State v. Hygh

ther, per copy petition, of had obtained a nine expired almost months before including accounting, appellants the first and final raised their claim of lack of due legal it to his counsel in process. had taken Salt 60(b)(7) Because Rule requires 7, 1981, City prior Lake to the October such claim to be made within a “reason- hearing. Appellants digest time,” did not need to able the trial court did not abuse its 233-page prior the entire document to the discretion in refusing to set aside the Octo- hearing object. to Pages to enable them 8, 1981, ber order. summary one and of two are the account- Appellants also assert that notice to their ing pro- in the form recommended mother, Pepper, Fannie N. inadequate was bate division. amount the assets on legally because she was incompetent, and unambiguously hand for distribution is Zions was aware of that. Although Phillip line” written on the “bottom of the summa- Pepper appointed C. conservator for alone, ry. light appellants’ This fact mother by court, his an Arizona he made allegations representations of Zions’ earlier motion join no to petition. mother in the estate, regarding the value should party Hence, Nor is she a to appeal. sufficiently alerted that some- we do not сonsider pro- whether her due thing might awry and caused them to rights cess were violated. appear hearing. at the If appellants did We hold that the court did not err in agree with amount shown on the denying appellants’ petition granting and in summary, they ample had more than time Zions’ motion to dismiss. Affirmed. Costs appear to hearing lodge at the an ob- respondent. to

jection study or ask for a continuance to type document. Continuances of this HALL, C.J., DURHAM, STEWART and given are as a matter of course JJ., CONDER, and DEAN E. District probate proceedings. court in Additionally, Judge, concur. appellants had three months in which could have moved for rеlief under Rule ZIMMERMAN, J., participate does not 60(b)(1) acknowledge We that the herein; CONDER, Judge, District sat. granting of a discretionary continuance is with the trial court and that “[t]he process

a citizen to due of law must rest

upon a basis more substantial than favor or

discretion.” Holly, Roller v. L.Ed. 620

Roller, the United Supreme States

set judgment aside an 1891 default on due process grounds, holding days’ that five Utah, STATE of Plaintiff and Roller, resident, Virginia notice to ap- Respondent, pear in a Texas court was insufficient to Texas, Roller allow to travel hire an HYGH, Appellant. Gillis Defendant and attorney, prepare his case. days rapid in these transporta- efficient No. 19402. tion and relatively inexpensive telecommu- Supreme Court Utah. nications, willing we are less to allow dis- weigh hеavily tance alone to on our review Aug. adequacy Here, of the notice. Phil- lip Pepper C. petition discussed Zions’ legal City prior counsel in Salt Lake hearing, neither but he nor his counsel

appeared hearing register any

objection. facts, appellants Under these process

were not denied due of law. Fur-

surveillance camera that had been installed by the City Salt Lake Department Police previous left, month. After the robber police. the clerk called also been alerted to the by an police dispatcher’s alarm office which went off when the surveillance cam- era was police activated. The arrived shortly thereafter. film from the sur- veillance by camera was unloaded a detec- tive and taken developing. Several of developed pictures showing the rob- face clothing posted city ber’s and at police line-up stations on the boards. Immediately robbery, after the the clerk identified police the robber to as a black wearing man a rust or red colored ski mask on his head but not over his face. wearing robber was also a khaki colored “furry” lining coat with rip and with a over Brass, City, Edward Lake Salt for de- pocket. the left The surveillance camera appellant. fendant and pictures description showed this to be accu- rate. Wilkinson, Gen., L. Atty. David J. Ste- Mikita,

