STATE OF UTAH, Plaintiff and Appellee, v. ALAN L. CHETTERO, Defendant and Appellant.
No. 20110667
Supreme Court of the State of Utah
February 15, 2013
2013 UT 9
Third District, Silver Summit; The Honorable Bruce C. Lubeck; No. 081500301
Attorneys:
John Swallow, Att‘y Gen., Jeffrey S. Gray, Asst. Att‘y Gen., Salt Lake City, David R. Brickey, Paul R. Christensen, Park City, for appellee
Gerry D‘Elia, Park City, for appellant
JUSTICE LEE authored the opinion of the Court, in which CHIEF JUSTICE DURRANT and JUSTICE PARRISH joined.
ASSOCIATE CHIEF JUSTICE NEHRING filed an opinion concurring and dissenting in part, in which JUSTICE DURHAM joined.
JUSTICE LEE, opinion of the Court:
¶1 In mid-November 2008, the Utah Highway Patrol (UHP) performed a drug interdiction exercise on a rural stretch of I-80 in Summit County. Most of the cars stopped during the exercise, including one driven by Alan L. Chettero, were licensed in other states. Chettero‘s traffic stop yielded evidence of illegal drugs (105 pounds of marijuana), which Chettero sought to suppress during his subsequent prosecution for possession with intent to distribute. Chettero filed two suppression motions—one based on the Equal Protection Clause and right to travel, and the other rooted
¶2 We affirm. The traffic stop Chettero complains of did not restrict his movement in a manner implicating his fundamental right to travel. His equal protection claim is equally meritless: There was a rational basis for UHP‘s choice to focus the bulk of its enforcement efforts on cars bearing out-of-state license plates given UHP‘s understanding that significant quantities of drugs would be transported from California through Utah during mid-November. Finally, to the extent the district court erred in failing to consider any evidence of relevance to the Fourth Amendment motion to suppress, it is excusable as harmless error.
I
¶3 UHP‘s interdiction exercise took place November 14-16, 2008. The exercise was designed to “prevent accidents, while removing criminals, drug proceeds, and controlled substances from [Utah] highways.” Its timing was prompted by California law enforcement communications, which indicated that the marijuana harvest in California ended in late October and that marijuana would likely be ready for transport eastward in mid-November. UHP hoped to intercept some of this illegal traffic. To do so, it made high-volume traffic stops on a stretch of I-80 in eastern Summit County between Kimball Junction and the Wyoming border.
¶4 Most vehicles stopped were licensed outside Utah. According to Summit County dispatch tapes, 147 vehicles were stopped during the exercise, and all but one (99.3 percent) bore out-of-state plates. The troopers’ daily logs show slightly different numbers. These logs reveal that of the 144 stops made, 136 (95 percent) involved out-of-state plates. Despite these statistics, the state maintains that troopers were not instructed to target out-of-state vehicles.
¶5 In one of the twenty-three stops Trooper Jensen made during the exercise—all of which involved cars with out-of-state plates—he stopped Alan Chettero‘s California-plated vehicle.1
Jensen asserts that he stopped Chettero because he crossed the fog line three times in a one-half-mile stretch. Upon approaching Chettero‘s car after making the stop, Jensen noticed that the rear compartment of the vehicle was completely filled with something covered by a blanket. As Jensen spoke with Chettero through the open front window, he noticed a strong odor of raw marijuana. Jensen then searched the vehicle, finding 105 pounds of marijuana.
¶6 Chettero was arrested and charged with possession of marijuana with intent to distribute. He filed two motions to suppress the evidence seized during the stop and/or to dismiss the information filed against him.
¶7 In the first motion, he argued that UHP‘s selective enforcement of the traffic laws had impermissibly infringed on his right to travel and violated his equal protection rights. The court held oral argument on the motion, and then denied it in a written order. In the order, the court concluded that Chettero had failed to prove that the traffic laws had been selectively enforced against him, noting that a selective enforcement claim requires proof of both discriminatory effect and discriminatory purpose. The court found Chettero had shown the former but not the latter, indicating that he had failed to show an “improper motivation” underlying the stops.
