State v. Sims

drug and violations. Notice that the road- GREENWOOD, Before JACKSON and place published block would take ORME, JJ. County Juab Times News two to four prior weeks to the roadblock. There was OPINION no evidence that the News was distributed County. outside of GREENWOOD, Juab Interstate 15 is a Judge: major north-south route and link between appeals Louie Edwin Sims his conviction City, Angeles, Salt Lake Los Cali- possession of a controlled substance fornia. value, with intent to distribute for 58-37-8(l)(a)(i) Code Ann. (Supp.1988), According Mangelson, poli- no written degree felony. cy, second Sims claims the Highway from the Patrol or from Sergeant Mangelson's Kitchen, illegal pending efforts to thwart in this court. State v. No. drug trafficking appel are well known in Utah’s player As a 900307-CA. central in at least five See, (re e.g., Arroyo, late courts. P.2d date, published search and seizure scenarios to versing (Utah Arroyo, State v. 770 P.2d 153 Ct. trooper’s notoriety approach the redoubtable is Earl, (Utah App.1989)); State v. 716 P.2d 803 ing dog that of Max detection a narcotics Baird, 1986); 763 P.2d 1214 Ct. figured whose nose for crime has in at least App.1988); Aguilar, published seven federal cases in the District of Corral, Ct.App.1988). See also United States v. Colyer, Columbia Circuit. See United States v. (10th Cir.1990). 899 F.2d 991 Besides the (D.C.Cir.1989), 878 F.2d 471 and n. 2 case, present involving at least one other case cases cited therein. by Sergeant Mangelson an automobile search then Sims to exit the se- source, guide the conduct Howard asked other existed dan, asked consent to inside. look question. Mangelson of the roadblock Sergeant Mangelson ap- consented. supervising lieutenant that his indicated helped Howard proached search the permission to conduct given had him They interior. discovered the rem- car’s marijuana or cigarettes nants of one two ten by was staffed about right passenger ashtray. rear door Ho- the signs A of three officers. series uniformed then if he mind if ward asked Sims would mile distance directed one-half within they searched the trunk of the sedan. roadblock, orange by marked drivers to the agreed opened and the trunk. Man- Sims stopped, be- Large trucks were not cones. gelson searched the trunk while Howard hazard- stopping them cause cause field on sobriety tests Sims near- conducted Mangel- congestion. Sergeant traffic ous by. to driver’s inspect officers son instructed trunk, Mangelson In a in the suitcase registration the of licenses and vehicle plastic bags two small contain- discovered this, motorists; they doing while stopped marijuana. Sims, visibly ing becoming drug signs liquor to of were watch for nervous, then he the stated that wanted could vehicles for violations. Officers hold that, stopped. Mangelson told search Sims if the contact investigation initial further the discovery marijuana, on he based officers, questions. One of the raised probable searching had cause to continue Howard, Trooper that his Carl indicated well, Looking spare in the tire the trunk. drivers, practice asking included all also Mangelson kilogram brick of co- found alcohol, regardless suspicion, they if had driving caine. Sims was then arrested for weapons, or contraband their vehicles.2 posses- of alcohol and influence of a substance. sion controlled a.m., approximately At 9:00 Sims’ ve- hicle, sedan, was at the Chrysler trial, sup- filed a motion to Before Sims Howard, Trooper the first offi- vehicle, from press all evidence seized his Sims, nothing to cause cer to contact saw contending an stop that the roadblock was the law as suspect him to a violation of the Utah and feder- unlawful seizure under asked approached.3 Howard Sims’ vehicle and that the officers lacked al constitutions regis- license for Sims’ driver’s and vehicle cause the trunk. Fol- probable to search Georgia produced Sims valid tration. hearing, trial lowing evidentiary an registration a Utah driver’s license and court de- court denied Sims’ motion. The response trooper’s his name. (1) not that did termined route question, stated that he was en Sims constitutions; federal the Utah or violate Angeles City. Los While from to Salt Lake (2) to voluntarily consented the search Sims talking Sims, Trooper smelled Howard (3) vehicle, trunk; including the “open” the sedan and saw an alcohol inside probable cause to Sergeant had area. He liquor bottle in the back seat Sims’ searching the trunk after continue alcohol, weap- any asked Sims if there were Based on the evi- of consent. withdrawal ons, hearing drugs presented suppression or in the vehicle. Sims admitted dence at the vehicle, to parties’ stipulation there alcohol but and on the written was evidence, Sims the trial court found carrying drugs weapons. or denied Howard): exchange (Trooper several following Yes. I’ve had A 2. As indicated suppression hearing, people do an affirmative answer that. question prompt Trooper could Howard Trooper Howard Re-cross examination with- seek to search automobiles then consent following ex- counsel included defense wrongdoing: out other change: (Mr. Metos): curiosity, Q did Just out of Q: to believe anybody hol, "yes” query [Sims] alco- You had no reason about [to answer wrong every- doing anything as he entered the road- weapons, when contraband] or law; breaking any you is that correct? thing appeared so would have to block in order That’s correct. A: conduct a further search? guilty possession of a controlled oughly argued sub- the unconstitutionality of roadblock, stance with intent to distribute. on both federal and state grounds, throughout proceedings.4 these The transcript suppression hearing ISSUES and the findings trial court’s written on the appeal, argues On the road- provide ample issue factual record from block of his vehicle violated his which can assess the constitutionality to be free from unreasonable searches and issue, of this therefore, roadblock. The seizures under article section 14 of the has properly preserved been squarely Utah Constitution and the fourth amend- presented appeal. Constitution; ment to the United States We are aware of the rule that we should there was insufficient attenuation addressing avoid constitutional un- issues between the any unlawful detention and required Anderson, less to do so. State v. consent illegality to overcome the (Utah 1985). 