State v. Malloy ( 2021 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2021 UT 3IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Appellee,
v.
ROBERT DENNIS MALLOY,
Appellant.
No. 20190446
Heard September 11, 2020
Filed January 21, 2021
On Certiorari to the Utah Court of Appeals
Third District, Salt Lake County
The Honorable Todd M. Shaughnessy
No. 161903789
Attorneys:
Sean D. Reyes, Att‘y Gen., Jeffrey S. Gray, Asst. Solic. Gen.,
Samuel P. Sutton, Dist. Att‘y, Salt Lake City, for appellee
Andrea J. Garland, Elise C. Lockwood, Salt Lake City,
for appellant
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE,
and JUSTICE PETERSEN joined.
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
¶1 Robert Dennis Malloy was confronted by police officers
while apparently asleep at the wheel of his vehicle at a Salt Lake
City McDonald‘s. The police had been told that a witness had
seen someone driving a pickup truck in a McDonald‘s parking lot
who had fallen asleep at the wheel, hit a light pole, and then
backed away into a parking stall and nodded off again. When the
first police officer arrived, he walked up to the truck, looked
inside, and saw someone (Malloy) slouched forward in the
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Opinion of the Court
driver‘s seat and not moving. The officer then opened the truck
door and saw evidence of drug paraphernalia between Malloy‘s
feet. Follow-up questions and investigation uncovered additional
evidence.
¶2 Malloy was charged with felony DUI and possession of
drugs and drug paraphernalia. He moved to suppress the
evidence on the ground that the officer had effected an
unreasonable search in opening the door of his truck without first
knocking on the window. The district court denied the motion,
concluding that the officer was justified in opening the door in
service of the police officer‘s ―community caretaking‖ concerns.
Malloy entered a conditional guilty plea, reserving the right to
appeal the denial of the motion to suppress.
¶3 The court of appeals affirmed on alternative grounds.
State v. Malloy, 2019 UT App 55, 441 P.3d 756. It held that the
officer was justified in opening the car door incident to a lawful
traffic stop under the standard in State v. James, 2000 UT 80, 13
P.3d 576—a case in which this court noted the settled authority of
the police to direct a driver to ―leave the vehicle‖ during the
course of an investigation incident to such a stop, asserted that
―[c]ausing‖ a car door to be opened is a ―reasonable and practical
means‖ of securing compliance with such an order, and held that
there is no ―functional‖ or constitutionally relevant distinction
between an officer opening a car door and a driver being asked to
do so. Id. ¶¶ 10–13. Because the police had the reasonable
suspicion necessary to temporarily detain Malloy in his vehicle
and ask him to step out of it, the court of appeals cited James for
the proposition that the subsequent search could not be rendered
unreasonable on the ground that the officer had opened the car
door. Malloy, 2019 UT App 55, ¶ 17. And on that basis, the court of
appeals declined to reach the community caretaking
considerations addressed in the district court. Id. ¶ 12.
¶4 Malloy filed a petition for certiorari, which we granted.
Malloy challenges the court of appeals‘ decision on two main
fronts. He first asserts that the analysis in James is unduly
sweeping and has been overtaken by subsequent, binding
authority, such as United States v. Jones, 565 U.S. 400 (2012)
(holding that a physical trespass on a vehicle—in the attachment
of a GPS device—constituted a search under the Fourth
Amendment). And he also contends that the police acted
unreasonably—and not in a manner commensurate with any
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community caretaking concerns—in opening his car door and
thereby effecting a search.
¶5 We agree with Malloy‘s first point as a matter of Fourth
Amendment principles. On reflection, and over time, our
sweeping statements in James have been revealed to be overbroad.
Under Jones and related cases, it can no longer be said that it
makes no constitutional difference whether a police officer opens
a car door or asks a driver to do so. For reasons explained further
below, we repudiate the sweeping language of our opinion in
James and hold that the identity of the door-opener may well
affect the reasonableness of a given police encounter.