¶8 After the case had been transferred to a different judge, Chettero filed an additional motion to suppress. This motion—based on the Fourth Amendment—claimed that Trooper Jensen had fabricated the basis for the traffic stop. The district court held oral argument on the motion, and the State advanced two main pieces of evidence to prove there was an adequate basis for the stop—testimony by Trooper Jensen and a videotape showing the actual traffic stop (but not the offense precipitating it).
¶9 Trooper Jensen testified at the hearing that Chettero was stopped as part of an interdiction exercise. Chettero‘s counsel asked him whether the “primary goal” of the exercise was to “interdict marijuana for out-of-state plate vehicles.” Jensen responded, “[n]o.” Chettero‘s counsel then asked him what the purpose of
¶10 Following this exchange, Chettero‘s counsel tried to impeach Jensen‘s testimony with statistical evidence showing that mostly out-of-state plated vehicles had been stopped. The district judge sustained a relevance objection to the admission of this evidence. Chettero‘s counsel challenged this ruling, indicating that he would like to submit a supplemental memorandum explaining how this evidence was relevant. The judge responded that he was “willing to let [him] have additional time . . . to submit a memorandum based upon what‘s happened here today.” Ultimately, after conferring with Chettero, counsel declined this opportunity. The court then denied the motion to suppress, basing its ruling on both the “testimony of . . . officer [Jensen] and reviewing the videotape.”
¶11 After both of his motions were denied, Chettero entered a conditional guilty plea, reserving the right to appeal the issues raised in his motions. Chettero was then sentenced to a suspended term of one to fifteen years, and was placed on probation for eighteen months. He then filed this appeal.
II
¶12 Chettero contends that the district court made two primary errors in denying his motions to suppress. First, in considering his equal protection/right to travel motion, Chettero asserts that the court wrongly concluded that he had not proved discriminatory enforcement of Utah‘s traffic laws. Second, in considering his Fourth Amendment motion, Chettero insists that the district court failed to consider relevant statistical evidence. We find both arguments unpersuasive and accordingly affirm.
A
¶13 Chettero‘s first motion to suppress was based on the claim that it was constitutionally impermissible for the highway patrol to selectively enforce the traffic laws against those driving cars bearing out-of-state license plates. Chettero supported this assertion with two related, but distinct, arguments, one based on the constitutional right to travel, and the other on the Equal Protection Clause. The district court rejected both arguments after con
1
¶14 We find no basis for a conclusion that the UHP interdiction violated Chettero‘s constitutional right to travel. The mere assertion of disparate treatment of out-of-state vehicles is insufficient. For the constitutional right to travel to be implicated, Chettero would have to establish that such disparate treatment infringed on his fundamental constitutional rights. And that is a showing he cannot make.
¶15 Under U.S. Supreme Court precedent, the right to travel is understood to comprise three components: (1) “the right to go from one place to another,” by using “highway facilities and other instrumentalities of interstate commerce,” which “includ[es] the right to cross state borders while en route“; (2) “the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State“; and (3) “for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.” See Saenz v. Roe, 526 U.S. 489, 500-01 (1999) (internal quotation marks omitted).
¶16 At oral argument, Chettero‘s counsel clarified that his claim was rooted solely in the second component of the right to travel.2
But this second component was not implicated by the traffic stop in question.
¶17 The second component of the right to travel is rooted in
¶18 Chettero‘s right to travel claim cannot succeed under these standards. Here there is no allegation of any withholding of access to fundamental economic rights or essential services in Utah. Nor is there any indication of discrimination based on the mere fact of citizenship in another state. To the extent there was discrimination, it was based on intelligence that suggested marijuana would be transported from California (where it was grown) across Utah on its way east. So any differential treatment was not based on the “mere fact” that Chettero was a citizen of another state, and the right to travel was not implicated even assuming some form of discrimination.
