State v. Chettero , 2013 UT 9 ( 2013 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2013 UT 9
IN THE
SUPREME COURT OF THE STATE OF UTAH
———————
STATE OF UTAH,
Plaintiff and Appellee,
v.
ALAN L. CHETTERO,
Defendant and Appellant.
———————
No. 20110667
Filed February 15, 2013
———————
Third District, Silver Summit
The Honorable Bruce C. Lubeck
No. 081500301
———————
Attorneys:
John Swallow, Att‘y Gen., Jeffrey S. Gray, Asst. Att‘y Gen.,
Salt Lake City, David R. Brickey, Paul R. Christensen, Park City,
for appellee
Gerry D‘Elia, Park City, for appellant
———————
JUSTICE LEE authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT and JUSTICE PARRISH joined.
ASSOCIATE CHIEF JUSTICE NEHRING filed an opinion concurring and
dissenting in part, in which JUSTICE DURHAM joined.
———————
JUSTICE LEE, opinion of the Court:
¶1 In mid-November 2008, the Utah Highway Patrol (UHP)
performed a drug interdiction exercise on a rural stretch of I-80 in
Summit County. Most of the cars stopped during the exercise, in-
cluding one driven by Alan L. Chettero, were licensed in other
states. Chettero‘s traffic stop yielded evidence of illegal drugs (105
pounds of marijuana), which Chettero sought to suppress during
his subsequent prosecution for possession with intent to distrib-
ute. Chettero filed two suppression motions—one based on the
Equal Protection Clause and right to travel, and the other rooted
STATE v. CHETTERO
Opinion of the Court
in the Fourth Amendment. The district court denied both. Chet-
tero then entered a conditional guilty plea. He now appeals.
¶2 We affirm. The traffic stop Chettero complains of did not
restrict his movement in a manner implicating his fundamental
right to travel. His equal protection claim is equally meritless:
There was a rational basis for UHP‘s choice to focus the bulk of its
enforcement efforts on cars bearing out-of-state license plates giv-
en UHP‘s understanding that significant quantities of drugs
would be transported from California through Utah during mid-
November. Finally, to the extent the district court erred in failing
to consider any evidence of relevance to the Fourth Amendment
motion to suppress, it is excusable as harmless error.
I
¶3 UHP‘s interdiction exercise took place November 14-16,
2008. The exercise was designed to ―prevent accidents, while re-
moving criminals, drug proceeds, and controlled substances from
[Utah] highways.‖ Its timing was prompted by California law en-
forcement communications, which indicated that the marijuana
harvest in California ended in late October and that marijuana
would likely be ready for transport eastward in mid-November.
UHP hoped to intercept some of this illegal traffic. To do so, it
made high-volume traffic stops on a stretch of I-80 in eastern
Summit County between Kimball Junction and the Wyoming
border.
¶4 Most vehicles stopped were licensed outside Utah. Accord-
ing to Summit County dispatch tapes, 147 vehicles were stopped
during the exercise, and all but one (99.3 percent) bore out-of-state
plates. The troopers‘ daily logs show slightly different numbers.
These logs reveal that of the 144 stops made, 136 (95 percent) in-
volved out-of-state plates. Despite these statistics, the state main-
tains that troopers were not instructed to target out-of-state vehi-
cles.
¶5 In one of the twenty-three stops Trooper Jensen made dur-
ing the exercise—all of which involved cars with out-of-state
plates—he stopped Alan Chettero‘s California-plated vehicle.1
1 This stop occurred at 9:30 p.m. on November 13, 2008. Alt-
hough this raises the question whether Chettero was stopped dur-
ing the course of the interdiction exercise (which ran from No-
2
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Opinion of the Court
Jensen asserts that he stopped Chettero because he crossed the fog
line three times in a one-half-mile stretch. Upon approaching
Chettero‘s car after making the stop, Jensen noticed that the rear
compartment of the vehicle was completely filled with something
covered by a blanket. As Jensen spoke with Chettero through the
open front window, he noticed a strong odor of raw marijuana.
Jensen then searched the vehicle, finding 105 pounds of marijua-
na.
¶6 Chettero was arrested and charged with possession of ma-
rijuana with intent to distribute. He filed two motions to suppress
the evidence seized during the stop and/or to dismiss the infor-
mation filed against him.
