State v. Rowan, George

This opinion is subject to revision before final
publication in the Pacific Reporter
2017 UT 88
IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Appellant,
v.
MICHAEL ROWAN and REBECCA GEORGE,
Appellees.
No(s). 20150598, 20150599
Filed December 1, 2017
On Direct Appeal
Fourth District, Provo
The Honorable Derek P. Pullan
No(s). 131402290, 131402291
Attorneys:
Sean D. Reyes, Att’y Gen.,
Jeffrey S. Gray, Asst. Solic. Gen., Salt Lake City,
for appellant
Richard P. Gale, Provo, for appellee Michael Rowan
Douglas J. Thompson, Provo, for appellee Rebecca George
Paul G. Cassell, Salt Lake City, James M. Swink, Logan,
for amici Utah Council on Victims of Crime
CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
JUSTICE DURHAM, and JUSTICE HIMONAS joined.
JUSTICE HIMONAS filed a concurring opinion, in which
CHIEF JUSTICE DURRANT and JUSTICE DURHAM joined.
ASSOCIATE CHIEF JUSTICE LEE filed an opinion concurring in the
result, in which JUSTICE PEARCE joined.
_____________________________________________________________

Justice Durham sat on this case and voted prior to her retirement
on November 15, 2017.
STATE v. ROWAN and GEORGE
Opinion of the Court
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶ 1 In this case we consider a magistrate’s determination of
probable cause supporting a search warrant. A confidential
informant (CI) told a police officer that he had bought marijuana
from a man he knew only as “Mike” in Mike’s house. In exchange
for leniency on pending criminal charges, the CI agreed to make a
controlled buy. After the CI completed the controlled buy, the officer
submitted an affidavit to establish probable cause for a warrant to
search Mike’s house. The warrant was signed by a magistrate and
executed by police. Mike’s house was occupied by defendants
Michael Rowan and Rebecca George. The police found drugs, drug
paraphernalia, buy-owe sheets, firearms, and a large amount of cash.
¶ 2 Mr. Rowan and Ms. George moved under the state and
federal constitutions to suppress the result of the search, challenging
the magistrate’s probable cause determination. The district court
found that there was no probable cause, but it also determined that
the federal good faith exception to the exclusionary rule applied.
Defendants moved again to suppress the evidence, this time arguing
that it should be excluded under article I, section 14 of the Utah
Constitution. The court suppressed the evidence under the state
constitution, concluding that the state constitution contains an
exclusionary rule, but does not include a good faith exception. The
State dismissed the charges due to lack of evidence and appealed.
¶ 3 On appeal, we are asked to consider (1) whether there was a
substantial basis for the magistrate’s probable cause determination;
(2) whether this court recognized an exclusionary rule under article
I, section 14 of the Utah Constitution in State v. Thompson1 and State
v. Larocco;2 and (3) if we did recognize an exclusionary rule under the
Utah Constitution, whether there should be a good faith exception.
Because we conclude that there was a substantial basis for the
magistrate’s probable cause determination and that therefore the
evidence should not have been suppressed, we do not reach the
questions of whether we have recognized an exclusionary rule under
article I, section 14 of the Utah Constitution or whether there should
_____________________________________________________________
1 810 P.2d 415 (Utah 1991).
2 794 P.2d 460 (Utah 1990) (plurality opinion).
2
Cite as: 2017 UT 88
Opinion of the Court
be a good faith exception to such a rule. We therefore reverse the
district court.
Background
¶ 4 A confidential informant (CI) reported to a Springville City
police officer that a man whom the CI knew only as “Mike” was in
possession of marijuana and would sell it to the CI. The CI told the
officer that he had been in Mike’s home and purchased drugs from
Mike before. The CI also told the officer that Mike sold marijuana in
bulk and “his product [was] vacuum sealed”; that Mike traveled to
California to obtain marijuana to sell in Utah; that Mike kept the
marijuana inside his house, although the CI did not know where;
that Mike was a master of martial arts; and that the CI had heard
Mike talking about firearms and he believed Mike had a firearm in
the house.
¶ 5 The police officer tried to determine Mike’s identity, but
record checks on the residence, registration checks on vehicles, and
inquiries to other agencies were unsuccessful. He then proposed that
the CI assist in a controlled buy of marijuana from Mike, in exchange
for leniency on the CI’s pending criminal charges. The CI agreed to
participate.
¶ 6 Before the controlled buy, police searched the CI and found
no illegal items. Then, in the presence of the police, the CI called
Mike and arranged to buy a specific amount of marijuana for a
specific amount of money. After receiving the money for the buy
from the police, the CI drove in his own car to Mike’s residence. The
police did not search the CI’s car, but kept the car and the CI in
“visual sight at all times.” The CI drove directly to Mike’s house and
went inside.
¶ 7 After a short time had passed, the CI left the residence and
drove to a predetermined location to meet with the affiant police
officer. The CI reported that after he entered Mike’s house, he used
the money given to him by the police to buy marijuana from Mike.
The police searched the CI and found the agreed-upon amount of
marijuana.
¶ 8 The police officer prepared an affidavit, which presented
both the information about “Mike” conveyed to him by the CI and
the details of the controlled buy. Relying on the police officer’s
affidavit, a magistrate issued a warrant authorizing the search of a
Provo residence, the home of defendants Michael Rowan and
Rebecca George.
3
STATE v. ROWAN and GEORGE
Opinion of the Court
¶ 9 After securing the warrant, police searched the defendants’
home and found over four pounds of marijuana, psilocybin
mushrooms, drug paraphernalia, buy-owe sheets, more than $3,600
in cash, an assault rifle, and a handgun. The drugs and related
paraphernalia were found throughout the home and were easily
accessible to the defendants’ minor child, who was living in the
home and present when the police entered the home.
¶ 10 Mr. Rowan was charged with (1) distributing marijuana in a
drug-free zone, a second degree felony; (2) possessing marijuana
with intent to distribute in a drug-free zone while having a prior
drug-related conviction, a first degree felony; (3) possessing or using
psilocybin mushrooms in a drug-free zone while having a prior
drug-related conviction, a first degree felony; (4) possessing a
firearm as a restricted person, a third degree felony; (5) possessing
drug paraphernalia in a drug-free zone, a class A misdemeanor; and
(6) endangering a child, a third degree felony. Ms. George was
charged with endangering a child, a third degree felony.
¶ 11 At the district court, Defendants argued under the Fourth
Amendment that the warrant was not supported by probable cause
and moved to suppress the evidence seized in the search of their
home. In response, the State argued that the magistrate had a
substantial basis for finding probable cause, but even if he did not,
that the evidence should not be suppressed under the federal good
faith exception, which allows for admission of evidence when police
reasonably rely on a magistrate’s incorrect finding of probable cause.
The district court concluded that the magistrate incorrectly
determined that the warrant was supported by probable cause, but
the court applied the federal good faith exception and did not
suppress the evidence.
¶ 12 Defendants filed a “motion to address [the] good faith
exception under [the] Utah Constitution,” arguing that the federal
good faith exception “is prohibited by the Utah State Constitution.”
The State argued in response that there is no basis for an
exclusionary rule under the Utah Constitution and, even if there
were, a state exclusionary rule should include a good faith exception
analogous to the federal exception. Relying on this court’s decision
in State v. Thompson,3 the district court concluded that a state
exclusionary rule is required under the state constitution, but that
“there is no good faith exception to the exclusionary rule under
_____________________________________________________________
3 810 P.2d 415 (Utah 1991).
4
Cite as: 2017 UT 88
Opinion of the Court
article I, section 14” of the Utah Constitution. The court granted
Defendants’ motion to suppress the evidence seized in the search of
their home.
