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Traveler Alert: Pattern of Pre-textual Traffic Stops on Utah

By Kimberly J. Trupiano, Esq.
July 6, 2008

Utah police seem to be following traffic stop policies somewhat analogous to the infamous and unconstitutional stops back in the late 1980s and early 1990s in Volusia County, Florida. In Volusia County, officers were confiscating cash under the then broadly written 1980 Florida Contraband Forfeiture Act. This had allowed police seizure of cash and property based on “probable cause” without arrest. The Orlando Sentinel, after receiving numerous calls from complaining motorists who were hassled by such police while traveling on I-95 through Volusia County. The Sentinel’s research, upon viewing hundreds of police videotapes of traffic stops, arrived at the following statistics. See Forfeiting our property rights: is your property safe from seizure?, Henry J. Hyde, at 38 (Cato Inst. 1995).

  • Analyzing more than 1,000 traffic stops, more than 70 percent of the cars were driven by people of black color or Hispanics.
  • Less than 1% of the drivers were given actual traffic tickets despite the fact the stop was initiated due to an alleged traffic violation but their cash was seized as alleged drug trafficking funds.

See id. Elsewhere in Eagle County, Colorado, the same practice occurred. See id., at 40-41. The police there had as a matter of policy that reportedly profiled certain motorists traveling through on I-70 between 1989 and 1990. See id. That is, the police department created a drug courier profile that consisted of black and Hispanic race and ethnicity, and out-of-state- license plates. See id. These practices were challenged so that the seizure laws were tightened up.

However, in Utah, criminal defense attorney and immigration defense attorney Kimberly J. Trupiano has noticed similar procedures of unlawful pre-textual traffic stops. The forfeiture law in Utah is not as broadly written as had existed in Florida and Colorado in the late 1980s to allow for such police abuse. However, unconstitutional searches of motorists’ vehicles along the sides of Utah highways as well as unconstitutional seizures of drugs and property seem to be still in full swing.

The usual script the officers follow appears to be similar in most of the stops attorney Kimberly J. Trupiano knows of:

The officer stops the vehicle for an alleged traffic violation. Officer asks for driver’s license, proof of insurance, and registration. Officer checks for warrants and stolen vehicle in the squad car computer and/or dispatch system. If there are any violations as to no registration, no insurance, no driver’s license, the officer often writes a warning ticket for this as well as the alleged traffic violation (usually consisting of speeding and/or improper lane change, i.e., changing lanes without a signal). Issuing a warning ticket for this is the officer’s way of befriending the motorist. The motorist’s anxiety against the officer melts away. Then officer acts like he is letting the motorist go. After handing him or her a “warning” ticket the officer turns toward his squad car, hesitates, then turns toward the motorist and casually asks: “You don’t have any drugs or firearms in the car, do you?” Motorist answers in the negative. Officer then follows up with a reassuring nod and asks: “Is it okay if I look real quick? If you step out of the vehicle while I just search it?” At that point, one of two things seems to usually happen:

  • a) Motorist indicates in the affirmative that the officer can search the vehicle. Officer searches the vehicle from front to back, top to bottom while motorist stands on the side of the highway and waits. Stop takes between 30-60 minutes.
  • b) Motorist declines to allow the search. Officer responds that he smells marijuana (or another controlled substance – but usually marijuana) and that he has probable cause anyway. Officer makes motorist get out of the vehicle and searches vehicle. Stop takes between 30-60 minutes.

Recent examples (with names and some identifying facts changed) of events that clients have told Kim Trupiano about:

Grand County, Utah, 2007:

Actual example #1:

1) Chris, a white female driving in a car with a California license plate, was on her way from California to Colorado to visit her sister when police from the town of Moab, Utah stopped her on Interstate 70.

2) Traffic violation allegation: Traveling in the left passing lane without passing. In fact, Chris had passed a white car and had waited for safe distance before moving back to the right lane. The officer rejected this explanation and proceeded with his investigation.

3) Officer obtains driver’s license, proof of insurance, and registration.

4) Officer stays away in his squad car for about 5 minutes. Chris waits in her car, wondering why it is taking so long.

5) Officer’s back-up shows up.

6) Office comes back and asks where Chris is going while he holds her driver’s license still. Chris states she lives in California and is visiting her sister in Denver, Colorado.

a. Officer asks what her sister’s name is. Chris answers.

b. Officer looks in side windows of car and asks where luggage is, why there is not enough luggage for such a trip. Officer Chris states she is only visiting for a few days.

c. Officer asks if she’s been smoking in the car. Chris states “no.”