¶7 In the first motion, he argued that UHP‘s selective en-
forcement of the traffic laws had impermissibly infringed on his
right to travel and violated his equal protection rights. The court
held oral argument on the motion, and then denied it in a written
order. In the order, the court concluded that Chettero had failed to
prove that the traffic laws had been selectively enforced against
him, noting that a selective enforcement claim requires proof of
both discriminatory effect and discriminatory purpose. The court
found Chettero had shown the former but not the latter, indicat-
ing that he had failed to show an ―improper motivation‖ underly-
ing the stops.
¶8 After the case had been transferred to a different judge,
Chettero filed an additional motion to suppress. This motion—
based on the Fourth Amendment—claimed that Trooper Jensen
had fabricated the basis for the traffic stop. The district court held
oral argument on the motion, and the State advanced two main
pieces of evidence to prove there was an adequate basis for the
stop—testimony by Trooper Jensen and a videotape showing the
actual traffic stop (but not the offense precipitating it).
¶9 Trooper Jensen testified at the hearing that Chettero was
stopped as part of an interdiction exercise. Chettero‘s counsel
asked him whether the ―primary goal‖ of the exercise was to ―in-
terdict marijuana for out-of-state plate vehicles.‖ Jensen respond-
ed, ―[n]o.‖ Chettero‘s counsel then asked him what the purpose of
vember 14-16), the State concedes that he was, and we accordingly
assume that fact.
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STATE v. CHETTERO
Opinion of the Court
the exercise was, to which Jensen responded, ―[m]ake high vol-
ume traffic stops.‖ Chettero‘s counsel queried, ―[h]igh volume of
out-of-state traffic stops?‖ Jensen answered, ―[n]ot specifically out
of state.‖
¶10 Following this exchange, Chettero‘s counsel tried to im-
peach Jensen‘s testimony with statistical evidence showing that
mostly out-of-state plated vehicles had been stopped. The district
judge sustained a relevance objection to the admission of this evi-
dence. Chettero‘s counsel challenged this ruling, indicating that
he would like to submit a supplemental memorandum explaining
how this evidence was relevant. The judge responded that he was
―willing to let [him] have additional time . . . to submit a memo-
randum based upon what‘s happened here today.‖ Ultimately,
after conferring with Chettero, counsel declined this opportunity.
The court then denied the motion to suppress, basing its ruling on
both the ―testimony of . . . officer [Jensen] and reviewing
the videotape.‖
¶11 After both of his motions were denied, Chettero entered a
conditional guilty plea, reserving the right to appeal the issues
raised in his motions. Chettero was then sentenced to a suspended
term of one to fifteen years, and was placed on probation for
eighteen months. He then filed this appeal.
II
¶12 Chettero contends that the district court made two prima-
ry errors in denying his motions to suppress. First, in considering
his equal protection/right to travel motion, Chettero asserts that
the court wrongly concluded that he had not proved discrimina-
tory enforcement of Utah‘s traffic laws. Second, in considering his
Fourth Amendment motion, Chettero insists that the district court
failed to consider relevant statistical evidence. We find both ar-
guments unpersuasive and accordingly affirm.
A
¶13 Chettero‘s first motion to suppress was based on the claim
that it was constitutionally impermissible for the highway patrol
to selectively enforce the traffic laws against those driving cars
bearing out-of-state license plates. Chettero supported this asser-
tion with two related, but distinct, arguments, one based on the
constitutional right to travel, and the other on the Equal Protec-
tion Clause. The district court rejected both arguments after con-
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Opinion of the Court
cluding that Chettero had failed to show that the traffic laws had
been selectively enforced against him at all. We affirm, albeit on
slightly different grounds—that his right to travel and equal pro-
tection claims are meritless, even assuming he proved selective
enforcement of the traffic laws.
1
¶14 We find no basis for a conclusion that the UHP interdiction
violated Chettero‘s constitutional right to travel. The mere asser-
tion of disparate treatment of out-of-state vehicles is insufficient.
For the constitutional right to travel to be implicated, Chettero
would have to establish that such disparate treatment infringed
on his fundamental constitutional rights. And that is a showing he
cannot make.
¶15 Under U.S. Supreme Court precedent, the right to travel is
understood to comprise three components: (1) ―the right to go
from one place to another,‖ by using ―highway facilities and other
instrumentalities of interstate commerce,‖ which ―includ[es] the
right to cross state borders while en route‖; (2) ―the right to be
treated as a welcome visitor rather than an unfriendly alien when
temporarily present in the second State‖; and (3) ―for those travel-
ers who elect to become permanent residents, the right to be treat-
ed like other citizens of that State.‖ See Saenz v. Roe, 526 U.S. 489,
500–01 (1999) (internal quotation marks omitted).
