State v. Larocco

BILLINGS, Judge:

(concurring in part and dissenting in part).

I agree with Part III of the majority opinion and the decision reached by the majority that defendant had standing to challenge the constitutionality of the search of the Mustang and therefore join in Part 1A of the court’s opinion. Although I concur in the result reached by the majority that there was no unconstitutional search, I disagree with important parts of the analysis. I further respectfully dissent from Part II of the majority opinion where my colleagues find that a juror’s conversation with a prosecution witness on the merits of the proceeding was not grounds for a mistrial. I believe the juror misconduct *99denied the defendant a fair trial and would therefore reverse.

JUROR MISCONDUCT

I am persuaded that the trial judge should have substituted an alternative juror or declared a mistrial as a result of a prosecution witness’ substantial conversation with a juror on the merits of the case. I agree with the majority that our analysis of whether this unauthorized contact denied the defendant a fair trial is controlled by the recent Utah Supreme Court case of State v. Pike, 712 P.2d 277 (Utah 1985). However, we read Pike differently. In Pike, the defendant’s conviction was reversed when a prosecution witness, in response to a juror’s question as to why he was limping, simply stated: “I told him I had bunged my toe and he asked me how I did that and I told him about slipping in my backyard on the water and breaking [it].” Id. at 279. In finding that this encounter prejudiced the defendant’s right to a trial by an impartial jury and required reversal, the supreme court stated:

We have long taken a strict approach in assuring that the constitutional guarantee of a fair trial not be compromised by improper contacts between jurors and witnesses, attorneys, or court personnel.
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Anything more than the most incidental contact during the trial between witnesses and jurors casts doubt upon the impartiality of the jury and at best gives the appearance of the absence of impartiality.
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[Prejudice may well exist even though it is not provable and even though a person who has been tainted may not, himself, be able to recognize that fact.
The rule in this jurisdiction is that improper juror contact with witnesses or parties raises a rebuttable presumption of prejudice.

Id. at 279-80 (citations omitted).

The court gives two reasons for this strict standard. First, it is extremely difficult for an appellant to prove how and to what degree a juror has in fact been influenced by a contact with a witness. Such influence may subconsciously affect the juror’s judgment as to credibility and therefore the mere statement from the juror that the contact did not affect his decision does not suffice to rebut the presumption of prejudice. Second, the judicial process suffers from the appearance of impropriety resulting from a juror’s conversation with a witness. Participants and observers are left to wonder whether the defendant really received a fair trial. For these reasons, the court concludes that prejudice must be presumed whenever a contact goes beyond a mere incidental, unintended and brief encounter. Id. at 280.

The court’s strong language in Pike requires close scrutiny and clear assurance that the presumption of prejudice is overcome if the contact is substantial: “Indeed, even if the jurors had denied that they were influenced by the encounter in the post trial hearing, it is not enough to rebut the presumption of prejudice.” Id. at 281.

Pike further instructs that the presumption of prejudice attaches regardless of what was actually said between the juror and the witness. See id. at 279. The conversation in Pike was brief and did not involve the merits of the case and yet the court found that the presumption of prejudice required reversal.

The facts before this court are more egregious than those in Pike. In this case the exchange was lengthier, involved a prosecution witness, and went to the merits of the proceedings. When questioned by the trial court the juror described his conversation with Mr. Hailes, the prosecution witness:

Well, first of all, he pulled the light switch in the hall and mentioned that it worked, and then he did the other switch. And then he was saying he hoped it didn’t — the case didn’t go long, that he was going to Eureka, just driving down there, where I lived.

Later, the juror also recalls that Mr. Hailes asked her if she had served on a jury *100before. Like the conversation in Pike this encounter “no doubt had the effect of breeding a sense of familiarity that could clearly affect the juror’s judgment as to credibility”. Id. at 281.

The trial judge’s questioning of the juror supports the supreme court’s concern in Pike that jurors might not know when they have been prejudiced and would be hesitant to admit the taint. When first asked whether there was any conversation about the case the juror states “no nothing.” Further along in the examination, the juror continues to insist “the case wasn’t mentioned at all.” Finally, just as the exchange with the judge is about to terminate, the juror volunteers:

He did mention one thing. That he was surprised at the questions that were asked. And that he was surprised because he, himself, would have said yes when you (judge) asked if we would believe a policeman more than any other person. That was the only comment that was made.... When the judge asked if we would believe a policemen more than any other person, and he said he probably would have raised his hand.