701 P.2d 1103 This roadblock, however, was not an isolated incident, and our may continue to use CONSTITUTIONALITY OF suspicionless roadblocks as a law enforce- ROADBLOCK ment tool.5 This makes all Utah motorists point appeal Sims’ first on solely deals to closer scrutiny than they with the permissibility of the roadblock it or, might expect arguably, legitimately undisputed self. Because it is that required to encounter. roadblock was conducted with neither a of citizens to be secure warrant wrongdoing nor of by from unreasonable seizures “shall not be Sims, and emergency that no situation ne Const, IV; violated.” U.S. amend. it, question cessitated of whether the Const, I, added). art. 14 (emphasis A § roadblock improper was is reduced to one “checkpoint” roadblock or motorist is a sei law, and we review it without deference amendment, zure under the fourth Michi to the trial court. Corp., v. BMG Scharf — gan Dep’t State Police v. (Utah 1985); 700 P.2d State v. —, Serpente, (Utah 768 P.2d Ct.App. (1990); Talbot, State v. 1989). (Utah Ct.App.1990); there is no reason to The State neither accepts contests nor respect hold otherwise with to our state arguments Sims’ that the roadblock violat- constitution. For the benefit of our citi ed the fourth amendment to the United zens, police charged as well as that of States Constitution and article section 14 enforcing laws, our it behooves us to decide Rather, of the Utah Constitution. the whether the roadblock that netted State invites us to solely decide this case constitutionally permissible. was We hold is, the basis of the attenuation issue. That that it was not. are arguendo we that the “assum[e] illegal,” and remand this case for fact Statutory Authority to Conduct Road- finding on whether Sims’ consent to search blocks. his vehicle was through exploita- obtained prelude A to the constitutional stop. tion of the analysis per se is a determination of wheth inappropriate believe it any statutory in this er authority permits either We or case, however, to simply prohibits assume that the roadblocks sort conducted unconstitutional, here, is, roadblock was suspicionless, without that investigatory analysis. Sims steadfastly has and thor- roadblock in which vehicles and drivers are By thoroughly briefing Shamblin, 4. Ct.App. state constitutional n. 2 1988) cases). argument, (citing concerns in his Sims has answered appellate calls Utah’s courts for a state con See, Talbot, stitutional See, e.g., of search and seizure issues. Earl, 805-06; e.g., 1990). Ct.App. 716 P.2d at general inspection “upon reasonable of law.6 and possible violations screened interest, but any being operated that vehicle is several statutes belief We note provision here. apply of this act or of none violation regulating operation any other law Transportation Department of The Utah ” These codifications of the vehicles.... large entry at which all operates ports of suspicion” standard of familiar “reasonable transporting livestock vehicles and vehicles Ohio, Terry v. S.Ct. for, among other inspected are (1968), clearly L.Ed.2d 889 were not enact- qualifications, things, driver mind; roadblock-type stops in rath- ed with safety. weight, and payments, size and tax er, singling partic- they apply to the out (Supp.1990). Ann. 27-12-19 Utah Code § police, give the Division ular individuals or vehicles game laws Our fish and authority particularized suspicion. roadblocks to conduct based on of Wildlife cheeking stations under game nothing in find the Utah code We (1984), which makes Ann. 23-20-19 Code specifically prohibits the roadblock stop at such stations. it to fail to unlawful here, Therefore, was conducted however. obviously inapplicable are provisions These was con- query whether here. stitutionally prohibited. Highway also note that the Utah We “regu- charged duty of Patrol with Fourth Amendment. highways and roads lat[ing] on all traffic Prouse, In Delaware 440 U.S. Ann. Code of state.” (1979), 99 S.Ct. (1989). 10—4(l)(b) provision This § 27— implied the United States Court operations roadblock-type might authorize purpose of stops for the scenes, at, example, accident or where regis and checking driver’s licenses vehicle require conditions road or traffic hazardous constitutionally permit trations However, this sec- because extra control. stop Holding that a routine of ted. way implies authority to conduct tion in no purpose, without apply not vehicle for such investigatory operations, it does individual suspicion of individualized here. articulable impermissible under the wrongdoing, was (1990) allows Ann. 77-7-15 Utah Code § amendment, commented the Court fourth “stop any person in a peace officer to a preclude the holding does not that “[t]his sus- public place when he has a reasonable from Delaware or other States State of has committed or is picion to believe he spot checks that developing methods for attempting to committing or is the act of not involve intrusion or that do involve less may public offense and demand commit a exercise of discretion. the unconstrained name, of his explanation address and an his road oncoming traffic at Questioning of all Ann. Similarly, Code actions.”7 possible one alterna block-type stops is 41-l-17(c) (1988) stop requires officers at 1401. tive.” Id. license, at for driver’s a vehicle Deitman, roadblock, 617-18 characterization of this 6. Under our curiam) 1987) (per (quoting United States "three levels” it does not fit into the traditional Cir.1984), (5th Merritt, cert. F.2d 230 stops, that have been described as of denied, L.Ed.2d follows: suspi (1986)). The level of individualized [any may approach an officer a citizen at none, cion, i.e., one as with a level is the same long pose questions the citizen and so time] However, required to were stop. since drivers will; (2) against an officer is not detained his par opportunity decline to no and had may person an "artic- seize a if the officer has beyond well ticipate, went suspicion” person commit- that the has ulable however, not, quali It did level one encounter. however, crime; ted or is about to commit a stop, fy since no individu two or three as a level temporary and last no the "detention must be stop. prompted alized pur- necessary longer than to effectuate as a provision been characterized has stop”; arrest a 7. This pose an officer lev- legislatively version of the so-called enacted probable cause to suspect has if the officer Menke, stop. el two See committed or is an offense has been believe being supra. Ct.App.1990); note committed. ears, receptive requires weighing public The Prouse dictum fell on rest seizure inter- Sitz, and in considered an investi- thereby, degree the Court est served to which it roadblock, gatory “sobriety checkpoint,” interest, severity serves the and of interfer- operated by Michigan State Police De- liberty). ence individual partment. checkpoint operated was According testimony Sergeant guidelines by special created state Howard, Trooper and the road- advisory composed of law en- committee present block case was of an “all- transportation re- forcement officials purpose” variety. All except vehicles University Michigan. from the searchers licenses, registra- trucks were checked for guidelines checkpoint pub- governed Those tion, equipment problems, sobriety, driver selection, licity, police