Along for the Ride?: Warrant Checks and the Status of Passengers During Traffic Stops in Utah

• Publication year: 2006
• Pages: 1
• Citation: Vol. 19 No. 3 Pg. 1

Utah Bar Journal Volume 19.

Vol. 19, No. 3 - #1. Along for the Ride?: Warrant Checks and the Status of Passengers During Traffic Stops in Utah

Utah Bar Journal
Volume 19, No. 3
May/June 2006

Along for the Ride?: Warrant Checks and the Status of Passengers During Traffic Stops in Utah

by Lance Starr

Utah law recognizes three levels of encounter between police and a civilian. For the purposes of this essay, only the first two levels are of interest. A level one encounter occurs when a citizen voluntarily elects to respond to non-coercive questioning by a law enforcement officer. The law assumes that since the encounter is consensual, the person is free to leave or terminate the encounter at anytime and therefore no Fourth Amendment seizure occurs. State v. Hansen, 63 P.3d 650, 661 (Utah 2002). A level two encounter involves an investigative detention that is brief and non-intrusive. It is a Fourth Amendment seizure but probable cause is not required. Rather, the officer need only have "specific and articulable facts and rational inferences which give rise to a reasonable suspicion a person has or is committing a crime, in order to initiate an investigative detention without consent.'" Id.

Utah law recognizes that during a traffic stop the driver of the vehicle is subject to a level two encounter because the driver is seized; however, such a detention is usually minimally intrusive or lengthy. United States v. Melendez Garcia, 28 F.3d 1046, 1052 (10th Cir.1994). Moreover the officer is precluded from questioning the driver beyond the scope of the reason for the stop. Hansen, P.3d 650 at 661

However, what is the status of a passenger who might also be in the vehicle and what restrictions are placed on officers in connection with such passenger? Based on Utah case law the answer is unclear. This essay will argue that the encounter with the passenger is a level one, voluntary encounter.

I. Three Options for Passenger Status

There are three distinct views that a court could adopt when determining the status of a passenger during a traffic stop. The first option is that a court may view the seizure as a level two detention based on reasonable suspicion as to the driver, but a level one encounter as to any passengers. The second option is that a level two detention occurs and is reasonable as to both the driver and any passengers. The third option is that the seizure may be viewed as a level two detention based on reasonable suspicion as to the driver and also a level two detention as to the passenger but unsupported by reasonable suspicion as to the passenger.

The third option appears untenable, as it would result in a situation where anytime a police officer initiates a traffic stop that involves a vehicle with passengers, he would per se violate the passengers' Fourth Amendment rights. Such a result is absurd, there is no case law to support this view, and it does not merit discussion.

The second option, however, has received some attention in Utah courts. Specifically, in State v. Higgins, 8884 P.2d 1242 (Utah, 1994), the defendant, Patricia Higgins, was the passenger in a vehicle that was reported as having stolen gas from a local convenience...