The majority agrees that the above-described encounter was more than a “brief incidental contact” which would raise the presumption of prejudice.

The majority, in a conclusory statement, finds that “[t]he trial judge listened to the testimony and arguments regarding possible prejudice. We find that he reasonably determined that the state had sustained its burden of demonstrating that no prejudice against defendant resulted from the contact.” Perhaps the majority adopts the state’s arguments that (1) the juror stated she was not influenced by the contact; (2) Mr. Hailes was not a key witness; and (3) the testimony presented at trial by the police officers was uncontroverted and therefore their credibility was not an issue. I believe each argument fails.

First, under Pike a mere denial of prejudice by the juror is insufficient to rebut the presumption, particularly when, as here, the juror has difficulty admitting the extent of her conversation.

Second, Mr. Hailes was not a minor, unimportant witness. Mr. Hailes’ testimony was an essential part of the circumstantial web of evidence which persuaded the jury that the defendant stole the Mustang. He testified that the VIN glued to the defendant’s dashboard and seized by the police came from a Mustang which belonged to him and which he had demolished on Christmas Eve 1975. Mr. Hailes’ testimony established the sequence of when and how the VIN was available to the defendant. The testimony supported the state’s theory that the defendant removed the VIN from the wrecked Mustang to cover up his possession of the stolen Mustang.

Third, and most crucial in my decision that the presumption of prejudice was not rebutted in this case, is the subject matter of the juror-witness exchange. Mr. Hailes’ comment on the credibility of the two police officers who testified at trial goes to the core of this criminal case. The majority infers that because no one directly controverted the officers’ testimony they were not important witnesses and therefore their credibility was not at issue. I cannot agree. These two police officers initiated the investigation of the defendant, gathered the evidence which was presented to ultimately convict the defendant, and testified about their efforts for the prosecution at trial. It is only common sense, and I believe all jurors understand, that police witnesses are testifying for the state and against the criminal defendant. In fact police officers are generally the most important witnesses for the prosecution. I believe the comment on the credibility of police witnesses went to the heart of this circumstantial case against the defendant.

Furthermore, the record is unclear whether there was another juror who overheard Mr. Hailes’ comments. This other juror was not called and questioned by the trial judge. Again, as in Pike, we do not have a complete picture of the contacts below.

Pike inferentially directs trial judges to segregate jurors from witnesses, parties, and attorneys. In fact the trial judge in *101this proceeding after this initial problem states that he will isolate his jurors. Furthermore, this incident occurred and was called to the attention of the court before the trial began. The court, with little difficulty, could have replaced both tainted jurors with alternates.

In conclusion, I find that the encounter between Mr. Hailes and the questioned juror created a presumption of prejudice. Because the contact went to the substance of the proceedings, and the record does not persuade me the presumption of prejudice was rebutted, I would reverse for a new trial by an impartial jury. ■

CONSTITUTIONALITY OF THE SEARCH

The defendant challenges the constitutionality of the search of the Mustang and the consequent discovery of the incriminating VIN under both the United States and Utah Constitutions.

The majority finds that the defendant had no reasonable expectation of privacy in the VIN discovered after opening his car door, and then concludes there was no search within the meaning of the fourth amendment. I disagree with the majority’s reading of New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986) (5-4 decision), which they conclude compels this conclusion.

A brief repetition of the facts relevant to the search in this case is important to demonstrate that Class does not require the majority’s holding. In 1973, a new Ford Mustang was taken from a dealer for a test drive and never returned. Four years later, the salesman involved recognized the defendant and believed he was the man who had stolen the Mustang from the salesman’s previous employer, Mr. Padilla. The salesman relayed the information to Mr. Padilla who located the defendant’s place of residence.

Mr. Padilla found a 1973 Ford Mustang parked near the defendant’s residence matching the unique characteristics of the stolen vehicle including: distinctive arm rests, tie downs on the hood, a black racing stripe on the hood and sides of the car, and a scoop on the front of the car. Mr. Padilla wrote down the license number of the car and notified the police. In response, Detective Robison went to defendant’s neighborhood and saw the 1973 Mustang with the same license number and the aforementioned unique characteristics parked on the street. Robison continued her investigation by running the plate number and receiving the registered VIN. Six days later Detective Robison, accompanied by others, returned to the defendant’s neighborhood and again found the unique Mustang parked on the street. It is undisputed that defendant had no knowledge that he or his car was under investigation.

