996 P.2d 546 (Utah 2000), 981172, State v. DeBooy

Docket Nº:981172.
Citation:996 P.2d 546, 2000 UT 32
Opinion Judge:DURHAM, Associate Chief Justice:
Party Name:STATE of Utah, Plaintiff and Appellee, v. Henry Thomas DeBOOY, Defendant and Appellant.
Attorney:Jan Graham, Att'y Gen., Joanne Slotnick, Norman Plate, Asst. Att'ys Gen., Craig Halls, Monticello, for plaintiff. Rosalie Reilly, Monticello, for defendant.
Case Date:February 04, 2000
Court:Supreme Court of Utah

Page 546

996 P.2d 546 (Utah 2000)

2000 UT 32

STATE of Utah, Plaintiff and Appellee,


Henry Thomas DeBOOY, Defendant and Appellant.

No. 981172.

Supreme Court of Utah

February 4, 2000.

Page 547

Jan Graham, Att'y Gen., Joanne Slotnick, Norman Plate, Asst. Att'ys Gen., Craig Halls, Monticello, for plaintiff.

Rosalie Reilly, Monticello, for defendant.


On Certification from the Utah Court of Appeals

DURHAM, Associate Chief Justice:

¶ 1 Henry Thomas DeBooy was charged with possession of a controlled substance, possession of illegal fireworks, and littering after being stopped at a highway checkpoint in San Juan County on May 23, 1997. Defendant's counsel filed a motion to suppress the evidence obtained at the checkpoint. After an evidentiary hearing, the Seventh Judicial District Court denied the motion. DeBooy then entered conditional guilty pleas to possession of a controlled substance, a third degree felony, and littering, a class C misdemeanor. 1 On appeal, defendant argues that the checkpoint violated his constitutional rights against unreasonable search and seizure, and that the trial court erred in denying his motion to suppress. 2


¶ 2 On May 21, 1997, an application for an administrative highway checkpoint was made to Justice Court Judge Lyon W. Hazleton, pursuant to Utah Code Ann. § 77-23-104. 3 The application stated that the checkpoint was to take place on May 23, 1997, between the hours of 2 p.m. and midnight. The stated purpose was to inspect and/or detect:

(a) License plates, registration certificates, insurance certificates, and driver's licenses.

(b) Compliance with seat belt and child restraint laws.

(c) Drivers that may be under the influence of alcohol and/or other substances.

(d) Other alcohol and/or controlled substance violations.

(e) Vehicle equipment violations.

(f) Compliance with commercial vehicle regulations.

The application also stated that all cars were to be stopped, and that once it was determined that no violation was present, they would be allowed to proceed. Judge Hazelton signed the application authorizing the checkpoint. He indicated that he had reviewed the plan, and determined that it would appropriately:

1. Minimize:

a) The length of time motorists will be delayed;

b) the intrusion of the inspection or inquiry;

c) the fear and anxiety of the motorist;

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d) the discretion left to the officers operating the checkpoint.

2. Maximize the safety of the motorists and enforcement officers. 4

Judge Hazelton indicated that he was authorizing the checkpoint based on this determination.

¶ 3 On May 23, 1997, the officers stationed at the checkpoint noticed a car off in the distance proceeding at a very high rate of speed. As the car, a black BMW convertible driven by defendant, approached the checkpoint, the officers observed it slow down and pull off towards the side of the road. The officers testified that defendant then raised his hand in the air and threw something "very light" from the vehicle.

¶ 4 While several officers walked down the road to retrieve what defendant had discarded, one officer asked defendant, now stopped at the checkpoint, for his driver's license, vehicle registration, and insurance. He also asked defendant what he had thrown from the vehicle, and defendant replied that it was a tissue. When asked why he had discarded it, defendant responded that he did not know. At this point, another officer, stationed by the passenger side of the vehicle, asked defendant whether he had any alcohol or drugs. When defendant replied that he did not, the officer asked if they "could take a quick look in the vehicle." Defendant consented and three officers then searched the vehicle, discovering contraband in a backpack in the trunk.