phen City, plaintiff Salt Lake 6, 1983, Jаnuary On a City Salt Lake respondent. officer, police Foster, Officer after stopping light for a traffic in the left lane HALL, Chief Justice: car, next expired to defendant’s noticed an Hygh appeals Defendant Gillis rejected safety a convic- inspection sticker1 on de- aggravated robbery, tion of degree first fendant’s lower left front windshield. Offi- U.C.A., 1953, felony. 76-6-302 cer Foster also noticed that the driver re- alleges Defendant that the warrantless “in- photograph sembled the individual in the ventory search” of his after robbery suspect posted automobile he at the placed under custodial arrest was un- station. The officer testified at the hear- agree. ing suppress lawful. We to the evidence taken from defendant's car stopped that he defendant’s p.m. At 10:00 about on December expired safety car because of the inspec- 1982, a man entered a service station in tion sticker.2 City Salt Lake pack asked for a cigarettes. As the clerk car, handed the cus- After stopping defendant’s Foster cigarettes, tomer the pulled the customer sent a second officer to the station to a .22 caliber from revolver under his get posted photo coat sus- and ordered the clerk empty pect. cash Foster then сhecked defendant’s so, register. The clerk putting approxi- did registration. driver’s license car mately paper bag. into a defendant, As he registered $350 was was but defendant emptying register, the clerk activated a had no driver’s him. A radio license ‍​​‌‌‌​‌​‌​​​‌‌‌‌​​​​​​‌‌‌​‌​​​​​​‌​‌​​‌‌‌‌‌​​​​‌‍with rejected inspection placed trial, 1. A sticker is inspection on a because of the sticker." At Offi- pass vehicle if the vehicle does not the annual question: cer Foster was asked this "Was the safety inspection. The owner of the vehicle particular you stopped reason that the Defend- days complete repairs bring then has five anything any ant’s did it have to do with reinspected. the vehicle back to be photos you day had seen earlier that ” replied: station? He the rea- “That was pretrial suppression hearing, 2. At the son, yes." stopped Foster testified: "The reason I him was police dispatcher verified that nied the trial court on call to the the basis that the license, also proper but revealed search was a At defendant search. outstanding arrest a trial jury, misdemeanor war- before a convict- two defendant was aggravated robbery. defendant. Officer ed of ap- rants Foster Defendant placed peals, seeking under arrest on the basis reversal that conviction warrants, him, put handcuffed and a new trial. those patrol him in the car. I, section Article 14 of the Utah then Foster ascertained defendant’s Constitution, amend fourth passenger was not a licensed driver and ment to pro the United States Constitution impound called for wrecker tow the hibit unreasonable searches and seizures. away. car constitutionally In order for a search permissible, a search warrant issued the second returned After officer neutral magistrate upon proba and based photo, Officer Foster conducted a are, however, required. ble cause is There photo car with the in search defendant’s exceptions require several to the warrant He did use an inventory his hand.3 ment. include a These limited search inci did not list of the sheet and make a items arrest;5 dent to a lawful search an trunk, in car.4 found the In the the officer probable automobile based on cause that it jackets, shirts, cap, found several a several contraband;6 contains and seizure of evi lying spare and a ski mask over the tire. by in plain dence view one awith lawful plastic unzipped The officer also found an position be a it.7 so observe gym bag. The looked the officer inside bag found a .22 revolvеr. The caliber It is also well established that an gas clerk inventory station later identified the ski exception search constitutes an mask, jackets, gun the the requirement.8 one of as to the warrant A warrant- by impounded the those used robber. clerk also less search of an for the vehicle purposes protecting public the robber. the identified defendant as After car, avoiding police danger, liability of the Foster from for the search trans- ported property, protecting lost or the defendant to stolen station. Of- permitted fourth property by owner’s is ficer Foster informed the detective I, 14 amendment and аrticle section that he believed defendant was the robber Utah State Constitution.9 ques- of the service station. The detective defendant, tioned then ordered Officer Fos- promote such Because inventories place under arrest for ter investigato important interests and are not aggravated robbery. ry implicate do not “the purpose, ' protected hearing, interests are when pretrial suppression At a de- which clothing searches are conditioned on warrants.”10 asked to items fendant Therefore, per inventory are not sup- revolver from the car searches taken meaning pressеd being pretextual, a se unreasonable within as the result of I, 14. fourth and article section The motion was de- amendment warrantless search. 364, Opperman, v. U.S. 96 Foster searched 8. South Dakota 428 3. The record indicates that Cole, 3092, (1976); v. trunk of the vehicle. S.Ct. 1000 State 49 L.Ed.2d Utah, 119, (1983). 674 P.2d hearing, suppression pretrial 4. At the Foster was car, Officer, you impound do “When asked: Romero, 8; Opperman, supra ” note v. 9. State inventory you sheet of some kind? He use an Utah, Crabtree, 624 P.2d 699 "No, Personally I don’t." replied: 1 don’t. Utah, 484, (1980). 618 P.2d California, U.S. 89 S.Ct. 5. Chimel v. (1969). L.Ed.2d S.Ct. at Opperman, U.S. at J., (Powell, concur 49 L.Ed.2d Maroney, 399 U.S. 90 S.Ct. 6. Chambers ring). L.Ed.2d 419 Coolidge Hampshire, v. New L.Ed.2d 564 fore, Contraband or other evidenсe of crime dis- we must look to the circumstances inventory covered in a true may search surrounding stop to determine whether seized without a warrant and introduced impound was reasonable. into evidence at trial.11 the in- ventory exception apply does not when the It is the burden of the State to inventory merely pretext is “a concealing necessity taking establish the for the investigatory police motive.”12 Funda- the inventory of the vehicle.16 Salt Lake guarantees mental constitutional City, the police department has standards unreasonable searches cannot be evaded set forth in procedural order17 whose labeling “inventory” searches. purpose implement procedure is to support

