Mr. Gray Goes to Washington

• Publication year: 2006
• Pages: 6
• Citation: Vol. 19 No. 5 Pg. 6

Utah Bar Journal Volume 19.

Vol. 19, No. 5, Pg. 6. Mr. Gray Goes to Washington

Utah Bar Journal
Vol. 19, No. 5
September/October 2006

Mr. Gray Goes to Washington

by Brett J. DelPorto and Jeffrey S. Gray

MR. GRAY: ...[T]he defendants in this case were the adults inside the home.

JUSTICE STEVENS: Oh, they charge that the adults were intoxicated.

MR. GRAY: Yes.

JUSTICE STEVENS: Well, thatÃ.s a serious crime in Utah I guess. (Laughter.)

MR. GRAY: We anticipated that comment actually. (Laughter.)

JUSTICE STEVENS: And what's your response?

When Jeff Gray first announced he was appealing Brigham City v. Stuart to the United States Supreme Court, the response from colleagues in the Criminal Appeals Division of the Utah Attorney General's Office was immediate. Congratulations. The obligatory "high five." Some even named Jeff as a personal hero.1

Privately, however, the mood was a bit more subdued. The United States Supreme Court? The big guys? Virtually every case handled by the office goes no further than the Utah Supreme Court. By one estimate, the State's last cert petition to the U.S. Supreme Court on an issue of criminal law was 17 years ago. And that one was denied. What chance do we have now? Shouldn't Jeff just let this one go?

"I never thought he'd get cert, but it couldn't hurt to try," said Assistant AG Joanne Slotnik. But "[w]hen Jeff aggressively garnered so many states as amici, I felt much more encouraged."

Ultimately, the U.S. Supreme Court not only granted cert, but also agreed with Jeff about as thoroughly as the court agrees on anything. By a 9-0 vote, the court adopted the State's position and, in doing so, clarified the scope of warrantless searches under the emergency aid and exigent circumstances doctrines.

Now, five months later, it's time to ask a pertinent question: What was he thinking?

In a sense, the saga began on February 18, 2005, the day the Utah Supreme Court weighed in on Brigham City v. Stuart. It is fair to say this was not a good day for anyone in the office, Jeff in particular. Jeff had received the customary phone call the day before informing him that the opinion was to be released the next day. Accordingly, Jeff arrived at work bleary-eyed from a fitful night of worrying about the case and a little apprehensive about the strong possibility that he was about to get skunked.

"I'm usually a sound sleeper, even when I have something important the next day. But it had taken more than eight months after oral argument for the Court to issue an opinion, and oral argument had not gone well. This was an important case we could not afford to lose. Officers deal with domestic violence on a daily basis. I felt a loss would severely hamper their ability to effectively deal with violence. I was already thinking cert."

In taking the case to the Utah Supreme Court, Jeff had hoped to undo at least some of the concerns raised by earlier rulings from the trial court and then from the Court of Appeals. In the State's view, the legal issues presented in Brigham City were very straightforward. Should police officers be required to wait until violence becomes life-threatening before entering a home in order to break up a fight? Brigham City police had responded to a loud party complaint at 3 a.m.2 When they arrived, they quickly determined that some kind of physical altercation was occurring inside. Their investigation led them into the back yard. After entering the back yard, the officers watched through windows and a screen door as four adults attempted to pin a juvenile against a refrigerator. When the juvenile freed his hand and socked one adult in the nose, the officers opened the screen door and yelled "Police!" When no one inside heard, the officers entered the home and stopped the fight. In addition to arresting the juvenile, the officers arrested the adults, who were charged with contributing to the delinquency of a minor, disorderly conduct and intoxication.

Defense counsel filed a motion to suppress all the evidence seized inside the home, claiming the search was illegal under the Fourth Amendment to the U.S. Constitution. Brigham City countered that the search was legal because the officers entered the home based on probable cause - an ongoing assault - and exigent circumstances. The trial court disagreed, holding that the officers should have knocked, even though the "loud, tumultuous thing going on" inside would probably have made it impossible for anyone to hear a knock.3 The trial court granted the motion to suppress and the Utah Court of Appeals affirmed.

It was at this point that Jeff became involved. Because the case concerned misdemeanors, the matter was not handled initially by the AGÃ.s Criminal Appeals Division, which generally handles appeals of felonies only. But in the wake of the Court of Appeals' Brigham City opinion, it became clear that the case was, from the Office's perspective, a precedent that needed to be overturned.

After receiving authorization from the Brigham City Attorney, Jeff petitioned for certiorari to the Utah Supreme Court, which was granted. This was taken as a positive sign. However, any initial optimism about the court's decision to accept cert was largely dissipated after oral argument.

The court's Brigham City opinion was disappointing, but not entirely surprising. By a 3-2 margin, the Utah court affirmed the Court of Appeals' decision, but with a new component. The court agreed that there were no exigent circumstances warranting the officers' entry into the home.4 The court also concluded that the entry was not justified under the so-called "emergency aid doctrine" Ã a theory the State had not briefed. According to the Court, "the...