Investigatory Stops: Exploring the Dimensions of the "reasonable Suspicion" Standard
| Publication year | 1989 |
| Pages | 8 |
Lynn W. Davis Fourth Circuit Court, J.
I. Introduction
An individual's right to be free from unreasonable searches and seizures is protected and guaranteed both by the Fourth Amendment and by the provisions of Article I, Section 14 of the Constitution of Utah, which both provide:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.
Government "has a legitimate interest in crime prevention and detection." State v. Trujillo, 739 P.2d 85, 87 (Utah App. 1987). But personal privacy rights are paramount, and intrusions must be scrutinized under the protections afforded by the Fourth Amendment. The balance between public interest and an individual's constitutionally guaranteed right to personal security and privacy tilts in favor of freedom from police interference. Brown v. Texas, 443 U.S. 47 (1979).
These interests often compete; public interest in crime prevention may conflict with an individual's right to be free from arbitrary interference from law officers.[1] The state also has a strong interest in safeguarding citizens' rights of privacy, liberty and autonomy against unsanctioned or unfettered intrusions.
The United States Supreme Court first explicitly permitted a seizure upon suspicion short of probable cause in the landmark case of Terry v. Ohio, 392 U.S. 1 (1968). In Terry, a veteran police officer observed two men whom he believed were casing a store for a robbery. An on-the-street confrontation resulted in a pat-down search of the suspect and the discovery of a weapon. The Court found the government's interest in crime prevention and detection outweighed the suspect's right of privacy and recognized the search as an exception to the probable cause requirement of the Fourth Amendment.
Terry teaches that a police officer may not act on a hunch, mere speculation or unparticularized suspicion, but only on specific reasonable inferences based on facts, in light of the officer's experience. Id. at 27. While not capable of precise definition, "reasonable suspicion" has been characterized as a combination of specific and articulable facts together with reasonable inferences from those facts, which, in light of the officer's experience, reasonably justify a belief that the person to be stopped had committed, was committing or was about to commit a crime. Id.
The Court reaffirmed the reasonable suspicion test in Florida v. Royer, 460 U.S. 491, 500 (1983), where it stated that "the predicate permitting seizures upon suspicion short of probable cause in that law enforcement interests warrant a limited intrusion on the personal security of the suspect." The standard articulated in Terry and also in Brown v. Texas has come to be known as the "reasonable suspicion" test. United States v. Brignoni-Ponce, 422 U.S. 873, 882-84 (1975).
What is the proper scope of the reasonable suspicion test? In a long line of cases, the Court has significantly expanded the application of the test.[2] Terry involved a violent crime in which there was a legitimate fear of immediate physical danger to the officer. However, it is clear that the reasonable suspicion test applies to factual settings beyond the enforcement need as presented in Terry. There is also no doubt that it applies to vehicle stops as well as on-the-street detentions. Most recently it has been applied to the growing number of drug courier profile cases.[3] Terry insists that the conduct of officers enforcing the law be subjected to the more "detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure." 392 U.S. at 21-22. However, the Court in Terry failed to explain what quantum of suspicion is necessary to justify an investigatory stop or search. In addition, Terry and its progeny have failed to announce a definitive standard enunciating at what point of an investigatory stop Fourth Amendment protections are implicated. These issues continue to plague appellate and trial courts.
II. The Reasonable Suspicion Standard Applied in Utah
Utah courts have long recognized the "reasonable suspicion" standard and have applied it in a growing number of investigative stop cases.[4] This standard is codified in Utah Code Ann. Sect. 77-7-15 (1982):
A peace officer may stop any person in a public place when he has a reasonable suspicion to believe he has committed or is in the act of committing or is attempting to commit a public offense and may demand his name, address and an explanation of his actions.
Both the Utah Supreme Court and the Utah Court of Appeals have been particularly active in deciding investigatory stop cases in the last several years.[5] It is significant to note that in the majority of those decisions, the courts have not found the requisite reasonable and articulable suspicion necessary to sustain an investigatory stop, search or seizure. Those decisions have largely resulted in acquittals or in suppression of the evidence.[6] The balance of this paper is devoted to an examination of those cases.