In order to finding handling that a impounds and the use of valid place, search has taken order, wreckers. city police Under this of court must first determine whether there impound ficers are directed a motor ve proper justification reasonable and person. However, hicle of an arrested impoundment of the vehicle.13 This may vehicle be released at the scene to a justification, impoundment, and thus lawful party designated by the owner rather than can be had either through explicit statutory impounded. A release form provided authorization or the circumstances sur signed by the officers to be person rounding stop.14 the initial impound If designating arrested an individual to take ment was neither necessary, authorized nor charge of the releasing vehicle and the search was unreasonable.15 department and its officers from all liabili give police Utah’s statutes department ty. authority impound in vehicles several Officer Foster testified that he did ascer- situations. may lawfully Vehicles im- tain that passenger defendant’s was not a pounded when transport are used to However, licensed driver. defendant was substances, U.C.A., controlled 1953, 58- § given opportunity arrange no disposi- 37-13; when improperly reg- vehicle is the. tion of his own car. The officer neither stolen, U.C.A., 1953, 41-1-115; istered or § asked defendant whether there was some- abandoned, or U.C.A., when a vehicle is one who could come get the car 1953, nor 41-6-116.10. specific statutory No passenger asked the whether authority exists she could authorizing impound of a stopped possession vehicle take of parked the contents of on the street the car after the driver has been get arrested. There- or someone get to come and the car. See, States, 234, e.g., 11. requirement Harris v. United 390 U.S. stitutional of reasonableness 992, 88 S.Ct. 19 L.Ed.2d 1067 Reese v. regard to searches thereafter made of such Commonwealth, 1035, 1039, 220 Va. 265 S.E.2d vehicle. 746, (1980). 749 See, 375-76, e.g., Opperman, 14. 428 U.S. at 96 376, Opperman, 12. 428 at U.S. 96 S.Ct. at 3100. 3100; 58, Cooper California, ‍​​‌‌‌​‌​‌​​​‌‌‌‌​​​​​​‌‌‌​‌​​​​​​‌​‌​​‌‌‌‌‌​​​​‌‍S.Ct. at 788, 790-91, 87 S.Ct. 17 L.Ed.2d 730 McDaniel, 347, N.J.Super. 13. State v. 354- (1967); McDaniel, 355, N.J.Super. 55, at 1174, Annot., (1978). 383 A.2d See also 1177; Montague, A.2d at 73 Wash.2d "Inventory Lawfulness of Search” of Ve Motor 381, 385, Police, (1968). Impounded by hicle 438 P.2d 48 A.L.R.3d (1973): Minn., Goodrich, prerequisite Another essential to a valid in- 15. See State v. 256 N.W.2d ventory search is that must have custody taken lawful of the vehicle in the first instance. It has therefore been held that 492, 496-97, People Nagel, Cal.App.3d where the circumstances show that the McDaniel, Cal.Rptr. See also vehicle, authority impound no N.J.Super. 383 A.2d at 1179.

