Investigatory Stops Revisited [1]
| Publication year | 1993 |
| Pages | 10 |
Sharon Kishner and Judge Lynn W. Davis, J. [2]
I. INTRODUCTION
No single area of criminal law is more complex and frequently litigated in Utah's appellate courts than investigatory stops and reasonable suspicion.[3]Search and seizure decisions are extremely fact sensitive and unique fact patterns preclude the application of bright-line litmus tests. The legal standard of totality of the circumstances, by its very nature, requires a factual inquiry.
Aside from the wide variety of fact patterns presented to a trial court, other factors contribute to the complexity of these cases. Several come to mind: (1) the Utah Supreme Court has not yet ruled on some unsettled issues, leaving Utah's Court of Appeals without guidance; (2) there is marked divergence of legal thinking on the Utah Court of Appeals which has generated inconsistent panel decisions; (3) the appellate courts are often presented with deficient briefing and poorly framed issues which preclude squarely addressing and resolving some issues, simply reserving judgment for another day; and (4) important appellate announcements are sometimes relegated to footnotes, casting the precedential value into doubt.
The variety of factual scenarios in case law appears to conflict with earlier decisions. Practitioners comment that a particular search and seizure decision raises more questions and issues than it resolves. They hope that some phantom "hypothetical reasonable appellate court decision" will address and neatly answer all of the thorny and complex questions arising in this field.[4]They hope in vain.
The appellate courts of Utah continue to struggle with the concept of reasonable suspicion, when a seizure occurs for Fourth Amendment purposes, [5]what constitutes consent to a warrantless search and the appropriate standard to be applied in reviewing a trial court's determination of these issues. This Article attempts to address some of these struggles.
II. CASE LAW: INVESTIGATORY
STOP CASES 1988-PRESENT A. The Pretext Doctrine and the "Hypothetical Reasonable Officer"
The concept of what constitutes "reasonable suspicion" continues to evolve in case law. An elusive standard, reasonable suspicion is best understood by examining what factors trigger the application of that standard. One such factor that has emerged in recent case law is the "hypothetical reasonable officer" announced in State v. Sierra, 754 P.2d 972 (Utah App. 1988). In Sierra, the Court of Appeals emphasized that the proper inquiry in determining whether a stop for a traffic violation and subsequent arrest is a pretext is "whether a hypothetical reasonable officer, in view of the totality of circumstances confronting him or her, would have stopped" the defendant solely for commission of the traffic offense. Id. at 978. The officer's subjective motivation is not the relevant inquiry, and the "inquiry does not focus on whether the officer could validly have made the stop." Id. While several post-Sierra cases have applied the hypothetical reasonable officer, no case has definitively addressed what constitutes a hypothetical reasonable officer. Similarly, as different panels of the Court of Appeals struggle to apply the hypothetical reasonable officer standard, mixed messages have been sent to practitioners.[6]
The first search and seizure case after Sierra to refer to the hypothetical reasonable officer standard was State v. Holmes, 774 P.2d 506 (Utah App. 1989).While the Utah Court of Appeals noted that officers were entitled to assess the facts surrounding a traffic stop in light of their experience, it explicitly declined to "expand the pretextual traffic stop analysis of Sierra to the facts of this case." Id. at n.3. Several cases after Holmes embraced the Sierra analysis. In State v. Smith, 781 P.2d 879 (Utah App. 1989), police officers stopped the defendant's car after defendant's failure to signal a left turn. The court held that the stop of the defendant's vehicle was not pretextual because a hypothetical reasonable officer would have stopped the vehicle for failing to signal before turning left. Similarly, in State v. Marshall, 791 P.2d 880 (Utah App. 1990), the court upheld the stop of the defendant's vehicle based upon defendant's failure to terminate his turn signal. In State v. Arroyo, 770 P.2d 153 (Utah App. 1989), rev'd on other grounds, 796 P.2d 684 (Utah 1990), the court held that a hypothetical reasonable officer would not have stopped defendant for following too closely, absent "some unarticulated suspicion of more serious criminal activity." Id. at 155.
The court in State v. Lovegren, 798 P.2d 767 (Utah App. 1990), did not reach the issue of whether the stop of defendants' vehicle was a pretext, remanding the case to the trial court for more detailed findings. The court did, however, discuss the applicability of the hypothetical reasonable officer standard as an appropriate basis for the trial court's conclusion that the stop was proper. Id. at 771, n.10.
