Petition — Gibson v. Utah

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IN THE SUPREME COURT OF THE

UNITED STATES

October Term, 1982

JAMES MONTGOMERY GIBSON, Petitioner

VS.

STATE OF UTAH, Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF STATE OF UTAH

ROBERT VAN SCIVER

Counsel of Record for Petitioner

321 South Sixth East

Salt Lake City, Utah 84102-4082

Telephone: (801) 322-5678

RICHARD G. MacDOUGALL

321 South Sixth East

Salt Lake City, Utah 84102-4082

Telephone: (801) 531-1990

Attorneys for Petitioner

QUESTION PRESENTED

Did the stop of Petitioner’s vehicle and seizure of

his person constitute an unreasonable search and seizure

under the Fourth and Fourteenth Amendments to the

Constitution of the United States?

Page

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QUESTION PRESENTED ....................... l

STATUTES INVOLVED ...........ccccccccccens l

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REASON FOR GRANTING THIS WRIT

POINT: THE STOP AND ARREST OF

PETITIONER CONSTITU-

TED AN UNREASONABLE

SEIZURE PROHIBITED BY

THE FOURTEENTH AMEND.-

MENTS TO THE CONSTITU-

TION OF THE UNITED

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APPENDIX A

OPINION OF THE SUPREME COURT OF

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DECISION OF THE DISTRICT COURT OF

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MOTION AND ORDER OF THE COAL

VILLE CIRCUIT COURT ................. 17

TABLE OF CASES

Delaware v. Prouse, Page

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Untied States v. Brignoni-Ponce

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STATUTES

Constitution of the United States:

Fourth Amendment ....................... 4

Fourteenth Amendment ................... 4

Utah Code Annotated (1953)

PC Is ics vac ow chacekce denen 4

No.

IN THE

SUPREME COURT OF THE

UNITED STATES

October Term, 1982

JAMES MONTGOMERY GIBSON,

Petitioner

Vs.

STATE OF UTAH,

Respondent

PETITION FOR WRIT OF CERTIORARI

To the Supreme Court of the State of Utah

To The Honorable, the Chief Justice and Associate

Justices of the Supreme Court of the United States.

James Montgomery Gibson, the petitioner herein,

prays that a Writ of Certiorari issue to review the

judgment and decision of the Supreme Court of Utah

entered in the above-entitled case on June 10, 1983.

OPINIONS BELOW

The opinion of the Supreme Court of Utah is not

yet reported, but a copy is reproduced in Appendix A

hereto. A copy of the Decision of the Third Judicial

]

District Court of Summit County, State of Utah, on

Petioner’s initial stage of appeal is also reproduced in

Appendix A.

JURISDICTION

The decision of the Supreme Court of Utah was

issued on June 10, 1983. The jurisdiction of this court is

invoked under 28 U.S.C. $1257 (3) and Rules 17 through

23 of the United States Supreme Court Rules.

QUESTION PRESENTED

Did the stop of Petitioner's vehicle and seizure of

his person constitute an unreasonable search and seizure

under the Fourth and Fourteenth Amendments to the

Constitution of the United States?

STATUTES INVOLVED

The Fourth and Fourteenth Amendments to the

Constitution of the United States and Section 41-1-17(c),

Utah Code Annotated (1953), as amended.

STATEMENT

Petitioner was charged by Information in the

Circuit Court of Summit County, State of Utah, with the

offense of driving on revocation.

The charge arose as a result of a traffic stop of Peti-

tioner’s vehicle and Petitioner's arrest on September 21,

1981 by Trooper Frank Marcellin of the Utah Highway

Patrol.

Marcellin testified at trial that he observed Peti-

tioner's vehicle southbound on State Road 224 on the

above date. He stated he had previously arrested Peti-

2

tioner for driving while under the influence of alcohol, of

which Petitioner was convicted, and that he stopped Peti-

tioner’s vehicle solely to check the status of Petitioner's

driver's license. There was no evidence of any traffic of-

fense being committed by Petitioner at the time, and

Trooper Marcellin indicated that the stop was based on

information he had received in a radio check on Peti-

tioner’s driver's license on June 1, 1981 indicating that

the license was revoked.

