The U.S. Supreme Court issued an opinion in 2009 (Arizona v.
Gant), reversing 28 years of precedent that allowed police officers to
search the vehicle of an arrestee who was a recent occupant of that
vehicle, despite the arrestee having been secured and detained.  The
Court stated that, once the arrestee has been securely detained,
officers must either have a warrant or reason to believe that the
vehicle contains evidence related to the arrest in order to search
the vehicle.

Our office has a case we appealed to the Utah Court of Appeals in
which the conviction was reversed pursuant to Gant.

                                  * * *

State v. Dominguez 2009 UT App 73 - DUI conviction reversed.
Arresting officer obtained a telephonic warrant from judge who
failed to retain and seal a copy of the search warrant, the
application and all affidavits or other recorded testimony on which
the warrant was based and to, within a reasonable time, file those
sealed documents in court files which are secured against access by
the public, in violation of Rule 40 of the Utah Rules of Criminal
Procedure.
                                 * * *

State v. Parke 2009 UT App 50 - Police officer observed defendant
leave a parking lot in his car without stopping to check for other
traffic. In stopping defendant's car, officer observed defendant
make a move with his shoulder, apparently reaching for his
waistband. Officer said it was a very dangerous area and demanded
the defendant put both his hands outside the car window so the
officer could "approach safely."  Defendant grudgingly obeyed the
officer, who, based on all the circumstances, decided to pull
defendant out of the car and frisk him for weapons. The Court of
Appeals held that such a frisk was illegal under the constitution.

                                * * *
C.J. and A.J. v. T.C. (In re K.C.J.) 2008 UT App 152 - This decision
has seemingly carved out a little bit of the longstanding rigidity of
Utah case law regarding strict compliance with Utah statutes for
putative fathers wanting to assert their parental rights and
participate in the judicial process of adoptions.  The father in this
case did not comply with Utah law, though he did comply with
Oklahoma law.  There was a strong dissenting opinion, and it is
unknown if the case will be reviewed by the Utah Supreme Court.  
CASES OF INTEREST
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A Primer on Search and Seizure In the Context of a Traffic Stop

As a general framework, there are three different levels of police encounters with the public, with different legal
rules applying to each level.

A level one citizen encounter with a law enforcement official is a consensual encounter wherein a citizen
voluntarily responds to non-coercive questioning by an officer.  Since the encounter is consensual, and the person
is free to leave at any point, there is no seizure within the meaning of the Fourth Amendment (U.S. Constitution).

A level two encounter involves an investigative detention that is usually characterized as brief and non-intrusive.  
Although it is a Fourth Amendment seizure, probable cause is not required.  Rather, when specific and articulable
facts and rational inferences give rise to a reasonable suspicion a person has committed or is committing a crime,
an officer may initiate an investigative detention without consent.

A level three encounter involves an arrest, which has been characterized as a highly intrusive or lengthy detention
that requires probable cause.  A level three encounter is also a Fourth Amendment seizure.

Typically, a traffic stop is considered to be an investigative detention (i.e., a level two encounter).  In this scenario,
the officer is allowed to detain you for a reasonable amount of time, sufficient to conclude the purpose of the stop.

So, for example, if the officer pulls you over for an improper lane change he is entitled to examine your driver
license, registration, and insurance documentation, and he can run your name through his computer to ascertain
whether you really are insured and if you have arrest warrants.  He can choose to give you a ticket for the
improper lane change, or merely give you a warning.  If the officer extends the detention for any reason not related
to the improper lane change and the activities referred to above, he must have either probable cause or a
reasonable suspicion of some other illegal activity. He cannot, during the course of the detention, ask if you have
drugs, alcohol, weapons, or other contraband on your person or in your vehicle.

A traffic stop can, however, de-escalate from an investigative detention to a consensual encounter. During a
consensual encounter the officer can ask you for permission to search you or your vehicle.  Sometimes, however,
it is not easy to know when a traffic stop has de-escalated into a consensual encounter.

As a threshold matter, the officer must return all your documents to you. If he has not, the stop is still a detention,
not a consensual encounter.  Even if the officer has returned all of your documents to you, there may be other
factors which would still maintain the stop as a detention.  Although no single factor is controlling, factors tending
to show de-escalation include:

The officer informing you that you are free to leave
The officer informing you that you do not have to answer additional questions

On the other hand, factors which would tend to show that the stop has not de-escalated into a consensual
encounter include

Failure to issue a warning or citation before asking additional questions
A coercive show of authority, such as:
   The presence of more than one officer
   The officer's use of a commanding tone, indicating that compliance might be compelled
   The display of a weapon
   Physical touching by the officer
   Flashing lights on the officer's vehicle

The officer's request to search you or your vehicle is legal if he has, in fact, concluded the purpose of the initial
stop and you are, in fact, free to leave.  Otherwise, the officer needs either probable cause or reasonable
suspicion to legally ask permission to search.

It is best to be cooperative in your tone with the officer, but you do not have to consent to any search (otherwise,
why would you be asked?)
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The information contained within this website is not, nor is it intended to be legal advice.
You should consult an attorney for advice regarding your individual situation.  Your contact
is welcome, but it does not, by itself, create an attorney-client relationship.  Please do not
send any confidential information to our office until such time as an attorney-client
relationship has been established.