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In Utah, a peace officer, without a warrant[1], may acquire a blood sample[2] from a defendant, if the defendant consents[3] to the blood draw.  However, the State of Utah bears the burden of establishing, by a preponderance of the evidence[4], that defendant’s consent was freely and voluntarily given. Utah Courts review the circumstances in their totality to determine if, by a preponderance of the evidence, that defendant’s consent was, in fact, freely and voluntarily given.

Utah Courts apply a two-pronged analysis in determining if defendant’s consent was freely and voluntarily given.  Specifically, defendant’s consent is valid only if: (1) The consent was given freely and voluntarily; and (2) The consent was not obtained by police exploitation of a prior illegality.[5]

1st Prong

In determining whether defendant’s consent was given freely and voluntarily the Utah Courts scrutinize both the details of the detention, and the characteristics of the defendant.[6]

The totality of the circumstances must show consent was given without duress or coercion.[7]  In other words, a defendant’s will cannot be overborne, nor may their capacity for self-determination be critically impaired.  With respect to a defendant, evidence of minimal schooling, low intelligence, and the lack of any effective warnings about their rights should be considered.  Further, the Utah Courts have stated that factors which may show a lack of duress or coercion include: (1) The absence of a claim of authority to search defendant by the peace officer; (2) The absence of an exhibition of force by the peace officer; (3) The peace officer merely requests to search; (4) The cooperation of the defendant; and (5) The absence of deception, fraud, deceit, misrepresentation, or trickery by the peace officer.[8]

2nd Prong

Utah Courts, conducting an exploitation analysis, evaluate the relationship between the peace officer’s misconduct and the subsequently discovered evidence to determine if excluding the evidence will effectively deter future illegalities.[9] An exploitation analysis requires looking at the facts of each case.  When Utah Courts review the facts in an exploitation analysis, three factors are of particular relevance, they are: (1) Thepurpose and flagrancy of the peace officer’s illegal conduct; (2) The presence of intervening circumstances; and (3) The temporal proximitybetween the peace officer’s illegal detention and the defendant’s consent.

In State of Utah v. Tripp[10] the Utah Supreme Court held that the State of Utah failed to show by a preponderance of the evidence that the Defendant voluntarily consented to the blood draw.  Accordingly, the Utah Supreme Court affirmed the Utah Appellate Court’s decision to suppress the evidence of the blood draw.

The relevant facts in Tripp are: The peace officers made more than a mere request to draw defendant’s blood; Different peace officers requested on at least four separate occasions that defendant submit to a blood draw; Each time Defendant refused the blood draw; Defendant did not voluntarily extend her arm when asked to consent to the blood draw; Rather, defendant extended her arm only in response to the blood technician telling the defendant, “You know, just let me put the tourniquet on your arm, see if we can find a spot that would be easy to do this.” The blood technician testified that he did not think defendant knew he had the blood drawing equipment ready, when the defendant extended her arm; and The peace officer testified that Defendant looked upset and terrified, and she was pulling away and crying; and The peace officers arrested defendant and threatened to force the blood draw with a warrant because she refused to waive her constitutional right.

The court reasoned that the testimony at the suppression hearing revealed that defendant did not voluntarily extend her arm when asked to consent to the blood draw.  Rather, defendant extended her arm only when the blood technician stated, “You know, just let me put the tourniquet on your arm, see if we can find a spot that would be easy to do this.” Also, the peace officer testified that the defendant looked upset and terrified, and that, “she was pulling away and was crying.”  Given this testimony, the court of appeals did not err in concluding that defendant did not clearly consent.  Furthermore, even if we assume defendant consented, she did not do so voluntarily.

Weighing the factors under the totality of the circumstances test, it appears that the near constant peace officer pressure and coercive tactics overcame defendant’s will.  The court of appeals imposed the proper standard, and they correctly concluded that under the totality of the circumstances, the State of Utah failed to show by a preponderance of the evidence that defendant voluntarily consented to the blood draw.

In State of Utah v. Hansen[11] the Utah Supreme Court held that defendant’s consent was voluntary. However, the consent was invalid because it was obtained by the peace officer’s exploitation of a prior illegality, because defendant was illegally seized and his consent to search was obtained by the peace officer’s exploitation of a prior illegality. Accordingly, the Utah Supreme Court affirmed the Utah Court of Appeal’s decision to suppress the evidence.