procedure at site signs drugs, of illicit without sus- checkpoint itself. S.Ct. court, picion wrongdoing. The trial fo- 2483-84. cusing purpose, performed on the last guidelines, Under the all motorists trav- balancing test as described It above. held eling through checkpoint stopped were history escalating drug that “a traffic briefly Only checked for intoxication. along this stretch of Interstate 15 as a signs if the initial examination revealed arrests, legitimize result of other tends to intoxication would a motorist would be di- public predetermined interest in check rected out of the traffic for a flow driver’s points, systematically pursued by officers registration license and check and further to minimize the burden to individual citi- sobriety checkpoint tests. The Sitz engage zens without discretion to ran- maintained for one hour and fifteen min- roving stops.”8 passing dom Without time, During utes. 126 vehicles were judgment accuracy on the of the trial average twenty-five for an sec- balancing, court’s we believe that (cid:127) checkpoint yielded onds each. The two ar- premature and therefore erroneous. approximately per- one and one-half rests— cent of Sitz, As we read Martinez- driving drivers —for under Fuerte, Brown, a fourth amendment the influence. at Id. balancing applies test to warrantless sei Utilizing balancing developed a test in that, upon zures if not based articulable Martinez-Fuerte, United States v. individual, of an carried “must be 49 L.Ed.2d 1116 pursuant plan embodying explicit, out to a Texas, and Brown v. 443 U.S. neutral limitations on the conduct of indi (1979), S.Ct. 61 L.Ed.2d 357 the Su- Brown, vidual officers.” 443 U.S. at preme Michigan’s sobriety Court held that (emphasis added). S.Ct. at 2640 Additional checkpoint passed fourth amendment mus- ly, plan developed by such a should be ter. The brief detention of motorists at the “politically officials” a accountable checkpoint only “slight” was found to be of, “unique understanding responsi and a infringement of their fourth amendment for, resources, bility public limited includ Sitz, interests. 110 S.Ct. at 2486. Out- ing a finite officers.” number weighing infringement mag- were “the Sitz, officials, at S.Ct. 2487. Those driving problem nitude of the drunken courts, responsible perform not the are it,” eradicating the States’ interest in [and] ing balancing the initial between the fourth 2485, along id. at with the Court’s assess- by amendment and the interests served the percent ment that the one and one-half plan. sobriety Id. While the check Sitz drunk rate driver arrest demonstrated that point requirements, met these the road checkpoint adequately advanced that used here did block not. 2487-88; Brown, interest. Id. at see also 50-51, explicit plan, beyond 443 U.S. at at 2640 and No a determination S.Ct. (permissibility large cases cited therein of non-ar- that all vehicles other than trucks public finding efficacy 8. The court’s definition interest There was no as to the actual i.e., pursued, illegal drug meeting public purposes detection of traffick- the roadblock in ing, appears contrary testimony by specific to be about described the officers or the more generalized purposes purposes of the roadblock. identified the court. stopped, governed were to be this road- such a roadblock cannot make it constitu- appear Sergeant block.9 Nor does it tionally proper. Therefore, we hold that gave him lieutenant who in roadblock which Sims was detained permission to conduct the are violated the fourth amendment to the Unit- politically accountable officials as contem- ed States Constitution.12 plated process in Sitz.10 The which the roadblock was authorized also lacked fea- Utah Constitution Article Section 14. political accountability tures of that were arguably present emphasis The guide- road- Sitz on roadblock Sitz: Sitz pursuant principle block was authorized to careful lines stresses the that when study non-policepub- operations advance that included interfere with fourth amend- officials, lic authority interests, while for this road- ment “the discretion of the offi- solely police agency. block arose within a circumscribed, cial in the field be [must] Finally, there is no indication that the au- least to some extent.” Delaware v. process any thorization here involved bal- Prouse, ancing of fourth amendment interests and (1979)(citations omit- interests, law enforcement or an assess- ted). implicitly places guideline Sitz both ment of the effectiveness of the roadblock development and the decision to utilize sus- Instead, in meeting those interests. picionless place roadblocks the first guidelines arising lack written from the “politically hands of accountable” offi- process strongly sug- authorization cials. We view roadblock authorization gests place. that no such took guideline development separate steps, requirement per- however. The initial explicit guidelines, decision to developed suspicionless mit politically especially roadblocks is accountable man- critical, balancing requires higher degree ner that includes of the relevant concerns, is, prerequisite political accountability guideline than the any judicial balancing analysis development suspi- step. argues of a cionless roadblock.11 judicial statutory authority After-the-fact lack of suspi- renders balancing implicated by of the interests improper cionless roadblocks under the blocks, allowing large again 9. While we understand that present in contrast to the situa- bypass tion, trucks to pursuant neces- were carried out to a coordinated sake, sary safety’s we wonder about plan developed by po- five District of Columbia implications procedure drug of this for effective lice districts. procedure interdiction. The seems to invite drug transport traffickers to their contraband in 11. A similar conclusion well be reached trucks, large possibly relatively massive by viewing the roadblock as an "administrative quantities, to avoid detection. Supreme dealing search." Court cases such searches have focused on the balance be- Corral, Compare United States v. 823 F.2d tween the need for such searches and the fourth (10th Cir.1987), upholding 1389 the constitution- implicated by amendment values However, such searches. ality purpose checking aof roadblock for the the cases also involved situations licenses, driver’s vehicle and insur- was, challenged argu- where the search at least ance, pursuant only permission of a state ably, authorized statute or ordinance. See police supervisor. Corral does not cite Brown's States, Catering Corp. Colonnade v. United 397 Sitz, requirement, adopted plan explicitly of a (1970) (fed- U.S. 90 S.Ct. 25 60 L.Ed.2d limiting officer discretion. In view of the reit- statute); Court, Municipal eral Camara v. requirement eration of that we find in we U.S. 18 L.Ed.2d 930 accept implication