Sims v. Collection Div. of Utah State Tax Com'n

• Decision Date: 22 October 1992
• Docket Number: No. 900324,900324
• Citation: 841 P.2d 6
• Parties: Louie E. SIMS, Petitioner, v. COLLECTION DIVISION OF the UTAH STATE TAX COMMISSION, Respondent.
• Court: Utah Supreme Court

Page 6

841 P.2d 6

Louie E. SIMS, Petitioner, v. COLLECTION DIVISION OF the UTAH STATE TAX COMMISSION, Respondent.

No. 900324.

Supreme Court of Utah.

Oct. 22, 1992.

R. Paul Van Dam, Leon A. Dever, John C. McCarrey, Salt Lake City, for Tax Com'n.

G. Fred Metos, Salt Lake City, for Sims.

DURHAM, Justice:

Petitioner Louie E. Sims seeks review of a formal order of the Utah State Tax Commission ("the Commission") affirming a tax and penalty assessment under the Illegal Drug Stamp Tax Act ("the Act"). Utah Code Ann. §§ 59-19-101 to -107. We reverse the decision of the Commission and vacate the tax and penalty assessed.

On July 27, 1988, the Utah Highway Patrol and the Juab County Sheriff's Department set up a roadblock on Interstate Highway 15 approximately two miles outside of Nephi, Utah. When Sims' car was stopped at the roadblock, the officers observed an open container of alcohol in the back seat area. Sims was asked to exit the car, at which time he consented to a search of the interior. There, the officers discovered the remnants of one or two marijuana cigarettes. Sims then consented to a search of the trunk. When the latter search revealed two small plastic bags containing marijuana, Sims stated that he wanted the search stopped. Asserting that they had probable cause to continue, the officers inspected the spare tire well, uncovering a kilogram brick of cocaine. Sims was then arrested for driving under the influence of alcohol and possession of a controlled substance with intent to distribute.

Under the Act, anyone who purchases, acquires, transports, or imports illegal drugs into the state must pay a tax and affix drug tax stamps to the drugs. Utah Code Ann. § 59-19-105(1). The required stamps were not attached to or contained with the cocaine and marijuana found in Sims' car. On August 30, 1988, Sims was served with a notice and demand for payment of an illegal drug stamp tax and a corresponding penalty. The tax, assessed pursuant to section 59-19-103 of the Act, and the penalty, under section 59-19-106(1) of the Act, total almost $400,000.

Upon being served with notice of the tax and penalty, Sims filed a petition for redetermination with the Commission. He argued, among other things, that the roadblock stop was an unconstitutional seizure and that the evidence seized pursuant to it should, under the exclusionary rule, be excluded from the tax proceeding. Because the Commission held that the exclusionary rule does not apply to proceedings under the Act, it did not reach the question of whether the roadblock stop was constitutional. The State did not address the issue of the constitutionality of the roadblock stop in either its brief to the Commission or its brief to this court. Rather, the State asks us to decide the case solely on the basis of the exclusionary rule.

We believe that it would be irresponsible for us to simply assume that the roadblock was unconstitutional without analysis. Sims has preserved the issue on appeal, and although the Utah Court of Appeals has addressed the question of suspicionless roadblock stops a number of times, see State v. Park, 810 P.2d 456 (Utah Ct.App.), cert. denied, 817 P.2d 327 (Utah), 826 P.2d 651 (Utah 1991); State v. Kitchen, 808 P.2d 1127 (Utah Ct.App.1991); State v. Sims, 808 P.2d 141 (Utah Ct.App.1991), ¹ this is a question of first impression in this court. For the benefit of the lower courts, counsel, and law enforcement officers generally, we undertake a constitutional analysis. ² We conclude that as a matter of law, the roadblock stop was unconstitutional under the Utah Constitution. Further, we hold that there was insufficient attenuation between the illegal stop and any consent to purge the taint of illegality.

Recently, this court interpreted the search and seizure provision of the Utah Constitution differently than the federal courts have characterized the corresponding federal provision. In State v. Larocco, 794 P.2d 460 (Utah 1990), we held that under article I, section 14 of the Utah Constitution, a police officer could not open the door of a car parked on a street to inspect the vehicle identification number. This result contrasted with the United States Supreme Court's holding that the Fourth Amendment was not violated under similar facts. See New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986). Similarly, in State v. Thompson, 810 P.2d 415, 416-18 (Utah 1991), we held that a depositor has a legitimate expectation of privacy in his bank records under the Utah Constitution despite the United States Supreme Court's contrary ruling with regard to the Fourth Amendment. See United States v. Miller, 425 U.S. 435, 442, 96 S.Ct. 1619, 1623, 48 L.Ed.2d 71 (1976).