The relevant facts in Hansen are: Defendant was pulled over for a traffic offense; The peace officer obtained defendant’s license and registration and returned to his patrol car; Another peace officer arrived on the scene; The peace officer returned the license and registration; Both officers overhead emergency lights continued flashing throughout the encounter with the defendant; After returning defendant’s documents, the peace officer asked defendant if he had any alcohol, drugs, or weapons in his vehicle; The peace officer would later testify, “It’s my practice to ask them (driver of vehicle) for consent by stating, Do you have any alcohol, weapons or drugs in the vehicle? And if they say no, I say, Well, do you mind if I check;” and, The peace officer employed this practice with defendant, even though he had no reasonable suspicion of a further illegality.

As to consent, the court reasoned that the peace officer asked defendant if he had any alcohol, drugs, or weapons in his vehicle.  Defendant responded, “No.”  The peace officer then asked, “Do you mind if I check?” Defendant responded, “Yes.”  The peace officer clarified during the suppression hearing that defendant’s response meant, “Yes, I could have consent to search.”

Defendant’s response of, “Yes,” was ambiguous. But, the only evidence before the court was the peace officer’s statement. Based on these facts, the Utah Supreme Court held that there was consent.

As to voluntariness, the court reasoned that the peace officer did not claim any authority to search the vehicle.  Rather, he asked permission- “Do you mind if I search?” No threat accompanied the request. Nor did the officer employ deception to garner consent, such as trying to deceive Defendant into thinking he could get a search warrant.  The peace officer’s tone of voice was even, rather than demanding.  The length of the detention, while illegal, was brief, and the questioning was neither repeated nor prolonged. Finally, defendant cooperated in the search.

Weighing each of these factors under the totality of the circumstances test, it does not appear that defendant’s will was overborne, or that his capacity for self-determination was critically impaired.  Thus, the Utah Supreme Court held defendant’s consent was freely and voluntarily given.

As to the second prong, the court reasoned that the police officer testified, “It’s my practice to ask them for consent by stating, Do you have any alcohol, weapons or drugs in the vehicle? And if they say no, I say, Well, do you mind if I check.”  The peace officer employed this practice with defendant, even though he had no reasonable suspicion of a further illegality.  Seeking consent under such circumstances shows the purpose of the illegal detention was to exploit the opportunity to ask for consent.  It also showed there was a direct connection between the peace officer’s misconduct and defendant’s consent.

The incentive present in this case to violate constitutional guarantees is precisely the type of incentive that must be removed.  Since there was a direct connection between the purpose of the misconduct and defendant’s consent, suppressing the evidence derived from this misconduct should have a deterrent effect.

Next, the facts reveal that there was no intervening circumstances, no clean break in the chain of events between the misconduct and the consent. Thus, the illegality of the peace officer’s conduct was not mitigated.

Finally, the temporal proximity between the peace officer’s illegal detention and the defendant’s consent had not dissipated.  Here, the lapse of time was negligible. The illegal detention began when the peace officer asked defendant if he had any contraband in his vehicle.  Directly after defendant answered, “No,” the peace officer requested and received permission to search defendant’s vehicle.  Thus, no appreciable time passed between the illegal detention and the consent that would have allowed the taint of the misconduct to dissipate.

Based on the purpose behind the peace officer’s misconduct, the lack of intervening circumstances, and the temporal proximity between the illegal conduct and defendant’s consent, the Utah Supreme Court concluded that defendant’s consent resulted from exploitation of the prior police illegality.  Additionally, the deterrent effect of suppressing evidence obtained from this type of search and seizure justifies its cost.

[1] A warrantless search is per se unreasonable unless the search falls within one of a few specifically established and well—delineated exceptions. [2] Blood tests plainly constitute searches of persons. [3] A search conducted pursuant to consent is an established exception to the warrant requirement. [4] “Preponderance of the evidence” is the degree of proof that, when taken as a whole, shows that a fact sought to be proved is more probable than not.
[5] State v. Hansen, 63 P.3d 650
[6] Schneckloth v. Bustamonte, 412 U.S. 218 (1973)
[7] United States v. Zubia-Melendez, 263 F.2d 1155 (10th Cir. 2001)
[8] State v. Tripp, 227 P.3d 1251 (Utah 2010)
[9] State v. Shoulderblade, 905 P.2d 289 (Utah 1995)
[10] State v. Tripp, 227 P.3d 1251 (Utah 2010)
[11] State v. Hansen, 63 P.3d 650 (Utah 2002)