supervi- do not Corral's code); Seattle, (city housing City See v. sory permission to conduct a roadblock consti- adequate “plan." tutes an code). (city building McFayden, Corral was cited in United States v. which, turn, (D.C.Cir.1989), F.2d 12. Our uncritical treatment of and other holding was relied on the trial court in Sitz approval federal cases should not be taken as McFayden roadblock in this case constitutional. reached, analysis employed, up involved or result "traffic control” roadblocks set congestion merely preemi- deal with traffic these cases. We accede to the associated with drug trafficking. McFayden position Supreme street level The nent of the United States pass construing roadblocks were found to the reasonable- Court in the United States Constitu- balancing ness test of Brown. Those road- tion. regards Constitution. As the initial a warrant could be obtained to look inside roadblocks, authority permit such it. The court “exigent held that such cir- agree. support cumstances” to a warrantless search did not exist where the car was not I, Article section 14 of the Utah Constitu- away jurisdic- en route from the officers’ virtually tion is identical to the fourth suspect tion and the had not been alerted to counterpart, amendment. Like federal its interest it. Id. at 470-71. it consists of a “reasonableness” clause and a “warrant” clause: I, Under article supreme section our people to be secure in applies court possi- “warrants whenever houses, persons, papers their and effects policy ble” to motor vehicle searches and against unreasonable searches and sei- policy seizures. Id. This is consistent with violated; zures shall not be and no war- one purpose fundamental of constitutional upon probable rant shall issue but cause search and seizure interposition limits: the supported by affirmation, partic- oath or authority of neutral police seeking between ularly describing place to be evidence of crimes and the citizens from searched, person thing and the to be sought.13 whom such evidence is seized. In non-exigent the usual circumstances Larocco, In State v. scenario, search and seizure judicial 1990), Court, Supreme decrying the Utah branch, through magistrate, serves as the United States Court’s “vacilla- the neutral authority that issues or denies tion approach between the warrant and the perform a warrant to a search or seizure. approach” regarding reasonableness auto- The warrant only probable is issued when searches, mobile id. reaffirmed its Const, IV; cause exists. U.S. amend. commitment to the approach warrant under Const, I, legislature, art. 14. Our state constitution, our stating that “[warrant- however, has also served as a neutral au- less per searches and seizures are se unrea- thority citizens, between our and our exigent sonable unless circumstances re- in authorizing certain upon seizures less quire action before a warrant can be ob- probable than cause. (quoting tained.” Id. at 470 State v. Chris- noted, already As legislature our has fol- tensen, (Utah 1984)). lowed the authorizing courts’ lead in brief Larocco, a car suspect’s expecta- theft stops warrantless of individuals and motor privacy tion of in the interior of the vehicles based on suspicion.14 reasonable car, parked unattended and unlocked on a noted, legislature Also as has acted street, public triggered application independently in authorizing ports entry, article section 14. 794 P.2d at 468-69. as well as game checkpoints. fish and Police officers’ opening warrantless operations, These supported by neither car’s door to view the vehicle identification warrants nor level of individualized doorjamb number the was found to con- suspicion, clearly I, implicate article section stitute a search to the fourth 14 of our constitution. requirement. amendment’s warrant search improper was then held operational under arti- From standpoint, ports of I, cle section because there was no entry game and fish and checkpoints close- threat that disappear the ear would ly before resemble the roadblock that was con- is, therefore, 13. Our under the Utah Constitution is verdict for Utah roadblocks un- legislative limited to the need for authorization. known. note, however, opin- We that Justice Durham’s Larocco, requires probable ion in and both cause Arguably, legislative enactment of Utah Code 14. exigent justify circumstances to a warrant- 41-l-17(c) Ann. 77-7-15 §§ I, less search and seizure under article section by legislature reflect a determination our prohibit which would seem to this roadblock simply ratify judicial expansion police to not of However, and others. decision, Larocco was a divided power by acquiescence, silent but to determine concurring, with Justice Zimmerman through political process the whether such ex- concurring only, Justice Stewart in result pansion part is to become a of Utah’s law. dissenting. Justices Hall and Howe The final trucks, authorization, case, large of it was entitled to no such in that all in this ducted hunters, respective- presumption. Both warrants and used statutes or all vehicles inspections. branch, originate to official ly, are submitted outside the executive However, authorizing operations, serving in these to check of abuses that branch’s has, presumably, weighed legislature power. our law enforcement Consistent with suspicionless inspections the need for such supreme emphasis our court’s on the war- upon their intrusion individual lib- against then, requirement, suspi- rant we hold per- analogous to that erty,15 process cionless, investigatory motor vehicle road- magistrate in issuance of a by a the formed blocks, legislative conducted without autho- political ac- high degree A of warrant. rization, per are se unconstitutional under countability the institution of these I, article section of the Utah Constitu- presumed, in that practices can also be tion. truckers, hunters, law representatives of requiring legislative authority as a enforcement, citizenry large all prerequisite suspicionless to the use of in- passing in very likely played part roadblocks, vestigatory join two other relevant statutes. similarly western states that have con- legislation authorizing In each case of See, e.g., strued their constitutions. types checkpoints stops or specific Henderson, Idaho P.2d vehicles, with or without individ- persons (1988); County, 304 Or. Nelson Lane wrongdoing, the citi- ualized (1987).16 At least one other through their zens of this state have acted state has established the same standard Therefore, representatives. the col- elected under the fourth amendment. State v. and, people expressed is lective will Smith, (Okla.App.1984). P.2d 562 This furthermore, duly people have notice of appropriate approach particularly where police activity. authorized will, here, proposed police practice everyone traveling high- our state’s contrast, affect