¶19 Chettero‘s parallel claim of selective enforcement of the traffic laws in violation of the Equal Protection Clause fails on similar grounds. The charge of discrimination on the basis of driving an out-of-state vehicle misses a key point: Selective enforcement alone is insufficient to prevail on equal protection grounds, as most “targeting” is simply not prohibited by the Equal Protection Clause.
¶20 Classifications are regularly made in the creation and enforcement of the law. Most such classifications are permissible, and thus are subject only to minimal scrutiny under the Equal Protection Clause (i.e., rational basis review). See State v. Robinson, 2011 UT 30, ¶ 22, 254 P.3d 183 (explaining that “rational basis” scrutiny is applied unless a “fundamental right or suspect class [is] at issue“). Only a handful of classifications are so generally problematic (and so unlikely reasonable) that they trigger heightened scrutiny. Such problematic classifications include race4 and gender.5
¶21 Chettero, however, has not alleged that the traffic laws were selectively enforced on the basis of any judicial-scrutiny-heightening classification. He asserts only that those driving Utah-licensed vehicles were treated differently than those driving vehicles licensed elsewhere. His equal protection claim is thus subject to mere rational basis review.
¶22 And his equal protection claim fails under this standard. Rational basis scrutiny requires only that a classification bear some conceivable relation to a legitimate government purpose or goal. See L.C. Canyon Partners, L.L.C. v. Salt Lake Cnty., 2011 UT 63, ¶ 12 n.2, 266 P.3d 797 (explaining the wide degree of discretion
¶23 Preventing drug trafficking across a state is at least a legitimate goal. See United States v. Place, 462 U.S. 696, 703 (1983) (“[T]he public has a compelling interest in detecting those who would traffic in deadly drugs for personal profit.” (emphasis added) (internal quotation marks omitted)). And UHP had every reason to believe that high-volume traffic stops conducted in the middle of November would help it achieve this goal. After all, UHP had been in communication with California law enforcement authorities, and these authorities had informed UHP that because of the marijuana harvest in late October, drug trafficking from California eastward was most likely to occur during November. Moreover, it was certainly conceivable that individuals in cars bearing plates from other states were more likely to be passing through the state (as opposed to going from Point A to Point B within the state) and thus were more likely to be transporting
¶24 In these circumstances, making high volume traffic stops focusing on out-of-state licensed vehicles had a conceivable relation to UHP‘s legitimate goal of intercepting drug traffic across the state. Chettero‘s equal protection claim accordingly fails as there is an ample rational basis for any discrimination engaged in by the state.
B
¶25 Chettero‘s second motion to suppress was rooted in the Fourth Amendment. In challenging the denial of this motion, Chettero contends that the district court erred in excluding relevant evidence at the hearing on this motion. The hearing centered on Chettero‘s assertion that Trooper Jensen had fabricated the basis for his traffic stop. In support of that charge, Chettero sought to admit statistical evidence showing that the vast majority of cars stopped by UHP during the course of the interdiction exercise bore out-of-state license plates, claiming this statistical evidence impeached Trooper Jensen‘s credibility because Jensen had allegedly denied that the primary goal of the interdiction exercise was to target out-of-state individuals.
