Greg Smith and Associates, Criminal Defense Attorneys/
Salt Lake City (Murray)
Free 15 Min. Consultation  :  Nights & Weekends  :  Easy Payments

801-651-1512  -  24/7

Free 15 Min. Consultation 24/7

801-651-1512


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Illegally Seized Evidence May Still Be Admissible

The US Supreme Court rules that evidence seized during an illegal stop is still admissible if there was a prior warrant out for arrest!

Question: If the cops illegally stop and question a person, but then during that process the cops find out the person has a warrant, should the cops be allowed to search that person after they have arrested him on the warrant? And if they find drugs during that search, should the Judge throw out the evidence because the cops initially had no business stopping and questioning the person?

Well, that actually happened in Utah.

Assume a Utah Detective receives a crime tip about drugs being sold from a home, but that the tip has come from an anonymous source, so he can’t just barge in and start arresting people. In other words, the cop knows he must still check it out for himself.

So, he watches over the home for a while, and, based on his knowledge and experience, feels there is drug-selling activity going on there (but he still does not have enough proof to get a search warrant). So, when one person leaves the house, the cop detains him. Now, let’s assume the cop illegally detains that person.

However, while questioning the guy (who, again, is illegally detained), the cop discovers the detainee has a warrant out for his arrest for missing his court date on a DUI charge. So, the cop arrests him. After the guy is arrested, the cop does a "lawful search incident to arrest," and while doing so, the cop finds cocaine in a baggie.

The district court Judge of Utah says, "I am going to throw out the seized evidence because the person was wrongly stopped and searched!" The Defendant is thrilled, but the prosecutor appeals. Who should win?

Well, according to the United States Supreme Court, the prosecutor should win because - although the guy was illegally stopped - he did have a warrant out for his arrest, so the warrant search was "attenuated" from the stop. In other words, just because he was illegally stopped, he still could be arrested because the warrant really had nothing to do with the illegal stop.

If you are screaming right now, you are not alone. Many people in the legal community feel the US Supreme Court got this one wrong. After all, the cop simply did not have enough evidence "to conduct an investigatory stop." But, the Court said the drugs and the paraphernalia, which were obtained during the lawful search "incident to arrest" made the admission of the evidence justified.

Keep in mind that the Utah District Court Judge threw the evidence out, and the Utah Court of Appeals agreed with him.

In this case, the United States Supreme Court looked to the "attenuation factors" from Brown v. Illinois. Under the "attenuation doctrine" evidence that may be illegally seized may still be admissible when the connection between unconstitutional police conduct and the evidence is sufficiently remote or has been interrupted by some intervening circumstance.

For more information, look up Utah v. Strieff, 136 S. Ct. 2056, 2058–59, 195 L. Ed. 2d 400 (2016). That case is very similar to the fact pattern we have given, but involved meth and a meth pipe.

Call us at 801-641-3397. We can help.


Tags: criminal defense, evidence

Feedback From Satisfied Clients

"The domestic violence and DUI crimes that I was charged with would have ruined my career. Thank you for saving me! You are worth every penny I paid you."

More Testimonials

Avvo Clients' Choice Award. 5 Stars

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Matindale Hubble Client Champion Lawyers 2018

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Clients with disabilities or impairments
Access to our office is available to clients and their family members at all times. Special equipment and communication devices are available upon request for our clients with visual, hearing, speech and physical impairment. In addition, arrangements can be made for verbal or sign language interpreters if needed to communicate between our attorneys and the client and family. Please notify our law office if any additional accommodations related to your disability or impairment are necessary to make your consultation more comfortable.



Greg Smith and Associates
111 E. 5600 S. #105
Murray, UT 84107

Salt Lake City, UT

801-651-1512


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Greg Smith and Associates, Criminal Law Attorneys, represent clients in Salt Lake City (SLC) and all throughout the state of Utah.


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