In stark the roadblock conduct- ways. Because of its close ties to the solely by ¿vas ed this case authorized affected, rights officers, citizens whose will be very people whose be- accountability necessary political minimum I, havior article section 14 is intended lies, outset, practices for such at the No non-law enforcement officials limit. legislature. our up part took in the decision to set Leaving the initial decision to pro- holding that article section Our operations such hands cre- conduct investigative road- suspicionless hibits ates a scheme that is both unrealistic authority, in ef- legislative blocks without constitutionally untenable. fect, legislature perform the requires the it -type balancing function if and when legislative authori We believe Sitz authorization of entry game decides to consider the ports zation of and fish and balancing of the checkpoints, judicial such roadblocks. Judicial like issuance of roadblocks, warrant, presump implicated interests such triggers at least some then, only if and when practices need to occur tion that these law enforcement will legislature, upon performing such bal- constitutionally permissible. Because are itself, them.'17 to authorize ancing neither form decides this case had Indeed, Superior Court of port entry stops, Court and the the case Island Pennsylvania sobriety checkpoints weighed liberty uncon- legislature appears con- held to have normally constitutions with- under their state some care. Vehicles sub- stitutional cerns with practices considering could be stops exempted stopping whether such ject are from if out to these statutorily one-way trip authorized. doing dis- valid if so would increase their percent. tance more than three miles or five in the factors to be considered 17. We note that 27-12-19.4(1) (3) (Supp. Ann. Utah Code myriad, balancing com performing are such 1990). See, e.g., plex, debate. to Sitz JJ.; Stevens, dissenting opinions Brennan and Dep't Transp., In v. 561 A.2d 1348 Pimental 16. Tarbert, (ap County, (R.I.1989), 743 P.2d at 710-11 Nelson v. Lane and Commonwealth v. 348 Wallentine, (1985), A Model pendix); Davis & Pa.Super. see also A.2d 221 the Rhode 502 150

