At the outset I must give this disclaimer: in making this post I am not encouraging anyone to engage in drug use or other drug-related activities. Drug addiction and drug abuse are serious matters that jeopardize the safety of the user and the safety and well being of those around the user. It destroys families, careers, and in too many cases—lives. If you are an addict you should seek professional help, fight for sobriety, and do everything in your power to live a drug free life.

Having said that, I recognize that people will use and possess drugs no matter what I, or anyone else says on the matter. Under such circumstances you are still entitled to know your rights and what legal defenses may be available to you. After all, the Fourth, Fifth, Sixth, and Eighth Amendments of the Bill of Rights were written to protect the rights of the guilty as much as they were written to protect the innocent.

Almost every client I have worked with in drug cases has some familiarity with the Fourth Amendment and the fact that police need warrants to execute searches. However, far too often I find that my clients badly misunderstand how the Fourth Amendment actually works and just how many exceptions there are to the warrant requirement. This misconception often makes these clients believe they have legal defenses that do not in fact exist. Consequently, I have to spend a considerable amount of time educating my clients on Fourth Amendment law, which is fine, that is part of my job, but makes me believe a post like this would be useful.

Additionally, almost none of my clients are aware that Utah’s constitution likewise protects Utah citizens from unreasonable searches and seizure and that Utah courts can find protection under the Utah constitution that the federal government refuses to find under the Fourth Amendment of the Bill of Rights. While such situations are few in number, more attorneys should be bringing arguments under the State Constitution in an effort to develop the law in that area and hopefully correct some of the ludicrous federal interpretations of Fourth Amendment law that will be discussed in this post.

Our discussion starts with the language of the Fourth Amendment, which reads,

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Fourth Amendment, Bill of Rights.

Utah’s Constitution is basically a verbatim copy of the language of the Fourth Amendment as it states,

"The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, particularly describing the place to be searched, and the person or thing to be seized." Article I, Section 14, Utah Constitution.

Most of my clients read this and think it means police officers have to obtain a search warrant to conduct a search of anything. This is not true. The United States Supreme Court had carved out exception after exception to the warrant requirement of the Fourth Amendment and in most cases, the Utah Supreme Court and Court of Appeals have followed suit under Utah’s Constitution.

For example, if contraband is observable by an officer in “plain view,” the officer does not need a warrant. Texas v. Brown, 460 U.S. 730, 738-39 (1983) and State v. Lee, 633 P.2d 48, 50-51 (Utah 1981). This exception permits officers, who are otherwise in a place where they are legally allowed, to seize any contraband without a warrant that is observable to them.

In other instances, officers may conduct a “safety sweep” or “protective sweep” of certain areas without a warrant and even without probable cause if there is an articulable reason to believe there might be a danger to officers in the area to be searched. Maryland v. Buie, 494 U.S. 325, 331-35 (1990) and State v. Gossi, 2003 UT App 181, ¶¶12-16, 72 P.3d 686, 689-90. This permits officers to look in places where a person (or sometimes a weapon) may be located that could present a danger to the officers.

Still another example is where officers have reason to fear the “imminent destruction of evidence.” Kentucky v. King, 563 U.S. 452, 460 (2011) and State v. Duran, 2007 UT 23, ¶¶7-10, 156 P.3d 795, 797-98.

Other examples include “stop and frisk” or “Terry frisks” (Terry v. Ohio, 392 U.S. 1 (1968) and State v. Warren, 2001 UT App 346, ¶15, 37 P.3d 270, 273); situations of “hot pursuit,” (U.S. v. Santana, 427 U.S. 38, 42-43 (1976) and State v. Ramirez, 814 P.2d 1131, 1134 (Utah App. 1991)); searches made “incident to arrest,” (Birchfield v. N.D., 579 U.S. 438, 458 (2016) and State v. Harker, 2010 UT 56, ¶17, 240 P.3d 780, 785-86); and rendering of “emergency aid” or the “community care-taker function.” Michigan v. Fisher, 558 U.S. 45, 47 (2009) and Salt Lake City v. Davidson, 2000 UT App 12, ¶¶11-12, 994 P.2d 1283, 1286-87.

This list is not exhaustive, but only serves to demonstrate there are a host of exceptions to the warrant requirement whereby officers can legally gain access to your property and conduct a warrantless search. Each exception has its limitations and its own set of criteria for when it can or cannot apply. Indeed, each exception could warrant its own blog post and perhaps I will eventually get around to doing just that. For the time being, just know that these exceptions are out there, that they allow warrantless access to your property, and that in the case of vehicles there are even more and less restrictive exceptions than those mentioned above.