that custodial care of the vehicle was necessary, inventory un- search was 17. Order Number effective date March lawful. entirety This order in its was introduced [Ljawful custody impounded ... ve- at trial. hicle dispense does not of itself with the con- met its showing next establishes State has not burden of departmental order necessity for the seizure of the affecting impounds. per- vehicle. all procedures states: part, that order tinent prepared say are not We a true ALL D. PROCEDURE [A] inventory search cannot be made in the FFECTING IMPOUNDS. presence the vehicle’s owner and with- However, if purpose out his consent. impound occurs with

1. When an truly only inventory search ask the officer should present, owner safeguard of the vehicle and to contents in the anything if of value is the owner impoundment, an during indicia that certain the owner knows make purpose the real of the search is to such is being taken to safe- steps are what consult with the owner of the vehicle when proceed as guard property, such impound present he is at the time follows: and the search.19 driv- The officer and the wrecker a. thorough inventory even if it could determined should make a

er automobile, impoundment fill in the im- itself was reason- necеssary, listing ably neces- the search of vehicle slip completely, all pound car, car, invento- trunk was nevertheless not valid equipment on the in the sary ry As one commentator concluded search. and in the trunk. reviewing Opperman: after lying loose in the ve- Any item b. What is needed the vehicle turned over to hicle should either be context, probable then ... is not cause locked in the trunk. the owner or regularized proce- set of but rather a items should be Small and/or valuable adequately guard dures which Safekeeping un- placed in Evidence arbitrariness. owner. less retained if Foster did not ask defendant upheld should nоt be under Inventories tell was in the vehicle or anything value government Opperman unless being safe- steps taken to established there exists an shows guard property. While all this was safeguarding procedure for reasonable taking place, defendant was handcuffed and their contents impounded vehicles did patrol in Foster’s car. Foster thus and activity challenged police and that any opportunity to ar- give defendant not essentially in conformance with was property. of his own range disposition for purported This means that procedure. Further, parked next to the the vehicle was when inventory should be hеld unlawful area; no valuables parking curb in a lawful shown, [instance], that stan- “for it is not visible, had not indi- and defendant completed inventory forms were dard extant; passenger was any were cated (showing reference kept for future any valuables safe- to remove available valuables), nor or absence of presence request and to ar- keeping at defendant’s valuables safekeeping for place that a the ve- range party third to remove for a so secured was maintained.”20 hicle; could have been locked the car Department City Lake Police unattended; The Salt no evidence was left procedures regularized set there a dan- does have presented to indicate that was guard drafted generally case, are In this the which ger public.18 7.4, LaFave, at 576-77 Annot., § & Seizure Search generally of "Invento- 20. 2 18. See Lawfulness omitted) (quoting v. Jew (1978) (footnotes ‍​​‌‌‌​‌​‌​​​‌‌‌‌​​​​​​‌‌‌​‌​​​​​​‌​‌​​‌‌‌‌‌​​​​‌‍State Impounded ry Po- Search” of Motor Vehicle lice, Long, 19). People ell, See also supra 48 A.L.R.3d 537 note (1984) (inventory N.W.2d 194 Mich. Jewell, La., So.2d lack of standard because of invalid search held Cole, (after impound- supra lawful note 8 Cf. ment of vehicle inventory conducting police procedures U.C.A., pursuant searches). 41-1-115, to re- officers allоwed to). any vehicle he wished items from move trial, by an officer in the At offered against arbitrariness as evidence photographs developed from the film Foster did not fol- taken Officer field. night from the surveillance camera on the He not involve procedures. these did low robbery. gas station clerk testi- present, was the owner of the who fied that he had been instructed how to importantly, More in his decision. During robbery, the camera. activate completely he did not record indicates that emptying register he did the cash so while any search the vehicle and did not make further money. of the The clerk testified automobile, kind of a list of the items operating that he camera was knew the inventory form. much less use standard because of motor sounds and soft clicks this, fairly the search cannot be Without coming from the camera. detec- characterized as an search. crime-eye tive who had installed the camera addition, Foster sent another offi- gas station testified that the camera cer to the station to retrieve operating properly. was He further testi- suspect picture of the even before activated, if fied that the camera was asking regis- defendant for his license and police dispatch alarm went off at the office. tration, picture begin- waited for the before installation, the acti- Since camera had been search, ning the and searched with the gone vated the alarm had off picture in hand. These facts indicate once twice: on November 6 and once on “inventory” merely a that the search was time, December The first on November pretext for a warrantless search. Under gas the detective had returned to the circumstances, these the evidence discover- station, camera, and reset reloaded the it. ed in defendant’s trunk should been camera, resetting Prior to the detective suppressed improper, as the result of an exposures made several of his