Utah Search and Seizure

Can I beat a DUI charge or drug possession charge on a "pretext stop" in Utah?

Short history lesson here: Up until the 1990's, Utah DUI defense and drug crimes attorneys could get a lot of mileage out of the idea of a "pretext stop." The idea was that if a police officer used a very minor traffic violation as a "pretext" to pull a driver over, but the officer's real purpose was to investigate some other crime, then a motion to suppress could be filed to keep out any evidence that the officer had found as a result of this "pretext stop." It was a good idea, and it worked well . . . for a while.

The "pretext stop" analysis formerly engaged in by Utah courts and some federal courts looked at whether a reasonable Utah police officer would have pulled a driver over for the kind of traffic violation involved. For example, there are very few officers who ordinarily pull drivers over for going one mph over the speed limit. But if an officer saw a vehicle and driver that matched a "profile" of a typical drug dealer, or saw a vehicle just pulling out from a bar's parking lot, then the officer might be inclined to go out of his way to pull the driver over for going just one mph too fast. On the theory that the stop was based on an improper police motive to get into the car to search for drugs, and the traffic violation was used merely as a "pretext" for allowing the officer to search the car, the court could suppress any evidence found during the resulting search. Once the evidence was suppressed, the entire case would usually be dismissed.

But that was then, and this is now. The "pretext stop" doctrine was overturned in Utah by the Utah Supreme Court's decision in State v. Lopez, 873 P.2d 1127 (Utah 1994). Two years later, the United States Supreme Court also rejected the pretext-stop doctrine in Whren v. United States, 517 U.S 806, 135 L.Ed.2d 89, 116 S.Ct. 1769 (1996). Materials are still available on the internet that discuss how to use a pretext stop to win a criminal case. These materials typically are from outdated sources, or have been posted by individuals who have not kept up with changes in the law.

Under current caselaw, a police officer may be constitutionally justified in stopping a vehicle even for minor violations of the traffic code. But there the Fourth Amendment still places limits on how far an officer may extend the scope of the stop. If a driver is stopped for a minor traffic violation, an officer does not have automatic grounds for searching the vehicle or even for questioning the driver about other possible violations or crimes.

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If you have been charged with a crime in Utah, it is important to speak to an experienced Utah criminal defense attorney regarding your rights. Stephen Howard has defended literally thousands of serious felony and misdemeanor crimes during his career. His track record speaks for itself.

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