The officers peered through the windshield and read the VIN mounted on the dashboard. There was no visible evidence of tampering or anything suspicious about the placement or condition of the dashboard VIN. The VIN did not match the vehicle stolen from Mr. Padilla’s lot. Nevertheless, the officers opened the car door and observed the VIN on the inside edge of the door. This VIN matched that of the stolen Mustang. The officers then arrested the defendant.

Class does not compel the majority’s conclusion that the defendant under the circumstances of this case had no reasonable expectation of privacy in the second VIN located inside his car. In Class, two police officers observed the defendant driving in excess of the speed limit with a cracked windshield in violation of New York law. Class was pulled over by the police. After the stop, and after Class’ exit from the vehicle, and because the officers could not read the dashboard VIN from the outside because of a cracked windshield and covering papers, one officer reached into Class’ vehicle to remove papers on the dashboard in order to read the dashboard VIN. While moving the papers, the officer observed a gun protruding from under the driver’s seat.

Class does not clearly articulate when one has a reasonable expectation of privacy in a VIN located inside his automobile because the focus of the alleged unconstitutional search in Class is the gun. Never*102theless, the reasoning of the Supreme Court in Class persuades me that defendant had a reasonable expectation of privacy in the YIN located inside his car after the officers had read the VIN on his dashboard from outside the car and found nothing out of the ordinary which would justify a further search.

Justice O’Connor carefully limits her holding in Class in order to write for a splintered Court:

[W]e must decide whether, in order to observe a Vehicle Identification Number (VIN) generally visible from outside an automobile, a police officer may reach into the passenger compartment of a vehicle to move papers obscuring the VIN after its driver has been stopped for a traffic violation and has exited the car. We hold that, in these circumstances, the police officer’s action does not violate the Fourth Amendment.

Id. 106 S.Ct. at 962-63 (emphasis added).

The Court emphasizes that under 49 C.F.R. § 571.115 (1984) a VIN must be located on the dashboard visible from the exterior of the vehicle and thus concludes that it is unreasonable to have an expectation of privacy in an object required by law to be located in a place ordinarily in plain view from the exterior of the automobile. Id. at 966.

Although the Supreme Court uses the term VIN loosely, I do not believe the Court intended that an officer may open the door to a vehicle after he has already read and recorded a VIN visible from the exterior of the car without triggering fourth amendment protections. As the Court states: “a car’s interior as a whole is nonetheless subject to Fourth Amendment protection from unreasonable intrusions from the police. We agree that the intrusion into that space constituted a ‘search.’ ” Id. at 966. The Court continues:

We note that our holding today does not authorize police officers to enter a vehicle to obtain a dashboard-mounted VIN when the VIN is visible from outside the automobile. If the VIN is in the plain view of someone outside the vehicle, there is no justification for governmental intrusion into the passenger compartment to see it.

Id. at 969 (emphasis added).

The police, in opening the door to the 1973 Ford Mustang, conducted a search subject to fourth amendment protection because the VIN on the dashboard was clearly visible and did not appear abnormal upon inspection. This is not an unimportant technicality in analysis. Under the majority’s view, police may at random and without probable cause search cars under the pretext of finding another VIN as there would be no search subject to fourth amendment protection.

If, as the majority infers, the fourth amendment still prohibited all warrantless searches of vehicles except upon a finding of (1) probable cause for the search; and (2) exigent circumstances, I would find the opening of the Mustang’s door and the discovery of the incriminating VIN an unconstitutional search. However, I believe that under California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985), and its progeny, the “automobile exception” to the search warrant requirement of the fourth amendment has been expanded to encompass this case. Under Carney, anything on wheels can be subjected to a search without a search warrant, provided the officers have probable cause for the search. Exigent circumstances are now presumed because of the vechicle’s potential mobility.

In Carney, the majority concluded:

In short, the pervasive schemes of regulation, which necessarily lead to reduced expectations of privacy, and the exigencies attendant to ready mobility justify searches without prior recourse to the authority of a magistrate so long as the overriding standard of probable cause is met.