¶16 At oral argument, Chettero‘s counsel clarified that his claim
was rooted solely in the second component of the right to travel.2
2 Counsel‘s waiver of the first component might seem puzzling
at first blush, given that Chettero sought to traverse Utah using its
interstate highways and the traffic stop arguably restricted his
freedom to do so. On reflection, however, the waiver of this com-
ponent seems necessitated by the case law, which limits the reach
of this component to cases involving significant impediments on
the right to freely traverse a state—impediments beyond the mere
threat of a traffic stop for a violation of the traffic laws. See, e.g.,
Edwards v. California, 314 U.S. 160, 174, 177 (1941) (striking down a
law that criminalized bringing an entire class of persons [indi-
gents] into California); see also Maryland State Conference of NAACP
Branches v. Maryland Dep’t of State Police, 72 F. Supp. 2d 560, 568–
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STATE v. CHETTERO
Opinion of the Court
But this second component was not implicated by the traffic stop
in question.
¶17 The second component of the right to travel is rooted in Ar-
ticle IV, Section 2 of the United States Constitution, which entitles
citizens of ―each State‖ to ―all Privileges and Immunities of Citi-
zens in the several states.‖ See Saenz, 526 U.S. at 501 (internal quo-
tation marks omitted). A review of the cases cited in Saenz in sup-
port of this component of the right to travel indicates that it pro-
tects only the rights of non-residents to exercise fundamental eco-
nomic rights (e.g., obtaining employment or commercial licenses)
or to seek important services (such as medical services).3 See id. at
501–02 (citing cases). And even in circumstances involving one of
these substantial rights, the second component of the right to
travel does not foreclose all discrimination against non-residents.
See id. It bars only ―discrimination . . . where there is no substan-
tial reason for the discrimination beyond the mere fact that [indi-
viduals] are citizens of other States.‖ Id. (internal quotation marks
omitted).
¶18 Chettero‘s right to travel claim cannot succeed under these
standards. Here there is no allegation of any withholding of access
to fundamental economic rights or essential services in Utah. Nor
is there any indication of discrimination based on the mere fact of
citizenship in another state. To the extent there was discrimina-
tion, it was based on intelligence that suggested marijuana would
be transported from California (where it was grown) across Utah
on its way east. So any differential treatment was not based on the
―mere fact‖ that Chettero was a citizen of another state, and the
right to travel was not implicated even assuming some form of
discrimination.
69 (D. Md. 1999) (observing that a mere traffic stop probably does
not implicate the first component of the right to travel).
3 This is consistent with the U.S. Supreme Court‘s pronounce-
ment that the Privileges and Immunities Clause applies only to
rights that ―bear[] on the vitality of the Nation as a single entity‖
and are ―sufficiently basic to the livelihood of the Nation.‖ Su-
preme Court of Virginia v. Friedman, 487 U.S. 59, 64 (1988) (internal
quotation marks omitted).
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Opinion of the Court
2
¶19 Chettero‘s parallel claim of selective enforcement of the
traffic laws in violation of the Equal Protection Clause fails on
similar grounds. The charge of discrimination on the basis of driv-
ing an out-of-state vehicle misses a key point: Selective enforce-
ment alone is insufficient to prevail on equal protection grounds,
as most ―targeting‖ is simply not prohibited by the Equal Protec-
tion Clause.
¶20 Classifications are regularly made in the creation and en-
forcement of the law. Most such classifications are permissible,
and thus are subject only to minimal scrutiny under the Equal
Protection Clause (i.e., rational basis review). See State v. Robinson,
2011 UT 30, ¶ 22, 254 P.3d 183 (explaining that ―rational basis‖
scrutiny is applied unless a ―fundamental right or suspect class
[is] at issue‖). Only a handful of classifications are so generally
problematic (and so unlikely reasonable) that they trigger height-
ened scrutiny. Such problematic classifications include race 4 and
gender.5
¶21 Chettero, however, has not alleged that the traffic laws
were selectively enforced on the basis of any judicial-scrutiny-
heightening classification. He asserts only that those driving
Utah-licensed vehicles were treated differently than those driving
vehicles licensed elsewhere. His equal protection claim is thus
subject to mere rational basis review.
¶22 And his equal protection claim fails under this standard.