¶26 We affirm the denial of this motion to suppress. Although the district court may have misapprehended Chettero‘s argument, two key considerations convince us that there was either no error at all or that any error was harmless.7
1
¶27 First, it is not at all clear that the statistical evidence Chettero advanced would have impacted Trooper Jensen‘s credibility, and Chettero affirmatively waived the opportunity that the dis-
¶28 In context, Jensen might reasonably have been insisting only that the subjective purpose of the exercise was to stop those likely to be carrying drugs (and not generally to stop those from out of state). And presumably that was the specific purpose of the interdiction. With this in mind, the statistical evidence Chettero sought to introduce would not obviously have contradicted Trooper Jensen‘s testimony or undermined his credibility.8
¶29 And in any event, Chettero‘s counsel waived the express opportunity afforded by the district court to show that it did. After Trooper Jensen‘s testimony, and before the court ruled on Chettero‘s motion, the court gave him the opportunity to submit “a memorandum based upon what‘s happened here today.” Chettero‘s counsel declined this opportunity after conferring with Chettero. If Chettero wished to preserve an objection to the trial court‘s failure to consider the relevant statistical evidence, he should have availed himself of this opportunity. Submitting the memorandum would have allowed Chettero to specifically explain just how the statistical evidence affected Trooper Jensen‘s credibility, based upon the testimony Jensen actually gave at the hearing. This
¶30 Rather, at the hearing he did no more than generally assert that the statistical evidence was relevant to Trooper Jensen‘s credibility in the abstract, noting that “the more evidence that there is that the officer stopped these vehicles and that his mission was to search these vehicles for marijuana coming from out-of-state that goes to the officer‘s credibility.” But this general assertion was only true to the extent that Trooper Jensen‘s testimony actually indicated he had some other “mission” at the time of the stop. And for the reasons already noted, it was less than clear that his testimony did so. Chettero‘s supplemental brief could have offered such a showing. His failure to do so forecloses his argument on appeal.
¶31 Further, even if the statistical evidence had clearly borne on Trooper Jensen‘s credibility, the district court‘s ruling denying Chettero‘s motion to suppress was not based solely on Jensen‘s testimony. Rather, in ruling on the motion, the district court also relied in part on the videotape of the stop.10 And although the videotape did not show the traffic violation leading to the stop, it did show the actual stop. Apparently, moreover, the videotape corroborated portions of Trooper Jensen‘s testimony related to the stop, including the fact that Chettero had crossed the fog line again as he was being pulled over, straddling it for quite a distance until his vehicle came to rest at a stop sign at the bottom of the ramp.11 It also appears to have discredited portions of Chettero‘s testimony, including his assertion that Trooper Jensen was a mere half-car-length away when he made the stop.
¶32 Significantly, though, this video was not included in the record on appeal. And “[w]hen crucial matters are not included in the record, the missing portions are presumed to support the action of the trial court.” State v. Pritchett, 2003 UT 24, ¶ 13, 69 P.3d 1278 (internal quotation marks omitted). Thus, even if it was error to not consider the statistical evidence, Chettero still cannot show that this error was prejudicial, given that the judge also based his ruling on the video evidence, which was not included in the appellate record.12 Consequently, we conclude that the trial court‘s
exclusion of the statistical evidence was, at most, harmless error, and affirm the denial of his second motion to suppress.
ASSOCIATE CHIEF JUSTICE NEHRING, concurring and dissenting in part:
¶33 I concur in the court‘s equal protection analysis and agree with the judgment of the court that the traffic stop of Mr. Chettero did not infringe his right to travel. However, the majority explains that any discrimination in this case “was based on intelligence that suggested marijuana would be transported from California (where it was grown) across Utah . . . [s]o any differential treatment was not based on the ‘mere fact’ that Chettero was a citizen of another state.”1 The only information that animated law enforcement to make the high volume of traffic stops that included Mr. Chettero was that marijuana could come from out of state. Had troopers stopped cars based on the mere
¶34 I am troubled by the court‘s analysis in Part II.B. and for the reasons set out below, cannot join it. Mr. Chettero pressed his Fourth Amendment claim after the court rejected his right to travel and equal protection arguments. His suppression motion was heard by a new judge and, like most suppression motions, it was a credibility contest. The following exchange captures the flavor of testimony concerning the purpose of the stops.
Q: And wasn‘t the primary goal to interdict marijuana for out-of-state plate vehicles?
A: No.
Q: What was the purpose of it?
A: Make high volumes traffic stops.
Q: High volumes traffic stops?
