Unreasonable Search and Seizure

Fourth Amendment Suppression Issues in Utah

The touchstone of Fourth Amendment case law is the concept of "reasonableness." The United States Constitution's Bill of Rights provides protections against "unreasonable searches and seizures." But society's standards of reasonableness are constantly changing and evolving. Things that today are accepted as normal were once not tolerated; and things that we no longer tolerate were once seen as normal. Many of these societal changes are good. But we must, from time to time, stop to evaluate and assess how our society has changed and what kind of police and government conduct we are willing to accept as "reasonable."

Consider the following hypothetical scenario, and determine for yourself whether you find the hypothetical police officer's conduct to be reasonable. For purposes of this hypothetical, assume that a police officer who pulls a vehicle over for a traffic violation and proceeds to question the driver is engaging in both search and seizure under the Fourth Amendment. The question is whether such search and seizure are reasonable.

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The Line Between Reasonable and Unreasonable Police Conduct (Hypothetical)

A police officer waits (semi-concealed) on the side of the freeway, and sees a vehicle a vehicle pass by with out-of-state plates. The officer does not initially observe any traffic violations or other indicators of illegal conduct. But acting on a hunch, the officer pulls into traffic and accelerates to the point that she is within easy view of the subject vehicle.

As the officer follows the subject vehicle, the officer sees the vehicle signaling as if preparing to change lanes. Utah law (section 41-6a-804 of the Utah Traffic Code) requires that a driver signal continuously for at least two seconds prior to beginning movement to change lanes, but the driver of the subject vehicle only signals for about one-and-a-half seconds before beginning to move into the new lane. The officer activates her reds and blues and briefly sounds his siren to signal the driver of the subject vehicle to pull over. The driver brings his vehicle safely to a stop, and sits patiently in the vehicle with his hands at two-o'clock and ten-o'clock on the steering wheel to be sure that the officer can see his hands (thereby reducing any risk that the officer might treat the situation as a safety risk). The officer approaches the vehicle from the passenger side (to ensure a safe distance between herself and oncoming traffic), and the following events begin to unfold.

WARNING - This is a long series of events and actions, but this hypothetical scenario is closely based on actual cases where police have engaged in very similar conduct. Be sure to read all the way to the end, and then decide whether you think the officer's conduct constitutes reasonable police work or an unreasonable search or seizure.

At what point, if any, do the officer's actions exceed that which we as a society are willing to consider reasonable?

• The officer first asks the driver if he knows why the officer has pulled him over.
• The driver does not know the specific reason, so the officer informs that driver that she pulled him over for failing to signal properly before initiating a lane change.
• The officer then asks the driver for license, registration, and proof of insurance.
• The driver provides a valid driver license and current vehicle registration, but tells the officer that the proof of insurance was sent to him by the insurance company via email and asks the officer if he can pull out his phone to look up the email with the proof of insurance. The officer says that will be fine.
• As the driver starts looking through his phone for the email, the officer asks the driver where he is coming from.
• The driver says he is returning from a trip to California.
• The officer asks the driver where he is going,
• The driver says he is heading to Oklahoma where he lives.

Note that each time the officer asks the driver a question, the driver has to stop looking for the proof of insurance on his phone that the officer has requested.

• The officer asks where specifically in California the driver was visiting; the driver says he was in the Los Angeles area.
• The officer asks what the driver was doing in Los Angeles.
• The driver responds that he has family in the LA area, and also has a couple of friends that he sometimes collaborates with on music projects.
• The officer asks the driver what kind of music he does; the driver responds that he does mostly hip hop and rap but mentions also that he plays cello with a string quartet that is based out of Los Angeles.
• The officer notices that the drivers hands are shaking just a bit, and asks if the driver has any medical conditions.
• The driver responds that he does not, and goes back to searching for the email with his proof of current insurance.
• The officer suggests to the driver that he should sit in her patrol vehicle while he keeps searching for the email and proof of insurance.
• Although the officer's statement about coming to sit in her patrol vehicle is not technically phrased as a command, the driver feels as though he doesn't really have any option other than cooperating with the officer's "suggestion" to come and sit in her patrol vehicle.
• The driver stops searching his phone for the insurance email, and walks with the officer to her patrol vehicle.
• Before the driver is allowed to sit in the officer's vehicle, she asks him to pull up the bottom of his shirt so that she can check his waist area for weapons or anything else that might be dangerous.
• The driver complies with the officer's request, pulls up his shirt to reveal his stomach and waist; the officer does a quick pat-down search to make sure there is nothing of concern in the driver's pockets.
• The driver now is allowed to sit in the front passenger seat of the officer's patrol vehicle; the officer goes to the other side and sits in the driver seat.

