# Petition — Gibson v. Utah

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 894

## Text

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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

---

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