III. Utah Appellate Court Decisions Relating to Investigatory Stops Have Relied Upon Traditional Fourth Amendment Jurisprudential Arguments, Not Upon Independent State Constitutional Grounds
The language of Article I, Section 14 of the Utah Constitution is virtually identical with that of the Fourth Amendment of the United States Constitution. That may be one reason why the Utah Supreme Court "has never drawn distinctions between the protections afforded by the respective constitutional provisions. Rather, the [c]ourt has always considered the protections afforded to be one and the same." State v. Watts, 750 P.2d 1219, 1221 (Utah 1988). Yet in the same opinion, the Court announced its interest in the applicability of an Article I, Section 14 argument by stating, "Indeed, choosing to give the Utah Constitution a somewhat different construction may prove to be an appropriate method for insulating the state's citizens from the vagaries of inconsistent interpretations given the Fourth Amendment by the federal i courts." Id. at 1221 n.8. Thus, it appears that the Court has not foreclosed the possibility of distinguishing the protections afforded by the respective constitutional provisions in a future case. At the very least, there are mixed signals from the Court.
While Utah has developed no separate body of state constitutional search and seizure law, both Justices Durham and Zimmerman of the Utah Supreme Court have expressed a willingness to seriously consider an analytical approach premised on Article I, Section 14 arguments.[7] Justice Zimmerman has stated that "[t]he federal law as it currently exists is certainly not the only permissible interpretation of the search and seizure protections contained in the Utah Constitution."[8] Such an analysis may extend the scope of individual protection against unreasonable searches and seizures beyond that accorded by the Fourth Amendment.
Writing for the majority in State v. Earl, [9] Justice Durham noted that neither the state nor the defendant had discussed or relied independently on Article I, Section 14 of the Utah Constitution. She further noted that despite the Court's willingness to independently interpret the Utah Constitution in other areas of law, "the analysis of state constitutional issues in criminal appeals continues to be ignored."[10] Justice Durham concluded that "[i]t is imperative that Utah lawyers brief this Court on relevant state constitutional questions."[11] Justice Zimmerman was equally emphatic in State v. Hygh, [12] stating that "[s]ound argument may be made in favor of positions at variance with the current federal law respecting both the scope of the individual's right to be free from warrantless searches and seizures and the remedy for any violation of that right."[13]
Even in light of these frequent announcements of receptivity, state constitutional arguments have rarely been raised in an investigatory stop context. When presented, they have been found to be inadequately brief or argued or untimely raised. A mere five cases are reported.
In State v. Mendoza, 748 P.2d 181, 187 (Utah 1987), the Utah Supreme Court found no reasonable suspicion to justify the initial stop of the subject vehicle. The Court held that the investigatory stop violated defendant's Fourth Amendment rights. State constitutional arguments were not raised. But Justice Zimmerman independently observed in his concurring opinion that "the whole question of protections that are afforded by the remedies available under Article I, Section 14 of the Utah Constitution, "[Utah's] own search and seizure provision has never been carefully considered by this court." Id. at 187. Also, in his dissenting opinion in State v. Dorsey, 731 P.2d 1085, n.1 (1986), Justice Zimmerman comments on the lack of briefing of the state constitutional issues.
The Utah Court of Appeals has addressed Article I, Section 14 arguments in an investigatory stop context in State v. Aquilar, 758 P.2d 457 (Utah App. 1988), State v. Arroyo, 770 P.2d 153 (Utah App. 1989), and State v. Johnson, 771 P.2d 326 (Utah App. 1989).
In Aquilar, the Court confined its analysis to the protections granted under the United States Constitution. It did so because "although Aquilar recited the Utah Constitution's Fourth Amendment provision in his brief, he did not argue that the Utah Constitution yields a different result than the United States Constitution." Aquilar, at 458, n.1. See also State v. Lafferty, 749 P.2d 1239, 1247 n.5 (Utah 1988).
In State v. Arroyo,...
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