Assume that approximately 5-6 minutes has gone by while the officer engaged in chit chat with the driver who was trying to focus on finding the insurance email on his phone.

• The officer mentions again the she notices the driver's hands shaking a bit, and asks why his hands would be shaking.
• The driver responds with a shrug of the shoulders, and says that he must just be nervous.
• The officer asks why he would be nervous; the driver responds that he does not get pulled over very often, and that this is the first time he has been pulled over while driving out-of-state.
• The officer asks again if the driver has any medical conditions that would cause his hands to shake; the driver again replies that there are none.
• The officer asks next if the driver has anything illegal in his vehicle that would cause him to be nervous; the driver says no.
• The officer asks if the driver has any drugs in the vehicle; the driver says no.
• The officer asks specifically if the driver has any marijuana in his vehicle; the driver says no.
• The officer asks if the driver has any methamphetamine in his vehicle; the driver says no.
• The officer asks if the driver has any heroin in his vehicle; the driver says no.
• The officer asks if the driver has any firearms in the vehicle; the driver says no.
• The officer asks if the driver is on probation or parole for any criminal charges; the driver says no.
• The officer next asks if he has any concerns with having her run her K9 (police drug dog) around his car to see if the dog alerts on anything; the driver says no.

As the officer is about to get out of her patrol vehicle to start searching with the K9, the driver finally finds the insurance email. The driver probably would have found the insurance email much sooner, but the officer's continual interruptions and distractions made the process of finding the email take substantially longer.

• The driver now offers the phone to the officer so that she can inspect the driver's digital insurance card, as the officer had requested that he do.
• Instead of looking at the phone and confirming the driver's insurance, the officer instead tells him to hold on to the phone and the email so that she can look at it after she finishes checking his car out with her K9.
• The officer proceeds to have the K9 walk twice around the car; on the second time around the car, the K9 alerts on the trunk of the vehicle and on the front passenger door (indicating that the K9 has detected an odor associated with drugs in both areas).
• As the officer is walking the K9 around the car, the driver remembers that he still has some of the prescription pain killers that the doctor had prescribed following a knee surgery that had been done just prior to leaving on his trip; he had packed the pills in his suitcase, but his recovery was smoother than expected and he had not needed to take all of the pills that had been prescribed.
• The officer returns to his patrol vehicle and confronts the driver about the K9's alert on the trunk; the driver tries to explain that he has some prescription medicine in his suitcase in the trunk.
• The officer listens, but informs the driver that she will now be conducting a more thorough search of the vehicle.
• The driver protests that he has not given consent for the officer to search his vehicle, and that he is in a hurry because he still has a long distance he needs to drive; she informs him that the dog's alert constitutes "probable cause" to search the vehicle.
• The driver protests that the officer does not have a warrant, but she explains to the driver that she does not need a warrant because of "exigent circumstances."
• The driver offers to show her exactly where the prescription pills are in his suitcase; she accepts the offer and escorts the driver to the trunk.
• The driver opens the trunk, opens his suitcase, and then pulls out a prescription bottle with the remaining pills prescribed by his doctor.
• The officer thanks the driver, then asks him to turn around and put his hands behind his back so that she can handcuff him.
• After she has handcuffed the driver, the officer walks him back to her patrol vehicle and has him sit in the back seat.
• The driver asks the officer if he is under arrest; she replies that he is not under arrest at this stage but that she is handcuffing him and detaining him in the patrol vehicle for "officer safety" reasons.

The preceding series of events has taken approximately 15-20 minutes. The remaining events will take approximately 90-120 minutes.