Marcellin testified that he made no attempt to

confirm Petitioner's driver's license status by radio check

while in pursuit and that he had made no additional at-

tempts to check on the status between June 1, 1981 and

September 21, 1981.

Counsel for Petitioner moved to suppress all

evidence obtained by the stop and arrest of Petitioner

based on a claim that the stop and arrest constituted an

unreasonable search and seizure. The motion was denied

and Petitioner was convicted.

On appeal to the District Court of Summit County,

the Court affirmed Petitioner's conviction, but vacated

his sentence and remanded for a new sentencing pro-

ceeding. At the re-sentencing, Petitioner was sentenced

to thirty days in jail, to be suspended on payment of a

$299.00 fine.

On appeal to the Supreme Court of Utah, Petitio-

ner’s conviction was affirmed. The Circuit Court granted

a stay to Petitioner to pursue the present Petition. A copy

of the Motion and Order staying execution of sentence is

reproduced in Appendix “A” hereto.

3

REASON FOR GRANTING THIS WRIT

POINT

THE STOP AND ARREST OF PETITIONER

CONSTITUTED AN UNREASONABLE SEIZ.

URE PROHIBITED BY THE FOURTH AND

FOURTEENTH AMENDMENTS TO THE

CONSTITUTION OF THE UNITED STATES.

The Supreme Court of Utah, in rendering the deci-

sion in Petitioner’s case, paid lip service to the standards

set forth by this courtin United States v. Brignoni-Ponce,

422 U.S. 873 (1975) and Delaware v. Prouse, 440 U.S. 648

(1979), concerning the elements of probable cause

necessary to stop a vehicle. It was in the application of

those standards to Petitioner's case where the decision of

the Supreme Court of Utah conflicts with the decision of

this court in Brignoni-Ponce and Prouse, supra.

The critical determination for purposes of this Peti-

tion is whether Trooper Marcellin’s suspicion was

“reasonable” or a mere “hunch”. Petitioner asserts that it

was the latter.

It is undisputed that Petitioner was not operating

his vehicle in an objectively unlawful manner absent the

stop to check his driver's license. It is also undisputed

that Trooper Marcellin based the stop solely on the know-

ledge that Petitioner's license had been revoked, which

he had confirmed by a radio check nearly four months

prior to the date Petitioner was arrested.

The information in the Trooper's possession at the

time he stopped Petitioner's vehicle was so stale as to

constitute no more than mere speculation that Peti-

4

tioner’s license might still be rovoked. This is especially

true in light of Marcellin’s testimony at trial that he was

aware of the ready availability of a restricted driver's

license to a person in Petitioner's position.

Trooper Marcellin conceded that he made the stop

for the sole purpose of checking on the status of Petition-

er’s license. Consequently, it is apparent that the deten-

tion of Petitioner’s vehicle and his arrest were the product

of a random, single-vehicle stop prohibited by the

holding of this court in Delaware v. Prouse, supra.

The proscription against random single-vehicle

stops for the purpose of checking driver's licenses derives

from the fundamental constitutional principles

embodied in the Fourth Amendment, as applied to the

states by the Fourteenth Amendment, to the Constitution

of the United States, prohibiting unreasonable warrant-

less intrusions upon the privacy of the individual.

As it relates to automobiles, the constitutional pro-

hibition on random stops is also embodied in S41-1-17(c),

Utah Code Annotated (1953), as amended, which, in

accordance with the rationale of Prouse, supra, autho-

rizes a police officer to make a traffic stop only upon a

reasonable belief the driver is operating a vehicle in vio-

lation of traffic law.

The decision of the Supreme Court of Utah

affirming Petitioner's conviction clearly conflicts with

pertinent decisions of this court on Fourth Amendment

grounds and ignores the statutory limits on a peace of-

ficer set forth by relevant State law.