One of the ways an officer can get warrantless access to a vehicle is through a search incident to arrest. N.Y. v. Belton, 453 U.S. 454 (1981) and State v. Larry, 2010 Utah App LEXIS 68, 3-4 (Unpub.). Under this exception, if the driver or occupant of the vehicle were arrested for any arrestable offense, the officer could then search the vehicle. Id. The reasoning behind this exception, which was remarkably flawed, was that in the interest of officer safety the officer should be able to search the person and the vehicle. Id. Of course, this is ludicrous when one considers that an arrested person is typically handcuffed, placed in a vehicle cage, and being watched by one or more officers on scene. Under such circumstances the arrested person would have to have the strength of Hercules or the mystical prowess of Houdini in order to escape, get to the vehicle, retrieve some weapon, and then attack the officers. Fortunately, in 2009 that exception was reigned in a little and an officer may only search a vehicle incident to arrest where a genuine danger exist to the officer and the arrestee could reasonably reach the vehicle to present that danger. Arizona v. Gant, 556 U.S. 332, 346-47 (2009).

However, the officers still have other means of getting into a person’s car without a warrant. The next exception is known as the “inventory search.” Colorado v. Bertine, 479 U.S. 367, 370-74 (1987) and State v. Hygh, 711 P.2d 264, 267-68 (Utah 1985). An inventory search occurs where officers are impounding a vehicle and conduct a search of the vehicle to make an inventory of the items in the vehicle prior to impound. Id. This search is ostensibly conducted not for the purpose of searching for criminal conduct, but rather to protect the police from liability and to protect the property of the owner. Id. Because the search is not intended to root out evidence of criminal conduct the courts have concluded that it is not covered by the Fourth Amendment unless it can be shown that the officers were using the inventory search as a pretext to search for evidence of crimes. Id. Nevertheless, even though the search is allegedly being conducted for a purpose other than finding evidence of criminal activity, should the officer come across evidence of a crime during the search it is considered legally located and seized and may be used against the defendant. Id. This is because of the “plain sight” exception coming into play. The officer has legal access to the car and therefore anything in plain sight that is illegal or evidence of crime is fair game.

The consequence is that officers will frequently elect to impound a vehicle not because impounding the vehicle is necessary to protect the vehicle, the public, or the owner, but rather because doing so gets them into the vehicle without probable cause to search and without a warrant. Once they have legitimate entry into the vehicle anything they locate that could be illegal or associated with illegal activity can be seized. In some limited cases the defendant can prove that the officers were using the impound as a pretext to get around the warrant requirement, but these are few and far between.

Yet, the inventory search is not necessarily the most common way officers make warrantless entry into a vehicle nor is it necessarily the easiest way. This is because impounding a vehicle usually requires that the owner or driver of the vehicle is being arrested or that the driver was violating a statute that specifically calls for impound of the vehicle (such as DUI). Utah Code §§ 41-1a-1101, 41-6a-527, 41-6a-1405, 41-6a-1406, and 73-18-20.1. In many cases the officer needs access to the car to find the evidence needed to arrest the defendant so an inventory search does not help since it would come after the driver has been arrested or charged with a crime permitting impound.

Consequently, officers rely on the final exception to the warrant requirement when trying to get into a person’s car without a warrant. This is aptly known as the “automobile exception” and as the name denotes it is an exception specific to automobiles.

The automobile exception is, in my opinion, one of the biggest affronts to a person’s Fourth Amendment rights currently permitted under controlling case-law. This is because it feels as though the United States Supreme Court has been playing hide-the-pea a little bit.

The automobile exception was first officially recognized in 1925 when it was “not practicable to secure a warrant” for a vehicle where the vehicle was readily moveable and could be relocated before a warrant could be obtained. Carroll v. U.S., 267 U.S. 132, 153 (1925). At the time this ruling came out it made sense. Consider a lone officer out on an isolated highway in 1925 with a car pulled over that he has reason to believe possesses illegal narcotics. The officer would have no way to obtain a warrant other than to leave the suspect vehicle where it was and drive to wherever a magistrate was, write out a warrant, get it signed, and then return to where the vehicle was left. The time it would take to do this would be immense. Furthermore, in the interim, the driver or some other individual could very easily simply drive off once the officer left to get the warrant. The only way to prevent this would be for the officer to take the driver with him the entire time even though the driver would not be officially arrested. It was, as the U.S. Supreme Court put it, “not practicable” in those situations.

