State v. Worwood

WILKINS, Associate Chief Justice,

dissenting:

1 53 I respectfully dissent.

154 My colleagues conclude that the off-duty officer's initial "stop" of Worwood was constitutionally justified, and that further investigation could have been undertaken at that time by use of field sobriety tests without offense to the constitution. However, they also conclude that the constitution is offended by the off-duty officer transporting Worwood from the rural mountain dirt road where he was discovered behind the wheel of his vehicle smelling of aleohol with bloodshot eyes and slurred speech. This, they conclude, results in a de facto arrest without adequate justification. I disagree.

155 Worwood filed a motion to suppress "the evidence" due to unspecified and unidentified violations of the Fourth Amendment and article I, section 14 of the Utah Constitution. He made no argument based upon the alleged violation of the state constitutional provision he cited. He did little more with the federal constitutional claim.

56 On the basis of this thin legal effort, the State was required to respond in defense of the acts of the off-duty officer in moving Worwood down the Deep Canyon road a mile and a half to meet an on-duty officer who had the communication, record-keeping, security, and containment equipment not possessed by the off-duty officer when he chanced to encounter Worwood on the mountain road. Against the ill-defined challenge leveled by Worwood, the State presented evidence of the actions and cireumstances surrounding the eventual formal arrest of Worwood, a serial drunk driver. We do not know from the record before us what evidence was available to the State but not presented at the time of the trial court hearing on Worwood's *414 motion to suppress "the evidence" against him. Had Worwood presented a clear and concise challenge to the degree of detention to which he had been subjected, and the basis upon which he considered the objective facts surrounding that detention to have been inadequate as a matter of constitutional law, the State may well have been able to address those challenges. Although the State bears the burden of proving the reasonableness of an officer's actions during an investigative detention, that burden arises only when the actions and their reasonableness have been challenged. Such a challenge has to be ree-ognizable to be sufficient.

157 As my colleagues note, there are many probative and useful facts that we cannot discern from the record. For example, we do not know what concern the road conditions at the time of the first contact may have presented. We do not know the grade, width, pitch, surface quality, or other condition of the road surface. We know not the weather, time of day, light conditions, or other site factors that might have influenced the off-duty officer's decision to move Wor-wood down canyon to investigate further. We do not know if the officer was concerned about his safety, or that of his companion, or of Worwood, since the officer was in his private vehicle, unarmed, without communication equipment, and off-duty. We do not know if Worwood was uncooperative, or even belligerent, or if the officer was aware of Worwood having a reputation for resistant behavior. We do not know why the officer took Worwood the additional mile and one half to meet an on-duty officer. We do not know if Worwood was required to ride in front or back of the off-duty officer's vehicle, or whether he was taken inside or remained outside of the residence to which he was taken to meet the on-duty officer.

158 We do not know from the record whether or not Worwood was unsteady on his feet at the time he moved from his truck to the off-duty officer's vehicle. This alone may have been enough to justify Worwood's arrest without administration of field sobriety tests.

T59 All of these unknown objective facts were within the personal knowledge of the off-duty officer, and presumably could have been competently testified to at the time of Worwood's motion to suppress "the evidence" against him. Had they been placed in contest by Worwood, it is difficult to imagine that the State, when it had the off-duty officer on the stand, would not have sought to present the evidence to the trial court.

T 60 Unlike my colleagues, I conclude that the objective facts in the record are sufficient to justify the actions of the off-duty officer. In addition, given the inadequate challenge mounted by Worwood, the State has adequately defended those actions. Only by virtue of a careful analysis made for the first time on appeal, and by the court at that, has Worwood finally produced a meaningful challenge. The State, and the off-duty officer, have been denied any opportunity to prove the reasonableness of the actions taken by the failure of the challenger to raise the questions now found to be so troubling by my colleagues.

1 61 Finally, I am troubled by the suggestion in the majority opinion that the "benefits" of suppression of the field sobriety tests against Worwood "clearly outweigh the social costs." This cost-benefit analysis appears to rely heavily on two presumptions with which I do not agree: first, that not suppressing the evidence of drunk driving in this instance would create an incentive for law enforce ment officers to knowingly violate the law as embodied in the United States Constitution; and second, that the consequences of repeat drunk driving are preferred to those of the incentive our decision would create to violate the law.

162 In response, I believe the perverse incentive feared by my colleagues is a fiction. I believe the suppression of otherwise valid incriminating evidence against an accused wrong-doer has little impact on police conduct. Those officers genuinely devoted to the fair and reasonable application of the law will do exactly as they do now: they will continue to seize drugs found in transit, stop crimes in progress, and struggle to understand and apply the myriad decisions of the various courts restricting their scope of action. Those few, and I do believe it is a very small minority of all law enforcement offi *415 cers, who knowingly violate the law in their efforts to enforce it, will continue to do so, but with greater care in how it is reported and recorded. Neither category of officer will be any more likely to abide the law than they already were prior to our decision today.

63 In addition, I believe the scourge of death and devastation brought to unsuspecting and innocent others by those who choose to drive under the disabling influence of alcohol or drugs is the greater social evil at issue in this case.

T 64 Without regard to these beliefs and policy concerns, it is my view that the law dictates a different result in this case than that arrived at by my colleagues. To be perfectly clear; I am not of the view that failings in Worwood's initial suppression motion lessen the State's burden to prove the reasonableness of the officer's conduct. It is simply my view that the initial burden falls upon the defendant to present to the trial court a clearly articulated challenge, or to suffer the risks that his challenge will be unsuccessful, as here. We require parties to place their opponents and the court on notice of the boundaries of the dispute. This is intended to assist the court in identifying and making just and fully informed decisions. Moreover, the proponent of the motion has the burden of proving the factual predicate of the action sought. A proponent failing to do so is not entitled to relief.

1 65 I would affirm the court of appeals, the decision of the trial court, and the conviction of Mr. Worwood.