own face on warrantless search. Defendant’s convic- the film first few frames of to ensure tion is thus and the case remand- reversed operating properly. the camera was ed for a new trial. print film contact taken from point night the camera on the of December 31 appeal Defendant’s second on shows the face of the detective in the first the trial court denied defendant his frames, photos few then the identified as constitutional to be confronted with testimony those of defendant. Additional him witnesses because defend- was adduced from officers which several ant’s counsel allowed to cross-ex- custody the chain of of the film established specifically amine the State’s witnesses re- subsequently developed photographs. garding how the surveillance camera was judge photographs. The trial admitted the argued activated. Defendant he wished to whether, fact, present the defense of upon There are two basic theories which camera was activated at the time of the photographic admitted: the “si- evidence is robbery or could have been activated at theory “pictorial lent witness” tes- objected some earlier time. The theory, timony” theory.21 Under the first concerning precise cross-examination the photographs are “si- properly authenticated activation, arguing method of that the need speak for themselves lent witnesses” that secrecy outweighed any to maintain need independent, substantive evi- and constitute might portray, independent have the information. they dence of what judge “pictori- The trial sponsoring refused to allow cross-ex- Under the witness.22 ground theory, photographic amination evi- aspect testimony” on that on the the al given that it was of a witness’s testimo- scope not relevant the dence is illustrative when a ny direct examination. and becomes admissible State, (2d Supp.1984); Wigmore, Ark.App. 3 J. Evi- § 21. Fisher v. S.W.2d ed. (Chadbourn 1970). Henderson, dence rev. 573-74 260, 261-62, N.M. P.2d 737-38 Goslee, 22. Id. See also United States v. Scott, Photographic See also 2 C. Evidence (W.D.Pa.1975). F.Supp. testify reasonably it is a on the cross-examination could can that sponsoring witness expected a substantial of the sub- effect on representation fair and accurate Testimony jury’s the decision.28 as to how person- based on that witness’s ject matter could the camera was activated not reason- al observаtion.23 ably expected to have had substantial at trial were intro- photos The introduced jury’s effect on the decision the face of theory. The clerk under the second duced the testimony photographs the clerk’s by the photographs shown two taken was the depicted the man who robbed station in asked if con- camera and each surveillance act, personal the the clerk’s identification representation a fair accurate stituted and photo, of defendant as man in the the who committed the rob- of the individual testimony authenticating foundational the he bery, person and the clothes both photographs. Under these circum- replied wearing. The clerk that those was stances, the trial court did not its abuse in the act of rob- photos were the robber discretion. Thus, photos were bing the station. Defendant’s is conviction reversed and testimony of a by the witness authenticated the case remanded for a new trial in ac- knowledge photos what that the opinion. cordance with this photos claimed of defendant to be:24 gas robbing the station.25 HOWE, JJ., STEWART concur. right includes The to confrontation ZIMMERMAN, (Concurring Sep- Justice: right to cross-examine witnesses.26 arately). not right is absolute. join I in the Court’s reversal of the con- limiting сourt discretion trial has Hygh. impound- viction of defendant scope and of cross-examination.27 extent and search of defendant’s automobile ment discretion, this an abuse of that Absent free from unreason- to be violated ruling. will disturb seizures, guaranteed as searches and able ample opportu- Defendant’s counsel to the United by the fourth amendment gas clerk nity to station cross-examine I, section article States Constitution memory of concerning accuracy of his However, I 14 of the Utah Constitution. clothes, whether the individual robber assumptions implicit agree with two cannot camera, activate the in fact clerk did first, majority opinion: in the De- he and how knew it activated. requirement under scope of warrant advantage oppor- took of that fendant full I, congruent with that section 14 article tunity. opportuni- also had the Defendant courts developed by the federal under detective and ty to cross-examine second, amendment; reme- fourth concerning the sur- officers who testified of Utah’s search dy for a violation only question de- camera. veillance remedy same as the provision is the seizure how was not allowed ask was fendant provision of the federal for a violation —ex- specifically the was activated. camera seized. of the evidence clusion regarding warrantless A of the confrontation The federal law violation laby- has become a and seizures the limitation searches clause does not occur unless 26. Davis 308, 316-17, Alaska, U.S. Supra note 39 L.Ed.2d 24. See United States v. McNair, F.Supp. 439 6, Fisher, (E.D.Pa.1977); App. 7 Ark at 643 105 295, 27. Chambers 284, Mississippi, 410 U.S. 93 v. 574; Perry, Cal.App.3d People at v. 60 S.W.2d 608, (1973). 1038, L.Ed.2d 297 S.Ct. (1976). Cal.Rptr. 25. 1158, 28. United Farnsworth, purported photographs not to be 729 F.2d States v. theory. Raines, “silent witness” (8th Cir.1984); Hughes introduced under the 641 F.2d Therefore, our reso- we not address whether Cir.1981). do 790, (9th point this differ had the lution of would so. done upon requirement a of contra