¶ 13 On the State’s motion, the district court dismissed the
charges against Defendants on the ground that the suppression of
evidence substantially impaired the State’s cases. The State timely
appealed both cases. This court has jurisdiction to hear this appeal
pursuant to Utah Code section 78A-3-102(3)(i) in Mr. Rowan’s case
and Utah Code section 78A-3-102(3)(b) in Ms. George’s case.4
Standard of Review
¶ 14 We review a district court’s assessment of a magistrate’s
probable cause determination for correctness and ask whether the
court erred in concluding that the magistrate did not have a
substantial basis for a determination of probable cause.5
_____________________________________________________________
4 After we elected to retain Mr. Rowan’s case, the court of appeals
certified Ms. George’s case for transfer to this court.
5 See State v. Walker, 2011 UT 53, ¶ 12, 267 P.3d 210.
Defendants argue that there should be a different, potentially
more stringent, standard of review in probable cause cases under the
Utah Constitution. They argue that there is a lower standard of
review in warrant cases under the federal constitution and that this
court should “implement[] a Utah standard of review that requires
warrants to be supported by probable cause, period.” They articulate
their suggested standard of review as “this [c]ourt’s traditional
mixed question standard, reviewing factual findings for clear error
and the existence of probable cause for correctness.”
Defendants did not present this question to the district court. The
district court performed an appellate function when it reviewed the
magistrate’s determination of probable cause. This review would
have necessarily involved an opportunity for the parties to present
argument on the standard of review to be applied by the district
court. Defendants presented no legal arguments to that court
regarding the applicable legal standard under which it should
conduct that review. Defendants’ first motion to suppress mentioned
the state constitution only in passing and relied on cases that do not
distinguish between the state and federal standards. The district
court did not address Defendants’ state constitutional claims until its
order on Defendants’ second motion to suppress, which addressed
only the exclusionary rule and good faith exception under article I,
(Continued)
5
STATE v. ROWAN and GEORGE
Opinion of the Court
Analysis
¶ 15 The State argues that the magistrate had a substantial basis
for finding probable cause and that the district court did not afford
the magistrate’s probable cause determination “great deference,” but
“reviewed the probable cause affidavit de novo.” Defendants argue
that the district court correctly concluded that the affidavit did not
establish a substantial basis for probable cause, pointing to the
court’s consideration of the “CI’s lack of credibility, the officer’s
failure to corroborate any of [the CI’s] claims, and the complete lack
of control over the buy.” We agree with the State that the district
court did not give the magistrate appropriate deference and that the
affidavit provided a substantial basis for the magistrate’s
determination of probable cause.
¶ 16 “Where a search warrant supported by an affidavit is
challenged as having been issued without an adequate showing of
probable cause, our review focuses on the magistrate’s probable
cause determination.”6 “We afford the magistrate’s decision ‘great
deference’ and consider the affidavit relied upon by the magistrate
‘in its entirety and in a common[]sense fashion.’”7 This court has
“consistently employed” the totality of the circumstances analysis set
forth by the United States Supreme Court in Illinois v. Gates to
evaluate probable cause:8
The task of the issuing magistrate is simply to make a
practical, common-sense decision whether, given all
the circumstances set forth in the affidavit before him,
including the “veracity” and “basis of knowledge” of
persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will
be found in a particular place.9
section 14. The question of the standard of review under which
reviewing courts assess a magistrate’s determination of probable
cause is therefore unpreserved, and we decline to reach it. See
Winward v. State, 2012 UT 85, ¶ 9, 293 P.3d 259.
6 State v. Norris, 2001 UT 104, ¶ 14, 48 P.3d 872.
7 Id. (alteration in original) (citation omitted).
8 State v. Saddler, 2004 UT 105, ¶ 11, 104 P.3d 1265.
9 Illinois v. Gates, 462 U.S. 213, 238 (1983).
6
Cite as: 2017 UT 88
Opinion of the Court
“[A]n informant’s ‘reliability’ and ‘basis of knowledge’ are but two
relevant considerations, among others, in determining the existence
of probable cause under ‘a totality-of-the-circumstances.’”10 “The
indicia of veracity, reliability, and basis of knowledge are
nonexclusive elements to be evaluated in reaching the practical,
common-sense decision whether, given all the circumstances, there
is a fair probability that the contraband will be found in the place
described.”11
¶ 17 “[W]hen a search warrant is issued on the basis of an
affidavit, that affidavit must contain specific facts sufficient to
support a determination by a neutral magistrate that probable cause
exists.”12 Probable cause cannot “be made out by affidavits which are
purely conclusory, stating only the affiant’s or an informer’s belief
that probable cause exists without detailing any of the ‘underlying
circumstances’ upon which that belief is based.”13 But “where
[underlying] circumstances are detailed, where reason for crediting
the source of the information is given, and when a magistrate has
found probable cause, the courts should not invalidate the warrant
by interpreting the affidavit in a hypertechnical, rather than a
commonsense, manner.”14 In determining whether an affidavit
demonstrates the existence of probable cause, “the resolution of
doubtful or marginal cases in this area should be largely determined
by the preference to be accorded to warrants.”15
¶ 18 In this case, the district court did not afford the magistrate
“great deference” and instead read the affidavit “in a hypertechnical,
rather than commonsense, manner.” The court began by finding that
the buy was not controlled, because police failed to search the CI’s
car before and after the buy. Based on this finding, the court
concluded that the police had failed to corroborate the CI’s
information. This in turn negated the CI’s personal knowledge of
_____________________________________________________________
10State v. Hansen, 732 P.2d 127, 130 (Utah 1987) (quoting Gates,
462 U.S. at 233–34).
11 Id.
12 State v. Babbell, 770 P.2d 987, 990 (Utah 1989).
13United States v. Ventresca, 380 U.S. 102, 108–09 (1965) (citation
omitted).
14 Id. at 109.
15 Id.
7
STATE v. ROWAN and GEORGE
Opinion of the Court
Mike and his implication of himself in criminal activity, as the court
reasoned, “these factors standing alone—without independent
corroboration—cannot in this Court’s view give rise [to] a finding of
probable cause.” Accordingly, the district court concluded that the
affidavit did not establish probable cause.
¶ 19 We disagree. When considered “in its entirety and in a
common sense fashion,”16 the affidavit is sufficient to support the
magistrate’s determination of probable cause that contraband would
be found at Mike’s house. The affidavit was not conclusory, but
contained specific facts, detailing both the underlying circumstances
and the affiant officer’s reasons for crediting the CI’s information.
The underlying circumstances included the following: the affiant
officer had met the CI within 72 hours of preparing the affidavit; the
CI had told the officer that an individual known to the CI as Mike
sold marijuana in bulk and “his product [was] vacuum sealed”; Mike
traveled to California to obtain marijuana to sell in Utah; Mike kept
the marijuana inside his house, although the CI did not know where;
the CI had heard Mike talking about firearms and he believed Mike
had a firearm in the house; Mike was a master of martial arts; and
Mike lived with his girlfriend and their minor child. The officer
credited the information given to him by the CI for these reasons: the
CI had “made drug purchases” from Mike; the CI was “familiar with
drug distribution and drug practices”; and the CI would receive
leniency for pending charges for participating in the controlled buy.
The affiant officer further concluded that by implicating himself in
criminal activity, the CI bolstered his reliability.17
¶ 20 The affidavit also detailed the affiant officer’s attempts to
corroborate the CI’s information by checking records, vehicle
registrations, and requesting information from other agencies. When
those attempts to corroborate proved fruitless, the officer arranged
the controlled buy to corroborate the CI’s information. And although
_____________________________________________________________
16 Saddler, 2004 UT 105, ¶ 7 (citation omitted).
17 See id. ¶ 18 (citing United States v. Harris, 403 U.S. 573, 583 (1971)
(“Admissions of crime . . . carry their own indicia of credibility—
sufficient at least to support a finding of probable cause to
search.”)(alteration in original)).