We, ground colleague concurring appeal.” in his consider that on unlike our legislature Carter, 1985); that an- opinion, prefer 707 P.2d 660 see public policy Webb, its and the nounce view 2 also State v. 71 n. citizenry regards philosophy of Utah’s (Utah Ct.App.1990); Utah R.Crim.P. 12. roadblocks, applying con- prior to the court ground suppression Unless for is “un- legislature’s stitutional known unavailable” to a defendant at product.18 filed, suppression the time a motion is challenge to the admission of evi- holding emphasize also that our We ground dence on that is waived. State v. constitutionality of the the state Lee, (Utah 1981). Here, 53 limited in in which Sims its however, similar, non-emergency then-standing our application situa- because deci- apply to emer- effectively tions. It is not intended to sions held that a non-coerced example, gency might, consent, itself, for purged roadblocks search the taint apprehend fleeing used to felon. Nor be primary illegality, of a Sims’ non-attenua- impede existing do intend to au- argument tion him in was unavailable to thority for traffic to conduct roadblocks the trial point- court and would have been purposes. Any control constitutional chal- Sierra, less to assert. See State v. 754 lenge types stops of traffic awaits these (Utah Ct.App.1988). P.2d 980 There- day. suspicionless, another It is the inves- fore, proper argument it is to address that roadblock, tigative, non-emergency con- now. legislative ducted the absence of authori- Arroyo, ty, that we hold to be unconstitutional. 1990), Court, Supreme reversing the Utah holding Arroyo, this court’s 770 ATTENUATION OF CONSENT FROM (Utah Ct.App.1989), P.2d 155-56 held ILLEGAL ROADBLOCK that, valid, constitutionally to be a search argues that there was insufficient following illegal police consent behavior attenuation between his detention and the must be both non-coerced and not arrived gave consent he to search his vehicle to by exploitation primary police at of the purge illegality the taint of the of the de- illegality. Factors used to evaluate the tention. He does not claim that his consent non-exploitation or attenuation element are was coerced from him and was therefore Illinois, derived from Brown v. 422 U.S. Rather, involuntary. argues he that be- 590, (1975), 95 L.Ed.2d S.Ct. intervening cause there were no circum- which involved a confession obtained from stances between detention and the con- suspect illegal a criminal after his arrest. sent, the consent was the fruit of the il- They temporal proximity include the of the detention, and, therefore, legal evidence primary illegality granting and the of con- pursuant seized to his consent should have sent, presence or absence of interven- suppressed. been ordered Sims did not circumstances, ing purpose and the argument make the trial court. flagrancy illegal police conduct. Ar- royo, (citing 796 P.2d at 690-91 n. 4

