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Vehicle Stop & Searches

Initial Stop

A routine traffic stop is justified at the inception if the stop is incident to a traffic violation committed in the officers' presence. However, a police officer need not actually observe a violation. Instead, as long as an officer suspects that the driver is violating any one of the multitude of applicable traffic laws, the police officer may legally stop the vehicle.”  However, an officer may not initiate a stop based merely on a “hunch” that an individual is violating the law.

Odor of Drugs

Utah courts have recognized that probable cause and, by extension, reasonable suspicion may arise from an officer's sense of smell.  It is well settled that the odor of marijuana coming from a vehicle establishes probable cause for the warrantless search of that vehicle. However, when an officer says that he smells marijuana, finds no marijuana but finds cocaine, the evidence of the cocaine (or drug other than marijuana) can be suppressed. Specifically, in the the Maycock case, the Utah Court of Appeals held that probable cause to support a search based solely on an officer's subjective belief that he or she smelled marijuana will be upheld only when the search corroborates marijuana or its use.

 

Drug Dogs

Because a trained narcotics-detection dog alerts police only to the presence of contraband, and there is no Fourth Amendment right to possess contraband, the United States Supreme Court has held that a dog sniff is not a search under the Fourth Amendment. Based on the premise that a dog sniff is not a search, the Supreme Court has also found that a drug-trained dog may walk the perimeter of a lawfully detained vehicle even if police have no reasonable suspicion that the vehicle occupants are engaged in drug-related activity so long as the dog sniff search does not extend the duration of the stop.

In the Baker case, the Utah Supreme ruled that the diminimis exception does not apply to drug dog sniffs. Specifically, the Utah Supreme Court made clear that any detention of an individual after the purpose for the initial detention has concluded violates the Fourth Amendment, including a drug dog sniff. More specifically, the Utah Supreme Court specifically held that an officer cannot prolong a driver's detention after concluding the purpose of the original stop without reasonable belief that the driver of the car was involved in other illegal activity.

Ordering Occupants from Car and Pat Down

Courts have held that seemingly benign traffic stop present a very real threat to law enforcement officers. “Due to this inherent dangerousness, courts allow officers to take certain precautions to protect themselves without having to justify their actions based on reasonable suspicion.” State v. Warren, 2003 UT 36, ¶ 24, 78 P.3d 590. One of these precautions is to allow officers to ask the driver and passengers to exit the vehicle during the pendency of the stop. Once a motor vehicle has been lawfully detained for a traffic infraction, police officers may order the driver out of the vehicle to promote safety, even in the absence of reasonable suspicion, without violating the Fourth Amendment's proscription against unreasonable searches and seizures.

Police power after have people exit vehicles is not without limits, however. Although an officer may order a driver from his vehicle during a traffic stop, the officer is not automatically entitled to conduct a protective search for weapons. Rather, the officer must point to specific and articulable facts which, taken together with the rational inferences from those facts, would lead a reasonable person to conclude that the suspect may be armed and presently dangerous.” Warren, 2003 UT 36, ¶ 29, 78 P.3d 590 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)); see also State v. Baker, 2010 UT 18, ¶ 26, 229 P.3d 650 (“During a lawful traffic stop, officers may conduct a pat-down search of the driver and other vehicle occupants ‘upon reasonable suspicion that they may be armed and dangerous.’ ” (quoting Arizona v. Johnson, 555 U.S. 323, 332, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009))).  During a protective frisk, the only permissible objective ... is the discovery of weapons that may be used against the officer or others.  Courts evaluate the propriety of a protective frisk based on the totality of the circumstances.

Duration of Stop

 

A police stop of a vehicle must be reasonably related in scope to the traffic violation which justified it in the first place. Once a traffic stop is made, the detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Both the length and scope of the detention must be strictly tied to and justified by the circumstances which rendered the stop permissible. This means that an officer conducting a routine traffic stop may request a driver's license and vehicle registration, conduct a computer check, and issue a citation. However, once the driver has produced a valid driver's license and evidence of entitlement to use the vehicle, he must be allowed to proceed on his way, without being subjected to further delay by police for additional questioning. State v. Robinson, 797 P.2d 431, 435 (Utah Ct.App.1990) (quoting United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir.1988)).

 

Investigative questioning that further detains the driver must be supported by reasonable suspicion of more serious criminal activity. Reasonable suspicion means suspicion based on specific, articulable facts drawn from the totality of the circumstances facing the officer at the time of the stop. See State v. Mendoza, 748 P.2d 181, 183 (Utah 1987); State v. Munsen, 821 P.2d 13, 15 (Utah Ct.App.1991); Robinson, 797 P.2d at 435.

 

If reasonable suspicion of more serious criminal activity does arise, the scope of the stop is still limited. The officers must diligently pursue a means of investigation that is likely to confirm or dispel their suspicions quickly, during which time it is necessary to detain the defendant. State v. Grovier, 808 P.2d 133, 136 (Utah Ct.App.1991) (quoting United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985)).