8
Cite as: 2017 UT 88
Himonas, J., concurring
the controlled buy may not have been perfectly executed,18 police
sufficiently controlled the buy through the following measures: the
police searched the CI before the buy; they supervised the CI’s call to
Mike; the CI arranged to purchase a specific amount of marijuana for
a specific amount of money at Mike’s residence; the police gave the
CI the agreed upon amount of money; the CI drove his own car to
Mike’s residence, but police followed him, maintaining “visual sight
at all times”; the CI entered Mike’s residence and was shortly seen
leaving Mike’s residence; the police again followed the CI as he
drove his own car; the CI drove to a prearranged location to meet
with the affiant officer; the CI had the agreed-upon distributable
amount of marijuana in his possession; and the police again searched
the CI, finding no additional illegal items. Even if under best
practices the police should have searched the car before and after the
controlled buy, this does not negate the magistrate’s finding of
probable cause. The totality of the circumstances, as presented in the
affidavit, was sufficient to give rise to probable cause.
Conclusion
¶ 21 We conclude that the magistrate had a substantial basis to
determine there was probable cause based on the affidavit’s
description of the information the CI reported to the police and the
results of the controlled buy. The judgment of the district court is
reversed.
JUSTICE HIMONAS, concurring:
INTRODUCTION
¶22 I concur in full in Chief Justice Durrant’s excellent opinion. I
write separately only to explain my decision to decide this case on
_____________________________________________________________
18 See United States v. Artez, 389 F.3d 1106, 1111–12 (10th Cir. 2004)
(stating that the “common formalities observed by police officers
when conducting . . . controlled purchases are as follows: the police
search the informant (and his vehicle, if appropriate) for money and
contraband prior to the buy; give the informant money with which
to purchase the narcotics; transport the informant to the suspect
residence (or follow the informant to the residence); watch the
informant enter the suspect residence, disappear while inside the
suspect residence, and emerge from the suspect residence; search the
informant upon exiting the suspect residence; and receive the
narcotics from the informant” (footnote omitted)).
9
STATE v. ROWAN and GEORGE
Himonas, J., concurring
settled principles and to avoid unnecessarily roiling constitutional
waters. In my opinion, “[b]efore embarking on a review of the
constitutional principles underlying . . . [the state exclusionary rule],
proper concern for stare decisis joins with our long-standing policy of
avoiding unnecessary constitutional decisions to counsel that a
decision on the continuing vitality of . . .[the state exclusionary rule]
be avoided unless it is really necessary.” Elkins v. Moreno, 435 U.S.
647, 660–61 (1978). So while I respect Associate Chief Justice Lee’s
right “to articulate an alternative ground for reversal,” I believe the
majority is right to decline to revisit today our precedents
recognizing that the Utah Constitution embodies the suppression
remedy for unlawful searches and seizures. Infra ¶ 36; see State v.
Larocco, 794 P.2d 460 (Utah 1990).
ANALYSIS
¶23 The Associate Chief Justice rightly notes that we have the
“discretion to decide any and all issues presented for review,”
including, in this case, the viability of the state exclusionary rule.
Infra ¶ 59. But having discretion is not the same as prudently
exercising it. For this reason, we have said time after time that “when
possible, we [will] decline to address issues beyond the narrowest
applicable grounds.” Alliant Techsystems, Inc. v. Salt Lake Bd. of
Equalization, 2012 UT 4, ¶ 27 n.41, 270 P.3d 441. Here, a confluence of
prudential considerations—stare decisis, constitutional avoidance,
judicial restraint, and long-standing custom—argue against
revisiting the state exclusionary rule.
¶24 As a general rule, our court declines to revisit established
precedent unnecessarily. See State v. Levya, 951 P.2d 738, 743 (Utah
1997) (“[W]e decline to disrupt established precedent
unnecessarily . . .”). This principle is deeply rooted in the rule of
law. The refusal to unnecessarily reconsider our precedents “forges
certainty, stability, and predictability in the law. It also reinforces
confidence in judicial integrity and lays a foundation of order upon
which individuals and organizations in our society can conduct
themselves.” State v. Shoulderblade, 905 P.2d 289, 292 (Utah 1995). It
flows directly from a commitment to judicial restraint. See McGhee v.
Commonwealth, 701 S.E.2d 58, 61 n.4 (Va. 2010) (“[F]aithful adherence
to the doctrine of judicial restraint warrants decision of cases ‘on the
best and narrowest grounds available’.” (quoting Air Courier
Conference v. Am. Postal Workers Union, 498 U.S. 517, 531 (1991)
(Stevens, J., concurring))).
¶25 The principle applies with particular force when the
established precedent at issue has constitutional dimensions.
10
Cite as: 2017 UT 88
Himonas, J., concurring
“[C]onstitutional adjudication” is of “paramount importance . . . in
our system.” Rescue Army v. Mun. Court of L.A., 331 U.S. 549, 571
(1947). In light of the “great gravity and delicacy” of constitutional
questions, as Justice Brandeis put it in his famous concurrence in
Ashwander v. Tennessee Valley Authority, “[t]he Court will not pass
upon a constitutional question although properly presented by the
record, if there is also present some other ground upon which the
case may be disposed of.” 297 U.S. 288, 346–47 (1936). Additionally,
because of the paramount importance of constitutional adjudication,
we assume that when our court has previously adjudicated a
constitutional issue, it has not rushed headlong to reach the
constitutional question, but has, instead, acted with the utmost care.
Cf. W. Va. ex rel. Rist v. Underwood, 524 S.E.2d 179, 182 (W. Va. 1999)
(“Any examination of our Constitution—the organic law of our
State—must proceed with utmost care and concern for the future
impact of our decision.”). We expect future courts will, in turn,
presume this of us. And so we pay it forward; an appropriate respect
for past courts—which, carried through time, is the thread that holds
it all together—requires us to revisit our constitutional precedents
cautiously and only when we must. See Shoulderblade, 905 P.2d at 292
(“Stare decisis . . . . reinforces confidence in judicial integrity . . . .”);
see also Levya, 951 P.2d at 743.
¶26 The Associate Chief Justice disagrees. In his view, even
when a case can be decided on narrower grounds, there is little
reason to avoid revisiting constitutional questions made by past
iterations of this court—at least where doing so will
“[de]constitutionaliz[e] a remedy.” Infra ¶ 54. This is because, in the
Associate Chief Justice’s view, constitutional restraint—what he calls
“constitutional avoidance”—is premised on concern about insulating
“constitutional decision[s] . . . from review or reconsideration by the
political branches of our government.” Infra ¶ 57. Put another way,
the Associate Chief Justice largely conceives of constitutional
avoidance as what we might call “the presumption against
recognizing constitutional rights.” In his view, courts should avoid
taking up constitutional questions only if they think those questions
might result in the extension or entrenchment of constitutional
rights. But they should not let norms of constitutional avoidance—or
restraint—stand in their way if they are tempted to walk back (or not
recognize) constitutional rights.
¶27 I disagree. The Associate Chief Justice is surely right that
one consideration underlying constitutional avoidance is that, when
we take up a constitutional question, we will potentially interfere
with the elected branches’ policymaking power. But this is not the
11
STATE v. ROWAN and GEORGE
Himonas, J., concurring
sole value underlying our reluctance to revisit constitutional issues.