7) Officer tells her he is going to let her go for the traffic offense. Officer begins to walk away, then hesitates, and comes back to the window. Officer asks casually if there are drugs or weapons in the car. Chris says “no.”

8) Officer indicates he understands. Officer follows up casually: “Is it okay if I look real quick? Do you mind if I search the vehicle?” Chris consents out of fear of opposing the officer. Even though he had acted friendly, she felt intimidated about going against his wish to search. Officer finds marijuana. Officer asks Chris if it is hers. Chris states that it is. Officer charges her with drug possession.

Actual example #2:

1) Jennifer, a white female driving in a car with a California license plate, was on her way from California to Massachusetts to go back to school after summer break when Utah Highway Patrol stopped her on Interstate 70, claiming she was speeding five (5) mph over the speed limit. Jennifer did not feel she was speeding at all, or at the maximum 1-2 mph over. Officer obtains driver’s license, proof of insurance, and registration.

2) Officer stays away in his squad car for about 5 minutes. Jennifer waits in her car, wondering why it is taking so long.

3) Officer’s back-up shows up.

4) Office comes back and asks where Jennifer is going while he holds her driver’s license still. Jennifer states she lives in California but is going back to college in Massachusetts after break.

a. Officer asks what school she is going to. Jennifer answers.

b. Officer asks what she was doing in California on break. Jennifer states she was staying at home with her mom.

c. Officer looks in side windows of car and asks where luggage is, why there is not enough luggage for such a trip. Jennifer states she still has clothes at home with her mother and also at the college dorm room.

d. Officer asks if she’s been smoking in the car. Chris states “no.”

5) Officer tells her he is going to let her go for the traffic offense. Officer begins to walk away, then hesitates, and comes back to the window. Officer asks casually if there are drugs or weapons in the car. Jennifer says “no.”

6) Officer indicates he understands. Officer follows up casually: “Do you mind if I search the vehicle real quick to show there are no drugs or weapons?” Jennifer consents – she cannot articulate why because she did not want him to search. Officer finds marijuana. Officer asks Jennifer if it is hers. Jennifer acknowledges that it is.

7) Officer finds $1,400 in cash. Officer asks what it is for. Jennifer answers that her mother gave her money to travel with and to use for when she gets back to school. Officer tells her he does not think she is telling the truth. Jennifer insists she told the truth.

8) Officer asks Jennifer, without giving her Miranda rights, has smoked the drugs that day. Jennifer says “no.” Officer asks when she last smoked it. Jennifer says “yesterday.” Officer conducts a field sobriety test and a urinalysis. Jennifer is “sober” but charged with DUI in Utah for having trace amounts of cannabis in her system. Officer also charges her with class A misdemeanor drug possession and second degree felony drug trafficking (for having over $1,000 in cash. He tells Jennifer that this is indicative of drug trafficking. Jennifer is arrested and must bail out with the help of her relatives to get to college on time before school starts.

Actual example #3:

1) Steve, Joe, and Rick, white males driving in a vehicle with a Colorado license plate, were on their way from Las Vegas to Colorado after attending a convention in Nevada when Utah Highway Patrol stopped them on Interstate 70.

2) Traffic violation allegation: Officer claims solely that the tint on the side windows were too dark for Utah law. Joe’s vehicle was brand new and out of the dealership. Officer obtains driver’s license of Steve who had been driving, proof of insurance, and registration.

3) Officer tests the tint of the windows with a tint meter he has in his patrol car.

4) Officers asks driver Steve to come to the patrol car with him. Officer asks Steve questions in the patrol car – where are you coming from? Why were you in Nevada? Where are you going? Where did you stay last night? Which hotel? What city? What time did you start driving this morning? How long have you been driving? Have you been smoking in the car? What do you do for a living? This questioning lasts about 5 minutes with Steve.

5) In the mean time Officer’s back-up shows up.

6) Two officers converse outside the patrol cars out of ear shot of all three suspects. Joe and Rick wait in the car, listening to music. Officer #2 approaches Joe and Rick at their car. He asks Joe to step out and stand in front of their vehicle about 5 yards, out of ear shot of Rick.

7) Office #2 asks Rick the same questions Officer #1 was asking Steve: where are you coming from? Why were you in Nevada? Where are you going? Where did you stay last night? Which hotel? What city? What time did you start driving this morning? How long have you been driving? Have you been smoking in the car? What do you do for a living?

8) This whole time, Officer #1 still has the driver’s license of Steve.

9) Officer #2 then approaches the rear window of the car and asks the same line of questions to Rick who sits in the back seat.

