stephenh

Is duress a defense to criminal prosecution in Utah?

February 2, 2023 by stephenh

Duress, coercion, and threats are covered by Utah’s affirmative defense of “compulsion” under Utah Code 76-2-302. The statutory defense of compulsion provides that a person is not guilty of the charged crime if the person was coerced, through the use of actual or threatened unlawful force against the person, or against another person.

To support a compulsion defense, a threat of force must be imminent. The use or threatened use of force must also be of a nature that “a person of reasonable firmness in [the same] situation would not have resisted.”

A compulsion defense is not available if the person “intentionally, knowingly, or recklessly” created or got into a situation in which duress or threats of force would be likely.

Compulsion is considered to be an “affirmative” defense, meaning that if evidence is presented that supports it, regardless of whether that evidence is presented by the prosecution or by the defense, then the prosecution must meet the burden of disproving the affirmative defense beyond a reasonable doubt.

Can an officer make an arrest without witnessing a crime?

February 2, 2023 by stephenh

In order to make an arrest, Utah law requires that police officer must be able to show probable cause. Under Utah law, probable cause exists when an officer has facts that would lead a reasonable person to believe that a crime has been committed. While police commonly have sufficient probable cause after witnessing a crime, this is not the only way to obtain or provide it. Probable cause can include information gathered from eyewitnesses, physical evidence, your own confession, written documents, or other sources of evidence.

A police officer may also make an arrest if there is an active arrest warrant for you. The requirements for an arrest warrant are nearly identical to those for an arrest – there must be sufficient probable cause in order to justify one.

During an encounter with police, it is generally in your best interest to say as little as possible. Often if police are speaking to you or asking you questions about your actions, it is because they suspect you of a crime but have not yet established probable cause to make an arrest. The less you say, the less likely you are to accidentally make a confession that can lead to arrest.

If you are a suspect in a criminal investigation or have been contacted for a police interview, it is a very good idea to speak with a criminal defense attorney before answering any questions. An experienced defense attorney can help you understand your rights and can help you navigate such difficult situations.

State v. Smith, 2022 UT 13

January 27, 2023 by stephenh

The Utah Supreme Court provided an analysis of Fourth Amendment search and seizures issues in the case of State v. Smith, 2022 UT 13. The opinion provides a number of points and clarifications that can be very helpful to defense counsel in challenging police search and seizure conduct.

Facts of the Case

The defendant, Smith, was parked in a McDonald’s parking lot. Employees had asked him to leave, but he drove around the lot and re-parked. Employees called police who, on their arrival found him asleep in the parked car. Under the guise of a “welfare check,” police called for backup, used their patrol vehicles to block his car, and put a bright light in his eyes. Following their initial interactions, police searched his vehicle and eventually arrested him for DUI. All of this was done without a warrant.

District Court Proceedings

In the district court, Smith filed a motion to suppress objecting to the warrantless search and seizure. In responding to the motion to suppress, the State relied only on the community caretaking doctrine as justification for the police action.

The district court denied the defense motion to suppress, agreeing with the prosecution’s position on the community caretaker doctrine. Smith entered a plea, under the principles of State v. Sery, 758 P.2d 935 (Utah Ct. App 1988), reserving the right to appeal the court’s denial of the motion to suppress.

Court of Appeals Affirms the District Court

After full briefing and argument, the Utah Court of Appeals affirmed the district court’s denial of the motion to suppress. The defense filed a petition for writ of certiorari, asking the Utah Supreme Court to review and reverse the decision of the Court of Appeals.

Supreme Court Decision Reversing the Court of Appeals

The Supreme Court clarifies two main points in this opinion. First, warrantless searches and seizures are presumptively unreasonable, and the burden of proof rests with the prosecution to show otherwise. Second, the overall standard for justifying warrantless searches and seizures is reasonableness, even under the community care doctrine.

The Court found the police officers actions – calling backup, blocking him in, shining a bright light in his face – were not reasonable under the community caretaker doctrine where the primary concern is the safety of the individual or the community. Especially when the individual is just sleeping in a parked vehicle.

Also, the Court makes it very clear that the burden is on the government to justify all warrantless searches and seizures. The court states in its opinion, “If those in the legal profession are to remember anything from an introductory criminal procedure course, it’s that warrantless searches and seizures are presumptively unreasonable.”

