Utah Bar Journal

Utah law recognizes that during a traffic stop the driver of the vehicle is subject to a level two encounter because the driver is seized; however, such a detention is usually minimally intrusive or lengthy. United States v. Melendez Garcia, 28 F.3d 1046, 1052 (10th Cir.1994). Moreover, the officer is precluded from questioning the driver beyond the scope of the reason for the stop. Hansen, P.3d 650 at 661.

However, what is the status of a passenger who might also be in the vehicle and what restrictions are placed on officers in connection with such passenger? Based on Utah case law, the answer is unclear. This essay will argue that the encounter with the passenger is a level one, voluntary encounter.

I. Three Options for Passenger Status
There are three distinct views that a court could adopt when determining the status of a passenger during a traffic stop. The first option is that a court may view the seizure as a level two detention based on reasonable suspicion as to the driver, but a level one encounter as to any passengers. The second option is that a level two detention occurs and is reasonable as to both the driver and any passengers. The third option is that the seizure may be viewed as a level two detention based on reasonable suspicion as to the driver and also a level two detention as to the passenger but unsupported by reasonable suspicion as to the passenger.

The third option appears untenable, as it would result in a situation where anytime a police officer initiates a traffic stop that involves a vehicle with passengers, he would per se violate the passengers' Fourth Amendment rights. Such a result is absurd, there is no case law to support this view, and it does not merit discussion.

The second option, however, has received some attention in Utah courts. Specifically, in State v. Higgins, 884 P.2d 1242 (Utah, 1994), the defendant, Patricia Higgins, was the passenger in a vehicle that was reported as having stolen gas from a local convenience station. When the car was stopped by a police officer, the driver claimed that he had merely forgotten and offered to return and pay for the gas. Subsequently, officers ran a license and warrants check and discovered that there was an outstanding warrant for his arrest. The driver was immediately arrested but to avoid impounding the vehicle the officers offered to allow the passenger, Higgins, to drive the vehicle home. Higgins agreed to take possession of the car, but could not produce a valid driver's license. The officer asked for her name and date of birth and then ran a license and warrants check on Higgins to determine if she had a valid license. That check revealed an outstanding warrant for Higgins and she was also arrested. A search of the vehicle incident to arrest revealed narcotics in a gym bag belonging to Higgins. Higgins moved to suppress the cocaine on the ground that she had been unreasonably seized when the car was first stopped. The trial court ruled that Higgins was not seized for Fourth Amendment purposes and denied the motion.

On appeal, Higgins argued that "she was seized when the car was initially stopped and that she remained continuously seized for all practical purposes until her formal arrest." Id. at 1244. The Utah Supreme Court did not address the question of whether a passenger in a car that is stopped is "seized" for purposes of the Fourth Amendment. Rather, the court merely assumed for purposes of the defendant's argument that Higgins was seized. Taking her argument as true, the court then held that if she was seized, the seizure had to be reasonable because the vehicle in which she was traveling was validly stopped. Thus, the court found that the fact that the police ran a license and warrant check on Higgins was not unreasonable.

II. Johnson and the Status of Passengers
The problem, however, is that the court's view in Higgins has never been officially adopted by Utah courts. In fact, Utah Supreme Court decisions appear to contradict this view. In State v. Johnson, 805 P.2d 761 (Utah 1991), the defendant, Johnson, was a passenger in a vehicle that was stopped pursuant to a traffic violation. Similar to Higgins, the officer learned that the driver was ineligible to operate the vehicle and therefore requested Johnson's information. Unbeknownst to the defendant, the officer had an unarticulated suspicion that the vehicle was possibly stolen. However, the officer never inquired of either passenger or driver regarding his suspicions. The officer then proceeded to conduct a warrants check on the passenger which revealed an outstanding arrest warrant. She was arrested and a search incident to arrest revealed narcotics. As in Higgins, the defendant challenged the stop indicating that she had been detained illegally. The Court agreed, stating that she was "reasonably justified in her belief that she was not free to go." Id. at 763.

Not stated, but clearly implicit in the court's ruling in Johnson, is the fact that the officer must have, in some way, conveyed to the passenger the idea that she was not free to leave. This assumption is crucial to our understanding Johnson; otherwise, the case is in direct contradiction to other Utah precedents.1 Utah law states that: "[T]he subjective intention of the [officer] is irrelevant except insofar as that may have been conveyed to the respondent." Salt Lake City v. Ray, 998 P.2d 274 n.2 (Utah App.2000). The test for whether or not a level two seizure has occurred does not focus upon the subjective beliefs of the police officer; rather, it focuses only upon the objective belief of the person who is claiming to have been detained. State v. Patefield, 927P.2d 655, 659 (Utah App.1996) ("Regardless of the circumstances, the test for when a seizure occurs is objective and depends on when the person reasonably feels detained, not on when the police officer thinks the person is no longer free to leave.") (quoting State v. Ramirez, 817 P.2d774, 786 (Utah 1991))(emphasis added). The problem with the Johnson decision is that it never clearly spells out how the officer conveyed to the passenger that she was not free to leave. Thus, unless we posit that the officer in Johnson somehow conveyed to the passenger of the vehicle that she was not free to leave, the case becomes an aberration in Utah case law.