5

The opinion of the Supreme Court of Utah in Peti-

tioner’s case is mere judicial gloss wich ignores the basic

question as to what constitutes reasonable cause justi-

fying a traffic stop by a police officer.

CONCLUSION

Based on the foregoing, Petitioner respectfully re-

quests this court to exercise its supervisory power and to

grant this Petition.

DATED this 2nd day of August, 1983.

Respectfully submitted,

ROBERT VAN SCIVER

Counsel of Record for Petitioner

321 South Sixth East

Salt Lake City, Utah 84102-4082

Telephone: (801) 322-5678

RICHARD G. MacDOUGALL

321 South Sixth East

Salt Lake City, Utah 84102-4082

Telephone: (801) 531-1990

Attorneys for Petitioner

6

APPENDIX A

IN THE SUPREME COURT OF THE

STATE OF UTAH

State of Utah,

Plaintiff and Respondent, No. 18829

FILED

Vv. June 10, 1983

James Montgomery Gibson,

Defendant and Appellant.

Geoffrey J. Butler, Clerk

DURHAM, Justice:

This is an appeal from a conviction for driving

with a revoked driver's license in violation of U.C.A.,

1953, SS 41-2-28 & 30. We affirm.

On January 1, 1981, Trooper Frank Marcellin of

the Utah Highway Patrol arrested the appellant James

Montgomery Gibson for driving while under the

influence of intoxicants (hereafter “DUI”) in violation of

U.C.A., 1953, SS 41-6-44 to -44.10. The appellant refused

to take a chemical test to determine his blood alcohol

content. On April 30, 1981, the appellant was tried and

convicted as charged. On June 1, 1981, Trooper Marcellin

checked the status of the appellant's driver's license and

found that it had in fact been revoked.

7

On September 21, 1981, at approximately 4:30 p.m.,

Trooper Marcellin had parked his patrol car facing north

on state road 224 (hereafter "SR 224”) and was engaged

in conversation with a fellow trooper. At this time,

Trooper Marcellin observed a brown Porsche automobile

proceeding toward him southbound on SR 224 and being

driven by the appellant. Knowing that the appellant's

driver's license had been rovoked and suspecting that it

was still revoked, Trooper Marcellin pursued the appel-

lant and pulled him over. Upon questioning the appel-

lant, Trooper Marcellin learned that the appellant's

license was in fact still revoked and that the appellant

was returning to Park City from Salt Lake City after at-

tempting to obtain a restricted driver's license. See

U.C.A., 1953, S 41-2-18(d) (regarding restricted driver's

licenses). Trooper Marcellin arrested the appellant for

driving while his license was revoked in violation of

U.C.A., 1953, SS 41-2-28 & -30.

Prior to trial in the Fifth Judicial Circuit Court of

Summit County, the appellant filed a motion to supress

all of the evidence obtained as a result of the appellant's

arrest, claiming that Trooper Marcellin lacked probable

cause to stop the appellant. At trial, the appellant conti-

nuously objected to any reference by the prosecution to

the appellant's prior arrest and conviction for DUI. The

appellant did not, however, object to the prosecution's

offering into evidence a certified copy of the appellant's

driving record, which contained information regarding

the appellant's DUI conviction. The circuit court denied

the appellant's motion to suppress and convicted the ap-

pellant of the crime of driving while his driver's license

was revoked. The appellant appealed that decision to the

district court, which affirmed the conviction but vacated

the sentence. After a new sentencing, the appellant filed

the present appeal with this Court.

8

On appeal, the appellant advances two points of

error. First, the appellant contends that the circuit court

erred in finding that Trooper Marcellin’s stopping of the

appellant on September 21, 1981, was not arandom stop

constituting an unreasonable seizure in violation of the

U.S. and Utah Constitutions. See U.S. Const. amend. 4;

Utah Const. Art. I, S 14. Second, the appellant claims

that the circuit court erred in admitting into evidence his

prior DUI conviction.