Officers are allowed some leeway in this extension by what's known as a de minimis exception.  This means that officers if officers extend a stop for a very short period of time, this "de minimis" delay does not violate the 4th amendment. Utah appellate courts have not created a bright-line rule governing the acceptable temporal duration of such a stop. Rather, the appellate courts have only held that officers must diligently pursue the original purpose of the stop, and that while some unrelated questioning may be tolerated, officers must remain focused on the original purpose of the stop in the absence of reasonable suspicion justifying an expanded investigation.

 

Once officers complete the purpose of the original stop and dispel any reasonable suspicion generated during its pendency, they are then obligated to release the vehicle and its occupants without delay.

Consent to Search Vehicle & Scope of Consent

In order for consent to search to be legl, The totality of the circumstances must show that the consent was given without duress or coercion. In other words, a person's will cannot be overborne, nor may “his capacity for self-determination [be] critically impaired.” Schneckloth, 412 U.S. at 225, 93 S.Ct. 2041 (citation omitted); United States v. Melendez–Garcia, 28 F.3d 1046, 1053 n. 4 (10th Cir.1994).

The State bears the burden to prove the consent was voluntary. State v. Webb, 790 P.2d 65, 82 (Utah App.1990). We further look to see if there is clear and positive testimony that the consent was unequivocal and freely given. Marshall, 791 P.2d at 887–88; State v. Grovier, 808 P.2d at 136 State v. Castner, 825 P.2d 699, 704 (Utah Ct. App. 1992)

 

Certain factors which may show a lack of duress or coercion include: 1) the absence of a claim of authority to search by the officers; 2) the absence of an exhibition of force by the officers; 3) a mere request to search; 4) cooperation by the owner of the vehicle; and 5) the absence of deception or trick on the part of the officer.

State v. Whittenback, 621 P.2d 103, 106 (Utah 1980).

As a specific example of coercion, in the US v. Brown case, the defendant's permission for search was not consensual, but was coerced by the trooper's threat to make him wait while a K-9 unit was called and the fact that the trooper never returned defendant's documents. Existence of one ordinary air freshener, and trooper's suspicion that vehicle's occupants were nervous, did not provide probable cause for search.  U.S. v. Brown, 2005, 405 F.Supp.2d 1291.

Even if consent is freely given, the consent is nullified if it is attributable to a prior illegality.  

In the Hansen case, the officer testified, “It's my practice to ask them for consent by stating, Do you have any alcohol, weapons or drugs in the vehicle? And if they say no, I say, Well, do you mind if I check.” In the Hansen case it was determined that the officer had no reasonable suspicion of a further illegality. Seeking consent under such circumstances showed the purpose of the illegal detention was to exploit the opportunity to ask for consent. It also shows there was a direct connection between the officer's misconduct and the defendant's consent. State v. Hansen, 2002 UT 125, ¶ 66, 63 P.3d 650, 666

The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 1803–04, 114 L.Ed.2d 297 (1991) (citations omitted).

State v. Castner, 825 P.2d 699, 705 (Utah Ct. App. 1992).

Warrantless Searches

Under the Fourth Amendment of the United States Constitution, law enforcement officers must obtain a warrant before conducting a search. However, an exception applies to vehicles. The automobile exception to the warrant requirement provides that if a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment permits police to search the vehicle without more.

However, if probable cause cannot be shown for a search, then all evidence gathered from the search is what's known as "fruit of the poisonous tree" and thus suppressed.

Scope of Auto Search 

 

If probable cause exists for the search, the scope of the search is broad.  The automobile exception permits an officer to search not only the vehicle, but also “ ‘its contents that may conceal the object of the search[,]’ .... [including] all containers within a car,” Wyoming v. Houghton, 526 U.S. 295, 301, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999) (quoting United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)), “without a showing of individualized probable cause for each one,” id. at 302. State v. Despain, 2007 UT App 367, ¶ 13, 173 P.3d 213, 217.

Inventory Search

When a person is arrested, their vehicle is usually impounded. Inventory searches of impounded vehicles' contents constitute an exception to the warrant requirement because such a search is not conducted to investigate criminal activity and no variant of individualized suspicion is necessary to permit one.

However, when impoundment of a vehicle is justified, the ensuing search must be conducted for inventory purposes, in a legal manner, and not merely as a fishing expedition for evidence. Just as search warrants based on probable cause ensure that police do not act arbitrarily in selecting persons and places to search, a regularized set of procedures guards against arbitrariness when police conduct warrantless inventory searches. In order for an inventory search to be legal, officer must comply with their agency's written policies.

Plain View

The plain view doctrine applies most often when an officer sees evidence through the window of a vehicle stopped for a moving violation. The requirements for application of this doctrine are satisfied if: (1) the officer is lawfully present where the search and seizure occur; (2) the evidence seized is in plain view; and (3) the evidence seized is clearly incriminating. 

However, "lawfully present" is construed fairly narrowly. in the Lee case, the Utah Court of Appeals found that opening the car door to reveal portions of the passenger compartment that the officer could not otherwise see was not plain view. To remove a search from the limitations of the Fourth Amendment under the plain view doctrine, an officer must be able to observe what is in open or plain and lawful view when he is located where he has a lawful right to be.

This is not to say that officers can't use aids in looking into areas not clearly visible from where officers are legally present. Specifically it is not unconstitutional to use a flashlight to aid in viewing an automobile's interior.