The court opinion explains – over and over – that all a defendant must do in challenging the admissibility of evidence obtained from a warrantless search is to raise the issue by motion. When such a motion to suppress is filed, it is the government’s job to prove an exception. The defendant does not need to do anymore than show that there was a warrantless search and/or seizure and that the challenged evidence was obtained by police as “fruit of the poisonous tree.” The presumption of unreasonableness is rebuttable, but it is the government’s burden to present evidence sufficient to rebut that presumption.

Law enforcement actions may be appropriate when police stop to help someone in need – as community caretakers — as long as their conduct is reasonable. Stopping or detaining an individual for purposes of a “welfare check” may still constitute an intrusion on the individual’s privacy, which implicates Fourth Amendment protections. But the police conduct can be justified, if it is reasonable. In determining reasonableness, a court should consider:

the degree to which an officer’s actions intrude upon a person’s freedom of movement and privacy; and
whether the degree of public interest and the exigency of the situation justify the seizure for community caretaker purposes.

In making this analysis, a court must consider the totality of the circumstances. Think of a car parked at the side of the road on a high mountain pass, hood lifted, emergency blinkers flashing, covered by fresh snow, late at night and in sub-zero temperatures, late at night. Contrast that scenario with a car parked in a well-lit public parking lot, the driver seat reclined, windows rolled down, radio playing quietly, and the driver with his head tilted back and eyes closed on a warm summer evening. Even if the police conduct in each scenario is identical, the surrounding circumstances make a significant difference in the assessing the reasonableness of any police search or seizure.

Conclusions and Takeaways

First, in challenging the constitutionality of a warrantless search or seizure, the burden of proof is always on the government. Criminal defense attorneys do not have to do the prosecutors’ job for them. A defense attorney is not obligated to identify for the prosecutor every possible exception to the warrant requirement and then explain why such exceptions do not apply. Instead, it is the prosecutor’s burden of proof to identify an exception and demonstrate that, under the totality of the circumstances involved in a case, that exception applies and justifies the police officers’ conduct.

Second, “reasonableness” must guide courts in determining the constitutionality of police conduct. There is no specific formulaic rubric that a court can follow. Instead, the court has to consider all of the relevant facts and circumstances.

Can a judge order a no-bail warrant without a motion from the prosecutor?

January 18, 2023 by stephenh

A magistrate can order a no-bail hold under the provisions of Utah Code 77-20-205, even before a case is formally filed in court. At the time that a magistrate issues an initial arrest warrant or makes a probable cause determination on a warrantless arrest, the magistrate may also order pretrial detention without bail if the magistrate determines that it is appropriate.

After the criminal case is filed with the court, Utah Code 77-20-206 allows the prosecutor to make a motion for detention without bail only if the charges include at least one offense that is “eligible” for detention without bail. The court must then hold a hearing at which both sides are able to present information, evidence, and argument.

The Utah State Constitution establishes that a person charged with a crime is, in most cases, entitled to a reasonable bail as a matter of right However, the Constitution also provides the legislature with the authority to make exceptions to this general rule. Section 77-20-201 of the Utah Code mirrors the Constitution’s provision relating to “bail as a matter of right” and also lists a number of exceptions which are “eligible” for pretrial detention without bail. These exceptions include:

a capital felony (aggravated murder);
any felony committed while on probation or parole for another felony (“felony on felony”);
any felony, if the court finds by clear and convincing evidence that the individual “violated a material condition of release while previously on bail”;
any domestic violence offense (felony or misdemeanor), if the court finds by clear and convincing evidence that the individual would pose a “substantial danger to an alleged victim of domestic violence” if released from custody;
a charge for DUI or driving with a measurable controlled substance that resulted in death or serious injury to an individual, if the court also finds that the person would pose a “substantial danger to the community” if released; and
a felony charge under section 76-9-101 (riot), if the court finds that the person “is not likely to appear for a subsequent court appearance” if released.

If a judge has issued a no-bail hold in a criminal case, the defendant still has a right to demand a hearing on the matter, and the right to be represented by an attorney at the hearing.

What is the difference between acquittal and a not guilty verdict?

January 16, 2023 by stephenh

Under Utah law, an “acquittal” and a “not guilty” verdict have essentially the same meaning. But neither of these terms is a declaration that the defendant is factually innocent.