Normally, “where defendant Brown, 603-04, at particular ground fails to S.Ct. sup assert a for 2261-62, LaFave, pressing unlawfully obtained evidence in and 3 W. Search and court, 8.2(d), (2d 1987)). appellate the trial court will not at 193-94 ed. Seizure § Analyzing Constitutionality Sobriety may lifestyle It in the western states Utah, Stops Roadblock 3 B.Y.UJ.Pub.L. promotes greater expectation privacy in our (1989). Political and economic considerations automobiles than in other states or in the Unit- particular province legisla that are the ed States Court’s enunciation of the play: economy ture also come into Utah's exception" “automobile fourth tourism, greatly benefits from and the state is Carney, amendment. See 386, California currently attempting also Olympic to attract the Winter (1985). S.Ct. L.Ed.2d 406 legislators may Games. Our well wish possible impact suspicionless to consider the upon roadblocks visitors to our state. Sims, however, question to tions and to de- case was remanded Arroyo The entirely illegal on the finding pended the issue roadblock. fact court for the trial driving ap- nor the consent to Neither Sims’ external the defendant’s of whether pearance justified stopping of his vehicle attenuated from or vehicle was search his Nothing him. occurred which could have illegal stop. Because exploitation of his an reasonably proceed made him feel free to the to show that the burden is on following illegal police journey on his at time the between evidence obtained illegality, moment of his and the that is attenuated from the discoveries conduct Brown, prompted trooper’s request at the for consent 422 U.S. at 95 S.Ct. spon- was not to search his vehicle.20 Sims did not the attenuation issue and because consent, court, taneously gave a remand to volunteer his but it presented to the trial consent, then, only factors has been when asked. Sims’ examine the attenuation find, however, that arose from an unbroken chain of suggested here. We events began illegal us contains “suffi that with the the record now before to deter depth” cient detail and to allow us analy- The final factor the attenuation as a matter of law. id. mine the issue See purpose sis is an examination of the and factor, flagrancy primary police illegality. Regarding temporal proximity factor, two, Here, very ap- short time unlike the first the record demonstrates a pears question stop in the roadblock unrelated of whether span between Sims’ from, i.e., request to search a search consent flowed was an Trooper Howard’s of, trooper exploitation illegal police had conduct.21 his automobile. The but Sims, Instead, regarding appears his it to be an alternative conversation with brief trip itinerary, approach, inviting us to unconsti- license and his overlook alcohol, good conduct that possession guns, or contra- tutional serves band, flagrant. asking purposes for consent to search and is not too before his car. The consent was obtained within Troopers Howard and testi stop, illegal minutes of the and not even length expertise in fied at some about their our clear error standard of review interdiction, drug and the trial court treat enough court find time be- could trial primary ed the roadblock as if that was its grant and the of consent to tween the purpose purpose. However noble this relationship attenuate the between be, pursued it was an unautho two.19 years troopers each had rized means. experience, and can any possibili- reveal of law enforcement