In order to determine whether Trooper Marcellin’s

conduct was an unreasonable seizure in violation of the

U.S. and Utah Constitutions, we must balance the pro-

motion of legitimate governmental interests against the

intrusion upon the individual's Fourth Amendment in-

terests. See, e.g., Terry v. Ohio, 392 U.S. 1, 21 (1968). See

generally 3 W. LaFave, Search and Seizure: A Treatise on

the Fourth Amendment § 10.8 (1978 & Supp. 1983). The

U.S. Supreme Court has stated:

The scheme of the Fourth Amendment becomes

meaningful only when it is assured that at some

point the conduct of those charged with enfor-

cing the laws can be subjected to the more de

tached, neutral scrutiny of a judge who must

evaluate the reasonableness of a particular

search or seizure in light of the particular cir-

cumstances. And in making that assessment it

is imperative that the facts be judged against an

objective standard: would the facts available

to the officer at the moment of the seizure or the

search “warrant a man of reasonable caution in

the belief” that the action taken was appro-

priate? Anything less would invite intrusions

upon constitutionally guaranteed rights based

9

on nothing more substantial than inarticulate

hunches, a result this Court has consistently

refused to sanction.

Terry v. Onio, supra, at 21-22 (citations omitted).

In balancing these interests, the U.S. Supreme

Court has states:

(A) requirement of reasonable suspicion for

stops allows the Government adequate means

of guarding the public interest and also pro-

tects residents ... from indiscriminate official

interference.

United States v. Brignoni-Ponce, 422 U.S. 873, 883 (1975).

In further defining the standard necessary to stop a par-

ticular driver, the Court stated:

When there is not probable cause to believe that

a driver is violating any one of the multitude of

applicable traffic and equipment regulations.

or other articulable basis amounting to reason-

able suspicion that the driver is unlicensed or

his vehicle unregistered--we cannot conceive of

any legitimate basis upon which a patrolman

could decide that stopping a particular driver

for a spot check would be more productive than

stopping any other driver. This kind of stand-

ardless and unconstrained discretion is the evil

the Court has discerned when in previous cases

it has insisted that the discretion of the official

in the field be circumscribed, at least to some

extent.

10

Delaware v. Prouse, 440 U.S. 648, 661 (1979) (citations

omitted). The Court continued:

Accordingly, we hold that except in those

situations in which there is at least articulable

and reasonable suspicion that a motorist is un-

licensed or that an automobile is not registered,

or that either the vehicle or an occupant is other-

wise subject to seizure for violation of law, stop-

ping an automobile and detaining the driverin

order to check his driver's license and the regis-

tration of the automobile are unreasonable

under the Fourth Amendment.

Id. at 663 (emphasis added).

In applying the above standards to the present

case, we hold that Trooper Marcellin’s conduct did not

constitute an unreasonable seizure in violation of the ap-

pellant’s constitutional rights. From Trooper Marcellin’s

previous encounter with the appellant, he knew that, as

late as June 1, 1981, the appellant's driver's license had

been revoked pursuant to the DUI conviction.

Furthermore, on September 21, 1982, Trooper Marcellin

had a “reasonable suspicion” that the appellant's dri-

ver's license was still revoked. Thus, under the circum-

stances, Trooper Marcellin’s stopping of the appellant

was not a random stop and did not violate the appellant's

rights under the U.S. or Utah Constitutions. See Dela-

ware v. Prouse, supra; United States v. Brignoni-ponce,

supra; Terry v. Ohio, supra. See also State v. Elliot, Utah,

626 P. 2d 423 (1981); State v. Whittenback, Utah, 621 P.

2d 103 (1980).

The defendant's second contention regarding the

circuit court's alleged error in admitting into evidence the

1]

defendant's prior DUI conviction is not reviewable be-

cause it does not raise a constitutional question. There-

fore, the district court's decision thereon is final and is

not reviewable by this Court. See State v. Taylor, Utah,

No. 17674 (filed April 5, 1983); Utah Const. art. VIII: 9;

U.C.A., 1953, S 78-3-5 (Supp. 1951).

