Utah Bar Journal

The list of potential state constitutional arguments on search and seizure would be as long as the number of issues that have been litigated under the Fourth Amendment. Below is an example of a challenge to State v. Krukowski, 100 P.3d 1222 (Utah 2004), filed on behalf of a client of Salt Lake Legal Defenders. In that case, the Utah Supreme Court held that police may make a forcible, warrantless entry into a residence provided that they later obtain a warrant based on some independent source.

The primary reason why attorneys should look to the Utah Constitution is to help the client. Attorneys must defend their clients' right to privacy and require the police, as state actors, to obey the rule of law. By protecting the rights of their clients, attorneys protect everyone's rights. Without the aid of competent counsel, clients face the danger of conviction, even though they may have a perfect defense. Gideon v. Wainwright, 372 U.S. 335, 345 (1963).

Another, related, reason attorneys should use the Utah Constitution is that it is probably malpractice not to do so. The Utah Supreme Court has described the defense counsel's duty to brief relevant state constitutional questions as "imperative." State v. Earl, 716 P.2d 803, 806 (Utah 1986). The Utah Court of Appeals has added that, "Until such time as attorneys heed the call of the appellate courts of this state to more fully brief and argue the applicability of the state constitution, we cannot meaningfully play our part in the judicial laboratory of autonomous state constitutional law development." State v. Bobo, 803 P.2d 1268 (Utah App. 1990).

Finally, this article then describes, in substantial detail, exactly how to create an argument for a more protective rule under Article I, Section 14 than is available under the Fourth Amendment. Specifically, this article argues that the Utah Supreme Court should reject Krukowski and establish a bright-line rule that under the Utah Constitution, police should not be allowed to forcibly enter a house without a warrant.

SUMMARY OF FACTS
Following is a very brief summary of the facts of a case challenging Krukowski, with the names of the parties excluded. In addition, for the purpose of focusing on the facts that related to Krukowski, certain disputed or unrelated facts are omitted.

A city detective obtained information from "concerned citizens who wished to remain anonymous" that a robbery suspect named "Billy" was using John Smith's house to store stolen guns. Soon thereafter, officers went to Smith's house and communicated their concerns to him. Eventually, the officers drew their weapons, entered Smith's house, and told him not to move. At least a half-dozen officers then entered the house and conducted a protective sweep. During the sweep the officers observed guns, suspected drugs and drug paraphernalia. The officers then secured the premises while one of the detectives went to obtain a search warrant. After the warrant was obtained, several items were seized as evidence.

ANALYTICAL FRAMEWORK
There is no unique approach to briefing a state constitutional law claim. However, the Utah Supreme Court has remarked favorably on the analytical framework employed in State v. Jewett, 500 A.2d 233 (Vt. 1985). See Earl, 711 P.2d at 806. In Jewett, the following analytical approaches are described:

1. reviewing the history of the state constitution, to examine "the controversies, attitudes, and decisions of the period during which the constitutional provision at issue was proposed and ratified;"

2. analyzing the textual construction of the provision, which "considers the present sense of the words of the provision;"

3. comparing the decisions of other states' courts construing their states' constitutional provisions of similar or identical language;

4. reviewing sociological materials;

5. doing a doctrinal analysis which "asserts principles derived from precedent;"

6. using a prudential analysis, which "advances a particular doctrine according to the practical wisdom of the courts;"

7. employing a structural analysis, claiming that "a particular principle or practical result is implicit in the structure of government and the relationships that are created by the constitution among citizens and government;"

8. making an ethical argument, which relies on "a characterization of American institutions and the role within them of the American people in attempting to legitimize judicial review of the constitutional provisions;" and

9. using "any other approach that an imaginative lawyer might offer."
Jewett, 500 A.2d at 225-227, 236-37 & n.14

ARGUMENT
In challenging Krukowski, the defendant in the described case may make the following arguments:

A. History of the Utah State Constitution
Utah pioneers suffered persecution at the hands of murderous mobs in Ohio and Illinois, fled the extermination order of Missouri's Governor Boggs, and suffered more persecution in the Utah Territory from federal marshals engaged in warrantless raids of their homes in search of polygamy-law offenders. Kenneth R. Wallentine, Heeding the Call: Search and Seizure Jurisprudence Under the Utah Constitution, Article I, Section 14, 17 J. Contemporary Law 267, 276 (1991). The Deseret News recounted the warrantless Utah raids as "outrages," "carried out without even a warrant giving the perpetrators the authority [to search]." Tracey E. Panek, Search and Seizure in Utah: Recounting the Antipolygamy Raids, 62 Utah Historical Quarterly 316, 327 (1994).

This early Utah problem with searches conducted without proper warrants was noted by the Utah Supreme Court in State v. DeBooy 996 P.2d 546 (Utah 2000), wherein it stated the following:

This state's early settlers were themselves no strangers to the abuses of general warrants. Underlying the abuse of the general warrant was the perversion of the prosecutorial function from investigating known crimes to investigating individuals for the purpose of finding criminal behavior. A free society cannot tolerate such a practice.

Id. at 552.