¶6 In so stating we are not holding that any and all police
acts of door-opening amount to Fourth Amendment searches—
much less unreasonable searches, or unreasonable searches
triggering the exclusionary rule. In fact, we do not conclude that
the evidence here is subject to exclusion. We affirm the denial of
Malloy‘s motion to suppress under the authority of Davis v. United
States, 564 U.S. 229 (2011). Davis establishes an important
limitation on the exclusionary rule. It holds that evidence secured
in ―objectively reasonable reliance on binding . . . precedent‖ is
not subject to exclusion. Id. at 232.
¶7 We affirm on that narrow basis. While repudiating and
limiting the sweeping language of our opinion in James, we hold
that the police here acted objectively reasonably in reliance on that
precedent. And we thus affirm the denial of the motion to
suppress without reaching the ultimate question of the
reasonableness of the search or seizure in question (as an element
of a traffic stop or an encounter incident to community
caretaking).
I
¶8 In the early hours of a March morning in 2016, Officer
Matthew Overman responded to a report that ―the driver of [a]
truck had fallen asleep and hit‖ a light pole in a McDonald‘s
parking lot in Salt Lake City. Overman received an update on his
way to the scene—an indication that the driver had initially
passed out, then stirred, backed into a parking space, and passed
out again. When he got to the McDonald‘s, Overman saw no
damage to either the truck or the pole. A witness approached
Overman and told him what had happened, and that he was
worried the driver was dead, as ―he looked gray.‖ Overman took
down the witness‘s contact information before approaching the
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Opinion of the Court
truck. As he neared the truck, Overman observed that the driver
was ―kind of slumped, slouched forward‖ over the steering
wheel, and ―appeared to be unconscious.‖
¶9 Without knocking, Officer Overman opened the door of
the truck. The driver (Malloy) immediately turned and looked at
him. Overman observed a drug pipe on the floor of the vehicle
between Malloy‘s feet, which he retrieved as he asked Malloy
―what he was doing and why he was slouched over.‖ The officer
asked Malloy to exit the truck, and as he did, Overman saw a
meth pipe on the driver‘s seat, as well as a plate of pancakes and
sausage on the console between the seats. After being handcuffed
and told to sit on the curb, Malloy told a backup officer who had
arrived that ―he had taken oxycodone for some foot pain.‖ Malloy
then ―failed a series of field sobriety tests‖ and was arrested for
driving under the influence of drugs. ―In a search incident to
arrest, the officers found heroin in Malloy‘s left coat pocket.‖
After obtaining a search warrant, the officers collected a blood
sample, which ultimately tested positive for methamphetamine.
¶10 Malloy was charged with driving under the influence of
drugs, unlawful possession of a controlled substance, and
possession of drug paraphernalia. He moved to suppress the
evidence, asserting that Overman had ―conducted an unlawful
search when he opened the truck door without first knocking on
the window to see if Malloy would respond.‖ The State opposed
the motion, ―arguing that opening the truck door was justified‖
under an emergency aid or community caretaking ―exception[] to
the warrant requirement.‖ The district court denied the motion,
concluding that the search was reasonable as a matter of
emergency aid or community caretaking.
¶11 After entering a conditional plea, Malloy filed an appeal
from the denial of the motion to suppress. On appeal, the State
again argued that opening the door was justified under the
emergency aid exception. The court of appeals affirmed on an
alternative ground. Because Overman could have opened the
door to investigate Malloy‘s condition as part of a lawful traffic
stop, opening the door was not an independent search, but a
factor incidental to a reasonable investigation of the driver. State v.
Malloy, 2019 UT App 55, ¶ 19, 441 P.3d 756 (relying on State v.
James, 2000 UT 80, ¶ 13, 13 P.3d 576).
¶12 Malloy sought to challenge that decision in a petition for
certiorari, which we granted. Our review on certiorari is for
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correctness. State v. Ainsworth, 2017 UT 60, ¶ 13, 423 P.3d 1229(―We review the court of appeals‘ decision for correctness,
without according any deference to its analysis.‖).
II
¶13 Malloy presents two principal challenges to the decision
of the court of appeals. He first contends that the court of appeals
erred in giving controlling effect to our sweeping statement in
State v. James that there is no ―functional‖ or constitutionally
relevant distinction between an officer opening a car door and a
driver being asked to do so. 2000 UT 80, ¶ 13, 13 P.3d 576. Because
in his view the police acted unreasonably—and not in a manner
commensurate with any community caretaking concerns—in
opening his car door and thereby effecting a search, Malloy also
claims that the evidence secured by the police should have been
excluded.1
¶14 We agree with Malloy‘s first point but reject his second.
