognizing the right to privacy under this GRAMA argument.
Here is a link to the opinion: State v. Oryall
That is a question that has been argued in justice and district courts all around Utah for several years now. This issue stemmed originally from a ruling out of the West Valley Justice Court saying that an officer running a license plate without already having reasonable suspicion was a violation of privacy under GRAMA, and the argument spread quickly throughout the state. Almost every court where this was argued around the state ruled in favor of the government, but, until now we never had a case go up on appeal above the district court level to confirm the legality of such police action. Well, now we do! And as expected, the ruling is in the government's favor. Officers may, without reasonable suspicion, run a license plate and complete vehicle and driver license record checks on passing vehicles.
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State v. Oryall
Oryall was driving on State Road 198 in Payson when she passed an officer on the side of the road that was running licence plate checks on passing cars. Officer ran Oryall's plate through the government-managed electronic database and revealed Oryall as the registered owner. Officer then ran Oryall's driver license record, discovering she had a suspended driver license. After watching the car park at a nearby convenience store, officer watched the driver got out and walk into the convenience store, allowing the officer to confirm that the person driving the car was in fact Oryall. Oryall came back out and resumed driving, and officer initiated a traffic stop. Oryall exhibited many clues of impairment and after completing field sobriety tests, Oryall was arrested for DUI and other related crimes.
Oryall filed a motion to suppress the evidence based upon the Utah Constitution and her expectation of privacy in motor vehicle and driver records, and that GRAMA recognized that expectation of privacy. Oryall's argument contended that to overcome that reasonable expectation of privacy that an officer must possess reasonable suspicion of criminal activity prior to accessing the records, even though those records are kept by governmental agencies. The district court denied her motion, and Oryall appealed.
Oryall relied upon a state constitutional argument only since federal courts "have unanimously determined that law enforcement officers may conduct warrantless and suspicionless checks on passing motorists' vehicle registration and driver's license information." (quoted from State v. Oryall, see United States v. Miranda-Sotolongo, 827 F.3d 663, 667 (7th Cir. 2016). In addition to recognizing the federal law relating to this argument, the Court in Oryall stated it was aware of no other state that has interpreted their own constitution to require a warrant or reasonable suspicion before running similar vehicle record checks.
Oryall pointed the court to the fact that, on rare occasion, the Utah Supreme Court has interpreted Utah's constitution to apply more broad protections from search and seizure than the federal courts have in interpreting the federal constitution. The Court of Appeals rejected this argument and distinguished the case cited in support of Oryall's argument. The Court held that a person does not possess a reasonable expectation of privacy against government intrusion to a record that the same government they are attempting to prevent intruding already lawfully possesses the record itself.
Oryall's next argument was around GRAMA itself. Oryall argued that the legislative intent section of GRAMA recognized the citizenry's constitutional right to privacy in relation to personal data gathered by governmental entities. The Court points out, however, that this right to privacy is against the public accessing private information held by the government, not prohibiting the government from accessing information held by another governmental agency. The Court further notes that there are three separate subsections in GRAMA itself that specifically allow this exact sharing of information between governmental agencies to occur.
Ultimately the Court ruled that Oryall had failed to meet the required threshold showing that she even possessed a reasonable expectation of privacy in her motor vehicle record, and therefore affirmed the decision to deny the motion to suppress made in the district court. We have been waiting for an appellate court to hear this matter for several years now as the overwhelming majority of justice and district courts around the state had ruled in the government's favor, with only a very small number recognizing the right to privacy under this GRAMA argument.
Here is a link to the opinion: State v. Oryall
Monday, June 25, 2018
Carpenter v. United States - Warrants for Historical Cell Site Data
Last week the Supreme Court of the United States (SCOTUS) decided what appears to be a landmark case regarding access to historical cell site data under the 4th Amendment. Justice Roberts authored the opinion for the Court, and formulated the issue in his opening statement: "This case presents the question whether the Government
conducts a search under the Fourth Amendment
when it accesses historical cell phone records that provide
a comprehensive chronicle of the user’s past movements." Below is a summary and link for the case.
Carpenter v. United States
Timothy Carpenter (Defendant) was involved in a string of armed robberies and burglaries throughout Ohio and Michigan. Seven of his confederates identified him at trial as not only being involved in the crimes, but the leader of the group. In addition to the testimony of his cohorts, the FBI had utilized orders under the Stored Communications Act (SCA). SCA permits the government to compel the disclosure of certain telecommunications records when it “offers specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.” These reports gave historical location details about Defendant over an extended period of time, and put him in the locations of the crimes around the time they occurred. Defendant argued at trial, and on appeal, that the cell site data should be suppressed and excluded from trial since it was obtained without a warrant. The trial court denied the motion, and the 6th Circuit Court of Appeals affirmed in holding that Defendant lacked a reasonable expectation of privacy in those records as he voluntarily shared that data with the cell phone carriers for communication purposes.
The Court, in coming to the conclusion that a warrant would be necessary under these facts, likened this type of data more to constant GPS surveillance than other types of information gathering techniques. In fact, the Court stated that this type of activity is likely even more intrusive than GPS tracking on a vehicle, since people regularly leave their vehicles, but almost always carry their cell phones with them. The Court also held that this type of information, namely the past history of cell sites, does not fall under the "third party doctrine," which allows the government to obtain records from third parties that possess and own the information about the subject. The SCOTUS holding here is simply that a person possesses a reasonable expectation of privacy in historical cell site data.
There are 91 pages total in four different dissents written in the case by Justices Kennedy, Alito, Thomas, and Gorsuch. The case hinges upon the Court's hesitance to apply previous standards and precedent to developing technology that makes it easier for the government to monitor people's lives, movements, and activities. See the link below for the full opinion for more.
Carpenter v. United States
Carpenter v. United States
Timothy Carpenter (Defendant) was involved in a string of armed robberies and burglaries throughout Ohio and Michigan. Seven of his confederates identified him at trial as not only being involved in the crimes, but the leader of the group. In addition to the testimony of his cohorts, the FBI had utilized orders under the Stored Communications Act (SCA). SCA permits the government to compel the disclosure of certain telecommunications records when it “offers specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.” These reports gave historical location details about Defendant over an extended period of time, and put him in the locations of the crimes around the time they occurred. Defendant argued at trial, and on appeal, that the cell site data should be suppressed and excluded from trial since it was obtained without a warrant. The trial court denied the motion, and the 6th Circuit Court of Appeals affirmed in holding that Defendant lacked a reasonable expectation of privacy in those records as he voluntarily shared that data with the cell phone carriers for communication purposes.
The Court, in coming to the conclusion that a warrant would be necessary under these facts, likened this type of data more to constant GPS surveillance than other types of information gathering techniques. In fact, the Court stated that this type of activity is likely even more intrusive than GPS tracking on a vehicle, since people regularly leave their vehicles, but almost always carry their cell phones with them. The Court also held that this type of information, namely the past history of cell sites, does not fall under the "third party doctrine," which allows the government to obtain records from third parties that possess and own the information about the subject. The SCOTUS holding here is simply that a person possesses a reasonable expectation of privacy in historical cell site data.
There are 91 pages total in four different dissents written in the case by Justices Kennedy, Alito, Thomas, and Gorsuch. The case hinges upon the Court's hesitance to apply previous standards and precedent to developing technology that makes it easier for the government to monitor people's lives, movements, and activities. See the link below for the full opinion for more.
Carpenter v. United States
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