Justice Stewart believed that history of the Utah Constitution provided a basis for a heightened expectation of privacy. In his concurring opinion in State v. Anderson, 910 P.2d 1229 (Utah 1996), he indicated that because the framers of the Utah Constitution modified certain provisions in the Bill of Rights before they were placed in the Utah Constitution's Declaration of Rights, and even added certain provisions not found in the United States Constitution, the Utah Supreme Court should not be bound to construe Utah Constitutional provisions in light of federal law. Id. at 1240.

Thus, the unique history of the Utah Constitution provides a basis for reaching different, more protective decisions than would a federal court construing the Fourth Amendment.

B. Textual Construction
On its face, Article I, Section 14 of the Utah Constitution is nearly identical to the Fourth Amendment to the United States Constitution. The only textual difference between the two constitutional provisions is one of punctuation and grammar. Because of the close textual similarity between the two constitutional provisions, the Utah Supreme Court will not draw a distinction between the constitutional provisions based merely upon a textual analysis. See State v. Watts, 750 P.2d 1219, 1221 (Utah 1988).

Notwithstanding the textual similarity of the state and federal provisions, on more than one occasion, the Utah Supreme Court has held that Article I, Section 14 provides a greater expectation of privacy than the Fourth Amendment as interpreted by the United States Supreme Court. For example, in State v. DeBooy, 996 P.2d 546 (Utah 2000) the Utah Supreme Court held a traffic checkpoint to be unlawful under Article I, Section 14 of the Utah Constitution. The court distinguished a suspicionless roadblock upheld by the United States Supreme Court in United States v. Martinez-Fuerte, 428 U.S. 543 (1976) and stated that Fourth Amendment precedent is persuasive, but not binding, when Utah courts are construing the Utah Constitution. DeBooy, 996 P.2d at 551 & n.7. The court noted that although the Utah Constitution's and United States Constitution's search and seizure provisions "contain identical language," . . . the court "will not hesitate to give the Utah Constitution a different construction where doing so will more appropriately protect the rights of this state's citizens." Id. at 549 (emphasis added). Justice Durham stated that "multi-purpose, general warrant-like intrusions on the privacy of persons using the highways are unacceptable" and therefore violate the Utah Constitution. Id. at 554.

Another case in which the Utah Supreme Court decided not to follow the federal standard is State v. Thompson, 810 P.2d 415 (Utah 1991). In Thompson, the court ruled that defendants have the right to be free from unreasonable searches and seizures of their bank statements. This decision directly contradicted the United States Supreme Court's holding in United States v. Miller, 425 U.S. 435, 442 (1976), in which the Court held that the government may seize bank records without a Fourth Amendment violation because a bank depositor has no reasonable expectation of privacy. The Utah Supreme Court justified its holding on the grounds that several commentators had heavily criticized Miller and other states that had faced the issue had also rejected the Miller holding based upon their state constitutions. Thompson, 810 P.2d at 416-18.

In sum, despite the similarity of the language between the Fourth Amendment and Article I, Section 14, the Utah Constitution has been construed as providing more protection against unreasonable search and seizure to the citizens of Utah than does the United States Constitution.

C. Doctrinal Principles
Article I, Section 27, states: "Frequent recurrence to fundamental principles is essential to the security of individual rights. . ." Section 26 of Article I is also important; stating: "The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise." Section 26 was relied on by the court in State v. Thompson for finding protection of bank depositor's records. Thompson, 810 P.2d at 416-18.

Among the most fundamental principles is the sanctity of the home. See Payton v. New York, 445 U.S. 573 (1980). Particularly important in the instant case is that the warrantless entry into a person's home is presumptively unreasonable. Id. at 586.
"Physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v. United States District Court, 407 U.S. 297, 313 (1972).

The Krukowski decision violates these fundamental principles when it relies on Murray v. United States, 487 U.S. 533 (1988) (4-3 plurality opinion). The Murray decision has itself been the subject of much criticism. Murray contains principles that create an incentive for police to violate the warrant clause because there are no consequences to engaging in unconstitutional violations of the privacy of the home. For example, in Murray, Justice Marshall, with whom Justice Stevens and Justice O'Connor joined in dissent, wrote:

The Court today holds that the "independent source" exception to the exclusionary rule may justify admitting evidence discovered during an illegal warrantless search that is later "rediscovered" by the same team of investigators during a search pursuant to a warrant obtained immediately after the illegal search. I believe the Court's decision. . . emasculates the Warrant Clause and undermines the deterrence function of the exclusionary rule. I therefore dissent.

Indeed, admission in these cases affirmatively encourages illegal searches. . . When, as here, the same team of investigators is involved in both the first and second search, there is a significant danger that the "independence" of the source will in fact be illusory, and that the initial search will have affected the decision to obtain a warrant notwithstanding the officers' subsequent assertions to the contrary.

The Court's . . .holding lends itself to easy abuse, and offers an incentive to bypass the constitutional requirement that probable cause be assessed by a neutral and detached magistrate before the police invade an individual's privacy.

Murray, 487 U.S. at 544-47.

