State v. Sims

• Decision Date: 15 March 1991
• Docket Number: No. 890463-CA,890463-CA
• Citation: 808 P.2d 141
• Parties: STATE of Utah, Plaintiff and Appellee, v. Louie Edwin SIMS, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 141

808 P.2d 141

STATE of Utah, Plaintiff and Appellee, v. Louie Edwin SIMS, Defendant and Appellant.

No. 890463-CA.

Court of Appeals of Utah.

March 15, 1991.

G. Fred Metos (Argued), Yengich, Rich, Xaiz & Metos, Salt Lake City, for defendant and appellant.

R. Paul Van Dam, Atty. Gen., Dan R. Larsen (Argued), Asst. Atty. Gen., Salt Lake City, for plaintiff and appellee.

Before GREENWOOD, JACKSON and ORME, JJ.

OPINION

GREENWOOD, Judge:

Louie Edwin Sims appeals his conviction of possession of a controlled substance with intent to distribute for value, Utah Code Ann. § 58-37-8(1)(a)(i) (Supp.1988), a second degree felony. Sims claims the stop of his vehicle in a roadblock conducted by the Utah Highway Patrol was an unreasonable seizure under the fourth amendment to the United States Constitution and under article I, section 14 of the Utah Constitution.

Following oral argument, three cases relevant to the issues presented in this appeal were decided. Those cases are Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990); State v. Larocco, 794 P.2d 460 (Utah 1990); and State v. Arroyo, 796 P.2d 684 (Utah 1990). Accordingly, we granted Sims' motion for supplemental briefing. Having considered the supplemental briefs, we now reverse his conviction, and remand for a new trial in which evidence seized from Sims' vehicle is to be suppressed.

FACTS

On the morning of July 27, 1988, officers from the Utah Highway Patrol and Juab County Sheriff's Office conducted a roadblock on Interstate Highway 15 approximately two miles south of Nephi, Utah. The roadblock was planned and supervised by Utah Highway Patrol Sergeant Paul Mangelson. ¹ Its purpose was to detect driver's license, automobile registration, and equipment violations, as well as liquor and drug violations. Notice that the roadblock would take place was published in the Juab County Times News two to four weeks prior to the roadblock. There was no evidence that the News was distributed outside of Juab County. Interstate 15 is a major north-south route and link between Salt Lake City, Utah and Los Angeles, California.

According to Mangelson, no written policy, from the Highway Patrol or from any other source, existed to guide the conduct of the roadblock in question. Mangelson indicated that his supervising lieutenant had given him permission to conduct the roadblock.

The roadblock was staffed by about ten uniformed officers. A series of three signs within a one-half mile distance directed drivers to the roadblock, marked by orange cones. Large trucks were not stopped, because stopping them might cause hazardous traffic congestion. Sergeant Mangelson instructed officers to inspect driver's licenses and vehicle registration of the stopped motorists; while doing this, they were to watch for signs of liquor and drug violations. Officers could hold vehicles for further investigation if the initial contact raised questions. One of the officers, Trooper Carl Howard, indicated that his practice also included asking all drivers, regardless of suspicion, if they had alcohol, weapons, or contraband in their vehicles. ²

At approximately 9:00 a.m., Sims' vehicle, a Chrysler sedan, was stopped at the roadblock. Trooper Howard, the first officer to contact Sims, saw nothing to cause him to suspect a violation of the law as Sims' vehicle approached. ³ Howard asked for Sims' driver's license and vehicle registration. Sims produced a valid Georgia driver's license and a Utah registration in his name. In response to the trooper's question, Sims stated that he was en route from Los Angeles to Salt Lake City. While talking with Sims, Trooper Howard smelled alcohol inside the sedan and saw an "open" liquor bottle in the back seat area. He asked Sims if there were any alcohol, weapons, or drugs in the vehicle. Sims admitted that there was alcohol in the vehicle, but denied carrying drugs or weapons.

Howard then asked Sims to exit the sedan, and asked for consent to look inside. Sims consented. Sergeant Mangelson approached and helped Howard search the car's interior. They discovered the remnants of one or two marijuana cigarettes in the right rear passenger door ashtray. Howard then asked Sims if he would mind if they searched the trunk of the sedan. Sims agreed and opened the trunk. Mangelson searched the trunk while Howard conducted field sobriety tests on Sims nearby.