We have already reviewed many of these considerations: respect for
the wisdom of prior courts (especially when those courts have
undertaken the awesome responsibility of interpreting our
constitution), a commitment to stability, and judicial restraint. Yet
another consideration is simple humility: hard problems call for
percolation. Absent an extended process of reflection and analysis,
our decision may well “be the product of initial inadvertence made
difficult to dislodge by precedents based upon the initial
inadvertence.” Hinkle v. Alexander, 411 P.2d 829, 830 (Or. 1966)
(Denecke, J., specially concurring). As Justice Brandeis noted in
Ashwander, aside from “[c]onsiderations of propriety,” “long-
established practice” militates against “passing upon the
constitutionality of an act . . . unless obliged to do so.” Ashwander,
297 U.S. at 341 (Brandeis, J., concurring) (internal quotation marks
omitted). This is yet another reason to avoid revisiting our
constitutional precedents unless necessary. When a practice of
restraint is durable—when it has survived several turns of the
wheel—a wise humility counsels against discarding it.
¶28 The Associate Chief Justice accepts much of my framework
for the exercise of judicial restraint. Infra ¶¶ 57–58. But he thinks
Larocco and Thompson’s recognition of a state exclusionary rule was
such an egregious misstep that this is the rare case in which we
should revisit our precedent notwithstanding the fact that this case
presents an uncontroversial alternative basis for decision. In the
Associate Chief Justice’s view, open questions about the scope of the
state exclusionary rule are “fostering uncertainty and litigation in the
lower courts” to such a degree that we should reach out and
repudiate our precedents unnecessarily. Infra ¶ 64.
¶29 The Associate Chief Justice’s position collapses on itself. If
the state exclusionary rule really does present that rare case where
there is such a pressing need to revise our doctrine that we ought to
bypass a clear, narrow, alternative basis for decision to reach it, then
there will surely come a case soon that we will have to resolve on
state exclusionary grounds. And that will present the proper
occasion for reconsidering our precedent. And if that case doesn’t
come before us soon? Then that is strong reason to think that the
Associate Chief Justice’s urgent workability concerns are overblown.
¶30 Finally, consider what would happen if we did reach out
and repudiate the state exclusionary rule here. If we were to
repudiate the state exclusionary rule, we would create a policy void:
a void that would have to be filled by our courts’ exercising their
common law authority unless and until the legislature chose to
12
Cite as: 2017 UT 88
Himonas, J., concurring
intervene. Thus, absent quick and comprehensive legislative
intervention, we would, at best, be exactly where we were before we
rejected the state exclusionary rule. And litigants (and the police)
might be in an even worse position from the perspective of
predictability: uncertain of both the nature of the remedy for search-
and-seizure violations (suppression, monetary damages, something
else?) and the applicability of any exceptions.
¶31 In my view, prudence, practice, and humility all argue
against revisiting our constitutional precedents unnecessarily. The
Associate Chief Justice is certainly right that revisiting those
precedents would promote one interest here—freeing up space for
policymaking by the elected branches. But it would do so at the cost
of judicial norms and judicial humility. Therefore, I believe it would
be imprudent for us to reach the constitutional question in this case.
The state exclusionary rule was first recognized over twenty-five
years ago in State v. Larocco, 794 P.2d 460 (Utah 1990), and it was then
reaffirmed, a year later, in State v. Thompson, 810 P.2d 415 (Utah
1991).19 Until such time as the continued viability of that rule is
_____________________________________________________________
19 The Associate Chief Justice claims that Larocco and Thompson
rest on shaky ground because Larocco was a plurality and Thompson,
though a majority, blindly adhered to Larocco without recognizing
that Larocco was not binding precedent. See State v. Walker, 2011 UT
53, ¶ 39, 267 P.3d 210 (Lee, J., concurring) (arguing that Larocco was a
“plurality” and that “a majority in Thompson casually embraced the
Larocco plurality position as the law of this state”); see also infra ¶ 73
(characterizing Larocco as a “plurality”). This contention does not
withstand review. Thompson was issued less than a year after Larocco,
and it was authored by one of Larocco’s dissenters. But more than
that, in Sims v. Collection Division of the Utah State Tax Commission,
one of the dissenters in Larocco went out of his way to acknowledge
that “[t]he state exclusionary rule came into existence on the vote of
a majority of this court in State v. Larocco, 794 P.2d 460 (Utah 1990),”
and that the dissent disagreed only with “the application of the rule
to the facts of that case.” 841 P.2d 6, 16 (Utah 1992) (Howe, A.C.J.,
dissenting).
13
STATE v. ROWAN and GEORGE
Lee, A.C.J., concurring in the result
squarely before us, we should respect our precedent and decline to
revise it unnecessarily. Because stare decisis is “a cornerstone of
Anglo-American jurisprudence that is crucial to the predictability of
law and the fairness of adjudication,” State v. Thurman, 846 P.2d
1256, 1269 (Utah 1993), “we do not overrule our precedents lightly,”
State v. Guard, 2015 UT 96, ¶ 33, 371 P.3d 1 (internal quotation marks
omitted). We should not do so here.
CONCLUSION
¶32 There may well come a time and a case that calls upon us to
evaluate our precedents on the state exclusionary rule. But that time
and case should arise organically and within established norms.
And, in my view, proper respect for the principles underlying
judicial restraint, constitutional avoidance, and stare decisis tells us
that today is not the time and this is not the case.
ASSOCIATE CHIEF JUSTICE LEE, concurring in the result:
¶33 The majority reverses the district court’s decision
suppressing evidence secured under a search warrant signed by a
magistrate and executed by the police. It does so on the ground that
there was a substantial basis for the magistrate’s determination that
there was probable cause for issuance of the warrant in question.
And for that reason the court stops short of reaching broader
constitutional questions presented by this case.
¶34 I concur in the majority opinion. I am persuaded by the
Chief Justice’s analysis of the grounds for finding probable cause
sufficient to justify the issuance of the warrant in this case. See supra
¶¶ 18–20.
¶35 I write separately, however, to articulate an alternative
ground for reversal. That ground was briefed by the parties and
squarely presented for our decision. It concerns the appropriate
remedy for a violation of the search and seizure provision of the
Utah Constitution—by way of an exclusionary rule or some other
remedy.
¶36 The majority is right to say that its decision on the probable
cause issue makes it unnecessary for us to reach the question of the
proper remedy for an unconstitutional search. But appellate courts
retain the discretion to reach alternative grounds for decision. And I
would reach this question here for reasons set forth in part in my
opinion in State v. Walker, 2011 UT 53, ¶¶ 27–69, 267 P.3d 210 (Lee, J.,
concurring), and elaborated further below.
14
Cite as: 2017 UT 88
Lee, A.C.J., concurring in the result
¶37 I would hold that article I, section 14 of the Utah
Constitution does not require the imposition of an exclusionary
remedy for a violation of this provision. Instead I would conclude
that this clause does not speak to the required remedy, but leaves
that matter to be resolved and adapted by policymaking branches of
government over time. In so doing I would repudiate the reasoning
contained in our contrary precedents, such as State v. Larocco, 794
P.2d 460 (Utah 1990), and State v. Thompson, 810 P.2d 415 (Utah
1991). These cases are entitled to a presumption of correctness under
our doctrine of stare decisis. See Eldridge v. Johndrow, 2015 UT 21,
¶¶ 21–22, 345 P.3d 553. But in my view their analysis is ripe for
repudiation because it is not firmly rooted in our law, is clearly
incorrect as a matter of original meaning, and does not sustain
significant reliance interests. See id. ¶ 22 (identifying factors relevant
to the decision whether to overrule precedent).
I
¶38 The Walker case was similar to this one in several respects.