rinth of rules built seriеs to the warrant that often raise confusing overreaching. dictory questions rationalizations and of In their judges place, adopted officers and at be distinctions. Police clear-cut rules could —for way through their this that tempting example, requirement to make flat a warrant rights labyrinth imperil both the of any often must obtained before be nonconsensu- integrity effective in individuals and of property al search not immediate See, e.g., suspect ness of law enforcement. Wer physical control of a conducted.2 miel, Rulings Leave More improvement Recent Police rule Such a would be an over St.J., Legal, lаw, What’s About Wall present both individual for the and for Confused 1, 9,1985, many cases, August col. 1. In police. would individual be as- rule, exclusionary adopted by the feder cases, that, in property sured most al sole remedy courts as the for fourth not be seized would searched or unless the violations, appears amendment have in to reasons for the seizure search or have first fluenced, controlled, scope if of not presented magistrate been to a neutral right designed constitutional it was to fur time, police a warrant issued. At same Many developed ther. of arcane rules speculate officers would not forсed to be justify to seem warrantless searches to may what may subject about or not be to solely have been fashioned to avoid the search without a warrant. Warrantless consequences rule. exclusionary permitted only searches would be where satisfy they justification— their traditional arguments may Sound be made favor protect safety pre- to officers or to positions at variance with the current See, e.g., vent the destruction of evidence. respecting scope federal law both the 752, California, Chimel v. 395 U.S. 762- the individual’s to be free from war- 89 S.Ct. 23 L.Ed.2d 685 rantless searches seizures and rem- (1969). suspect Once the thrеat that edy any right. Accept- violation injure with will the officers concealed by ance arguments this of such un- or weapons destroy gone, will evidence is der the Utah and sei- Constitution’s search persuasive why is no provision might zure there reason the offi- simpler result in rules to easily by police that can cers cannot take the secure a be more followed war- time time, officers courts. rant. At the same provide

