State v. Abell

2003 UT 20, 70 P.3d 98, 116 A.L.R. 5th 735, 473 Utah Adv. Rep. 11, 2003 Utah LEXIS 49, 2003 WL 21039892
CourtUtah Supreme Court
DecidedMay 9, 2003
Docket20001092
StatusPublished
Cited by2 cases

This text of 2003 UT 20 (State v. Abell) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Abell, 2003 UT 20, 70 P.3d 98, 116 A.L.R. 5th 735, 473 Utah Adv. Rep. 11, 2003 Utah LEXIS 49, 2003 WL 21039892 (Utah 2003).

Opinions

DURHAM, Chief Justice:

INTRODUCTION

1 1 In this case, the defendant appeals the denial of his motion to suppress evidence obtained during an administrative vehicle checkpoint detention. Based on our ruling in State v. DeBooy, 2000 UT 82, 996 P.2d 546, the defendant argues that this checkpoint was unconstitutional under article I, section 14 of the Utah Constitution. We agree and reverse the denial of his motion to suppress.

BACKGROUND

12 On February 29, 2000, Judge Kent Nielsen approved the Utah Highway Patrol's ("UHP") application to conduct an administrative highway checkpoint the following day between 7 a.m. and 7 p.m., on Interstate 70, about four miles west of Salina, Utah. The application was submitted pursuant to Utah Code Ann. § 77-23-104 (1999), which requires judicial approval of a written plan prior to the operation of a checkpoint. Under section T7-23-104, the plan must include several details relating to the operation of the checkpoint, including the purpose for establishing the checkpoint. Utah Code Ann. section 77-28-104(2)(a)liv). The checkpoint plan authorized eleven independent checks among seven stated purposes: 1

A. To promote a safe public environment for all persons using the state highways.
B. To inspect compliance with seat belt and child restraint requirements.
o To determine if drivers are impaired.
D. To detect minors having in their possession alcohol or controlled substances.
E. To conduct exterior examination of vehicles for the required lights, turn sig[101]*101nals, and other exterior required safety devices.
F. To conduct routine level three inspections of commercial vehicles over 26,-001 pounds GVW.
G. To inspect the validity of license plates, registration certificates, proof of insurance and driver licenses.

See Application and Authorization for Administration Traffic Checkpoint, IV.

3 While the application authorized multiple checks, the portion of the checkpoint plan providing instructions to officers conducting the checkpoint indicated that this was a "driver license and registration check":

This administrative checkpoint is a driver license and registration check and is to detect and apprehend individuals suspected of violating the following regularly enforced state laws: driver license violations; registration violations; proof of insurance violations; equipment violations; safety inspection violations; aleohol and DUI violations.

Id. at VII(H).

T 4 The instructions also briefly mentioned how officers would conduct their inquiries at this driver license checkpoint:

Officers will be instructed to request a drivers license, state vehicle registration certificate and valid proof of insurance. Officers will be directed to make a cursory walk around the vehicle inspecting for plain view evidence of the above listed violations.

Id.

15 Under the section of the application dealing with the sequence of traffic to be stopped, the application stated that the inspection and inquiry of non-commercial vehicles were "estimated to require approximately 30 seconds duration." Id. at III. Inspections of commercial vehicles were estimated to last approximately a minute and a half. Id. These time constraints were not listed among the instructions provided to the officers in the application, however. Rather, the instructions section of the checkpoint plan indicated "citizens will not be delayed longer than is reasonable" to check for all of the violations.

T6 Some details concerning the organization of the checkpoint staging area were also included in the checkpoint plan. Id. Large diamond-shaped orange warning signs were to be placed "1500, 1000, and 500 feet prior to the checkpoint." Id. at V(B)(4). The signs preceding the checkpoint alerted drivers to "Road Work Ahead" and "Right Lane Closed Ahead," but did not mention the presence of a highway checkpoint.

T7 The application also included a list of the agencies involved in the checkpoint, the name of the officer in charge, the minimum number of officers involved (six), and listed equipment to be present at the checkpoint, including signs, cones, barrels, police vehicles and emergency lights, a breath alcohol testing unit, and the traffic control signs. Two drug sniffing dogs accompanied by UHP K-9 troopers were also present at the checkpoint.

T8 The appellant, Robert Abell ("Abell"), is an adult resident of Colorado. On March 1, Abell and a passenger were driving a vehicle with Colorado license plates on Interstate 70 when, after passing the "road work ahead" signs, UHP K-9 trooper Jeff Chugg (Trooper Chugg) directed them toward the checkpoint area. Trooper Chugg observed that neither Abell nor his passenger were wearing seatbelts. He also noticed that the windows were rolled down. The trooper motioned for the vehicle to stop at the checkpoint. Once stopped, Trooper Chugg asked Abell for identification, registration, and insurance information. Abell handed the trooper a vehicle rental agreement, showing that the vehicle was overdue and that Utah was not an area in which the vehicle was authorized to be. As the trooper talked with Abell, the trooper allegedly smelled the odor of burnt marijuana in the vehicle. Trooper Chugg also testified that Abell appeared "very nervous" and had a "quiver in his voice." The trooper also noted that Abell was wearing only a small vinyl or leather vest, despite the cool March weather.

T 9 The UHP trooper returned to his own vehicle to issue a citation for the seatbelt violation. As he did so, another officer reported that a semi-truck driver, stopped behind Abell at the checkpoint, wanted to sign a complaint against Abell for speeding and driving in a reckless manner. While the [102]*102trooper was completing the seatbelt citation, another officer, UHP K-9 trooper Ryan Bauer, asked Abell for permission to search his vehicle. Abell refused.

10 Upon completing the citation and returning to the vehicle, the trooper asked Abell to submit to several field sobriety tests. Abell complied. Based on the tests, Trooper Chugg concluded that Abell was driving under the influence of a central nervous system stimulant.

4 11 Meanwhile, Abell's passenger had consented to a search of his baggage. Accordingly, two officers opened the trunk, removed the passenger's baggage, and deployed a drug sniffing dog, who alerted to the presence of narcotics inside the vehicle. A see-ond police dog alerted to both the interior of the vehicle and the open trunk. At this point, Abell told the officers where they would find a small amount of marijuana in the vehicle. Ultimately, the officers found approximately 10 grams of marijuana, less than two grams of cocaine, and items of drug paraphernalia in Abell's vehicle.

112 Abell was taken into custody and charged with possession of cocaine, possession of marijuana, possession of drug paraphernalia, driving without a seatbelt, driving under the influence of drugs or alcohol, and speeding. Abell submitted a motion to suppress the evidence obtained from the search at the highway checkpoint, but the trial court denied the motion.

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Related

State v. Van Dyke
2009 UT App 369 (Court of Appeals of Utah, 2009)
State v. Abell
2003 UT 20 (Utah Supreme Court, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
2003 UT 20, 70 P.3d 98, 116 A.L.R. 5th 735, 473 Utah Adv. Rep. 11, 2003 Utah LEXIS 49, 2003 WL 21039892, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-abell-utah-2003.