The briefing in that case, as here, raised the question of whether
article I, section 14 enshrines an exclusionary remedy for a violation
of the state guarantee against unreasonable searches and seizures.
And, as in this case, we stopped short of reaching that issue because
we found probable cause sufficient to sustain the reasonableness of
the search in question. See Walker, 2011 UT 53, ¶¶ 13–18.
¶39 In the Walker case I wrote separately to “articulate an
alternative ground for affirmance.” Id. ¶ 28 (Lee, J., concurring). I
suggested, specifically, that “Utah’s constitution as originally
understood did not contemplate the remedy of exclusion in the event
of an illegal search or seizure.” Id. I presented historical evidence
cited in the briefs in that case that seemed to me to undermine the
notion of an exclusionary remedy as mandated by the Utah
Constitution. See id. ¶¶ 47–58. And I advocated overruling our
decisions in State v. Larocco, 794 P.2d 460 (1990), and State v.
Thompson, 810 P.2d 415 (Utah 1991), on the ground that they
“enshrine[d] this sweeping remedy without any consideration of the
original meaning of the constitutional provision in question.” Walker,
2011 UT 53, ¶ 28 (Lee, J., concurring). I also suggested that it was
important for us to address this question soon because the stare
decisis effect of Larocco and Thompson could become cemented over
time—making it difficult for us to overturn them even if we decided
they were wrongly decided. See id. ¶¶ 59–60 (asserting that “[w]e are
not yet at the stage where the Thompson exclusionary rule is beyond
our reconsideration,” but that in time “a defendant whose section 14
15
STATE v. ROWAN and GEORGE
Lee, A.C.J., concurring in the result
rights are infringed could plausibly contend that he reasonably
relied on the availability of an exclusionary rule in Utah
constitutional law”).
¶40 The briefing in this case has confirmed the principles set
forth in my Walker opinion while also highlighting an aspect of the
issue that I did not fully explore there. I continue to maintain that (a)
“the text and history of article I, section 14” do not “incorporate the
sweeping remedy of an exclusionary rule” as a requirement of state
constitutional law, id. ¶¶ 47–58; (b) our decisions in Larocco and
Thompson endorsed an exclusionary remedy without analyzing the
text or history of article I, section 14, id. ¶¶ 40–46; and (c) “there is
little ground for an argument that the [exclusionary] rule is so settled
that it is beyond reconsideration on reliance grounds,” id. ¶ 60. And
for these reasons, as in Walker, I would urge this court to
“reconsider” the idea of an exclusionary rule as a matter of state
constitutional law. Id.
¶41 I would do so here. I would address the remedy question
that was briefed and argued to us in this case and resolve it as an
alternative basis for our decision.
A
¶42 In my concurrence in Walker I observed that the constitution
“says nothing about an exclusionary—or any other—remedy for the
violation of” article I, section 14. Id. ¶ 47 (emphasis added); Spackman
ex rel. Spackman v. Bd. of Educ. of Box Elder Cty. Sch. Dist., 2000 UT 87,
¶ 20, 16 P.3d 533 (“aside from the Takings Clause, there is no textual
constitutional right to damages for one who suffers a constitutional
tort”).20 Yet I also noted that “a citizen wronged by an illegal search”
in the late nineteenth century “could sue the wrongdoers for the tort
of trespass” and recover damages. Walker, 2011 UT 53, ¶ 49 (Lee, J.,
concurring). And I implied that a damages award is the remedy
_____________________________________________________________
20 The absence of a textually prescribed remedy is not necessarily
a license to abrogate any and all remedies, however. In fact our
precedent holds that article I, section 14 is self-executing, see Jensen ex
rel. Jensen v. Cunningham, 2011 UT 17, ¶ 63, 250 P.3d 465, an
indication that this provision “articulates a rule sufficient to give
effect to the underlying rights and duties intended by the framers”
and that “no ancillary legislation is necessary” to secure access to a
remedy for victims of illegal searches and seizures, see Spackman,
2000 UT 87, ¶ 7 (citation omitted).
16
Cite as: 2017 UT 88
Lee, A.C.J., concurring in the result
contemplated by the text and history of article I, section 14 of the
Utah Constitution.
¶43 The briefing in this case, however, identified grounds for
skepticism of the proposition that a damages remedy is the remedy
the Utah Constitution requires. Such a remedy was generally
available at the time of the framing of the Utah Constitution.21 But
“[t]he absence of any textual reference to a [damages] remedy shifts
the focus to the historical context of this provision.” Id. ¶ 48.
¶44 The relevant context, in my view, includes a general premise
about the law of remedies—which is that the selection and crafting
of an appropriate remedy has long been thought to be the province
of the common law. See, e.g., Spackman, 2000 UT 87, ¶¶ 20–21, 24–25
(“[A] Utah court’s ability to award damages for violation of a self-
executing constitutional provision rests on the common law.”).
Sometimes the common law is overtaken by the legislature, through
the legislative prescription of a remedy. See, e.g., Helf v. Chevron
U.S.A., Inc., 2009 UT 11, ¶¶ 16–17, 203 P.3d 962 (noting that the
Workers Compensation Act creates a remedial scheme “[i]n place of
common law remedies”). That is the legislature’s prerogative. But
the general point is that the law of remedies has long been
understood to be subject to adaptation and evolution over time.
Because the constitution does not speak to the remedy for an
unreasonable search or seizure, moreover, it seems sensible to read
article I, section 14 as requiring a remedy sufficient to protect the
rights of Utah citizens but leaving the selection of the appropriate
remedy—or remedies—up to common-law evolution. Cf. Berry ex rel.
Berry v. Beech Aircraft Corp., 717 P.2d 670, 676 (Utah 1985) (“[N]either
the due process nor the open courts provision constitutionalizes the
common law or otherwise freezes the law governing private rights
and remedies as of the time of statehood.”).
¶45 The remedy of exclusion was introduced into our Utah
system as a matter of federal constitutional law by Mapp v. Ohio, 367
_____________________________________________________________
21See Jeremy M. Christiansen, State Search and Seizure: The Original
Meaning, 38 U. HAW. L. REV. 63, 78–99 (2016) (citing “a substantial
body of search and seizure, tort-driven case law . . . across the
country from the early 1800s through the early 1900s” and
concluding that there was “little or no controversy about this regime
being the way in which the right against unreasonable searches and
seizures was enforced”).
17
STATE v. ROWAN and GEORGE
Lee, A.C.J., concurring in the result
U.S. 643 (1961). Thereafter we have accepted that remedy as one
appropriate to redress violations of the state constitution.
¶46 But that premise is ripe for reconsideration. If the Utah
Constitution does not speak to the appropriate remedy, but leaves
that question up to the common law (or legislative adjustment), then
we should open the door to adaptation of the remedy or remedies
available for unreasonable searches or seizures. By improperly
constitutionalizing the exclusionary rule, this court has cut off the
ability of policymakers, including this court, from evaluating and
developing effective and innovative remedies.
B
¶47 I would open that door here. As an alternative basis for
reversal, I would interpret the Utah Constitution to prohibit
unreasonable searches and seizures but to leave open the question of
the appropriate remedy.
¶48 Under this approach, we would accept the existing
framework of an exclusionary rule (subject to exceptions) as a matter
of common law. But we would clarify that this remedy is not a
constitutional mandate. And that regime would leave the door open
to ongoing adjustment by this court or the legislature going forward.
See Spackman, 2000 UT 87, ¶ 24 (“In general, the legislative branch
has the authority, and in many cases is better suited, to establish
appropriate remedies for individual injuries,” so the courts should
“use their common law remedial power cautiously”). This would
allow policymakers to determine whether the exclusionary rule is
the most effective remedy to protect the rights of Utah citizens.