• The officer calls for backup, so that another officer can keep watch on the driver while she conducts a thorough search of the car.
• The officer begins her search in the trunk area, removing two suitcases and a backpack then sorting through the entire contents of each and leaving the contents in a pile on top of the suitcases.
• The officer next opens the spare tire compartment, removes the spare tire, jack, and lug wrench and places them behind the car.
• The officer then pulls the rug/carpeting from the trunk so that she can inspect the trunk for any other compartments; none are found.
• The officer then begins searching the back seat of the car, pulling out floor mats and lifting seats to check for any drugs or other contraband.
• Finding nothing in the back seat, the officer searches the glove box, pulling out a variety of papers and documents, sunglasses, and other personal items, leaving them all in a pile on the passenger seat.
• The officer next removes the floor mats, checks under the seats, and searches through the door pockets and cup holders.

Note that even with a relatively thorough search of the vehicle (which has not included removing door panels or searching the engine compartment or undercarriage of the vehicle) and significant delays imposed on the driver's travel plans, the officer has not found anything illegal. The only drugs found to this point are the lawfully possessed prescription pills found in the trunk. But the officer is not quite done searching.

• The officer next checks the center console area, noticing some mostly-empty plastic packaging tucked into a cupholder along with some receipts and candy wrappers.
• The officer pulls out the plastic packaging and notices that it has a label indicating that the packaging previously contained marijuana from a California dispensary.
• The officer also observes a residual amount of a green leafy substance inside the packaging which, based on the officer's training and experience, is consistent with marijuana shake.

This concludes the officer's search of the vehicle. Still remaining as a task for the officer is the questioning (interrogation) of the driver.

• The officer returns to her patrol vehicle, where the backup officer has been guarding the driver in the back seat of the patrol vehicle.
• Without giving the driver any of the Miranda warnings, the officer asks the driver if he knows anything about the marijuana packaging found in the center console cup holder.
• The driver perks up at this question, remembering that while he was in California he had given a ride to a friend who uses marijuana for medicinal purposes.
• The driver then tells the officer that his friend had some marijuana in California, and must have left the packaging behind.

In our hypothetical, the officer is not convinced by the driver's explanation. Instead, the officer believes that she has probable cause to arrest the driver for unlawful possession of a controlled substance and possession of drug paraphernalia (both class B misdemeanors). The officer has the option of arresting the driver and booking him at the county jail, or releasing the driver with a written citation and instructions to appear in court within 14 days of the date of the citation. If the officer arrests the driver, the car will be towed and impounded until the driver is released from jail and pays the impound and towing fees. The driver is lucky, and the officer decides to let him continue his trip after giving him a citation. When he appears in court, he will face a maximum potential sentence of a year in jail and few thousand dollars in fines.

Did the police officer in this hypothetical scenario cross the line? Were her actions reasonable under the circumstances of the situation? Or should a court find that her actions were not reasonable and that the driver's Fourth Amendment rights were violated?

Reasonable or Unreasonable by Society's Standards?

Some level of basic social courtesy must be allowed. A friendly "hello" or "good morning" seems harmless enough, and probably helps to remind the officer and the driver that they are both human beings. But as more questions are asked and as more actions are taken that distract from the original purpose of the police interaction, the length of the encounter increases and the scope of the officer's investigation expands.

One straw placed on a camel's back will likely not even be noticed by the camel. But as straw after straw is placed on the camel's back, the weight will eventually become so great that the camel's back breaks.

A certain level of police intrusion and interference into individuals' lives is going to be necessary to maintain an appropriate level of social order. But as the degree of intrusion and interference increases, it will eventually reach a point where society must say that it is no longer reasonable.

When is the line crossed between reasonable and unreasonable? A court's analysis of this question will depend heavily on the specific facts of a given case. A court must also consider the standards of reasonableness set by our society. We, the People, should ultimately determine what government or police conduct we are willing to consider to be reasonable.

Challenging Fourth Amendment Violations in Utah

Challenging a Fourth Amendment violation in a Utah criminal case can require a detailed factual and legal analysis. Because each case is different, having an experienced attorney and legal team on your side can be critical. Contact us today to see how we can help you.