Careful Driving Does Not Reasonable Suspicion Make

In another defense win, the Court of Appeals in Salt Lake City v. Bench upheld the trial court's decision to suppress the evidence obtained following a traffic stop of the defendant's vehicle. The City argued that the stop of the defendant's vehicle was proper where there was a tip from the defendant's ex-wife stating that the defendant had transported his children while intoxicated. In addition, the City relied on the officer's observations once he located the vehicle. The officer did not observe any traffic violations, but insisted that traveling 10 mph below the speed limit and signalling for five seconds (instead of the requisite 3 seconds) were indicative of overly cautious (and thus impaired) driving.

The Court of Appeals rejects the City's position that the officer's stop was justified by reasonable suspicion. The court first notes that the tip provided little detail and any corroboration was limited to innocuous observations. Similarly, the court gives less weight to the tip because of the fact that it came from the defendant's ex-wife, citing a number of cases in support of the proposition that such a tip is less reliable since it may come from someone bearing ill will or malice toward the former spouse/partner.

In addition, the court rejected the assertion that cautious driving gave the officer reasonable suspicion. As the court noted, "[p]rudent driving--going slower than the posted speed limit in a residential area and signaling for a couple of seconds longer than the statutory minimum--is simply not suspicious. It is commendable."

All in all, the decision in Bench provides ample fodder for defense counsel regarding tips and corroboration of innocent details. Similarly, counsel faced with the familiar contention that your client was driving too safely ought to use this decision to dispel any suspicions of impaired driving.

Trial Court May Conduct In Camera Review of Otherwise Privileged Victim Records

The defendant scores a victory in State v. Worthen, a case involving the State's appeal of the trial judge's decision to permit in camera review of the alleged victim's medical records. The State argued that the trial judge erred by failing to determine whether the defendant's request for medical records fell within the exception set forth in Utah R. Evid. 506(b) and whether the requested documents related to an element or claim of the defendant's defense.

Notably, the Utah Court of Appeals rejects the State's contention that the materials did not relate to an element or claim of the defendant's defense, ultimately holding that "elements of a criminal offense do not necessarily correlate with the elements of a criminal defense." In so holding, the court recgonized the importance of making available records critical to the defense, even when the content of those documents is somewhat speculative. In Worthen, the court holds that the defendant had made a sufficient showing at the trial court level to demonstrate the need for an in camera determination.

Utah Court of Appeals Rejects Blakely/Cunningham Claim

The Utah Court of Appeals rejected the appellant's claim in State v. Garner that judicial findings that serve to enhance a defendant's sentence are unconstitutional. More specifically, the appellant argued that Utah's indeterminate sentencing scheme violates the Sixth Amendment jury trial guarantees. The sentencing scheme in place for the sex offense conviction at issue provides for a sentence of ten years to life, unless the trial judge finds mitigating or aggravating circumstances that warrant the imposition of a lesser (six year) or greater (fifteen year) term.

The appellant's argument strikes at the very heart of the Supreme Court's recent Sixth Amendment jurisprudence. Often overlooked because of the Court's recent decisions in Gall, Kimbrough, and Rita is the fact that the Supreme Court's Sixth Amendment jurisprudence does not simply govern the propriety of federal sentences; state sentences are likewise infirm if the judicially found facts enhance a defendant's sentence beyond the maximum otherwise allowed. The appellant compared Utah's sentencing scheme to the one struck down by the Supreme Court in Cunningham, which dealt with a California sentencing scheme virtually identical to the one employed by Utah. The Utah Court of Appeals nonetheless distinguished the two respective sentencing schemes on the basis that Utah has three sentencing ranges rather than the fixed terms at issue in Cunningham.

The distinction drawn by the Court of Appeals is hardly persuasive. The Supreme Court's emphasis on defendants' Sixth Amendment rights does not hinge on the fact that a jurisdiction employs sentencing ranges, particularly where the bottom end of the range is enhanced simply by virtue of judicial findings. The opinion issued by the Court of Appeals is dubious at best and disingenuous at worst. The analysis of the Supreme Court's Sixth Amendment jurisprudence, though covering two pages, is sparse and fails to provide a reasoned, analytical basis for distinguishing Cunningham other than its hasty conclusion that a sentencing range somehow changes the constitutional calculus. Defense attorneys should continue to challenge the legality of Utah's sentencing scheme; here's hoping that the attorneys who astutely observed the sentencing infirmities in this case appeal to the Utah Supreme Court.

Tenth Circuit Provides Oblique Invitation for Suppression Challenges

While the Tenth Circuit's decision today in United States v. Martinez rejected the defendants' arguments about the constitutionality of an officer's stop of their vehicle, there is a glimmer (albeit ever so slight) of hope.

The defendants in Martinez contended that an officer improperly stopped the defendants' vehicle based on alleged license plate violation. The defendants were travelling through Utah in a vehicle without a front license plate; the vehicle did have a proper rear plate, however. The UHP Trooper pulled over the vehicle based on his belief that California law required a front license plate. The Tenth Circuit dismissed the defendants' argument that California law requires only one license plate, and found that the Trooper had reasonable suspicion to effectuate a traffic stop. In an interesting footnote, however, the panel noted that "[d]efendants do not challenge the authority of a Utah police officer to stop a vehicle for violation of an out-of-state equipment requirement... We thus have no occasion to decide whether Utah law permits law enforcement officers to enforce violations of out-of-state license plate requirements."

Admittedly, the footnote does not actually state that the argument is compelling or with some force, but it does provide the opportunity to make this argument in the district court or the Tenth Circuit. As far as litigating in the Tenth Circuit is concerned, the mere fact that an argument is not completely foreclosed by existing precedent is cause for excitement.

Family of Talovic Victim Barred from Addressing Court

The defendant who sold Sulejman Talovic one of the guns he used in the Trolley Square shooting was sentenced to 15 months in federal prison. The Salt Lake Tribune has its coverage here.

The most intriguing aspect of the sentencing was the position taken by the family of one of Talovic's victims, who asked Judge Kimball to speak at the sentencing. When the request was denied, the family (with the help of former federal judge Paul Cassell) asked the Tenth Circuit to intervene. Notably, the government did not file a brief on behalf of the victim's family.

As an aside, one wonders what the legal import in the arena of tort law would have been had Kimball found there was a sufficient causal nexus to warrant classifying the family as a victim. Would the gun manufacturers' liability suddenly expand due to such a ruling? Would the gun retailers similarly be faced with issues of liability given the causal nexus?