Affirmed. No costs awarded.

STEWART, Justice: (Concurring)

I fully concur in the opinion of the Court, but like

Justice Oaks, feel constrained to add an additional

comment. Unlike Justice Oaks, I concurred in State v.

Taylor, Utah (No. 17674, filed April 5, 1983), which sus-

tained the constitutionality of the statute authorizing

this Court to hear appeals in cases which arise in the cir-

cuit courts and which involve constitutional issues.

Nevertheless, I agree with Justice Oaks that the caseload

of this Court is far too great and that the mandatory re-

quirement imposed by U.C.A., 1953, S78-3-5, that we hear

every appeal from a case originated in a circuit court

"involving a constitutional issue” imposes an undue

burden on this Court which contributes to our overload

and threatens the integrity of the deliberative processes

indispensable to the proper functioning of an appellate

court. This is al! the more true now that it is clear that this

Court does have jurisdiction of constitutional issues in

cases initiated in a circuit court. There can be little doubt

from any objective point of view that legislative action to

permit this Court to exercise discretionary jurisdiction

rather than mandatory jurisdiction.

1. On the appellant's prior arrest for DUI, he refused to

take a chemical test. Under Utah's Implied Consent

12

Statute, such a refusal can result in the revocation of

one’s driver's license for a one-year period. See U.C.A.,

1953, S 41-6-44.10, in such cases is highly desirable and

would make at least a small contribution toward solving

the caseload problem of this Court.

Howe, Justice, concurs in the concurring opinion of

Justice Stewart.

OAKS, Justice: (Concurring)

I concur in the opinion of the Court, and add an ad-

ditional observation on the jurisdiction of this Court to

review traffic cases and other cases commenced in the

circuit courts.

Having been unsuccessful in a dissent on this

point, I now acquiesce in the majority's holding that this

Court has the constitutional power to hear an appeal ofa

case that began in the circuit court and has already been

heard on appeal in the district court and does not involve

the validity or constitutionality of a statute. State v.

Taylor, No. 17674, filed Apr. 5, 1983. But I protest the

wisdom of a statute that imposes such jurisdiction on this

Court. Discretionary jurisdiction would be another

matter, but U.C.A., 1953, S 7&3-5 requires us to hear

every such appeal “involving a constitutional issue.” In

this case, and in others we have received, the only

“constitutional issue” is the sufficiency of evidence for a

probable cause determinatica attendant upon 2 constitu.

tional nght. Some such cases pose significant issues for

review and ruling by a supreme court, but most-—like the

present case--are simply applications of well-established

principles to various factual situations.

13

As the Supreme Court of this state staggers under

an obligatory jurisdiction that now brings us more than

700 filings per year, I respectfully suggest that the Legis-

lature enact a means of relieving this Court from the sta-

tutory duty of reviewing every circuit court case the

parties choose to appeal for a second time after they have

already received (and lost) one appellate review in the

district court. Although cases commenced in the circuit

court currently comprise only about one to two percent of

our filings, that number is likely to increase in view of our

ruling in State v. Taylor supra. In any event our current

overload is most likely to be relieved by the total effect of

various small reductions, and the elimination of obliga-

tory jurisdiction in circuit court cases is a good place to

start.

Hall, Chief Justice, concurs in the concurring

opinion of Justice Oaks.

14

IN THE DISTRICT COURT

OF SUMMIT COURT

STATE OF UTAH

STATE OF UTAH,

Plaintiff,

vs DECISION

JAMES MONTGOMERY GIBSON, | Criminal No. 912

Defendant.