Both the Utah and United States Constitutions contain a "reasonableness" and a "warrant" requirement. In recent years, the United States Supreme Court has vacillated between the warrant approach and the reasonableness approach in developing federal search and seizure law regarding automobiles. See Larocco, 794 P.2d at 469. The result reached in Larocco reaffirmed this court's commitment to the warrant approach under our state constitution. Id. at 470 (" 'Warrantless searches and seizures are per se unreasonable unless exigent circumstances require action before a warrant can be obtained.' " (quoting State v. Christensen, 676 P.2d 408, 411 (Utah 1984))). The concept of an expectation of privacy continues to be the threshold criterion for determining whether article I, section 14 applies. Id. at 469. If that threshold is met, warrantless searches of automobiles will be allowed only if probable cause and exigent circumstances exist. Id. at 470.

In the case of a suspicionless investigatory roadblock, neither the first nor the second prong of the warrant requirement is met. ³ There is no articulable, individualized suspicion of wrongdoing to establish probable cause, and because roadblocks are planned in advance, no exigent circumstances justify an immediate search. The requirement that a disinterested party review and approve the need to search was designed to prevent arbitrary and oppressive interference with individual privacy and personal security and to guarantee that a decision to search private property is justified by a reasonable governmental interest. Cf. Camara v. Municipal Court, 387 U.S. 523, 528, 539, 87 S.Ct. 1727, 1730, 1736, 18 L.Ed.2d 930 (1967).

The State argues in this case that suspicionless investigatory roadblocks are authorized by statute. We do not reach the question of whether such statutory authorization could constitutionally be accomplished by the legislature, because we conclude that no such authorization has been attempted.

Although certain roadblocks are authorized by statute, ⁴ at the time of the search in question Utah law did not expressly authorize suspicionless investigatory roadblocks. ⁵ A number of statutory provisions grant law enforcement agencies and officers general police powers to provide for public safety and welfare. ⁶ Other states have inferred legislative authority to conduct roadblocks from such statutory grants of general police powers. See, e.g., People v. Estrada, 68 Ill.App.3d 272, 24 Ill.Dec. 924, 929-30, 386 N.E.2d 128, 133-34, cert. denied, 444 U.S. 968, 100 S.Ct. 459, 62 L.Ed.2d 382 (1979). Because of the primacy in Utah of the warrant requirement and the grave potential for injury to individuals' constitutional interests, however, we decline to infer authority for suspicionless investigatory stops from broad statutory directives. ⁷ No authority to conduct suspicionless investigatory roadblocks of the type conducted here exists; hence, their use is patently unlawful. Whether constitutionally sufficient standards and guidelines could be incorporated in statutory form is a question we leave for future consideration.

In conjunction with the question of the legality of the roadblock in this case, we must address the question of whether Sims' subsequent consent to a search of his car alleviates the taint of the prior illegal seizure. ⁸ In State v. Arroyo, 796 P.2d 684 (Utah 1990), we held that the pretextual stopping of a vehicle violated the defendant's Fourth Amendment rights. In addressing the question of the effect of the defendant's subsequent voluntary consent to search the vehicle, we stated that under Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), the factors to be considered in determining whether the primary illegality is exploited in such a situation are the temporal proximity of the illegal seizure and the consent, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct. Arroyo, 796 P.2d at 690 n. 4 (citing Brown, 422 U.S. at 603-04, 95 S.Ct. at 2261-62). In considering the factors listed in Brown, account should also be taken of whether the illegal seizure brought about police observation of the particular object they sought consent to search, whether the consent was volunteered rather than requested by the detaining officers, whether the detainee was made aware of the fact that he could decline to consent and thus prevent an immediate search, and whether the police purpose underlying the illegality was to obtain the consent. 3 Wayne R. LaFave, Search and Seizure § 8.2(d), at 193-94 (2d ed. 1987); see also People v. Borges, 69 N.Y.2d 1031, 517 N.Y.S.2d 914, 511 N.E.2d 58, 59-60 (1987). Of course, the relevant factors will vary from case to case, and each case must be considered on its particular facts and circumstances. Borges, 517 N.Y.S.2d at 915-916, 511 N.E.2d at 60.

Although the factors listed in Brown and expanded upon in Professor LaFave's treatise were developed under a Fourth Amendment analysis, we believe that they are equally appropriate under the Utah Constitution. ⁹ Applying the relevant considerations to the facts and circumstances of this case, we hold that Sims' consent was not sufficiently attenuated from the...