First, we find the sweeping language of our holding in James to
have been overtaken by subsequent, binding authority—in
particular, the decision in United States v. Jones, 565 U.S. 400 (2012).
In light of cases like Jones, we hold that there may well be a
―functional,‖ constitutionally relevant distinction between an
officer opening a car door and a driver being asked to open it.
Second, we nonetheless affirm the denial of Malloy‘s motion to
suppress under Davis v. United States, 564 U.S. 229 (2011). Davis
holds that the exclusionary rule does not apply to ―searches
conducted in objectively reasonable reliance on binding . . .
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1Malloy also questions the propriety of the decision to affirm
on alternative grounds. He asserts that the basis of the decision
under James is not apparent in the record in light of findings in the
district court that the officer in this case ―opened the door for a
welfare check‖ of the driver, not ―to remove the driver‖ in the
course of a traffic stop. But this objection is rooted in a mistaken
premise. The propriety of a traffic stop is measured objectively.
Whren v. United States, 517 U.S. 806, 813 (1996) (rejecting the
argument that ―the constitutional reasonableness of traffic stops
depends on the actual motivations of the individual officers
involved‖). So it matters not what the officer‘s subjective
motivation may have been. And the findings in the record are
thus no barrier to our decision.
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precedent.‖ Id. at 232. Our James opinion is binding precedent in
our Utah justice system until we set it aside. And we affirm on the
ground that the police were entitled to rely on our precedent and
suppression is thus improper under Davis.2
A
¶15 Our decision in James arose from a traffic stop. A police
officer had responded to a report of reckless driving and engaged
in a lawful traffic stop to investigate the allegedly reckless driver.
State v. James, 2000 UT 80, ¶ 2, 13 P.3d 576. When the officer
approached the truck, he could see there were two people inside it
but could not clearly see what they were doing. Id. ¶¶ 3, 3 n.1.
Concerned for his safety, the officer opened the truck door before
ordering the driver (James) to exit the vehicle. Id. Upon opening
the door, the officer observed a twelve-pack of beer sitting on the
passenger side floor of the vehicle, with one of the cans opened.
Id. ¶ 3. The officer reported that James ―smelled strongly of
alcohol, his face was flaccid, his speech slurred, and his eyes were
droopy and bloodshot.‖ Id. He ―appeared to be unstable, unable
to stand straight.‖ Id. The officer eventually conducted a field
sobriety test, which James failed. Id. ¶ 4. The officer then arrested
James, who was charged ―with driving under the influence and
having an open container of alcohol in his vehicle.‖ Id.
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2 Our analysis and holding are governed and limited by
federal law. That is because Malloy has asserted a claim only
under the Fourth Amendment of the United States Constitution.
He has not invoked or developed an argument under article I,
section 14 of the Utah Constitution. That is his prerogative as a
litigant. But he may be leaving some cards on the table. See State v.
Watts, 750 P.2d 1219, 1221 n.8 (Utah 1988) (noting that our court
had not yet interpreted the search and seizure provision of the
Utah Constitution ―in a manner different from the fourth
amendment to the federal constitution‖ but entertaining ―the
possibility of doing so in some future case‖); JEFFREY S. SUTTON, 51
IMPERFECT SOLUTIONS: STATES AND THE MAKING OF AMERICAN
CONSTITUTIONAL LAW, 7–10 (2018) (analogizing claims to
potentially game-winning free throws at the end of a basketball
game; asserting that it makes no sense for the shooter to take ―just
one shot rather than two to invalidate state or local . . . executive
branch action‖).