Rational basis scrutiny requires only that a classification bear
some conceivable relation to a legitimate government purpose or
goal. See L.C. Canyon Partners, L.L.C. v. Salt Lake Cnty., 2011 UT 63,
¶ 12 n.2, 266 P.3d 797 (explaining the wide degree of discretion
4 See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551
U.S. 701, 720 (2007) (―[R]acial classifications are simply too perni-
cious to permit any but the most exact connection between justifi-
cation and classification.‖ (internal quotation marks omitted)).
5 See United States v. Virginia, 518 U.S. 515, 531 (1996) (―Parties
who seek to defend gender-based government action must
demonstrate an ‗exceedingly persuasive justification‘ for that ac-
tion.‖).
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STATE v. CHETTERO
Opinion of the Court
afforded under rational basis review).6 This ―conceivable relation‖
standard does not require documentary evidence or other actual
proof to sustain a classification. See F.C.C. v. Beach Commc’ns, Inc.,
508 U.S. 307, 313–15 (1993) (explaining that classifications ―may be
based on rational speculation unsupported by evidence or empiri-
cal data‖ because classifications ―must be upheld against equal
protection challenge if there is any reasonably conceivable state of
facts that could provide a rational basis for the classification‖). Af-
ter all, ―the law need not be in every respect logically consistent
with its aims to be constitutional. It is enough that there is an evil
at hand for correction, and that it might be thought that‖ the clas-
sification selected is a ―rational way to correct it,‖ even if it ―ex-
act[s] a needless, wasteful requirement.‖ Williamson v. Lee Optical
of Okla., 348 U.S. 483, 487–88 (1955).
¶23 Preventing drug trafficking across a state is at least a legit-
imate goal. See United States v. Place, 462 U.S. 696, 703 (1983)
(―[T]he public has a compelling interest in detecting those who
would traffic in deadly drugs for personal profit.‖ (emphasis add-
ed) (internal quotation marks omitted)). And UHP had every rea-
son to believe that high-volume traffic stops conducted in the
middle of November would help it achieve this goal. After all,
UHP had been in communication with California law enforce-
ment authorities, and these authorities had informed UHP that
because of the marijuana harvest in late October, drug trafficking
from California eastward was most likely to occur during No-
vember. Moreover, it was certainly conceivable that individuals in
cars bearing plates from other states were more likely to be pass-
ing through the state (as opposed to going from Point A to Point B
within the state) and thus were more likely to be transporting
6 See also State v. Robinson, 2011 UT 30, ¶ 24, 254 P.3d 183 (ex-
plaining that classifications are sustained under rational basis re-
view ―if we can reasonably conceive of facts which would justify
the distinctions‖ (internal quotation marks omitted)); Ry. Express
Agency, Inc. v. New York, 336 U.S. 106, 110 (1949) (―It is no re-
quirement of equal protection that all evils of the same genus be
eradicated or none at all.‖); Skinner v. Oklahoma ex rel. Williamson,
316 U.S. 535, 539–40 (1942) (explaining that the Equal Protection
Clause does not require ―abstract symmetry‖ (internal quotation
marks omitted)).
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Opinion of the Court
some of these drugs. And, as noted, mere conceivability that those
driving vehicles licensed outside the state were more likely to be
transporting drugs is all that the Equal Protection Clause de-
mands. We thus reject Chettero‘s contrary assertion that UHP
needed concrete documentary proof to sustain its classification.
¶24 In these circumstances, making high volume traffic stops
focusing on out-of-state licensed vehicles had a conceivable rela-
tion to UHP‘s legitimate goal of intercepting drug traffic across
the state. Chettero‘s equal protection claim accordingly fails as
there is an ample rational basis for any discrimination engaged in
by the state.
B
¶25 Chettero‘s second motion to suppress was rooted in the
Fourth Amendment. In challenging the denial of this motion,
Chettero contends that the district court erred in excluding rele-
vant evidence at the hearing on this motion. The hearing centered
on Chettero‘s assertion that Trooper Jensen had fabricated the ba-
sis for his traffic stop. In support of that charge, Chettero sought
to admit statistical evidence showing that the vast majority of cars
stopped by UHP during the course of the interdiction exercise
bore out-of-state license plates, claiming this statistical evidence
impeached Trooper Jensen‘s credibility because Jensen had alleg-
edly denied that the primary goal of the interdiction exercise was
to target out-of-state individuals.