these might public rules with requirement present Such would little greater protection and more consistent impediment police investigations, espe- to against unreasonable searches and sеizures light cially in of the with which ease war- by many confusing ‍​​‌‌‌​‌​‌​​​‌‌‌‌​​​​​​‌‌‌​‌​​​​​​‌​‌​​‌‌‌‌‌​​​​‌‍eliminating ex- can rants be Utah’s tele- obtained under ceptions requirement to the warrant U.C.A., 1953, phonic statute, warrant 77- developed have been years.1 recent (1982 23-4(2) ed.). Lopez, See improve way predictability might Utah, One Perhaps 676 P.2d 393 most exceptions be to sharply sweep importantly, readily limit the could such a rule (Marshall, J., Recently, dissenting). Supreme the United States Court has There is little attempted provide police relatively clear to believe that law enforcement reason effective standards for warrantless searches automobile protected requires this interests sacrifice of the Supreme sweeping away many of the subtle and in See, requirement. e.g., by the warrant governed consistent rules that this area. In Term, rt- 1 981 Harv.L.Rev. Cou Ross, United States 184-85 (1982), held L.Ed.2d the Court lawfully they stop if may officers physical refers to 2. "Immediate control" an area all conduct a warrantless search of com suspect reasonably which a could within partments and within the vehicle if containers grab destroy expected weapon or evidence probable cause to contra believe that during an encounter with officers. The my band is view, concealed somewhere in the car. justification exception would be limited its attempt bring consistency belated generally permit warrantless and would fails coherence to automobile searches be trunks, example, of car searches contain- essentially guts cause it the fourth amendment’s beyond suspect's ers reach. requirement pertains warrant as it automo bile searches. 456 U.S. at S.Ct. at See police of- complied Theory Courts, Constitutional understood and (1984); ficers, compli- and evidence uncovered 18 Ga.L.Rev. 165 see also Massa satisfy more than Upton, ance with it would v. chusetts 2089-91 fourth amendment to requirements (1984) (Stevens, J., concurring).

the federal constitution. DURHAM, J., concurs in concurring also made arguments can Sound ZIMMERMAN, opinion of J. acceptance of the federal version remedy sole exclusionary rule as the and seizures.

for unlawful searches See Coe, Substantiality A.L.I

generally Approach A to the Exclu-

Test: Flexible Sanction,

sionary Ga.L.Rev.

Schroeder, Amendment Deterring Fourth Alternatives to the Exclu-

Violations: (1981). Al- Rule,

sionary 69 Geo.L.J. though tacitly has followed this Court MUNICIPAL BUILDING AUTHORITY matter, I found no lead on this federal Utah, COUNTY, IRON non- OF Utah case in which this Court has decided profit corporation, County, and Iron exclusionary indepen- after adopt the rule body corporate politic, Plaintiffs dently question of what rem- analyzing the Respondents, edy is for an unlawful search available state constitution. Per- seizure under our LOWDER, individually Dennis and as force, has never considered county County; Iron auditor of possible exceptions to appropriateness of Hulet, county individually and as Clair exclusionary availability rule or County, clerk of Iron Defendants and remedies, supplemental alternative or such Appellants. imposition liability civil on as the officers. No. 19959. suggest I do not that without further Supreme Court Utah. this Court should either

consideration adopt hypothetical warrantless search 27, 1985. Nov. reject discussed above or and seizure rule ‍​​‌‌‌​‌​‌​​​‌‌‌‌​​​​​​‌‌‌​‌​​​​​​‌​‌​​‌‌‌‌‌​​​​‌‍remedy as a for viola- exclusionary rule I, 14. I contend tions of articlе section fore- arguments

that such should unana-

closed from consideration our

lyzed acceptance position. of the federal currently it exists is

The federal law as interpre-

certainly only permissible not the protections of the search and seizure

tation If, Utah Constitution.3

contained consideration, conclude that we

after we competing strike a balance between the

can involved so as to better serve

interests all, not hesitate to do then we should Linde, E generally Pluribus—

so. See I, Searching Theory: Article ing Opportunity, Developing jurisprudence state constitu- Puget Sound L.Rev. 331 example, 8 U. For Section tional law is not a novel idea. its search has also construed interpreted The state of Alaska Washington its constitu- has state protec- provide differently provision broader seizure provisions and seizure tional search Alaska, State, 599 P.2d Supreme inter- tion. Reeves Court has than the United States Nock, preted See the fourth amendment. Seiz-

Case Details

Case Name: State v. Hygh

Court Name: Utah Supreme Court

Date Published: Aug 16, 1985

Citation: 711 P.2d 264

Docket Number: 19402

Court Abbreviation: Utah