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¶16 We upheld the reasonableness of this encounter under the
Fourth Amendment. In so doing we emphasized that the question
presented went only to the ―propriety of opening the driver‘s-side
door of James‘s truck for the purpose of speaking to James and
requesting that he step out of the vehicle.‖ Id. ¶ 11. Because the
record exhibited ample grounds for reasonable suspicion of
James‘s involvement in reckless driving, we concluded that the
police had a right to ―temporarily detain‖ his vehicle ―for the
purpose of conducting a limited investigation of the suspicion.‖
Id. ¶ 10 (citing Whren v. United States, 517 U.S. 806, 810 (1996)). We
also held that the police were ―legally authorized to order James
to step from the cab of his truck‖ under Pennsylvania v. Mimms,
434 U.S. 106, 110–11 (1977). James, 2000 UT 80, ¶ 11. And we
identified the Mimms premise as a logical ground for our
conclusion that there was no ―functional‖ or constitutional basis
for any distinction ―as to who actually opened the door.‖ Id. ¶ 13.
¶17 In James we observed that ―[c]ausing the door to be
opened in some manner was a reasonable and practical means for
obtaining compliance with‖ the police officer‘s ―authority to
lawfully require James to step from the vehicle.‖ Id. (emphasis
added). We then pivoted to the broader conclusion that the
identity of the door-opener ―was an incidental factor‖ in the
encounter. Id. Ultimately, we broadly refused to ―draw
distinctions‖ under the Fourth Amendment based on ―who
actually opened the door‖—a matter we characterized as
―elevat[ing] form over substance.‖ Id. And we upheld the
reasonableness of the officer‘s ―opening of James‘s door‖ as a
permissible element of the investigation of James‘s alleged
reckless driving. Id.
¶18 Our analysis in James was plausibly rooted in the notion
that the rights protected by the Fourth Amendment are defined by
―a person‘s reasonable expectation of privacy,‖ id. ¶ 9 (citing
United States v. Jacobson, 466 U.S. 109, 113 (1984))—a formulation
that traces to a concurring opinion of Justice Harlan in Katz v.
United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). But
the ―reasonable expectation‖ standard has been limited by
subsequent authority. It is now viewed as only one of two
alternative grounds for evaluating the scope of a person‘s Fourth
Amendment rights. A parallel line of precedent has emerged,
most notably in United States v. Jones, in which the Supreme Court
has defined the scope of Fourth Amendment protection by
reference to a ―property-based‖ inquiry that looks to a founding-
era notion of ―common-law trespass.‖ 565 U.S. 400, 405 (2012); see
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Opinion of the Court
also Kyllo v. United States, 533 U.S. 27, 31 (2001) (considering
founding-era principles of common-law trespass in defining the
nature of a Fourth Amendment ―search‖).
¶19 The Jones opinion held that the government effected a
Fourth Amendment search in attaching a GPS device to a vehicle
to monitor its movements. 565 U.S. at 404. It did so on the basis of
an originalist, property-based inquiry. It held that the attachment
of a GPS device would have qualified as a ―trespass‖ on private
property and would have been considered a ―search‖ where the
trespass was aimed at obtaining information.3 Id. at 406, 406 n.3.
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3A trespass without announcement or consent may often have
this effect. It may sometimes be the whole point. See The Office:
Frame Toby (NBC television broadcast Nov. 20, 2008) (Dwight to
the camera: ―I love catching people in the act. That‘s why I always
whip open doors.‖). The facts of this case could be illustrative.
When the officer opened the door to Malloy‘s car he revealed a
drug pipe between his feet. That evidence may not have been
revealed if the officer had knocked on the window, awakened
Malloy, and asked him to open the door.
In so observing, we are by no means establishing a ―knock and
announce‖ rule for traffic stops or community caretaking
encounters. To date, the ―knock and announce‖ rule—informed
by its exceptions—has been limited to dwellings. See Wilson v.
Arkansas, 514 U.S. 927, 931–32 (1995) (noting that the founding-era
common law afforded some significance to ―whether law
enforcement officers announced their presence and authority
prior to entering‖ a dwelling); Hudson v. Michigan, 547 U.S. 586,
589 (2006) (noting exceptions to the ―rule,‖ as where ―there is
‗reason to believe that evidence would likely be destroyed if
advance notice were given‘‖ (citation omitted)). Traffic stops and
community caretaking encounters, moreover, have been governed
by a ―reasonableness‖ requirement that may not lend itself to a
hard-and-fast rule of announcement. See Brigham City, Utah v.