¶26 We affirm the denial of this motion to suppress. Although
the district court may have misapprehended Chettero‘s argument,
two key considerations convince us that there was either no error
at all or that any error was harmless.7
1
¶27 First, it is not at all clear that the statistical evidence Chet-
tero advanced would have impacted Trooper Jensen‘s credibility,
and Chettero affirmatively waived the opportunity that the dis-
7 See H.U.F. v. W.P.W., 2009 UT 10, ¶ 44, 203 P.3d 943
(―[H]armless error is an error that is sufficiently inconsequential
that there is no reasonable likelihood that it affected the outcome
of the proceedings.‖ (alteration in original) (internal quotation
marks omitted)).
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STATE v. CHETTERO
Opinion of the Court
trict court provided him to show how it might have. After all,
Trooper Jensen never indicated that there was no ongoing inter-
diction campaign at the time of the Chettero stop. Nor did Jensen
ever deny stopping more cars from out of state (which is what the
statistical evidence Chettero advanced would have shown). Ra-
ther, Jensen noted only that the purpose of the exercise was not
―specifically‖ to stop those from out of state.
¶28 In context, Jensen might reasonably have been insisting on-
ly that the subjective purpose of the exercise was to stop those
likely to be carrying drugs (and not generally to stop those from
out of state). And presumably that was the specific purpose of the
interdiction. With this in mind, the statistical evidence Chettero
sought to introduce would not obviously have contradicted
Trooper Jensen‘s testimony or undermined his credibility.8
¶29 And in any event, Chettero‘s counsel waived the express
opportunity afforded by the district court to show that it did. Af-
ter Trooper Jensen‘s testimony, and before the court ruled on
Chettero‘s motion, the court gave him the opportunity to submit
―a memorandum based upon what’s happened here today.‖ Chettero‘s
counsel declined this opportunity after conferring with Chettero.
If Chettero wished to preserve an objection to the trial court‘s fail-
ure to consider the relevant statistical evidence, he should have
availed himself of this opportunity. Submitting the memorandum
would have allowed Chettero to specifically explain just how the
statistical evidence affected Trooper Jensen‘s credibility, based
upon the testimony Jensen actually gave at the hearing. This
8 The dissent claims that Trooper Jensen‘s testimony ―makes
clear that the officer [was] saying under oath that the purpose of
the exercise was to stop everyone, not to focus on out-of-state
plates.‖ Infra ¶ 36. But as the full hearing colloquy reveals, infra
¶ 34, Trooper Jensen never clearly manifested such a purpose.
Trooper Jensen‘s general statement that the purpose of the exer-
cise was to ―[m]ake high-volume traffic stops‖ simply does not
indicate an answer to the more nuanced question of which indi-
viduals would be targeted in making those stops. And when
asked that more nuanced question specifically, Trooper Jensen
never denied that he may have stopped more individuals driving
vehicles licensed outside of Utah. Rather, he merely denied that
doing so was the ―specific[]‖ purpose of the interdiction exercise.
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showing was one that Chettero had not made previously,9 and
that he never made at the suppression hearing itself.
¶30 Rather, at the hearing he did no more than generally assert
that the statistical evidence was relevant to Trooper Jensen‘s cred-
ibility in the abstract, noting that ―the more evidence that there is
that the officer stopped these vehicles and that his mission was to
search these vehicles for marijuana coming from out-of-state that
goes to the officer‘s credibility.‖ But this general assertion was on-
ly true to the extent that Trooper Jensen‘s testimony actually indi-
cated he had some other ―mission‖ at the time of the stop. And for
the reasons already noted, it was less than clear that his testimony
did so. Chettero‘s supplemental brief could have offered such a
showing. His failure to do so forecloses his argument on appeal.
9 Chettero raised a related argument in his earlier memorandum
in support of the motion to suppress. This memorandum had
referenced State v. Lopez, 873 P.2d 1127 (Utah 1994), in asserting
that evidence indicating that a police detention is motivated by
suspicions unrelated to the traffic offense makes an officer‘s
assertion that the offense occurred less credible. But this general
argument was not the same as the specific one that the trial judge
gave Chettero the opportunity to make, and certainly is not a
basis to determine that he did not waive expounding on his
theory regarding Trooper Jensen‘s testimony. Until the
suppression hearing, after all, Chettero did not know what
Trooper Jensen would say about the purpose underlying the
traffic stop. The dissent fails to grasp this point in suggesting that
the initial memorandum was sufficient. Infra ¶ 37. This
memorandum did not (and could not) give the trial court the
opportunity to rule on the specific argument that the statements
made by Trooper Jensen at the suppression hearing were actually
contradicted by the statistics. And it was this specific issue that
the supplemental memorandum would have allowed Chettero to
raise. An initial memorandum that, by the dissent‘s admission,
―speaks in generalities,‖ cannot be said to have specifically
preserved this more nuanced argument. Infra ¶ 37.