Nor does the record properly charged with awareness ty intervening circumstances between not law. illegal stop grant of consent their action was authorized Sims’ liberty to lurk in greatest dangers “The to the search. Such circumstances must be zeal, by men of primary illegality. Ar- insidious encroachment independent of the Here, understanding.” Trooper well-meaning but without royo, 796 P.2d at 690-91. States, 277 U.S. request for consent to search Olmstead v. United Howard’s 72 L.Ed. 944 upon the smell of Sims’ sedan was based (Brandeis, J., Using alcohol, liquor dissenting). ten sight open bottle sedan, admission, une- twelve law officers to staff in the and Sims’ parts left distant the bottle was in obvious have also ventful since delayed po view, carrying largely jurisdiction rural that he was alcohol. Ho- Thus, of need. lice assistance the event opportunity ward’s to make these observa- was, fact, leave, Brown, but was of less not free to We note that in an interval 19. testing. sobriety illegal citation and to field two hours between an arrest and the than obtaining incriminating statement from of an Illinois, contrast, 21.By in Brown v. to atten- the arrestee was viewed as insufficient arrest, illegal regarded have Court seems to U.S. at uate the statement from the arrest. 422 surprise, appeared to cause "calculated 604, 95 S.Ct. at 2262. confusion,” fright, at that, producing the causative factor Additionally, Trooper as a Howard testified discovered, incriminating subsequent statements. open arrestee’s container was once the additionally the offi whether it be invalid un appear not although it does Second, the state abusively those der constitution. toward cers behaved roadblock, importantly, not cor more I am not enthusiastic this does stopped at the suggesting legislature, any about that the violation. rect constitutional police, more than the courts or the should sum, demonstrates that the record balancing away be about business of to search his vehicle Sims’ consent important protections constitutional exploitation illegal arrived at safeguard all of us so that law enforce Accordingly, that consent was readily ment can more catch an occasional exclusionary ap- rule Because the invalid. law-breaker. The citizen’s to be free the fourth plies to violations of both from intrusion the total absence of I, section 14 of the amendment and article wrong-doing even the least Constitution, Larocco, v. Utah State simply mercy should not be at the 460, (Utah 1990), 471-73 all evidence P.2d legislature’s determination of how tourism sup- must obtained under that consent hopes Olympics might or our for the some pressed. adversely impacted by how be law en one technique forcement or another. CAUSE TO PROBABLE necessary If it SEARCH were to reach the state CONTINUE case, i.e., constitutional issue in this if the Troopers Howard and be- passed roadblock muster under the federal marijuana in discovery that the lieved constitution, I would be more inclined to gave under the consent search Sims’ sedan solidify long-standing pre- constitutional searching probable them cause to continue I, 14, cepts at the core of article section However, after consent was withdrawn. than to the troublesome “bal- borrow invalid, any because the initial consent was ancing” approach adopt embraced probable searching cause found while un- approach, begin some variation of that der that consent was also invalid. Absent journey path. down that nebulous Cf. probable cause to search the sedan without Larocco, (Utah v. 794 P.2d State consent, need not reach the issue Sims’ 1990) (state constitutional em- exigent of whether circumstances existed ployed simplify and sei- “to ... the search requirement inapplica- make the warrant easily they zure rules so that can be more ble. and, and the courts followed time, provide public at the same CONCLUSION predictable protection consistent possession conviction for a con- Sims’ against unreasonable searches and sei- intent trolled substance with to distribute zures”). probably prefer I would to hold reversed, is and the case is remanded to the Ohio, Terry that the rule of v. proceedings trial court for in accord with (1968), uni- opinion. courts, formly applied by is a matter simply constitutional law that JACKSON, J., concurs. away by any of our not be balanced branch government and that is not amenable to a ORME, Judge (concurring specially): exception. fully I While otherwise concur law, in opinion, court’s I have two difficulties with Under established Utah decisional treating suspicion, the discussion individualized absence only permitted. E.g., article section of the Utah Constitu a level one First, Jackson, if tion. the roadblock cannot even be v. State Menke, P.2d questionable Ct.App.1990); validated under “bal State —Sitz, ancing” approach Michigan Ct.App.1990); v. Tru U.S. —, (Utah Ct.App. 412 jillo, 110 L.Ed.2d 87-88 (1990),see, (Stevens, J., 1987). purely e.g., id. at 2490-99 A level one is a volun dissenting), does not lose tary we have no need to examine encounter. Id. And one participate in a level right to decline to simply GOTTFREDSON, Petitioner, one chooses one encounter because Burt A. See than to walk. to drive rather v. Smith, Ct.App. 781 P.2d UTAH STATE RETIREMENT Johnson, 1989); BOARD, Respondent. rev’d on other (Utah Ct.App.1989), 1991). grounds, See No. 900255-CA. Prowse, also, Delaware v. Appeals Court of of Utah. 1401, 59 L.Ed.2d 660 protections (persons do not lose March they step fourth amendment “when automobiles”); from the sidewalk into their Talbot, 1990).

(Utah Ct.App. cannot re

If, clear, as seems

quire every pedestrian on a stretch of side I stop police inquiries, to and answer

walk they hard-pressed

am to see how can

every car on a stretch of interstate

highway require the driver to answer view, only

inquiries. my roadblock pass is sure to state constitutional qualify

muster is one which would as a State, Little stop.

level-one Md. Cf. (roadblock 479 A.2d

upheld avoiding where motorists refusing cooperate

or otherwise not de

tained). problem I see no constitutional police checkpoint

with a roadside an sign freeway,

nounced on the “Police Cooperation

Roadblock Next Exit. Your

Answering Inquiries Appreciated.” Police stop, though they

Most drivers would even to, required just pe

could not be most respond

destrians will

inquiries on the sidewalk. But on neither suspected

medium of travel can one

nothing illegal compelled to whatsoever be

do so.

Case Details

Case Name: State v. Sims

Court Name: Court of Appeals of Utah

Date Published: Mar 15, 1991

Citation: 808 P.2d 141

Docket Number: 890463-CA

Court Abbreviation: Utah Ct. App.