¶49 A move in that direction could address concerns about the
current state of search and seizure law. There is an irony in our
modern search and seizure law: Because the sole remedy for an
unlawful search or seizure is exclusion of evidence, the protections
of the constitution are reserved for those found in possession of
illegal contraband; the purely innocent are left without an effective
remedy.22
_____________________________________________________________
22 See, e.g., Bivens v. Six Unknown Named Agents of Fed. Bureau of
Investigations, 403 U.S. 388, 411–424 (1971) (Burger, C.J., dissenting)
(observing that the rule “protects one against whom incriminating
evidence is discovered, but does nothing to protect innocent persons
who are the victims of illegal but fruitless searches”) (citation
omitted); Terry v. Ohio, 392 U.S. 1, 14 (1968) (“Regardless of how
(Continued)
18
Cite as: 2017 UT 88
Lee, A.C.J., concurring in the result
¶50 There is a further downside to the exclusionary rule: It
imposes societal costs unnecessary to the goal of remedying the
effects of the unlawful search. Those disproportionate external costs
distort the law of search and seizure in ways that further undermine
its full protection.23 And this problem has led to a patchwork of
exceptions to the exclusionary rule—exceptions that are often ill-
defined and difficult to predict,24 and that effectively remove the
effective the rule may be where obtaining convictions is an
important objective of the police, it is powerless to deter invasions of
constitutionally guaranteed rights where the police either have no
interest in prosecuting or are willing to forgo successful prosecution
in the interest of serving some other goal.” (footnote omitted)).
23 See, e.g., Samuel Estreicher & Daniel P. Weick, Opting For a
Legislative Alternative to the Fourth Amendment Exclusionary Rule, 78
UMKC L. REV. 949, 951 (2010) (“The prospect of suppression is
thought to be so problematic that it acts as a negative hydraulic
causing judges to distort substantive Fourth Amendment law in
order to avoid this consequence.”); Eugene Milhizer, The Exclusionary
Rule Lottery, 39 U. TOL. L. REV. 755, 763 (2008) (“Deterring future
police misconduct is a worthwhile goal . . . . But deterrence is far
from the only value at stake, and binding the many costs of
suppression exclusively to this benefit constitutes an imprudent and
even immoral approach to the issue.”); MALCOLM RICHARD WILKEY,
ENFORCING THE FOURTH AMENDMENT BY ALTERNATIVES TO THE
EXCLUSIONARY RULE 12–21 (1982) (identifying twelve specific costs of
the exclusionary rule, including “the additional sheer work load” on
the judiciary, “expan[sion of] the scope of search and seizure of all
citizens,” and “resulting diminished respect for the judicial process”
(capitalizations changed)).
24 See State v. Strieff, 2015 UT 2, ¶¶ 41–56, 357 P.3d 532 (pointing
out that the attenuation exception and inevitable discovery exception
dictated different outcomes in that case and concluding that the
attenuation doctrine did not apply, while observing that “[t]he terms
and conditions of the exclusionary rule have been meted out by the
Supreme Court in a piecemeal . . . fashion,” and that “[t]his case
implicates a gap of substantial significance”), rev’d, 136 S. Ct. 2056
(2016) (applying the attenuation doctrine); Lynn Adelman & Jon
Deitrich, Saying What the Law Is: How Certain Legal Doctrines Impede
the Development of Constitutional Law and What Courts Can Do About It,
2 FED. CTS. L. REV. 87, 88–90 (2007) (discussing the “good faith”
exception).
19
STATE v. ROWAN and GEORGE
Lee, A.C.J., concurring in the result
protections supposedly guaranteed by our federal and state
constitutions.
¶51 The approach suggested here could avoid these problems. A
remedial regime that includes a damages award would have the
important virtue of extending protection against unreasonable
search and seizure to all members of the public, not just those found
in possession of illegal contraband. And it would allow us to reform
a body of law that is riddled by a set of contradictory exceptions that
contribute more confusion than clarity.
¶52 The exclusionary rule is both under- and over-inclusive. Its
under-inclusiveness lies in its failure to provide a remedy for any but
those who are found in possession of contraband. Its over-
inclusiveness is in affording relief that goes well beyond that
necessary to restore an injured party to his “rightful position”—the
position he would have been in but for the infringement of his
constitutional rights. Both features are troubling. The former means
that some of our citizens have no effective means of securing their
right against unreasonable search and seizure. And the latter is also
troubling, because the exclusionary rule “almost always requires
courts to ignore reliable, trustworthy evidence bearing on guilt or
innocence.” Davis v. United States, 564 U.S. 229, 237 (2011). In fact,
“its bottom-line effect, in many cases, is to suppress the truth and set
the criminal loose in the community without punishment.” Id.
¶53 We can avoid these problems by returning to first principles.
The constitution is not an omnibus repository of answers to society’s
most difficult problems. When we think of it in that way, we thwart
policymakers’ ability to exercise the flexibility necessary to make
ongoing adjustments addressing complex problems.25 That is
certainly true here. By constitutionalizing a remedy not enshrined in
the constitution we have interrupted the normal evolutionary
_____________________________________________________________
25 See Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U.
L. REV. 1185, 1208 (1992) (observing that Roe v. Wade, 410 U.S. 113
(1973), “halted a political process that was moving in a reform
direction and thereby . . . prolonged divisiveness and deferred stable
settlement of the issue”); J. Harvie Wilkinson, III, Constitutionalization
of School Discipline: An Unnecessary and Counter-Productive Solution,
1 MICH. L. & POL’Y REV. 309, 312 (1996) (“When we take the
important step of constitutionalizing a problem such as student
discipline, we . . . remove it from the hands of the democratic process
and place it in the lap of the federal courts.”).
20
Cite as: 2017 UT 88
Lee, A.C.J., concurring in the result
processes of the law—the means of judicial or legislative adaptation
of the remedies available for unreasonable searches and seizures.
¶54 I would reopen the judicial and legislative dialogue on this
important issue. I would conclude that the Utah Constitution does
not prescribe an exclusionary remedy for an infringement of the
freedom from unreasonable search and seizure. And I would thereby
invite our judges and legislators to look for creative ways to correct
for the under- and over-inclusiveness problems introduced by the
exclusionary rule—ways to fully protect Utah citizens from illegal
government intrusions.26
II
¶55 My colleagues’ opposition to my approach seems rooted in
principles of constitutional avoidance and stare decisis. See supra
¶¶ 23–25, 31–32. I endorse both of those principles and respect my
colleagues’ views on how to apply them here. But I believe that
established doctrines of constitutional avoidance and stare decisis
leave ample room for the decision that I advocate.
A
¶56 The principle of constitutional avoidance is rooted in our
longstanding commitment to judicial humility. See State v. DeJesus,
2017 UT 22, ¶ 33, 395 P.3d 111. Our courts are reluctant to reach out
to decide new questions of constitutional law because we recognize
that such decisions can become fixed in relative stone: A
_____________________________________________________________
26 See, e.g., Bivens, 403 U.S. at 421–24 (Burger, C.J., dissenting)
(“Reasonable and effective substitutes can be formulated if Congress
would take the lead . . . . I see no insuperable obstacle to the
elimination of the suppression doctrine if Congress would provide
some meaningful and effective remedy against unlawful conduct by
government officials.”); WALTER P. SIGNORELLI, THE CONSTABLE HAS
BLUNDERED: THE EXCLUSIONARY RULE, CRIME, AND CORRUPTION 189–
199 (2010) (“Civil rights lawsuits and criminal charges against
abusive officers . . . are the strongest remedies, and they do not have
the side effect of allowing dangerous criminals to escape justice.”);
Estreicher & Weick, supra ¶ 51 n.23, at 952 (proposing a system
whereby the U.S. Department of Justice approves state and local
government procedural safeguards for preventing unreasonable
searches and seizures; no evidence procured by a certified law
enforcement agency would be subject to exclusion in court).