Id. 105 S.Ct. at 2070.1

In the instant case, the police officers had probable cause to suspect that the *103Mustang searched was stolen. Detective Robison received a call from the owner of the Mustang who explained that a former salesman had' identified the defendant as the person who had failed to return a car after an unaccompanied test drive. Mr. Padilla, the owner, located the unique Mustang near the defendant’s home. Detective Robison confirmed that the Mustang was registered in the defendant’s name. About a week later, the officers returned to the neighborhood where the Mustang was parked. It matched the owner’s description of the stolen car. It had distinctive arm rests, tie downs on the hood, a black racing stripe on the hood and sides of the car, and a scoop on the front of the car. Although the majority agrees there was no reason why the officers should not have gotten a search warrant and no traditional exigent circumstances, this is no longer fatal to the search. Under the standard established by the United States Supreme Court in Carney, the search was reasonable under the fourth amendment as there was probable cause to believe the car was stolen.

To date the Utah Supreme Court, in applying article I, § 14 of the Utah Constitution to warrantless vehicle searches, has followed the interpretation previously given to the fourth amendment by the United States Supreme Court. See State v. Hygh, 711 P.2d 264, 267 (Utah 1985). I must, therefore, reluctantly concur in the decision of the majority that the search was not unconstitutional. However, I do not believe that Utah must continue to accept the United States Supreme Court’s constantly changing interpretation of federal search and seizure law in interpreting its own constitution. This change in direction, however, must come from the supreme court of this state.

Because I suggest a re-examination of Utah law in light of Carney, a brief history of the “automobile exception” to the search warrant requirement of the fourth amendment is appropriate. Article I, § 14 of the Utah Constitution and the fourth amendment of the United States Constitution use identical language to protect their citizens against unreasonable searches and seizures. Historically, these constitutional mandates have meant that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031-32, 29 L.Ed.2d 564 (1971) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967)). See State v. Christensen, 676 P.2d 408, 411 (Utah 1984).

The “automobile exception” to the search warrant requirement of the fourth amendment was first articulated by the United States Supreme Court in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). In Carroll, the Court concluded that where it is not practicable to secure a warrant, because the vehicle will be quickly moved out of the jurisdiction (exigent circumstances), and when the officer has probable cause to believe that the vehicle is involved in criminal activity, no search warrant is required. Id. 267 U.S. at 151-52, 45 S.Ct. at 284-85.

In Coolidge, the Court, while ultimately concluding that the “automobile exception” was irrelevant to the facts, implicitly reaffirmed the two-prong test of exigent circumstances plus probable cause:

The word “automobile” is not a talisman in whose presence the Fourth Amendment fades away and disappears. And surely there is nothing in this case *104to invoke the meaning and purpose of the rule of Carroll v. United States — no alerted criminal bent on flight, no fleeting opportunity on an open highway after a hazardous chase, no contraband or stolen goods or weapons, no confederates waiting to move the evidence, not even the inconvenience of a special police detail to guard the immobilized automobile. In short, by no possible stretch of the imagination can this be made into a case where “it is not practicable to secure a warrant....”

Coolidge, 403 U.S. at 461-62, 91 S.Ct. at 2035 (citations omitted).2

As discussed previously, California v. Carney dramatically expanded the circumstances where warrantless searches of motor vehicles will be allowed by eliminating the requirement of exigent circumstances. Because of the recent, radical restriction of the fourth amendment’s protection against unreasonable searches and seizures of automobiles in Carney, it may well be time for the Utah Supreme Court to reconsider its position.

Following the previous federal standard, Utah law has required a finding of both probable cause and traditional exigent circumstances to justify the search of a vehicle without a warrant. State v. Christensen, 676 P.2d 408, 411 (Utah 1984) (Justice Stewart writing for the court determined that “[warrantless searches and seizures are per se unreasonable unless exigent circumstances require action before a warrant can be obtained.... [T]he police must have probable cause to believe that the automobile contains either contraband or evidence of a crime and that they may be lost if not immediately seized.”) (emphasis added); State v. Limb, 581 P.2d 142, 144 (Utah 1978) (“Only in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search.”); accord State v. Cole 674 P.2d 119, 123 (Utah 1983); State v. Shields, 28 Utah2d 405, 503 P.2d 848, 849-50 (1972).

