Criminal Defendant Rights in Utah

Sample of a Motion to Dismiss for an Illegal Search

Cases in Utah may be "thrown out of court" if the police do not comply with the proper rules of searches and seizures – in other words, your Constitutional Rights. If you feel that your rights were violated call us.

Here is a sample of the type of language that we may put in a "Motion to Dismiss" a case in Utah. Although the names and dates are fictitious, they mirror reality. Our comments are in brackets.

FACTS:

• 1. That on or about June 19th of 2009, the Defendant was observed by Trooper Jones driving a vehicle eastbound on I-80. [I-80 is a very common place to get pulled over, especially if your car has out-of-state plates, you are a young man or woman, and either have long hair, or look like a skier or a person who loves the great outdoors].
• 2. The time was approximately 6:32 AM.
• 3. The Trooper was parked on the side of the freeway at an on-ramp near mile-post 164.
• 4. At that time, the officer observed traveling eastbound a 2008 Jeep Patriot travel by.
• 5. The officer claims the driver traveled "well into the fast lane from the slow lane . . . then swerved back into the slow lane." [Swerving is one of the most common reasons given for pulling over a driver].
• 6. He also purported observed that the rear license plate lights were inoperative.
• 7. The vehicle was a rental car owned by Hertz.
• 8. Having made these two alleged observations, the Trooper stated he initiated a traffic stop at approximately mile post 170.
• 9. The Trooper claims he made the following observations, which he felt suggested criminal activity:
• a. The driver was tired [however, it was 6:00 AM and the driver likely drove all night, the driver even stated he was looking for a rest area to sleep]
• b. The driver had red eyes [however, the driver admittedly was tired – of course, his eyes were red!]
• c. The driver had a water bottle in the car [the possession of a water bottle is totally innocent conduct]
• d. The driver had two small bottles of 5-hour energy [however, the possession of 5-hour energy bottles are lawfully sold over the counter]
• e. The driver’s hand was shaking [And why not? After all, he had just been pulled over, and people naturally get nervous. Also, the driver had just apparently drank two 5-hour energy drinks – shaky hands would be typical]
• f. The driver’s car was a short-term rental [however, all car rentals are short-term]
• g. The car rental was made by a third-party named [however, the driver admitted his friend rented the vehicle for the driver, and this often happens because a driver has poor credit, and so he needs to get another to use their credit card]
• h. The driver watched the Trooper in his mirrors [however, what else is the driver supposed to be doing while he’s awaiting a citation?]
• i. The driver placed his small back-pack in the rear seat instead of using the trunk [however, there is no requirement to use the trunk by law]
• j. A wrapped gift was in the back seat instead of in the trunk [the officer stated that smugglers use wrapped presents to transport contraband so that officers won’t open it; however, innocent people transport wrapped gifts too. Is the officer claiming that the Defendant is not age appropriate to travel with presents in the car – the Defendant is 35 years old]
• 10. The Trooper decided to issue the Defendant a citation for his lane travel.
• 11. He approached the driver, and requested him to attend him in the police cruiser in order to ask him intrusive questions concerning his trip. [Why? For a simple ticket? Or because the Trooper wanted to "go fishing"?]
• 12. During the conversation in the police cruiser, the driver did not feel free to leave. [If he was "in custody" his rights should have been read to him!]
• 13.During the conversation, the officer obtained additional information he thought was suspicious:
• a. The driver, age 35, and self-employed [and the trooper apparently believes self-employed people are willing to commit crimes looking to make "easy money"];
• b. The driver purportedly stayed with his friend for only two hours before leaving for Denver via the rental car;
• c. The driver did not know whether his mother resided in Denver or Colorado Springs [however, the officer did not ask enough questions – perhaps mother had recently moved and she instructed son to call as he neared Denver];
• d. The driver stated he wanted to drive instead of fly – even though much of the drive would be in the dark;
• e. The driver became more nervous the longer he sat in the officer’s police cruiser [however, his nervousness is justified because the officer’s questions were intrusive, and the officer did cause the nervousness by stating "[I am] going to begin more serious questions];
• 14. I-80 was a drug trafficking route. [As are ALL of America’s highways]
• 15. The Trooper has 20 years experience. [So he should know better!]
• 16. With these ideas in his mind, the Trooper asked the Defendant, among others, whether there were drugs or weapons in the vehicle.
• 17. The driver indicated "no."
• 18. With these ideas in his mind, the Trooper asked the Defendant for permission to search his vehicle.
• 19. According to the Trooper, the Defendant allegedly consented to a search. [They claim this a lot, even though our clients ardently claim they NEVER consented to a search]
• 20. The Trooper began his search at the trunk. He opened the trunk and found that it was empty.
• 21. The Trooper then opened the door to the back seat of the car.
• 22. Once that occurred, the Defendant approached the officer, and withdrew any apparent consent. [Remember, you can withdraw your consent!]
• 23. Despite having not observed a serious crime to be afoot, the Trooper detained the driver further while he called for a K-9 unit. [In other words, he was detained for longer than he should have been!]
• 24. The driver was detained for 27 minutes longer while they awaited the arrival of the K-9 unit.
• 25. At 6:27 AM, the K-9 unit arrived. The dog’s handler released the K-9 on the vehicle. [Our clients often say the dog did not even bark, but Troopers usually claim they did].
• 26. According to Trooper, the K-9 hit "on the front of the vehicle." [Again, they always claim this it seems].
• 27. Apparently, the dog did not hit at the passenger compartment of the vehicle.
• 28. Once the driver was advised of the purported "hit", the Trooper resumed the search, starting not at the front of the vehicle, but rather at the rear seat of the car, where the Trooper unwrapped the present. [At this point, the Trooper claims he did not need consent to search because of the "automotive exception" to the search and seizure laws.
• 29. In the wrapped present, the Trooper discovered contraband.
• 30. Having discovered contraband, the officer arrested the Defendant.



CONTINUED

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