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Opinion of the Court
2
¶31 Further, even if the statistical evidence had clearly borne on
Trooper Jensen‘s credibility, the district court‘s ruling denying
Chettero‘s motion to suppress was not based solely on Jensen‘s
testimony. Rather, in ruling on the motion, the district court also
relied in part on the videotape of the stop.10 And although the
videotape did not show the traffic violation leading to the stop, it
did show the actual stop. Apparently, moreover, the videotape
corroborated portions of Trooper Jensen‘s testimony related to the
stop, including the fact that Chettero had crossed the fog line
again as he was being pulled over, straddling it for quite a
distance until his vehicle came to rest at a stop sign at the bottom
of the ramp.11 It also appears to have discredited portions
of Chettero‘s testimony, including his assertion that Trooper
Jensen was a mere half-car-length away when he made the stop.
¶32 Significantly, though, this video was not included in the
record on appeal. And ―[w]hen crucial matters are not included in
the record, the missing portions are presumed to support the ac-
tion of the trial court.‖ State v. Pritchett, 2003 UT 24, ¶ 13, 69 P.3d
1278 (internal quotation marks omitted). Thus, even if it was error
to not consider the statistical evidence, Chettero still cannot show
that this error was prejudicial, given that the judge also based his
ruling on the video evidence, which was not included in the ap-
pellate record.12 Consequently, we conclude that the trial court‘s
10 In particular, the court noted that ―based upon what I have
heard here, based upon the testimony of the officer and reviewing
the videotape, I believe that there‘s probable cause to stop.‖ (Em-
phasis added.)
11 Trooper Jensen‘s testimony had indicated his observation that
―as the vehicle was taking the offramp, [Chettero] crossed the fog
line again and straddled the fog line with the vehicle until coming
to a stop at a stop sign,‖ and that this was something that caused
him ―further concern‖ as the ―vehicle came to a stop.‖
12 The dissent finds fault with this analysis based on its
suggestion that there was ―nothing critical about the video‖
because it did not show the Chettero traffic infraction and was
accordingly ―not relevant to the question of whether the officer
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ACJ NEHRING – COP & DOP
exclusion of the statistical evidence was, at most, harmless error,
and affirm the denial of his second motion to suppress.
———————
ASSOCIATE CHIEF JUSTICE NEHRING, concurring and dissenting
in part:
¶33 I concur in the court‘s equal protection analysis and agree
with the judgment of the court that the traffic stop of Mr. Chettero
did not infringe his right to travel. However, the majority
explains that any discrimination in this case ―was based on
intelligence that suggested marijuana would be transported from
California (where it was grown) across Utah . . . [s]o any
differential treatment was not based on the ‗mere fact‘ that
Chettero was a citizen of another state.‖1 The only information
that animated law enforcement to make the high volume of traffic
stops that included Mr. Chettero was that marijuana could come
from out of state. Had troopers stopped cars based on the mere
had reasonable suspicion to seize Mr. Chettero when he activated
his lights and initiated the stop.‖ Infra ¶ 38. But while it is true
that the video does not show the Chettero infraction—a point
already made clear above, supra ¶ 31—the video is nonetheless
significant. This significance follows from the fact, acknowledged
by the dissent, that Chettero‘s suppression motion was, ―like most
suppression motions, . . . a credibility contest.‖ Infra ¶ 34. The
video evidence bore on the issue of credibility by, apparently,
both corroborating Trooper Jensen‘s account of the stop and
discrediting portions of Chettero‘s account. Supra ¶ 31. But
because this video evidence was not included in the appellate
record, Chettero cannot bear his burden of showing that the
exclusion of the statistical evidence he sought to introduce—
which also bore on credibility—was prejudicial error warranting
reversal. After all, the videotape could have been sufficient to
independently convince the trial court that, in this ―credibility
contest,‖ Jensen was telling the truth and Chettero was not. And
in the absence of its inclusion in the appellate record, we have no
choice but to presume that it supports the trial court‘s conclusion
that Trooper Jensen was the winner of the ―credibility contest,‖
infra ¶ 34, such that the trial court‘s ultimate denial of suppression
was proper.