10) Next Officer #1 brings Steve back to their vehicle. Officer #1 and #2 converse at the back of their car out of ear shot but so that they can see the three men. Joe is still standing out in front of the vehicle. Steve is told to stand next to the vehicle. Rick is sitting still in the back seat.

11) Officer #1 approaches from the driver’s side while Officer #2 approaches the passenger side. Officer #1 tells them that they did not answer the questions the same and that therefore they suspect drug activity. (There is no sign of drugs as of yet.) Officer asks if they have any drugs or weapons in the car. They all say “no” together.

12) Officer #1 nicely tells them he is going to let them go for the traffic offense and just give them warning but wants to search the vehicle.

13) Steve, the driver, declines to give consent to a search, stating that they are in a hurry and do not have time for this anymore. Officer #1 says for the first time that he smells marijuana and that the three of them need to get out of the vehicle and stand off of the side of the highway to the front of the vehicle.

14) Then the two officers search the entire vehicle from top to bottom and from inside and out.

15) This is in February. The men are getting cold as they are not dressed for the weather.

16) Officer #1 first finds a small bag of marijuana in a backpack in the front passenger’s side of the vehicle. Officer #1 approaches the three suspects waiting in the cold. He holds the small bag up to them and asks whose bag it is. At first, not one of them claims it. Officer #1 says threateningly that someone better claim it. Steve says it is his (except it is not – he is protecting his friends).

17) Officer #1 goes back to the vehicle and continues to search with Officer #2. They search for about ten to fifteen more minutes, tearing apart the entire luggage, bags, blankets, etc.

18) Officers find a small bag of hashish in the driver’s left door. Officer #1 again approaches the three suspects waiting in the cold. He holds the small bag of hashish up to them and asks whose bag it is. At first, not one of them claims it. Officer #1 says threateningly that someone better claim it or he is going to arrest them all and take them to jail. Steve says it is his (except it is not – a friend of theirs accidentally left it in the vehicle without their knowledge until this moment).

19) Officer #1 finally gives Steve his Miranda rights. Without asking Steve if he wants to waive his rights to remain silent, Officer #1 asks Steve when the last time was that he used drugs. Steve admits he smoked marijuana that morning before starting the road trip from Las Vegas.

20) Officer #1 conducts a field sobriety test and a urinalysis. Steve is “sober” but charged with DUI in Utah for having trace amounts of cannabis in his system. Officer also charges him with class A misdemeanor possession of marijuana and third degree felony possession of hashish. Steve is arrested and must bail out with the help of his relatives.

Millard County, Fillmore, Utah, 2007:

1) Juan, with three passengers (who consisted of friends and family members), all Hispanics from Mexico, is driving in a car with an Arizona license plate, was on his way from Arizona to Salt Lake City, Utah to reside. He is stopped by Utah Highway Patrol on Interstate 15. Officer claims he was speeding ten (10) mph over the speed limit.

2) Officer obtains driver’s license, proof of insurance, and registration.

3) Officer stays away in his squad car for about 5 minutes. Occupants of vehicle wait in their car, wondering why it is taking so long.

4) Officer’s back-up shows up.

5) Office comes back and asks where Juan is going while he holds his driver’s license still. Juan states he was living in Arizona but that they are moving to Utah.

e. Officer asks for legal papers to be in the United States

f. None of them have said papers.

6) Officer tells Juan he is going to let her go for the traffic offense. Officer begins to walk away, then hesitates, and comes back to the window. Officer asks casually if there are drugs or weapons in the car. Juan says “no.”

7) Officer indicates he understands. Officer asks casually: “Do you mind if I search the vehicle real quick to show there are no drugs or weapons?” Juan nods, not knowing he could really refuse anyway. Officer finds marijuana. Officer asks Juan if it is his. Juan acknowledges that it is.

8) Officer finds $420 in cash. Officer asks what it is for. Juan answers that he earned it in the fields in Arizona and is using it to help get set up in Salt Lake City. Officer asks if Juan earned it selling drugs. Juan denies this but says he just has a little from a friend in Arizona and that it is for recreation every now and then. Officer tells her he does not think he is telling the truth.

9) Officer asks Juan, without giving him Miranda rights, whether he has smoked the marijuana that day. Juan says “yes.”

10) Officer conducts a field sobriety test and then a urinalysis at the police station later. Juan is “sober” but charged with DUI in Utah for having trace amounts of cannabis in his system. Officer also charges him with class A misdemeanor drug possession and second degree felony drug trafficking (for having over $400 in cash. Officer says in his report that Juan admitted to selling drugs – when he did not. Officer spoke rough Spanish and Juan and his passengers spoke no English. Juan is arrested. He cannot bail out because Immigration and Customs Enforcement (“ICE”) puts an immigration detainer on Juan for being in the country illegally and having allegedly admitted (although he did not) to dealing in drugs.