¶ 5 Defendant was then arrested and charged with possession. He subsequently entered a conditional guilty plea, pending the outcome of his motion to suppress. Ruling from the bench, the trial court denied the motion to suppress. The court found the checkpoint complied with section 77-23-104, and declined to hold that statute unconstitutional, but indicated that better guidance from this court was needed on the issue.

¶ 6 Defendant now argues that the checkpoint in question violates both the Fourth Amendment of the United States Constitution and article I, section 14 of the Utah Constitution. He argues that the evidence was obtained as a result of this illegal checkpoint and must therefore be suppressed.

¶ 7 The trial court's ruling on the suppression issue, based on the legality of the checkpoint, is a question of law which we review for correctness, granting no deference to its conclusions. See State v. Harmon, 910 P.2d 1196, 1199 (Utah 1995).


¶ 8 We first address the State's argument that defendant's allegedly throwing the tissue out of the vehicle created a reasonable suspicion separate from the checkpoint. The State argues that this alone justified the stop and search of defendant's vehicle, making it unnecessary to address the legality of the checkpoint itself. We find this argument to be without merit.

¶ 9 We agree that the act of pulling off to the side of the road and throwing the object from the vehicle while approaching the police checkpoint created a reasonable suspicion of possession of contraband. This conclusion, however, cannot possibly be reached independent of the checkpoint itself.

¶ 10 First, the only reason the officers were present to view defendant's actions was because of the checkpoint. Second, the only reason defendant's actions were suspicious is that he was approaching the checkpoint when he discarded the tissue. Simply throwing something "very light" out of a moving vehicle does constitute littering, but it does not create reasonable suspicion of possession of contraband. Doing so on the side of the road while approaching a police checkpoint clearly does. Were there no checkpoint, defendant's actions would not have been suspicious. Therefore, in determining the legality of the search, we must address the legality of the checkpoint itself. See Sims v. Collection Div. of the Utah State Tax Comm'n, 841 P.2d 6, 8-15 (Utah 1992).

¶ 11 Defendant raises arguments against the legality of this checkpoint under both the Fourth Amendment of the United States Constitution and article I, section 14 of the Utah Constitution. Following oral argument,

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we asked the parties for additional briefing on the constitutionality of section 77-23-104 under these provisions. The State now asserts that defendant's state constitutional argument is not properly before this court. We disagree. Defendant argued in his motion to suppress that the evidence was obtained against him in violation of article I, section 14 and cited cases from this court interpreting that provision. Defendant also argued that the State has the burden of proving the constitutionality of the statute. In his initial brief to this court, and in oral argument, defendant again raised arguments against the checkpoint under article I, section 14. We therefore find the question of the checkpoint's constitutionality under article I, section 14 to be properly before this court and address it on the merits under both the Fourth Amendment of the United States Constitution, and article I, section 14 of the Utah Constitution.

¶ 12 These provisions contain identical language. 5 They have not, however, always been interpreted in the same way. While this court's interpretation of article I, section 14 has often paralleled the United States Supreme Court's interpretation of the Fourth Amendment, we have stated that we will not hesitate to give the Utah Constitution a different construction where doing so will more appropriately protect the rights of this state's citizens. See State v. Watts, 750 P.2d 1219, 1221 n. 8 (Utah 1988); State v. Hygh, 711 P.2d 264, 271-273 (Utah 1985) (Zimmerman, J., concurring). For example, we have held on more than one occasion that article I, section 14 provides a greater expectation of privacy than the Fourth Amendment as interpreted by the United States Supreme Court. See State v. Thompson, 810 P.2d 415, 416-18 (Utah 1991) (depositor's bank records); State v. Larocco, 794 P.2d 460, 465-71 (Utah 1990) (vehicle identification number in motor vehicles).

¶ 13 The search and seizure provisions of both the United States and Utah Constitutions prohibit sweeping, dragnet-type detentions of ordinary people engaged in peaceful, ordinary activities. Under both constitutions, the general rule is that "specific and articulable facts ... taken together with rational inferences from those facts, [must] reasonably warrant" the particular intrusion. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

¶ 14 The United States Supreme Court has, however, carved out an exception to that general rule for highway checkpoints, provided that certain criteria are met. In United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), the Court addressed the constitutionality of such checkpoints. The decision involved permanent immigration checkpoints operated by the border patrol, but located at highway intersections over 65 miles from the...

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