21
STATE v. ROWAN and GEORGE
Lee, A.C.J., concurring in the result
constitutional decision is insulated from review or reconsideration
by the political branches of our government.27
¶57 For this and other reasons our courts have long
acknowledged the “gravity and delicacy” of constitutional questions.
Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346–47 (1936). And we
generally decline to pass on them when another ground is available
because we recognize that further percolation and analysis is likely
to enhance the quality of our decisionmaking.28
¶58 That said, the principle of constitutional avoidance is not a
hard and fast rule. It is a presumption. Courts retain the discretion to
decide any and all issues presented for review.29 And in my view the
presumption of avoidance is rebutted here.30
_____________________________________________________________
27 See Henry Paul Monaghan, On Avoiding Avoidance, Agenda
Control, and Related Matters, 112 COLUM. L. REV. 665, 676 (2012)
(noting that the courts have treated this form of avoidance as a
discretionary matter of internal “governance” “designed to
ameliorate the ‘friction between democratic principles and judicial
authority’” (citation omitted)).
28 Justice Himonas cites other considerations in support of his
conclusion that avoidance is appropriate in this case. He asserts that
avoidance “forges certainty, stability, and predictability in the law”
and “lays a foundation of order upon which individuals and
organizations in our society can conduct themselves.” Supra ¶ 24
(quoting State v. Shoulderblade, 905 P.2d 289, 292 (Utah 1995)). I
certainly agree with these principles. But the quoted language is
from an opinion addressing the doctrine of stare decisis. And the
premises of that doctrine, though related to the presumption of
constitutional avoidance, are somewhat different. I address them in
Part II.B. below.
29 See Michael L. Wells, The “Order-of-Battle” in Constitutional
Litigation, 60 SMU L. REV. 1539, 1552 (2007) (“Despite the benefits of
constitutional avoidance, it is best characterized as a flexible norm,
not an absolute requirement.”); Lisa A. Kloppenberg, Avoiding
Constitutional Questions, 35 B.C. L. REV. 1003, 1028–35 (1994)
(demonstrating that the U.S. Supreme Court “has used an ad hoc
approach in implementing the last resort rule”); Rescue Army v. Mun.
Court of L.A., 331 U.S. 549, 574 (1947) (speaking of this principle of
avoidance as a “policy” and establishing that its “applicability can be
determined only by an exercise of judgment relative to the particular
(Continued)
22
Cite as: 2017 UT 88
Lee, A.C.J., concurring in the result
¶59 In an ordinary case I would not tread into new
constitutional territory when an alternative ground for decision is
available. But this is not an ordinary case. And this is not really new
constitutional territory.
¶60 Our decisions have already entered this constitutional space
in establishing an exclusionary remedy for violations of the Utah
search and seizure clause. Yet that precedent leaves litigants and
lower courts in the dark on the practical implications of our
precedent for disputed cases. The ultimate effect of the exclusionary
rule is dictated by the application or availability of any of a number
of “exceptions” established in the case law. See State v. Worwood, 2007
UT 47, ¶¶ 43–44, 164 P.3d 397 (describing the independent source,
inevitable discovery, and attenuation exceptions). And our courts
have not yet decided whether or to what extent to embrace the
exceptions endorsed by the United States Supreme Court.
¶61 This was the key constitutional question presented in this
case. The district court rejected the availability of the “good faith”
exception to the exclusionary rule established in United States v. Leon,
468 U.S. 897 (1984). And the parties addressed that question
extensively in their briefing to this court.
¶62 In these circumstances I do not think that humility counsels
avoidance. Our case law, as it stands, gives an incomplete answer to
the question of the appropriate remedy for a violation of article I,
presentation, though relative also to the policy generally and to the
degree in which the specific factors rendering it applicable are
exemplified in the particular case”).
30 I am not advocating a “presumption against recognizing
constitutional rights.” Supra ¶ 26. Nor am I urging us to “walk back
(or not recognize) constitutional rights” under article I, section 14.
See supra ¶ 26. Quite the contrary. The operative constitutional right
is to be free from unreasonable searches and seizures. The
exclusionary rule is not a constitutional right. It is just one of several
remedies that may be employed to protect the right protected by the
constitution. I am proposing that we open the door to alternative
remedies that may protect that right more effectively. Doing so
overrides the presumption against reaching constitutional questions
that are unnecessary to our decision. But I find good reasons for
overcoming that presumption here—reasons that are rooted in a
desire to protect the underlying constitutional right more effectively.
23
STATE v. ROWAN and GEORGE
Lee, A.C.J., concurring in the result
section 14 of the Utah Constitution. This is not constitutional
territory we have left uncharted. It is territory we have mapped
partially—in a manner leaving the important questions unresolved.
¶63 Justice Himonas says that there is no pressing need for us to
intervene to resolve the question presented. Supra ¶ 29. But that
misses a key impact of our decision to leave the constitutional
question presented by this case only partially answered: So long as
we preserve the Larocco-Thompson rule without addressing the
availability of exceptions we are fostering uncertainty and litigation
in the lower courts without the benefit of further guidance from this
court.31
¶64 For that reason I think the usual presumption of
constitutional avoidance is rebutted here. We do not advance the
cause of judicial humility by painting a partial picture of the
constitutional doctrine in this important field. In fact our decision to
do so affirmatively undermines a core premise of the doctrine of
constitutional avoidance. By leaving the exclusionary rule in place
we are actively foreclosing policy judgments by the democratically
elected branches of our government. We do so, moreover, without
ever engaging in any careful constitutional analysis. See State v.
Walker, 2011 UT 53, ¶ 46, 267 P.3d 210 (Lee, J., concurring) (noting
that the court in Larocco and Thompson “embraced an independent
state exclusionary rule . . . without ever considering the original
meaning of the constitutional provision in question”).
¶65 This is not humble restraint. It is a decision that may in time
cement the exclusionary rule in place without any analysis of its
constitutionality or elaboration of exceptions to its application. See id.
¶ 59 (noting that the exclusionary rule recognized in Larocco and
Thompson may in time “become so ingrained in our jurisprudence
that its reconsideration [will] be difficult”). And this “humble
restraint” restrains both us and the legislature, in our rulemaking
capacities, from innovating and adjusting the remedy to ensure that
_____________________________________________________________
31 Justice Himonas also calls the need to revisit Larocco and
Thompson “overblown” because a case that squarely presents this
issue will come before us soon, or, if not, that signals a lack of
“urgent workability concerns.” See supra ¶ 29. But this does not
change the fact that, because of plea agreements and other factors,
lower courts are likely grappling with exclusionary rule issues much
more often than our court receives cases that present these issues.
24
Cite as: 2017 UT 88
Lee, A.C.J., concurring in the result
the citizens of Utah have effective and meaningful redress when
their section 14 rights have been violated.
¶66 For that reason I see this as the exceptional case in which the
presumption of avoidance is overcome. I would reach the
constitutional question presented in this case because I think the
usual premises of the presumption of avoidance cut the other way
here.