The criminal justice system relies on a presumption of innocence at trial, with the government prosecutor carrying the burden of proving each element of the offense. The burden of proof in a criminal trial requires that the jury be unanimously convinced, beyond a reasonable doubt, that the defendant did in fact commit the crime charged in the case.

Utah judges regularly instruct jurors, prior to beginning their deliberations, that they must be unanimous in whatever verdict they reach — either guilty or not guilty. Jurors are also instructed that the defendant does not have to prove actual innocence in order for the jury to reach a unanimous not guilty verdict.

A jury may be convinced that the defendant committed the crime charged, but still reach a not guilty verdict. Jurors may believe that the defendant committed the crime, but still have reasonable doubts as to the certainty of that belief.

In a civil trial, the burden of proof normally requires only a preponderance of the evidence — meaning that the jury be persuaded that one set of facts is more likely true than the other set of facts. In a criminal trial, a “more likely than not” standard is not sufficiently certain. Jurors must be convinced beyond a reasonable doubt.

Because of the burden of proof and reasonable doubt standards required in a criminal jury trial, neither an acquittal nor a not guilty verdict is a determination of actual innocence.

Can I be "around" guns if I am a restricted person?

January 5, 2023 by stephenh

The answer to this question will depend a lot on what you mean by being “around” guns.

Utah law makes it a crime for a restricted person to purchase, transfer, possess, use, or have custody or control over any dangerous weapon, or to agree, consent, offer, or arrange for another person to purchase, possession, transfer, use, or have control or custody of a firearm or any other dangerous weapon. Federal law typically provides penalties penalties for possession of a firearm that are even more severe than the felony penalties imposed under Utah law.

Utah law does not make it a crime for a restricted person to be “around” guns. The problem is that a person who is “around” guns can start to look like a person who has possession, control, or custody of a gun. The important question is not necessarily whether you “are” engaged in unlawful conduct, but whether it “looks like” you are engaged in unlawful conduct.

Many Utah families have traditions involving target shooting or annual hunting trips that have gone on for generations. Status as a restricted person will mean that you cannot actively participate in the hunt. You may be able to still be involved in the trip, but you should be very careful about any events where guns are present.

Police often will arrest a person who “looks like” they are committing a crime. A jury can reach a guilty verdict at trial if they are convinced that the person who “looks like” they committed a crime really did commit the crime.

If you are a restricted person, your goal should not be to just avoid actually committing any gun-related crimes. Your goal should be to also avoid doing anything that might even look like you are committing a crime.

An option to consider as a restricted person is pursuing an expungement, 402 reduction, or pardon. It may be possible to clear your record of the convictions that have given you that restricted status.

Can your attorneys give second opinions on criminal appeals issues?

January 5, 2023 by stephenh

Our attorneys can be retained to give a second opinion on a criminal appeal case. The costs required for a formal review and consultation on an appeal will depend on the nature and complexity of the case.

An appeal from a justice court in Utah normally consists of an automatic de novo trial or hearing in the district court, without the formalities and technical briefing requirements normally involved in a full appeal to the Utah Supreme Court or Utah Court of Appeals. A justice court “appeal” is more similar to defending an initial case than it is to a full appeal.

Appealing district court decision or verdict in a criminal case involves a review of court transcripts and records to assess and determine what issues may exist or what errors were made at trial or in other pre-trial hearings or motions. A good attorney will also take time to assess the likelihood of success for any such issues or errors. It is not uncommon for Utah appellate courts to determine that an error in the district court was “harmless” and therefore does not justify a reversal of the district court case outcome.

In deciding whether to undertake a full formal appeal from the district court, it is important to understand not only what issues or errors may exist, but also the likelihood of success in the appeal process,

What happens if a plead no contest in a Utah criminal case?

January 4, 2023 by stephenh

Pleading no contest means exactly that – you are not contesting the charges against you. Procedurally, this has the same effect as a guilty plea, but you are technically not admitting guilt to the charges. There are some circumstances where it can be advantageous to plead no contest, but they are an exception rather than a rule. Your attorney will help you to determine what course of action to take in your specific case.

When you plead not guilty in a case, the burden of proof falls on the prosecution to convict you of the charges. When you plead guilty, you accept responsibility and accept the court’s decision on punishment. In a no contest plea, you accept the punishment without actually admitting guilt.