1 Supra ¶ 18.
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ACJ NEHRING – COP & DOP
fact of bearing foreign license plates, their activities would have
been more suspect. Still, Justice Lee‘s analytic approach, when
examined more closely, actually concedes the ―mere fact‖ point.
The troopers were after drugs. They had received word that the
bounty of the California marijuana harvest was coming this way
and decided to do something about it. During the interdiction
exercise, 95–99 percent of all the cars stopped, and all twenty-
three of the cars stopped by the trooper in question, were from
out of state.2 Whatever else might be said about the trooper‘s
motives, it is safe to say they were not responding to an epidemic
of motorists crossing the fog line. Based on what law enforcement
knew, out-of-state marijuana was transiting Utah, transported in
vehicles bearing out-of-state license plates. A foreign license plate
was not one of several reasons given for stopping cars, it was the
only reason. Was it unconstitutional? No. The stops were
supported by a rational basis and affected lesser interests than
those targeted in right to travel cases.
¶34 I am troubled by the court‘s analysis in Part II.B. and for
the reasons set out below, cannot join it. Mr. Chettero pressed his
Fourth Amendment claim after the court rejected his right to
travel and equal protection arguments. His suppression motion
was heard by a new judge and, like most suppression motions, it
was a credibility contest. The following exchange captures the
flavor of testimony concerning the purpose of the stops.
Q: And wasn‘t the primary goal to interdict
marijuana for out-of-state plate vehicles?
A: No.
Q: What was the purpose of it?
A: Make high volumes traffic stops.
Q: High volumes traffic stops?
A: Yes.
Q: High volumes of out-of-state traffic stops?
A: Not specifically out-of-state.
Q: Do you know what the statistics are? Because we
have it in evidence in this case already for how
2 Supra ¶¶ 4–5.
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many you stopped for out of state people versus
in-state.
MR. BRICKEY: Objection. Irrelevance.
THE COURT: Sustained. That‘s already been
addressed . . . by the court, then ruled on by the court.
MR. D‘ELIA: Oh, absolutely. I‘ll move on. And, again,
I was only getting into the credibility of the officer
and what this officer would say on the stand today
versus what the court did find.
During argument before the district court, Mr. Chettero‘s counsel
again mentioned the statistics, specifically reading from a
memorandum filed with the court before the hearing that cited
State v. Lopez:
[A]n officer‘s subjective suspicions unrelated to the
traffic violation for which he or she stops a defendant
can be used by defense counsel to show that the
officer fabricated the violation. The more evidence
that detention was motivated by police suspicions
unrelated to the traffic offense, the less credible the
officer‘s assertion that the traffic offense occurred.3
The court responded that it is constitutionally acceptable to target
out-of-state cars. The majority acknowledges that the court ―may
have misapprehended Chettero‘s argument,‖4 possibly confusing
it with his right to travel and equal protection arguments.
¶35 The statistical evidence was both relevant and admissible
for impeachment purposes, and the trial court abused its
discretion when it rejected it. The lead opinion asserts that there
―was either no error at all or that any error was harmless‖ in
excluding the evidence because the evidence might not have
impacted Trooper Jensen‘s credibility ―and Chettero affirmatively
waived the opportunity that the district court provided him to
show how it might have.‖5
¶36 First, the majority states that Trooper Jensen was only
suggesting that the purpose of the exercise ―was not ‗specifically‘
3 873 P.2d 1127, 1138–39 (Utah 1994) (citation omitted).
4 Supra ¶ 26.
5 Supra ¶¶ 26–27.
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ACJ NEHRING – COP & DOP
to stop those from out of state.‖6 ―In context,‖ he was only
insisting that the subjective purpose of the exercise was to stop
those carrying drugs, not generally to stop everyone from out of
state.7 But the only suggested method for how to find drugs the
majority mentions is to stop high volumes of cars and to target
cars registered in another state. And the testimony quoted above
makes clear that the officer is saying under oath that the purpose
of the exercise was to stop everyone, not to focus on out-of-state
plates. The statistics would have been relevant to impeach this
remark.