There are two points of law that arise from the Johnson ruling. First, although in Higgins the court assumed for purposes of that case that the passenger (Higgins) was seized when the car was stopped, but that the seizure was reasonable because the stop was justified, the court did not make the same assumption in Johnson. Otherwise, the license and warrants check would also have been reasonable, just as they were in Higgins. Rather, the court appears to have assumed in Johnson that the stop was a level two encounter and a reasonable and valid seizure as to the driver, but as to the passenger it was merely a level one encounter which escalated at some point to a level two seizure.

The second point that must be gleaned from the Johnson case is that the court must have determined that the officer clearly communicated to the passenger that she was not free to leave. Otherwise, it could not have found that an illegal seizure had occurred. However, if we accept this implicit understanding of Johnson, the case falls nicely in line with other Utah precedents.2

Unfortunately, it is possible that some have misunderstood Johnson to stand for the proposition that merely asking a passenger for her name and date of birth without reasonable suspicion results in an illegal extension of the scope of the stop.3 This, however, cannot be the case. If the officer's interactions with the passenger are considered to be a level one voluntary encounter, as Johnson clearly implies, then merely asking a passenger for name and date of birth cannot be an illegal extension of the scope of the stop because the passenger has the right to refuse to answer or even leave the vehicle. See State v. Hansen, 857 P.2d 978 (Utah App.1993).

III. Ray and Police Officer Freedom in Regards to Passengers
As explained above, the officer must do more than merely ask for a name and date of birth before the encounter escalates. "[A] request for identification cannot constitute a show of authority sufficient to convert an innocent encounter into a seizure." State v. Bean, 869 P.2d 984, 987 (Utah App.1994). "Only when police have in some way restrained the liberty of an individual, either by force or a show of authority, is there a 'seizure' within the meaning of the fourth amendment." However, if the officer asks for, receives, and then holds onto the passenger's driver's license or other documentation, this would certainly escalate the encounter to a level two. State v. Godina Luna, 826 P.2d 652, 655 (Utah App.1992). All of this indicates that, in Johnson, the court must have found some overt action or expression by the officer that clearly indicated to the defendant that she was not free to leave.

Moreover, if the officer asks for and receives the passenger's name and date of birth and then runs a warrant check based on this information, this also does not escalate the encounter to a level two detention. The salient case in this regard is the Ray case cited above.

Ray is not directly on point because rather than dealing with a passenger in a vehicle, it dealt with a case where the officers responded to a call about a suspicious individual loitering in front of a convenience store. Officers responded and questioned the individual, eventually requesting to see her ID, which the suspect provided. The officer then took the ID with him as he ran a warrant check. Ray, 998 P.2d at 277.

Referring to the officer's request for identification, the court held that "it is well settled that [an officer's] request for identification alone [does] not constitute a level two stop." Id. Furthermore, the fact that an officer runs a warrant check on the defendant does not establish the existence of a level two encounter either. As the court in Ray noted, "A warrant check will not per se escalate the encounter into a level two stop." Ray, 998 P.;2d at 278 n. 2. (citing Higgins, 884 P.2d at1245 n. 2 (Utah 1994)). The court in Ray found that the seizure occurred when the officers took the suspect's documents and did not immediately give them back. Since a person in such an instance would not feel free to leave, the court held that a level two encounter occurred. However, the court noted that an officer may request identification and if he promptly returns it, he may then run a warrant check on the information obtained from the license without fear of creating a level two encounter. If requesting identification from a pedestrian does not automatically create a level two detention, there is no legal reason why requesting such information from the passenger of a vehicle would create such a situation.

CONCLUSION
While the law is not entirely clear, it seems logical that when an officer in Utah conducts a traffic stop on a vehicle in which passengers are involved, the stop is a level two seizure with respect to the driver, but a level one encounter with respect to any passengers. Therefore, an officer is entitled to ask any questions of the passengers that he wishes, regardless of whether or not they exceed the scope of the initial stop, because the passengers, unlike the driver, have the right to either leave the vehicle or refuse to answer should they wish to do so. Only when the officer specifically communicates to the passenger that she is not free to leave, either through words or actions, does the encounter escalate to a level two seizure.

Moreover, neither asking the passenger for her name and birth date to run a warrants check nor asking to see the defendant's ID and then immediately returning the ID converts the encounter to a level two stop. In short, it appears that officers have much more freedom in regards to a passenger than they do to the driver of a detained vehicle. The conclusion appears to be a more consistent reading of the Utah case law in regards to cases involving interactions between law enforcement and vehicle passengers.

1. This understanding must also be implicit in the case of State v. Hansen, 837 P.2d 987 (Utah 1982) where the officer demanded the passenger's ID, but the passenger had none. He then requested her name and birth date and, using that information, ran a warrant check which showed an outstanding warrant. The Hansen opinion is quite short (only 2 pages) and contains very little analysis or explanation regarding why the passenger in that case was considered to be unreasonably seized while the defendant in a case such as Higgins was not.

2. Thus, in State v. Chism, 107 P.3d 706 (Utah App. 2005), the court found that an illegal seizure did occur when the officer, rather than just asking for the passenger's information, actually took his ID with him back to his cruiser to run a license and warrant check. The act of taking the ID and not returning it has long been recognized as creating a seizure, as no reasonable person would feel free to leave in such scenario. See also State v. Markland, 112 P.3d 507 (Utah 2005).

3. See e.g. B. Kent Morgan, Traffic Stops: A Bubble Around the Passenger, Uplink, Vol 2, Issue 1, July 2000, pgs. 1-2, wherein the author argues that Utah law prohibits even asking a passenger their name during a routine traffic stop absent articulable suspicion that the passenger is engaged in criminal activity.