We often get asked this question: Can the police in Utah pull a person over just because the passengers are young, have out of state plates, or because they are driving on I-80 near Wendover, Tooele, Salt Lake City or Park City, Utah? (Of course, we also hear this about Moab, Vernal, St. George, Cedar City, etc.)
And if the police then find marijuana or drugs with a drug-sniffing dog, can the defendant get the evidence thrown out of court?
Here is the long answer. Many people that drive on Interstate 80 near Wendover, Tooele, Salt Lake City or Park City, Utah do get pulled over for minor traffic offenses. Many just get written a ticket, then get let go. But, others have their cars searched. And many of our clients feel those searches are totally bogus. This happens to many campers at Utah campgrounds, too. Rule of thumb: while in Utah, never possess marijuana or any other illegal drug because there is a good chance you may get searched, especially if you are on a Utah interstate like I-80.
Officers usually search a car after they claim they “could smell marijuana”, and many of our clients claim they were never read their rights. One client said, “Unless that cop had a bionic nose, how could he possibly have smelled the marijuana I had a in a suitcase in my trunk? It was less than a gram!” Many officers get away with this because those who are searched, and are “clean”, typically do not sue – they are “just happy to get out of Utah”.
The police will often search the car for marijuana, cocaine, meth, or other drugs themselves, or have a drug drug-sniffing dog walk around the car. Many of our clients have told us that the dog did not “hit” on anything, but the cop said the dog did, so they got searched anyway. Evidence may be suppressed (in other words, thrown out of court) if that is the case.
Many clients say that they are often told if they cooperate, the cops will “go easy” on them, and just give them a ticket for the drugs. Often this lulls people into thinking the marijuana or drug charge they are facing in Utah is not serious, so they speak freely instead of invoking their right to an attorney and remaining silent.
Many feel that a cop should never say that because it is the prosecutor’s job to determine what deal should be struck. But, out of fear, many people agree to being searched, even though the search may have been illegal if they had not given their consent. Some cops may even tell drivers that if they don’t consent, the cop will “just get a warrant” – as if the warrant would simply be a rubber-stamp process by the judge.
Remember, it is not the officer’s decision if a warrant will be issued, it is the judge’s decision, and it is not a foregone conclusion that one would be issued. A cop simply cannot speak for a judge by law. So, if the cop told you what the judge was going to do, that may be a basis to have the evidence against you thrown out of court. A police officer should only give you his guess as to what the judge might do.
Many of our clients swear that they were pulled over “for no reason at all”, and then the cops searched their car, illegally claiming they smelled marijuana. This happens all across America, not just Utah. Consider the case of Mr. Franklin, and what the Court said about the search:
Mr. Franklin admitted he did not remember how fast he was going, and got pulled over. An Officer Hall testified that he witnessed Franklin “commit two traffic violations”.
The Court said “Hall also had probable cause to search Franklin’s vehicle for drugs because he could smell marijuana smoke through an open window as he approached the car. This probable cause determination was bolstered by his use of a drug-sniffing dog, who alerted near the front of the car. A police officer who smells marijuana coming from a car has probable cause to search that car. See United States v. Wimbush, 337 F.3d 947, 951 (7th Cir.2003). And a police officer’s use of a drug-sniffing dog around the exterior of a car is not an illegal search under the Fourth Amendment. United States v. Franklin, 547 F.3d 726, 733 (7th Cir. 2008).
So, what exactly does it mean to be free from an unreasonble search?
Recently, the Utah Supreme Court in State v. Martinez said this:
“The Fourth Amendment protects a person’s right to be free from “unreasonable searches and seizures.” . . . We recognize three levels of reasonable police stops: (1) An officer may approach a citizen at any time and pose questions so long as the citizen is not detained against his will; (2) an officer may seize a person if the officer has an articulable suspicion that the person has committed or is about to commit a crime …; (3) an officer may arrest a suspect if the officer has probable cause to believe an offense had been committed or is being committed (emphasis added). . . .
“Before a police officer can effectuate such a seizure, he or she “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” . . . (“[I]t is settled law that ‘a police officer may detain and question an individual when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity.’ … [T]he officer’s suspicion must be supported by ‘specific and articulable facts and rational inferences.’ ” . . . “A peace officer may stop any person in a public place when he has a reasonable suspicion to believe he has committed or is in the act of committing or is attempting to commit a public offense and may demand his name, address and an explanation of his actions.” (emphasis added)). Such reasonable, articulable suspicion of criminal activity must be “based on objective facts.” . . . However, “an officer is not obligated to rule out innocent conduct prior to initiating an investigatory detention.” . . .
“. . . The United States Supreme Court has further clarified the term “reasonable, articulable suspicion”: The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all of the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions-inferences and deductions that might well elude an untrained person. . . .
“The second element contained in the idea that an assessment of the whole picture must yield a particularized suspicion is the concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. …
“United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) (emphasis added). In other words, “some minimal level of objective justification for making the stop” is required-a level that “is considerably less than proof of wrongdoing by a preponderance of the evidence.” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (internal quotation marks omitted).
. . . [P]olice officers can rely on a dispatched report in making an investigatory stop,” as long as “the dispatched report contain[s] articulable facts to support a finding of reasonable suspicion.” . . . (determining police broadcast contained “other sufficient information … and ‘articulable facts’ … to support at least a ‘reasonable suspicion’ “). When the dispatched report is based on a call from an eyewitness, the officer is entitled to rely on that report so long as it contains sufficient articulable facts and the witness is reliable. . . .”[The police must have “some minimal level of objective justification for making the stop.” See United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).
Pulling a person over when nothing illegal has happened is not constitutional under most circumstances.