B
¶67 That leaves the question whether our decisions in Larocco
and Thompson are nonetheless entitled to deference as a matter of
stare decisis. Our cases speak of “not overrul[ing] our precedents
‘lightly.’” Eldridge v. Johndrow, 2015 UT 21, ¶ 21, 345 P.3d 553
(citation omitted). We have emphasized that the doctrine of stare
decisis promotes the stability of the law and “the public’s substantial
reliance interests upon an established legal principle.” Id. ¶ 35
(citation omitted). But we have also long held that the doctrine of
stare decisis states a “presumption,” not a “binding legal rule to be
blindly followed.” Id. ¶ 22 (quoting 20 AM. JUR. 2D Courts § 131
(2005)). The presumption of stare decisis is rebuttable. And it may be
rebutted where we are convinced “more good than harm will come
by departing from precedent.” Utah Dep’t. of Transp. v. Admiral
Beverage Corp., 2011 UT 62, ¶ 16, 275 P.3d 208 (citation omitted).
¶68 A threshold question under the doctrine of stare decisis is
“how firmly” a line of “precedent has become established in the law
since it was handed down.” Eldridge, 2015 UT 21, ¶ 22. In making
that assessment we consider “the age of the precedent, how well it
has worked in practice, its consistency with other legal principles,
and the extent to which people’s reliance on the precedent would
create injustice or hardship if it were overturned.” Id. We also assess
“the persuasiveness of the authority and reasoning on which the
precedent was originally based.” Id.
¶69 The point of this inquiry is to balance the important goal of
maintaining stability in the law against our ongoing commitment to
getting the law “right.” The first-listed set of considerations is aimed
at assessing the downsides of overruling precedent. If a law is
working well in practice and sustains significant reliance interests, it
may be costly to reform the law by overruling precedent. And that is
a point favoring deference to precedent. The second consideration
quoted above goes to the upside of overruling an erroneous
precedent. The more clearly errant a prior decision, the greater then
need to set it aside in advancing our commitment to the rule of law.
25
STATE v. ROWAN and GEORGE
Lee, A.C.J., concurring in the result
¶70 This is what our cases mean when they speak of more “good
than harm” coming from overruling a prior opinion. The principal
harm is in undermining stability of our law and reliance interests
built around our precedent. See Austad v. Austad, 269 P.2d 284, 290
(Utah 1954) (explaining that the “reason underlying” stare decisis is
“that people should know what their legal rights are as defined by
judicial precedent, and having conducted their affairs in reliance on
such rights, ought not to have them swept away by judicial fiat”).
Thus, the argument for overruling a prior decision is strongest when
the costs of overruling (from a reliance or stability standpoint) are
low and the benefits (from a rule of law standpoint) are high.32
¶71 And in my view that is the case here. The usual costs of
overruling precedent are not implicated here because Larocco and
Thompson are not deeply rooted in our law, are unworkable in
practice, and do not sustain significant reliance interests.
¶72 First, Larocco and Thompson are far from deeply rooted.
Those decisions ignored contrary precedent from this court—State v.
Aime, 220 P. 704, 708 (Utah 1923) (unanimously holding that “the
admissibility of evidence is not affected by the illegality of the means
through which it has been obtained”), and State v. Fair, 353 P.2d 615,
615 (Utah 1960) (concluding that “[i]t is not necessary to determine
whether or not [a] search was legal, because this court has
previously held that evidence, even though illegally obtained, is
_____________________________________________________________
32 In Walker, here, and elsewhere, I have embraced a doctrine of
stare decisis that is in line with the standard set forth in this court’s
precedents. I do so, moreover, with the understanding that our
doctrine is largely in line with the standard of stare decisis employed
in the era of the founding. See generally Thomas R. Lee, Stare Decisis
in Historical Perspective: From the Founding Era to the Rehnquist Court,
52 VAND. L. REV. 647 (1999) (concluding that most elements of our
modern doctrine of stare decisis have been with us since the time of
the founding). That seems significant, as it may allow us to reconcile
the doctrine of stare decisis with an originalist approach to
constitutional interpretation. The doctrine of stare decisis is a method
that the framers would have used in determining the meaning of the
constitution. And on that basis it seems to me a method of
interpretation that aligns with originalism. See generally John O.
McGinnis & Michael B. Rappaport, Original Methods Originalism: A
New Theory of Interpretation and the Case Against Construction, 103 NW.
U. L. REV. 751 (2009).
26
Cite as: 2017 UT 88
Lee, A.C.J., concurring in the result
admissible”). In jettisoning this precedent, moreover, our opinions in
Larocco (a plurality) and Thompson (a majority) “made no reference to
the text, history, or original meaning” of article I, section 14 of the
Utah Constitution.33 Walker, 2011 UT 53, ¶ 42 (Lee, J., concurring).
Instead they simply “deemed it ‘useful to examine opinions from
other state courts’—opinions indicating a trend of ‘[a]t least eighteen
states’ that had ‘adopted an independent state constitutional
exclusionary rule.’” Id. (alteration in original) (citation omitted).
¶73 Thus, our precedents adopting a Utah exclusionary rule did
not engage in independent constitutional analysis. We were “simply
jumping on what [we] perceived as the state exclusionary rule
bandwagon.” Id. ¶ 43. And this substantially reduces the downsides
of repudiating these decisions. The costs of overruling precedent are
diminished where the precedent in question “abandon[ed] [a] long
established” rule and “failed to cite [a previous] line of cases
altogether.” State v. Menzies, 889 P.2d 393, 399 (Utah 1994), superseded
in part by constitutional amendment as recognized in State v. Goins, 2017
UT 61, __ P.3d __. That is precisely what Larocco and Thompson did.
And that renders them ripe for reconsideration.
¶74 This is not the only basis for concluding that Larocco and
Thompson are vulnerable under our doctrine of stare decisis. A second
consideration is the undeveloped state of our law in this field. We
have not had occasion to decide whether and to what extent to adopt
exceptions to the exclusionary rule—exceptions like those embraced
by the United States Supreme Court in a long line of decisions in the
past few decades.34 Again this was a key point of dispute in this case.
The district court declined to embrace a “good faith” exception to the
Utah exclusionary rule like that established in federal law in United
_____________________________________________________________
33My point is not that Thompson failed to “recogniz[e] that Larocco
was not binding precedent.” Supra ¶ 32 n.19. It is that Thompson
advanced no independent analysis. And that neither Larocco nor
Thompson offered any textual or historical basis for the adoption of
an exclusionary rule.
34 See Herring v. United States, 555 U.S. 135, 137 (2009) (evidence
admitted when an unconstitutional search was “the result of isolated
negligence attenuated from the arrest”); Illinois v. Frull, 480 U.S. 340,
359–60 (1987) (no exclusion when officers performed a search in
reliance on a statute later declared unconstitutional); Nix v. Williams,
467 U.S. 431, 443 (1984) (exclusion not warranted when the
“challenged evidence has an independent source”).
27
STATE v. ROWAN and GEORGE
Lee, A.C.J., concurring in the result
Leon, 468 U.S. at 897. And the briefing on appeal argued at some
length about whether that decision was appropriate as a matter of
state constitutional law.
¶75 This is the key question of state constitutional law in this
field. There is no evidentiary exclusion if the exclusionary rule is
overridden by an exception. And this court has not yet decided that
question. Unless and until we do so there can be no significant
reliance interests on the general adoption of an exclusionary rule in
Larocco and Thompson. “Because the dimensions and scope of the
Utah exclusionary rule have not yet been established, there is little
ground for an argument that the rule is so settled that it is beyond
reconsideration on reliance grounds.” Walker, 2011 UT 53, ¶ 60 (Lee,
J., concurring).
¶76 For these reasons I see little downside to our reconsideration
of the exclusionary rule embraced in Larocco and Thompson. I would
therefore proceed to consider “the persuasiveness of the authority
and reasoning on which the precedent was originally based.”
Eldridge, 2015 UT 21, ¶ 22. And for reasons set forth in detail above I
would conclude that these decisions are ripe for repudiation.
28