In sum, Utah courts should reject the plurality opinion in Murray that it followed in Krukowski because it violates the long-recognized, fundamental principle of the sanctity of the home. Instead, under the Utah Constitution, the forcible, warrantless, entry by police into a person's home should not be judicially protected conduct.

D. Statutory Analysis
Another reason that the rule in Krukowski should be rejected under the Utah Constitution is that it permits searches made in violation of state statute. Utah courts have held that searches conducted in violation of state statute are unreasonable. For example, by statute, police serving a search warrant may enter a house without notice of their authority and purpose only if the warrant specifically authorizes them to do so. Utah Code Ann. ¤ 77-23-210. In State v. Ribe, 876 P.2d 403 (Utah App. 1994), the Utah Court of Appeals held that, where police violated this "knock-and-announce" statute by failing to knock on the apartment door and announce their presence and authority, the marijuana found in the defendant's apartment should have been suppressed. Id. at 407, 412.

Similarly, the successful appellant in State v. DeBooy, 996 P.2d 546 (Utah 2000) relied on ¤ 77-7-15 and other state statutory analysis as grounds for urging the court to reject the roadblock exception set forth in federal case Martinez-Fuerte. The court held unconstitutional, under Article I, Section 14, the roadblock scheme at issue in that case, largely because the plan failed to provide guidelines as to what such a search should entail or how it should be conducted, thus violating the very statute authorizing roadblocks, Utah Code. Ann. ¤77-23-104(2)(b). Debooy, 996 P.2d at 551-52.

More apropos to the case described in this article, numerous statutes govern entry by police into a person's residence. See generally, Utah Code Ann. ¤ 77-23-201 et. seq. (2004). For example, Utah Code Ann. ¤ 77-23-202 describes the grounds for issuance of a warrant, ¤ 77-23-203 lists conditions precedent to issuance, ¤ 77-23-204 provides for the convenience of a telephonic warrant, ¤ 77-23-205 directs the time warrants must be served, and ¤ 77-23-210 describes when police may enter after obtaining a warrant, but without giving prior notice of their authority before entering by force.

In the described case, when officers entered the defendant's home by force without even attempting to obtain a warrant, they violated all these statutory provisions. Thus, their entry was unreasonable and unconstitutional. Failure to employ the exclusionary rule to such a blatant violation would reduce Article I, Section 14's prohibition against unreasonable searches and seizures to nothing more than a form of words. See DeBooy, 996 P.2d at 554. Moreover, failure to employ the exclusionary rule in such a case actually creates a perverse guarantee that protects all such future violent encroachments by police. A free society cannot tolerate such practice. See DeBooy, 996 P.2d at 552.

E. Prudential Arguments
A prudential argument advances a particular doctrine according to the practical wisdom of the courts. Bobbit, supra, at 7. The Utah Supreme Court has chosen to depart from federal Fourth Amendment interpretations on occasion for the purpose of establishing a more workable rule for police and trial courts than exists under confusing federal case law. For example, in State v. Brake, 103 P.3d 699 (Utah 2004), the court took issue with the usefulness of federal Fourth Amendment jurisprudence concerning the police officer safety justification for warrantless automobile searches, finding that the federal authority, i.e., New York v. Class, 475 U.S. 106 (1986), "subverts the workable principles found in Utah law. . ." Id. at 703-04. Similarly, in State v. Watts, 750 P.2d 1219 (Utah 1988), the court said, "Choosing to give the Utah Constitution a somewhat different construction may prove to be an appropriate method for insulating this state's citizens from the vagaries of inconsistent interpretations given to the fourth amendment by the federal courts." Id. at 1221 & n.8.

The Murray case, on which Krukowski was based, is complex in application. See Note and Comment: The Inevitable Discovery Doctrine Today: The Demands of the Fourth Amendment, Nix, and Murray, and the Disagreement Among the Federal Circuits, 13 BYU J. Pub. L. 97 (1998) (discussing the ambiguity of the inevitable discovery and independent source doctrines, and opining that the split in the circuits over whether the doctrines apply to primary evidence, derivative evidence, or both creates confusion and injustice in American criminal procedure law).

One way to improve predictability would be to make "clear cut rules. . . for example, a flat requirement that a warrant must be obtained before any nonconsensual search of property." State v. Hygh, 711 P.2d 264, 272 (Utah 1985). Requiring police to obtain a warrant before entering a home "would present little impediment to police investigations, especially in light of the ease with which warrants can be obtained under Utah's telephonic warrant statute." Id.

Such a bright-line rule is workable and simpler in application than the vagaries of the federal rule, which often requires determinations about which evidentiary items were seen on the first illegal entry or the second entry by warrant, and the weighing of various factors to determine whether the investigation on which the warrant was based was sufficiently independent of the investigation that led to the illegal entry.

Moreover, the federal rule actually guarantees the right of police to make warrantless intrusions in every case. What once was the "chief evil" becomes judicially protected conduct. As the dissenting justices in Murray indicated, the rule is subject to easy abuse and creates an intolerable incentive for abuse. The rule should be clear that, in Utah, warrantless entries require suppression.