Preserving State Constitutional Issues in the Trial Court

• Publication year: 2006
• Pages: 2
• Citation: Vol. 19 No. 3 Pg. 2

Utah Bar Journal Volume 19.

Vol. 19, No. 3 - #2. Preserving State Constitutional Issues in the Trial Court

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

May 31, 2006

Preserving State Constitutional Issues in the Trial Court

by Ralph Dellapiana

This article is about when, why and how attorneys may and should be using Article I, Section 14 of the Utah Constitution, instead of the Fourth Amendment, as a basis for motions to suppress evidence. Although this article is directed at the criminal defense bar, it should be of general interest to all attorneys involved in protecting clients against the abrogation of their state constitutional rights

When case law supports an argument under the Fourth Amendment, it is frankly much simpler and easier to use it than to attempt to persuade a trial court judge to create a new rule of law. Thus, attorneys should use the Utah Constitution when the Fourth Amendment case law directly opposes their argument, and perhaps also when there is no Fourth Amendment case directly on point

The list of potential state constitutional arguments on search and seizure would be as long as the number of issues that have been litigated under the Fourth Amendment. Below is an example of a challenge to State v. Krukowski, 1100 P.3d 1222 (Utah 2004), filed on behalf of a client of Salt Lake Legal Defenders. In that case, the Utah Supreme Court held that police may make a forcible, warrantless entry into a residence provided that they later obtain a warrant based on some independent source

The primary reason why attorneys should look to the Utah Constitution is to help the client. Attorneys must defend their clients' right to privacy and require the police, as state actors, to obey the rule of law. By protecting the rights of their clients, attorneys protect everyone's rights. Without the aid of competent counsel, clients face the danger of conviction, even though they may have a perfect defense. Gideon v. Wainwright, 372 U.S. 335, 345 (1963).

Another, related, reason attorneys should use the Utah Constitution is that it is probably malpractice not to do so. The Utah Supreme Court has described the defense counsel's duty to brief relevant state constitutional questions as "imperative." State v. Earl, 716 P.2d 803, 806 (Utah 1986). The Utah Court of Appeals has added that, "Until such time as attorneys heed the call of the appellate courts of this state to more fully brief and argue the applicability of the state constitution, we cannot meaningfully play our part in the judicial laboratory of autonomous state constitutional law development." State v. Bobo, 803 P.2d 1268 (Utah App. 1990).

Finally, this article then describes, in substantial detail, exactly how to create an argument for a more protective rule under Article I, Section 14 than is available under the Fourth Amendment. Specifically, this article argues that the Utah Supreme Court should reject Krukowski and establish a bright-line rule that under the Utah Constitution, police should not be allowed to forcibly enter a house without a warrant.

SUMMARY OF FACTS
Following is a very brief summary of the facts of a case challenging Krukowski, with the names of the parties excluded. In addition, for the purpose of focusing on the facts that related to Krukowski, certain disputed or unrelated facts are omitted.

A city detective obtained information from "concerned citizens who wished to remain anonymous" that a robbery suspect named "Billy" was using John Smith's house to store stolen guns. Soon thereafter, officers went to Smith's house and communicated their concerns to him. Eventually, the officers drew their weapons, entered Smith's house, and told him not to move. At least a half-dozen officers then entered the house and conducted a protective sweep. During the sweep the officers observed guns, suspected drugs and drug paraphernalia. The officers then secured the premises while one of the detectives went to obtain a search warrant. After the warrant was obtained, several items were seized as evidence.

ANALYTICAL FRAMEWORK
There is no unique approach to briefing a state constitutional law claim. However, the Utah Supreme Court has remarked favorably on the analytical framework employed in State v. Jewett, 500 A.2d 233 (Vt. 1985). See Earl, 711 P.2d at 806. In Jewett, the following analytical...