Confusion over the applicability of the hypothetical reasonable officer standard is best illustrated by examining two recent Court of Appeals cases: State v. Figueroa-Solorio, 830 P.2d 276 (Utah App. 1992), [7] and State v. Lopez, 831 P.2d 1040 (Utah App. 1992). In Figueroa-Solorio, Judge Leonard H. Russon argued Sierra was inapplicable to traffic stop cases where it is undisputed that the defendant committed a traffic violation. "That question [whether the officer had a reasonable suspicion of criminal activity in light of the facts known to him] will always be answered in the affirmative in traffic stop cases because issuance of a citation is always justified when the officer observes a statute being violated." Id. at 278. Judge Russon concluded that officers can no more be expected to make on-the-spot legal determinations as to whether or not a "reasonable officer" would have made a traffic stop or arrest than can they be given discretion in enforcing laws passed by the legislature.[8]Judges Gregory K. Orme and Judith M. Billings, in a concurring opinion, adhered to the analysis set forth in Sierra and disagreed with Judge Russon's refusal to do so. Judges Orme and Billings believed that an officer's subjective motivations for stopping a particular vehicle, should be afforded particular significance: "An objectively reasonable police officer who has not witnessed the potential dangers of jaywalking firsthand may be less likely to stop individuals for the offense than an objectively reasonable officer who has recently observed a traffic accident caused by a jaywalker, and who has thereafter embarked upon a consistent course of jaywalker-nabbing." Id. at 281-82.
Similarly, in State v. Lopez, 831 P.2d at 1044-46, Judge Billings, writing for the majority, reexamined the underlying policies of the pretext doctrine and reaffirmed the court's adherence to that doctrine, while in a concurring and dissenting opinion, Judge Russon concluded that Sierra should be limited to a narrow group of cases where the trial court has found that no violation occurred. Id. at 1050-51.
Although the Utah Supreme Court has yet to apply Sierra directly, the Utah Court of Appeals in Lopez argued that by implication, the Supreme Court ratified the Sierra doctrine in State v. Arroyo, 796 P.2d 684, 688 (Utah 1990):
[In Arroyo], the Utah State Supreme Court reached the issue of whether a voluntary consent which occurred after a pretextual traffic stop was sufficiently attenuated from the prior illegal pretext stop to allow the consent to validate the warrantless search. If the Arroyo court disapproved of the pretext doctrine, logic suggests the court would have rejected the doctrine and reversed this court without ever reaching the attenuation-consent issue.
State v. Lopez, 831 P.2d at 1045.
Without specific direction from the Utah Supreme Court, the Court of Appeals will continue to be divided over its willingness to wholeheartedly adopt the pretext doctrine of Sierra. Depending on which judges comprise a given panel, the outcome of such cases may differ vastly. Since the same three judges comprised both the Figueroa-Solorio and the Lopez panels, it is impossible to predict which view holds support with the majority of the Court of Appeals.[9]It is clear that at least one judge quarrels with the application of the Sierra doctrine to traffic stops except in the narrow situation where no violation actually occurred. As for the Supreme Court, it has neither applied nor rejected the pretext doctrine. Until a majority of the Court of Appeals abandons the pretext doctrine, or until the Supreme Court overrules the doctrine, it remains good law in Utah.
B. Validity of Consent Following Police Illegality
Prior to 1990, the Utah Supreme Court had no opportunity to address what factors would be sufficient in purging the taint of an illegal search. However, in State v. Arroyo, 796 P.2d 684 (Utah 1990), the Supreme Court rejected the Court of Appeals' analysis on this issue and established an entirely new framework for analyzing consent in the context of an otherwise illegal search.
In State v. Arroyo, 770 P.2d 153 (Utah App. 1989), the Court of Appeals held that the traffic stop in question was an "unconstitutional pretext." Id. at 155. In reversing the trial court's suppression order, the Court of Appeals held that "although the original illegal stop was unconstitutional, Arroyo's subsequent voluntary consent purged the taint from the initial illegality." Id. at 156. On review, the Supreme Court determined that there was no support in the record that the defendant had consented. Arroyo, 796 P.2d at 687. Because consent should have been explored at the suppression hearing, the Supreme Court reversed the Court of Appeals and remanded the case to the trial court for an evidentiary hearing on the issue of consent. The...
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