11) Juan must then have an attorney that can defend him against the unconstitutional search and seizure of his vehicle and person and the criminal charges as well as an immigration defense attorney who can defend him in the removal proceedings.

What are the common denominators with these four “traffic” stops?

Ø At what stages of these “scripts” has the officer committed a violation of the Fourth Amendment of the United States Constitution?

1) All of the motorists had out-of-state license plates and/or were Hispanics or blacks.

Ø Profiling

2) The traffic violation allegation was just an excuse to get the opportunity to search the vehicle and find any other criminal activity

Ø Pre-textual stop – in Utah and the Tenth Circuit a pre-textual stop is unfortunately not deemed unlawful so long as there is really an act of law that the officer suspects occurred, i.e., speeding, improper lane change, etc.

3) For what was supposed to be a mere traffic stop, the officer called back-up while checking out the driver’s records

Ø Preparing to follow the script of expanding the scope of the detention without reasonable articulable suspicion of criminal activity, i.e., preparing for a two-officer fishing expedition.

4) The officer(s) questioned the driver and passenger(s) about things that had nothing to do with the traffic allegation.

Ø Violation of Fourth Amendment: Expanding the scope of the detention without reasonable articulable suspicion of criminal activity, i.e., fishing expedition.

5) The officer plays the role of interrogator then friend by asking routine casual questions that have nothing to do with the traffic violation allegation but then kindly let the motorist go with a mere warning.

Ø Psychological manipulation to set the motorist up to give consent.

6) The officer acts like the stop is over but then casually asks about drugs and firearms in the vehicle.

Ø Violation of Fourth Amendment: Expanding the scope of the detention without reasonable particularly suspicion of any additional criminal activity, i.e., fishing expedition.

7) The officer asks casually if he can search the vehicle.

Ø Violation of Fourth Amendment: Expanding the scope of the detention without reasonable particularly suspicion of any additional criminal activity, i.e., fishing expedition.

8) If the motorist consents to the search (because usually they feel the officer has been nice enough to let them go with a warning on the traffic violation so they want to stay on the nice side of the officer), the officer searches not briefly but thoroughly all through the vehicle.

Ø Violation of Fourth Amendment: Obtaining consent to search after previous unlawful police conduct that occurred proximate to the unlawful request to search.

9) If the motorist at first refuses to consent to the search, the officer insists he will go get a warrant (when he does not have probable cause to do) and make the motorist wait hours (which the officer cannot constitutionally do without probable cause) or go get the dogs to sniff out the car (which he cannot do without reasonable articulable suspicion of drug activity – which the mere smell of marijuana does not alone provide)

Ø Violation of Fourth Amendment: Obtaining consent to search through coercion

10) If the motorist still continues to refuse to consent to the search, the officer states that he already has probable cause to search and tells the motorist to exit the vehicle so the officer can conduct the search (without consent but allegedly with probable cause). The officer states later in his reports that he felt he had probable cause for one or more of the following reasons:

i. Officer thinks he smells marijuana

ii. Officer thinks the motorist’s eyes are blood shot or dilated,

iii. Officer thinks there are drugs because the motorists has deodorizer in the car or has smoked a cigarette recently in the vehicle where the officer asserts these are indicative of efforts to cover up the smell of drugs in a vehicle

Ø Violation of Fourth Amendment: Unreasonable search and seizure conducted without consent or search warrant. It is up to a magistrate to decide if an officer has probable cause – not the officer. The smell of marijuana alone does not give an officer the grounds to conduct a warrantless search. The office must have either valid consent – that is, without coercion or prior police activity – or a search warrant.

*Utah law has supported searches by officers when the officer claims he or she smells burnt marijuana. This is critical for motorists to know when they enter Utah State.

These basic protections of the Fourth Amendment are getting whittled away. One way is the rampant unlawful police practices listed above. Utah citizens are affected as well. We are all affected. Some Utah trial judges are siding with the officers. Defendants wrongfully charged based on unlawfully seized evidence must be willing to fight their cases, not just to protect their own rights and records, but to protect other members of our society. If we do not challenge these unconstitutional practices, they will only become more egregious. Then our original forefathers’ intentions to protect us against a tyrannous government will be no longer recognizable.

Criminal defense lawyers must make all efforts to education their clients about the importance of thoroughly investigating each case for claims of suppression of evidence when evidentiary items are seized in violation of the Fourth Amendment.