¶37 Next, the majority asserts that Mr. Chettero waived the
argument because, after making it to the court, he conferred with
his attorney and declined to file an additional memorandum. The
memorandum would necessarily have been based on authority
already before the judge, primarily State v. Lopez, after the judge
had made his ruling clear. An argument is preserved if a party
has presented it to the district court in such a way that the court
had an opportunity to rule on it. ―In determining whether the
district court had an opportunity to rule on an issue, a court
considers three factors: (1) whether the issue was raised in a
timely fashion, (2) whether the issue was specifically raised, and
(3) whether supporting evidence or relevant authority was
introduced.‖8 The district court here had an opportunity to rule
on this issue. It was raised in a timely fashion, it was raised
specifically, and it included the same authority Mr. Chettero uses
on appeal. The judge gave Mr. Chettero an opportunity to file a
memorandum that would have made these same arguments and
he declined, possibly in order to save all parties involved time and
resources on a case he already anticipated appealing. Justice Lee
states that the argument in the motion citing Lopez ―was not the
same as the specific [argument] that the trial judge gave Chettero
the opportunity to make‖ because ―[u]ntil the suppression
hearing . . . Chettero did not know what Trooper Jensen would
say about the purpose underlying the traffic stop.‖9 The
memorandum speaks in generalities, but it clearly anticipates that
6 Supra ¶ 27.
7 Supra ¶ 28.
8Winward v. State, 2012 UT 85, ¶ 9, _ P.3d _ (internal quotation
marks omitted).
9 Supra ¶ 29 n.9.
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the officer will fabricate a reason for the stop. And in any event,
counsel coherently made the argument that he repeats on appeal
at the suppression hearing, citing controlling authority, and
received a ruling on it. More should not be required for
preservation.
¶38 Next, the majority opinion states that the court‘s error was
harmless because it also based its decision on a videotape. The
video was not included in the record on appeal and ―[w]hen
crucial matters are not included in the record, the missing
portions are presumed to support the action of the trial court.‖10
But there was nothing critical about the video. Both parties agree
that the video does not start until ―right at the point [the officer]
activate[d] the overheads.‖ The ―driving pattern that [the officer]
described is not on [the] video.‖ The purpose of the suppression
hearing was to determine whether the officer had reasonable
suspicion to initiate the stop. Once the lights were activated, the
detention was initiated. ―[A]ny reasonable driver would
understand a flashing police light to be an order to pull over,
although the Supreme Court has said that such an order would
not give rise to a ‗stop‘ unless the driver submitted to the order or
was physically apprehended.‖11 Here, Mr. Chettero did submit to
10 Supra ¶ 32 (alteration in original) (quoting State v. Pritchett,
2003 UT 24, ¶ 13, 69 P.3d 1278).
11 United States v. Swindle, 407 F.3d 562, 566 (2d Cir. 2005).
Swindle involved a defendant who did not yield, and therefore
was not seized. It begins its analysis by discussing the importance
of reasonable suspicion at initiation: ―While not explicitly
addressing the point from which reasonable suspicion must be
measured, other courts have emphasized that a stop must be
justified at its inception.‖ Id. at 567. The Second Circuit in that
case cites Feathers v. Aey, 319 F.3d 843, 848–49 (6th Cir. 2003) (―The
question is whether, at the moment that they initiated the stop,
the totality of the circumstances provided the officers with the
reasonable suspicion required in order to detain a citizen under
Terry.‖); United States v. Finke, 85 F.3d 1275, 1279 (7th Cir. 1996)
(―Under Terry the stop must be justified at its inception . . . .‖);
United States v. Crain, 33 F.3d 480, 485 (5th Cir. 1994) (―[T]he issue
of whether an investigatory detention or traffic stop complies with
the Fourth Amendment depends [in part] upon . . . whether the
stop was justified at its inception.‖); and United States v. Walker,
933 F.2d 812, 815 (10th Cir. 1991) (in support of the proposition
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the show of authority. The videotape showed what happened
after that: Mr. Chettero pulled over and was apprehended
because the officer smelled the large amount of drugs in his car.
This is not relevant to the question of whether the officer had
reasonable suspicion to seize Mr. Chettero when he activated his
lights and initiated the stop. That the video may have offered
some support to the officer‘s testimony is not enough to render
the error that occurred at the hearing harmless.
¶39 ―An error is harmful if it undermines our confidence in
the verdict; if, minus the error, there is a sufficiently high
likelihood of a different outcome.‖12 When the court must decide
which of two witnesses is telling the truth and has improperly
excluded evidence that goes to credibility, the error is not
harmless. I would reverse the trial court and remand for
additional proceedings concerning the legitimacy of the stop.
———————
that to uphold a Terry stop, a court must determine ―whether the
officer‘s action was justified at its inception‖ (internal quotation
marks omitted)).
12 State v. Arguelles, 2003 UT 1, ¶ 94, 63 P.3d 731 (internal quota-
tion marks omitted).
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