So the Court carved out an exception permitting an officer to conduct a warrantless search of a vehicle where the officer had probable cause to search and the exigency of the vehicle’s mobility created an immediate need to access the vehicle without a warrant. Id. and S.D. v. Opperman, 428 U.S. 364, 367 (1976)(stating, “[t]he mobility of automobiles, we have observed, ‘creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible.’”).

The justices making those decisions in 1925 and even much later in 1976 could not have imagined a world in which an officer could submit for an electronic warrant through a laptop in his police cruiser from practically anywhere. These electronic warrants can come back signed within minutes and the officer never needs to leave the suspect or the vehicle unattended. The Court acknowledged as much where it observed that nowadays,

"[w]ell over a majority of States allow police officers or prosecutors to apply for search warrants remotely through various means, including telephonic or radio communication, electronic communication such as e-mail, and video conferencing. And in addition to technology-based developments, jurisdictions have found other ways to streamline the warrant process, such as by using standard-form warrant applications for drunk-driving investigations….

[T]echnological developments that enable police officers to secure warrants more quickly, and do so without undermining the neutral magistrate judge’s essential role as a check on police discretion, are relevant to an assessment of exigency." Missouri v. McNeely, 569 U.S. 141, 155 (2013).

One would think that since an officer can get a warrant now without ever having to leave the suspect or the vehicle unguarded, and considering that the warrant can be done quickly, that the Court would start requiring warrants to search vehicles. But that is not what has happened. It turns out that letting officers get warrantless entry into vehicles is just too convenient to leave behind, so the Court found a new rationale to justify the warrantless searches—a lower expectation of privacy. California v. Carney, 471 U.S. 386, 391 (1985)(noting, “although ready mobility alone was perhaps the original justification for the vehicle exception, our later cases have made clear that ready mobility is not the only basis for the exception.”).

Basically, the U.S. Supreme Court has decided that since a person’s vehicle is subject to heavy regulation (i.e. registration, safety inspections, emissions testing, etc.) the owner does not have the same expectation of privacy in the vehicle as they do in their homes. Id. The rationale is quite frankly, ridiculous and completely untrue. The fact that a car needs to be registered or occasionally pass an emissions test hardly means the average person does not expect to maintain privacy in the contents of their vehicle.

For example, Utah Code § 41-6a-1601 et seq mandates that cars meet certain minimum standards of design, manufacture and maintenance in order to be driven here. Section 1601 in turn, incorporates by reference Code of Federal Regulations 49 C.F.R. § 571.1 et seq, which also regulates the minimum design and manufacturing standards for vehicles throughout the country. By and large, other than after market modifications and/or maintenance, those regulations enforce standards on manufacturer’s of vehicles while under the control of the manufacturer.

Once a vehicle is transferred to a consumer there are additional regulations, such as registering the vehicle (U.C.A. § 41-1a-201 et seq), ensuring compliance with emissions output (U.C.A. § 41-6a-1642), titling the vehicle (U.C.A. § 41-1a-501  et seq), and insuring the vehicle (U.C.A. § 41-12a-101 et seq). This is in addition to ensuring the vehicle is not modified in a manner inconsistent with Utah Code § 41-6a-1601 et seq or failed to be maintained consistent with those sections. These provisions may be enforced by law enforcement. State v. Lopez, 873 P.2d 1127, 1140 (Utah 1994).

However, these regulations do not generally result in police officers regularly invading the privacy of the owner in his or her vehicle. Certainly, this is true in Utah, where registration occurs with nothing more than showing title to the vehicle, confirming the VIN, make and model, all of which can be done by an employee of the transportation department, or even certain qualifying private companies or individuals, without entering the vehicle. https://dmv.utah.gov/faq/registering; see also Form TC-661. Similarly, emission testing in Utah does not require a police officer to enter the vehicle as the emission testing is farmed out to private companies. See U.C.A. § 41-6a-1642.

To that end, an emission tester makes extremely limited entry into the vehicle to attach an electric cable, inspect the gas cap, and place a rod in the exhaust. The tester does not rummage about the vehicle, does not access personal areas of the owner, closed containers, the trunk, the glove box, or anything of the sort. Additionally, the tester is not searching for any form of contraband nor authorized to enforce any possession of contraband beyond the average citizen’s ability to contact law enforcement.

In short, the Court has never explained why the regulations of vehicles, which typically does not involve law enforcement unless there is a violation, somehow lessens a person’s expectation of privacy in the vehicle.