Stuart, 547 U.S. 398, 408 (2006) (noting that an officer acting in a
community caretaking capacity would not need to knock when it
is ―obvious‖ that knocking ―would have been futile‖); State v.
Anderson, 2015 UT 90, ¶ 26, 362 P.3d 1232 (establishing a
reasonableness standard for community caretaking encounters).
We need not and do not parse the reasonableness of the police
encounter at issue here under these standards. We simply clarify
(continued . . .)
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The central holding of Jones is that a ―physical intrusion of a
constitutionally protected area‖—someone‘s ―person[],‖
―house[],‖ ―papers,‖ or ―effects‖ (which includes vehicles)—may
qualify as a search under the Fourth Amendment.4 Id. at 404–07.
¶20 An ―actual trespass‖ alone ―is neither necessary nor
sufficient to establish a constitutional violation.‖ Id. at 408 n.5
(emphasis, citation, and internal quotation marks omitted). But a
physical intrusion amounting to a trespass under the common-
law may amount to a search where it is ―conjoined with . . . an
attempt to find something or to obtain information.‖ Id.¶21 The originalist analysis in Jones overtakes and forecloses
our sweeping holding in James. With the focus shifted from the
vague notion of a reasonable expectation of privacy to a property-
based inquiry into trespass, it can no longer be said that there is
no salient difference between a police officer opening a door and a
vehicle driver doing so. The identity of the door-opener is not
―form over substance.‖ It is the very substance of the notion of a
trespass.
¶22 A trespass is an unconsented physical ―intrusion‖ on a
person‘s property. Such intrusion is effected when a police officer
physically touches or impacts another person‘s property, as with
the attachment of a GPS device to a car, or even ―an officer‘s
momentary reaching into the interior of a vehicle.‖5 There is no
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that an officer‘s physical intrusion on a vehicle can carry
implications not presented by a mere request for compliance by
the driver.
4The originalist inquiry was not established as an exclusive
touchstone in Jones. The Jones opinion preserved the ―reasonable
expectation of privacy‖ standard as an additional, parallel
standard of protection. See United State v. Jones, 565 U.S. 400, 408–
09 (2012). Under Jones, the originalist, common-law trespass
inquiry yields additional protection. ―Situations involving merely
the transmission of electronic signals without trespass . . . remain
subject to‖ the ―reasonable expectation of privacy‖ standard. Id. at
411.
Id. at 410 (citing New York v. Class, 475 U.S. 106, 114–15 (1986),
5
in support of the view that such ―momentary reaching‖ is a
Fourth Amendment search).
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trespass, however, where the intrusion on property is effected
through the consent or invitation of the property owner.6
¶23 This originalist, property-based standard forecloses our
sweeping holding in James. The trespass inquiry may often turn
on whether a physical intrusion was effected with the consent of
the property owner. And that means that it can no longer be said
that the question of who opens a car door in a traffic stop is an
―incidental factor‖ that ―elevate[s] form over substance.‖ James,
2000 UT 80, ¶ 13.
¶24 We thus repudiate the sweeping statement of our holding
in James along these lines. See State v. Silva, 2019 UT 36, ¶ 20, 456
P.3d 718 (noting our obligation to follow binding precedent from
the U.S. Supreme Court, and to repudiate our case law when it
becomes clear that it has become overtaken by it). And we hereby
clarify that the identity of a door-opener may well have
constitutional significance under the Fourth Amendment.
¶25 In so stating we need not and do not hold that a Fourth
Amendment ―search‖ is effected every time a police officer opens
the door of a vehicle. Nor do we decide whether or under what
circumstances any such search would qualify as ―unreasonable.‖
The resolution of these questions is not necessary to our
disposition of this case given our holding in Part II.B. that there is
no basis for exclusion under Davis v. United States, 564 U.S. 229(2011).
¶26 Our holding is accordingly limited. We simply repudiate
our sweeping conclusions in James about the constitutional
insignificance of the identity of the person who causes a car door
to be opened. And we leave for another day the articulation of
additional considerations of relevance to the determination of the
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6See id. at 409 (distinguishing United States v. Knotts, 460 U.S.