Do I have to serve notice on a parent for an adult adoption?

January 4, 2023 by stephenh

Required notice in an adult adoption is different than what is required in the adoption of a minor child. Under Utah law, unless a pre-existing parent has died or has had their parental rights terminated previously, notice must be given to such parent when the petition to adopt is filed. Unless that parent consents or waives the right to contest the adoption, then the court must make necessary findings to terminate that parent’s rights before an adoption of a minor child can proceed.

Utah law governing adult adoptions does not require that prior notice be given to a per-existing parent. Those entitled to prior notice in an adult adoption include the adoptee’s spouse, the spouse of the person adopting the adult, and any legally appointed custodian or guardian of the adult adoptee.

Giving notice of the proposed adult adoption is not required prior to the adoption hearing or finalization of the adoption. However, upon finalization, Utah Code 78B-6-116(6) does require that notice of the final adoption decree be served on any person who was a legal parent of the adult adoptee prior to the entry of the final decree.

Service of the notice must be made pursuant to the Utah Rules of Civil Procedure. However, in part because a prior parent is not a party to the adoption action, service can be made under Rule 5, rather than under Rule 4 (governing service at the commencement of an action).

Rule 5 allows service methods including handing the paper directly to the person being served, mailing the paper to the person’s last known address, leaving a copy at the person’s residence, and leaving a copy at the person’s office.

State v Ruiz, 2021 UT App 94

January 3, 2023 by stephenh

In State v. Ruiz, the Utah Court of Appeals addressed Fourth Amendment issues relating to the use of a drug detection canine (K9) to conduct a search of a vehicle during a traffic stop. The district court had denied the defense motion to suppress. The defendant entered a guilty plea but reserved the right to appeal the district court’s ruling on the suppression motion. The Court of Appeals affirmed the district court’s original decision, holding that the police conduct did not violate the Fourth Amendment.

Facts and Case Background

The defendant was charged with possession of a firearm by a restricted person. After seeing the defendant pull the vehicle he was driving into a parking lot, police activated their emergency lights and pulled into the parking lot. Backup officers arrived, including a canine unit.

Police had received a previous report that individuals possibly connected with the defendant had been involved in an incident involving “brandishing weapons” near the location that defendant was stopped. Based on that information police asked if they could frisk the defendant for weapons. He agreed to that limited search of his person, and no weapons were found.

Police then asked the defendant for permission to search the vehicle he was driving. He declined the officer’s request, stating that the vehicle belonged to a family member. While police were speaking with the defendant, another officer walked his K-9 (dog) around the vehicle.

As the dog passed by a partially-open window, the dog dropped to all fours then “spontaneously” jumped through the half-open window and into the car. After moving about in the car for around thirty seconds, the dog stopped and “indicated” on the center console of the vehicle — a signal that the dog had located potential contraband.

Police searched and found “rolling papers” in the center console. Police also found a handgun under the driver seat of the vehicle.

Issue, Rule, and Analysis

In State v. Ruiz, the court addressed the question of whether police violate a person’s Fourth Amendment rights when a dog “spontaneously” jumps into a vehicle while police are using the dog for what would otherwise be a constitutional search/sniff.

Courts in Utah have previously held that police are permitted to use a dog to sniff only the outside of a vehicle during a traffic stop, so long as the activities of the police involving the dog do not unreasonably extend the duration of the stop. In Ruiz, the court held that police did not violate the Fourth Amendment because police did not command the dog to jump into the car and the dog was not trained to spontaneously jump into the car.

Even though police were aware that the dog had jumped into the car, the district court had found that the police did not encourage or command the dog to enter the car. One officer even testified that he had actively tried to restrain the dog because he “didn’t want him to get hurt trying to jump in that window.”

In reaching its decision, the Utah Court of Appeals cited to other appellate opinions in which federal courts have approved police conduct when a dog entered a car “instinctively” rather than on command of its handler, and where police did not cause or ask the driver to open the “point of entry” used by the dog (such as a window or hatchback).

Conclusion

Although the Court of Appeals approved the police conduct in Ruiz, cases involving police K-9 units are often very fact-specific. Small differences in the facts of the case can lead to very different rulings on a suppression motion. Consultation with an experienced criminal attorney is always important.