It gets worse though. The Court doubles down on its rationale in later cases to the point of creating complete contradictions in its rulings. This includes issuing decisions where the Court recognized that even if a person has a diminished expectation of privacy in his or her vehicle, “[n]o such diminished expectation of privacy characterizes luggage; on the contrary, luggage typically is a repository of personal effects, the contents of closed pieces of luggage are hidden from view, and luggage is not generally subject to state regulation. Robbins v. California, 453 U.S. 420, 424-25 (1981). The Court would express similar opinions about other closed containers in vehicles in other opinions. U.S. v. Chadwick, 433 U.S. 1, 13 (1977) and Arkansas v. Sanders, 442 U.S. 753 (1979).

Nevertheless, even though the Court repeatedly recognized that a person maintained a heightened privacy interest in containers such as luggage, purses, boxes, and the like, it refused to back off of its position that vehicles themselves have a lower expectation of privacy. The problem this created was situations involving luggage, purses, and other closed containers inside of vehicles. The answer, according to the Court, is that anything and everything inside of the vehicle is fair game for the officer. U.S. v. Ross, 456 U.S. 798 (1982). Again, there is no explanation of why a person suddenly loses his or her expectation of privacy in luggage merely because it was placed in a vehicle, rather the Court takes the position that once the officer gets into the vehicle any part of the vehicle may be searched including closed and even locked containers. Id.

The inconsistency of these competing positions is not lost on the Court. For instance, in S.D. v. Opperman, Justice Powell opined that “[a]lthough the expectation of privacy in an automobile is significantly less than the traditional expectation of privacy in an automobile is significantly less than the traditional expectation of privacy associated with the home, the unrestrained search of an automobile and its contents would constitute a serious intrusion upon the privacy of the individual in many circumstances.” 428 U.S. 364, 379 (J. Powell Concurring). Similarly, in California v. Acevedo, Justices Stevens and Marshall noted that “[e]very citizen clearly has an interest in the privacy of the contents of his or her luggage, briefcase, handbag or any other container that conceals private papers and effects from public scrutiny. That privacy interest has been recognized repeatedly in cases spanning more than a century.” 500 U.S. 565, 598 (1991)(J. Stevens and J. Marshall Dissenting). To that end, they observed that the mobility of carrying a suitcase versus placing it in a vehicle should not bear on one’s expectation of privacy in it when they stated, "surely it is anomalous to prohibit a search of a briefcase while the owner is carrying it exposed on a public street yet to permit a search once the owner has placed the briefcase in the locked trunk of his car. One's privacy interest in one's luggage can certainly not be diminished by one's removing it from a public thoroughfare and placing it-out of sight-in a privately owned vehicle. Nor is the danger that evidence will escape increased if the luggage is in a car rather than on the street. In either location, if the police have probable cause, they are authorized to seize the luggage and to detain it until they obtain judicial approval for a search." Id.

Despite some justices being openly critical of the contradiction in federal jurisprudence the U.S. Supreme Court continues to doggedly hold onto the position that people have a diminished expectation of privacy in their vehicles and therefore an officer can conduct a warrantless search of a vehicle if the officer has probable cause. This includes any and all parts of the vehicle including closed containers or locked containers.

There has been an effort by some defense attorneys in Utah, myself included, to get the Utah Supreme Court to recognize greater protection of Utah citizens under the Utah Constitution. See State v. Rigby, 2016 UT App 42, 369 P.3d 127; State v. Rigby, 433 P.3d 803 (Utah 2018). Unfortunately, those arguments have not yet been fully addressed by the Utah Supreme Court and the question remains open. Id.

While that question remains outstanding Utah will continue to follow the federal interpretations of Fourth Amendment law and will continue to recognize the automobile exception as it currently stands under federal law. See id.

What does this mean for you? It means that your car is the easiest personal property for an officer to get into without a warrant. It means that not only can an officer easily get warrantless entry into your car, but once they gain access to the car they can search anything and everything in the car, including glove boxes, center consoles, trunks, bags, suitcases, briefcases, purses, lockboxes, etc. Furthermore, under current law, something as simple as a drug dog allegedly alerting on your vehicle (which can be done without a warrant) or the officer claiming to smell or detect a controlled substance can give probable cause to search. So, should you wish to avoid an officer being able to rummage through your private and personal belongings without a warrant, whether legal or illegal, keep them out of your vehicle. In short, leave your drugs at home.