In a suitcase in the trunk, Mangelson discovered two small plastic bags containing marijuana. Sims, becoming visibly nervous, then stated that he wanted the search stopped. Mangelson told Sims that, based on the discovery of marijuana, he had probable cause to continue searching the trunk. Looking in the spare tire well, Mangelson found a kilogram brick of cocaine. Sims was then arrested for driving under the influence of alcohol and possession of a controlled substance.

Before trial, Sims filed a motion to suppress all evidence seized from his vehicle, contending that the roadblock stop was an unlawful seizure under the Utah and federal constitutions and that the officers lacked probable cause to search the trunk. Following an evidentiary hearing, the trial court denied Sims' motion. The court determined that (1) the roadblock stop did not violate the Utah or federal constitutions; (2) Sims voluntarily consented to the search of the vehicle, including the trunk; and (3) Sergeant Mangelson had probable cause to continue searching the trunk after Sims' withdrawal of consent. Based on the evidence presented at the suppression hearing and on the parties' written stipulation to the evidence, the trial court found Sims guilty of possession of a controlled substance with intent to distribute.

ISSUES

On appeal, Sims argues that (1) the roadblock stop of his vehicle violated his right to be free from unreasonable searches and seizures under article I, section 14 of the Utah Constitution and the fourth amendment to the United States Constitution; and (2) there was insufficient attenuation between the unlawful detention and any consent to overcome the illegality of the roadblock.

CONSTITUTIONALITY OF ROADBLOCK

Sims' first point on appeal deals solely with the permissibility of the roadblock itself. Because it is undisputed that the roadblock was conducted with neither a warrant nor suspicion of wrongdoing by Sims, and that no emergency situation necessitated it, the question of whether the roadblock was improper is reduced to one of law, and we review it without deference to the trial court. Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985); State v. Serpente, 768 P.2d 994, 995 (Utah Ct.App.1989).

The State neither contests nor accepts Sims' arguments that the roadblock violated the fourth amendment to the United States Constitution and article I, section 14 of the Utah Constitution. Rather, the State invites us to decide this case solely on the basis of the attenuation issue. That is, we are to "assum[e] arguendo that the stop was illegal," and remand this case for fact finding on whether Sims' consent to search his vehicle was obtained through exploitation of the stop.

We believe it inappropriate in this case, however, to simply assume that the roadblock was unconstitutional, without analysis. Sims has steadfastly and thoroughly argued the unconstitutionality of the roadblock, on both federal and state grounds, throughout these proceedings. ⁴ The transcript of the suppression hearing and the trial court's written findings on the issue provide an ample factual record from which we can assess the constitutionality of this roadblock. The issue, therefore, has been properly preserved and squarely presented on appeal.

We are aware of the rule that we should avoid addressing constitutional issues unless required to do so. State v. Anderson, 701 P.2d 1099, 1103 (Utah 1985). This roadblock, however, was not an isolated incident, and our police may continue to use suspicionless roadblocks as a law enforcement tool. ⁵ This makes all Utah motorists subject to closer police scrutiny than they might expect or, arguably, be legitimately required to encounter.

The right of citizens to be secure from unreasonable seizures "shall not be violated." U.S. Const. amend. IV; Utah Const. art. I, § 14 (emphasis added). A roadblock or motorist "checkpoint" is a seizure under the fourth amendment, Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 2485, 110 L.Ed.2d 412 (1990); State v. Talbot, 792 P.2d 489, 491 (Utah Ct.App.1990); there is no reason to hold otherwise with respect to our state constitution. For the benefit of our citizens, as well as that of police charged with enforcing our laws, it behooves us to decide whether the roadblock that netted Sims was constitutionally permissible. We hold that it was not.

Statutory Authority to Conduct Roadblocks.

A prelude to the constitutional analysis per se is a determination of whether any statutory authority either permits or prohibits roadblocks of the sort conducted here, that is, a suspicionless, investigatory roadblock in which vehicles and drivers are screened for possible violations of law. ⁶ We note several statutes of interest, but none apply here.

The Utah Department of Transportation operates ports of entry at which all large vehicles and vehicles transporting livestock are stopped and inspected for, among other things, driver qualifications, registration, tax payments, size and weight, and safety. Utah Code Ann. § 27-12-19 (Supp.1990). Our fish and game laws give the Division of Wildlife authority to conduct roadblocks or game checking stations under Utah Code Ann. § 23-20-19 (1984), which makes it unlawful to fail to stop at such stations. These provisions are obviously inapplicable here.

We also note that the Utah Highway Patrol is charged with the duty of "regulat[ing] traffic on all highways and roads of the state." Utah Code Ann. § 27-10-4(1)(b) (1989). This provision might authorize...