276 (1983), and United States v. Karo, 486 U.S. 705 (1984), in which
electronic tracking devices had been implanted in certain
containers on the ground with the ―consent‖ of the original or
prior owner of the container; also citing On Lee v. United States,
343 U.S. 747, 751–52 (1952), for the proposition that there is ―no
search or seizure where an informant, who was wearing a
concealed microphone, was invited into the defendant‘s
business‖).
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constitutional reasonableness of any search effected by an officer
who opens a car door without consent.
B
¶27 Despite repudiating the sweeping standard set forth in
James we nonetheless affirm the denial of Malloy‘s motion to
suppress on the basis of that standard. We do so not because the
James standard is still good law. In light of this opinion, it is not.
¶28 But James stood as controlling precedent at the time of the
traffic stop in question here. And the police thus had an objective,
good-faith basis for the manner and means of their encounter with
Malloy—a basis that forecloses the application of the remedy of
exclusion.
¶29 This follows clearly from Davis v. United States, 564 U.S.
229 (2011). Davis emphasizes that the Fourth Amendment ―says
nothing about suppressing evidence obtained in violation‖ of its
commands. Id. at 236. It notes that the exclusionary rule is ―a
‗prudential‘ doctrine, created by‖ the Supreme Court ―to deter
future Fourth Amendment violations.‖ Id. at 236–37 (citations and
internal quotation marks omitted). And it makes clear that the
exclusionary rule has been limited ―to situations in which‖ the
purpose of deterrence ―is thought most efficaciously served.‖ Id.
at 237 (citation and internal quotation marks omitted). ―For
exclusion to be appropriate‖ under the Davis line of cases, ―the
deterrence benefits of suppression must outweigh its heavy
costs.‖ Id.¶30 Davis notes that ―the deterrence benefits of exclusion
‗var[y] with the culpability of the law enforcement conduct‘ at
issue.‖ Id. at 238 (citation omitted). ―When the police exhibit
‗deliberate,‘ ‗reckless,‘ or ‗grossly negligent‘ disregard for Fourth
Amendment rights, the deterrent value of exclusion is strong and
tends to outweigh the resulting costs.‖ Id. (citation omitted). ―But
when the police act with an objectively ‗reasonable good-faith
belief‘ that their conduct is lawful, or when their conduct involves
only simple, ‗isolated‘ negligence, the ‗deterrence rationale loses
much of its force,‘ and exclusion cannot ‗pay its way.‘‖ Id.(citations and internal quotation marks omitted).
¶31 Over time the Court has ―applied this ‗good-faith‘
exception across a range of cases.‖ Id. It has ―‗never applied‘ the
exclusionary rule to suppress evidence obtained as a result of
nonculpable, innocent police conduct.‖ Id. at 240. And in Davis,
the Court specifically declined to condone the remedy of
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exclusion where the search under review was performed in
reliance on ―binding appellate precedent.‖ Id. at 241. Law
enforcement officers are expected to ―take care to learn ‗what is
required of them‘ under Fourth Amendment precedent‖ and to
―conform their conduct to these rules.‖ Id. (citation omitted).
―[W]hen binding appellate precedent specifically authorizes a
particular police practice, well-trained officers‖ can be expected to
use the authorized ―tool to fulfill their crime-detection and public
safety responsibilities.‖ Id. ―An officer who conducts a search in
reliance on binding appellate precedent does no more than ‗ac[t]
as a reasonable officer would and should act‘ under the
circumstances.‖ Id. (alteration in original) (citation and internal
quotation marks omitted). And under Davis, there is thus no basis
for ―the harsh sanction of exclusion‖ in that event. Id.¶32 We affirm on this basis. Our James decision was binding
appellate precedent on the day when the police confronted Malloy
at McDonald‘s. The police acted in good-faith, reasonable reliance
on that precedent when they opened the door of his car as an
incident of their investigation of reports of his erratic driving. And
that good-faith basis forecloses the applicability of the
exclusionary rule.
III
¶33 Despite what we said in James, it is now clear that there
can be a constitutional difference between a police officer‘s act of
opening a car door and that same officer‘s request that a driver do
so. Our broad holding to the contrary in James was good law at the
time of the search at issue here, however, and we affirm on the
ground that the exclusionary rule does not apply where law
enforcement relied reasonably on then-existing precedent.
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