The above matter came before the Court on appeal

from the Fifth Circuit Court of Summit County with the

Hono: able Larry R. Keller presiding. The defendant was

charged with Driving on a Revoked License. The matter

was tried before a jury and the jury returned a verdict of

guilty. The defendant appealed alleging that the Circuit

Court committed error when it denied defendant's

Motion to Suppress Evidence acquired at the stopping of

the defendant by Officer Marcellin, in that the officer did

not have just cause to stop the defendant's vehicle. Also

that the Court errored in allowing in testimony that the

reason for the revocation was Driving Under the In.

fluence of Alcohol. The defendant also contends that the

trial court exceeded tts discretion in the sentencing in

that it considered information not contained in the pre

sentence report and was received outside of the presence

of the defendant and not in open court.

15

The Court finds, based on the facts in this case,

that Officer Marcellin did have just cause to stop the

defendant's vehicle to check to see if he had a valid dri-

ver's license and the Court properly denied defendant's

Motion to Suppress the Evidence obtained at the

stopping. The testimony as to the cause of the revocation,

to wit: driving under the influence was not necessary to

the State's case, however, it was not prejudicial error that

would cause a reversal.

The Court further finds that the sentencing is a

judicial procedure and the defendant entitled to confront

the witnesses and know what the pre-sentence report

says. The Circuit Court Judge did consider information

that was improperly received. The Supreme Court of

California in the case of People vs Giles 161 P 2d states:

"In undertaking to ascertain facts from which it

could determine what sentence should be

imposed on that defendant, the trial court was

engaged in a judicial proceeding. Such facts as

were not supplied by the probation officer's re-

port and by the record of the trial, which had

been held, should have been obtained from the

lips of the witnesses called in open court, in the

presence of the defendant, instead of limiting

his search for the facts to these proper sources,

the trial judge listened and gave great weight to

reports received outside of court, with a result

that the judgment entered was prejudicially

influenced by these improperly received

accusations.”

See also State vs lipsky 608 P 2d 1241 1953, as amended

Section 77-33 5-22(a).

16

Based on the foregoing, the Court does affirm the

verdict of the Jury, reverses the sentencing and remands

the matter back to the Circuit Court for further

proceedings.

DATED this 19 day of Oct., 1982.

HOMER F. WILKINSON

DISTRICT JUDGE

17

RICHARD G. MacDOUGALL

Attorney for Defendant

321 South 600 East

Salt Lake City, Utah 84102-4082

Telephone: (801) 531-1990

CIRCUIT COURT, STATE OF UTAH

SUMMIT COUNTY, COALVILLE DEPARTMENT

STATE OF UTAH MOTION AND ORDER STAY-

ING EXECUTION OF SEN.

Plaintiff, TENCE PENDING DISPOSI.-

TION OF PETITION FOR

JAMES MONTGOMERY WRIT OF CERTIORARI

Defendant. Case No. 81-CR-311

Defendant moves the Court as follows:

1. In the above entitled case, Defendant was

sentenced on November 3, 1982, by the Honorable Melvin

H. Morris to thirty days in jail, to be suspended upon pay-

ment of a fine in the sum of $299.00

2. On November 9, 1983, pursuant to a motion by

Defendant, the Court stayed execution of sentence pen-

ding a disposition of Defendant's appeal to the Supreme

Court of Utah.

18

3. Defendant's conviction was confirmed by the

Supreme Court of Utah on June 10, 1983.

4. Defendant is preparing a petition for certiorari

to be filed with the Supreme Court of the United States on

or before August 10, 1983.

5. Defendant requests the Court to extend the

stay of execution of sentence pending disposition of De-

fendant’s petition for writ of certiorari.

DATED this 30 day of June, 1983.

RICHARD G. MacDOUGALL

Attorney for Defendant

ORDER

Based on Defendant's Motion and good cause appearing,

IT IS HEREBY ORDERED that execution of sentence

in the above entitled case is stayed pending disposition of

Defendant's petition for writ of certiorari which shall be

filed by Defendant with the Supreme Court of the United

States on or before August 10, 1983.

DATED this Ist day of July, 1983.

BY THE COURT:

HON. MELVIN H. MORRIS

Circuit Court Judge