A: Yes.
Q: High volumes of out-of-state traffic stops?
A: Not specifically out-of-state.
Q: Do you know what the statistics are? Because we have it in evidence in this case already for how
many you stopped for out of state people versus in-state.
MR. BRICKEY: Objection. Irrelevance.
THE COURT: Sustained. That‘s already been addressed . . . by the court, then ruled on by the court.
MR. D‘ELIA: Oh, absolutely. I‘ll move on. And, again, I was only getting into the credibility of the officer and what this officer would say on the stand today versus what the court did find.
During argument before the district court, Mr. Chettero‘s counsel again mentioned the statistics, specifically reading from a memorandum filed with the court before the hearing that cited State v. Lopez:
[A]n 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. The more evidence that detention was motivated by police suspicions unrelated to the traffic offense, the less credible the officer‘s assertion that the traffic offense occurred.3
The court responded that it is constitutionally acceptable to target out-of-state cars. The majority acknowledges that the court “may have misapprehended Chettero‘s argument,”4 possibly confusing it with his right to travel and equal protection arguments.
¶35 The statistical evidence was both relevant and admissible for impeachment purposes, and the trial court abused its discretion when it rejected it. The lead opinion asserts that there “was either no error at all or that any error was harmless” in excluding the evidence because the evidence might not have impacted Trooper Jensen‘s credibility “and Chettero affirmatively waived the opportunity that the district court provided him to show how it might have.”5
¶36 First, the majority states that Trooper Jensen was only suggesting that the purpose of the exercise “was not ‘specifically’
¶37 Next, the majority asserts that Mr. Chettero waived the argument because, after making it to the court, he conferred with his attorney and declined to file an additional memorandum. The memorandum would necessarily have been based on authority already before the judge, primarily State v. Lopez, after the judge had made his ruling clear. An argument is preserved if a party has presented it to the district court in such a way that the court had an opportunity to rule on it. “In determining whether the district court had an opportunity to rule on an issue, a court considers three factors: (1) whether the issue was raised in a timely fashion, (2) whether the issue was specifically raised, and (3) whether supporting evidence or relevant authority was introduced.”8 The district court here had an opportunity to rule on this issue. It was raised in a timely fashion, it was raised specifically, and it included the same authority Mr. Chettero uses on appeal. The judge gave Mr. Chettero an opportunity to file a memorandum that would have made these same arguments and he declined, possibly in order to save all parties involved time and resources on a case he already anticipated appealing. Justice Lee states that the argument in the motion citing Lopez “was not the same as the specific [argument] that the trial judge gave Chettero the opportunity to make” because “[u]ntil the suppression hearing . . . Chettero did not know what Trooper Jensen would say about the purpose underlying the traffic stop.”9 The memorandum speaks in generalities, but it clearly anticipates that
¶38 Next, the majority opinion states that the court‘s error was harmless because it also based its decision on a videotape. The video was not included in the record on appeal and “[w]hen crucial matters are not included in the record, the missing portions are presumed to support the action of the trial court.”10 But there was nothing critical about the video. Both parties agree that the video does not start until “right at the point [the officer] activate[d] the overheads.” The “driving pattern that [the officer] described is not on [the] video.” The purpose of the suppression hearing was to determine whether the officer had reasonable suspicion to initiate the stop. Once the lights were activated, the detention was initiated. “[A]ny reasonable driver would understand a flashing police light to be an order to pull over, although the Supreme Court has said that such an order would not give rise to a ‘stop’ unless the driver submitted to the order or was physically apprehended.”11 Here, Mr. Chettero did submit to
¶39 “An error is harmful if it undermines our confidence in the verdict; if, minus the error, there is a sufficiently high likelihood of a different outcome.”12 When the court must decide which of two witnesses is telling the truth and has improperly excluded evidence that goes to credibility, the error is not harmless. I would reverse the trial court and remand for additional proceedings concerning the legitimacy of the stop.