The Oregon Supreme Court has observed that “[w]hen this court gives Oregon law an interpretation corresponding to a federal opinion, our decision remains the Oregon law even when federal doctrine later changes.” State v. Caraher, 293 Or. 741, 653 P.2d 942, 946 (1982). By the same token, the State of Utah need not change its search and seizure law merely because the United States Supreme Court has seen fit to change the corresponding federal law.

In interpreting its own constitution, a state is not bound by the interpretation given by the United States Supreme Court to similar language in the federal constitution. See, e.g., Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570 (1975); State v. Brooks, 638 P.2d 537, 539 (Utah 1981). The Utah Supreme Court has clearly accepted this principle:

Although Article I, § 24 of the Utah Constitution incorporates the same general fundamental principles as are incorporated in the Equal Protection Clause, our construction and application of Article I, § 24 are not controlled by the federal courts’ construction and application of the Equal Protection Clause. Case law developed under the Fourteenth Amendment may be persuasive in applying Article I, § 24, but that law is not binding so long as we do not reach a result that violates the Equal Protection Clause.

Malan v. Lewis, 693 P.2d 661, 670 (Utah 1984) (citations omitted).

State courts responding to the confusing and restrictive new federal interpretations are relying on an analysis of their own search and seizure provisions to expand constitutional protection beyond those mandated by the fourth amendment, often di*105rectly avoiding applicable United States Supreme Court precedent. See, e.g., State v. Caraher, 293 Or. 741, 653 P.2d 942, 947 (1982); State v. Glass, 583 P.2d 872, 876 (Alaska 1978); State v. Kaluna, 55 Hawaii 361, 520 P.2d 51, 58 (1974); People v. Beavers, 393 Mich. 554, 227 N.W.2d 511, 516 (1975), cert. denied 423 U.S. 878, 96 S.Ct. 152, 46 L.Ed.2d 111 (1975); O’Connor v. Johnson, 287 N.W.2d 400, 405 (Minn.1979); State v. Brackman, 178 Mont. 105, 582 P.2d 1216, 1220 (1978); State v. Hunt, 91 N.J. 338, 450 A.2d 952 (1982); State v. Kock, 302 Or. 29, 725 P.2d 1285, 1287 (1986); State v. Benoit, 417 A.2d 895, 899 (R.I.1980); State v. Opperman, 247 N.W.2d 673, 674 (S.D.1976).

Justice Zimmerman recently criticized the federal approach to warrantless searches: “The federal law regarding war-rantless searches and seizures has become a labyrinth of rules built upon a series of contradictory and confusing rationalizations and distinctions.” Hygh, 711 P.2d at 271-72 (Zimmerman, J., concurring); see also State v. Johnson, 60 Utah Adv.Rep. 30, 33 (Utah 1987) (Zimmerman, J. concurring).

While it is true that the United States Supreme Court’s decision in Carney has simplified the federal approach to the automobile exception under the fourth amendment, it has done so at the sacrifice of the rights of the citizens of this nation to be secure in their effects against unreasonable searches and seizures. The warning of Justice Jackson should be heeded:

[Fourth amendment rights] ... are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowering a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.

Brinegar v. U.S., 338 U.S. 160, 180, 69 S.Ct. 1302,1313, 93 L.Ed. 1879 (1949) (Jackson, J., dissenting).

Following many of her sister state courts, the Utah Supreme Court may take this opportunity to simplify Utah’s vehicle search and seizure law without gutting the protection it provides to the citizens of this state. See State v. Earl, 716 P.2d 803, 805 (Utah 1986). Warrantless vehicle searches could be restricted to only those situations where they serve their original purpose of protecting police officers and preventing the immediate destruction of evidence. State v. Hygh, 711 P.2d 264, 272 (Utah 1985) (Zimmerman, J., concurring).

. Cases subsequent to Carney have interpreted the Supreme Court's decision broadly. Most imply that the "automobile exception" to the fourth amendment allows for warrantless *103searches of automobiles if the search is reasonable in scope and supported by probable cause. There is no longer a need to demonstrate exigent circumstances as they are presumed from the wheels on the vehicle. See, e.g., United States v. Grandstaff, 807 F.2d 851, 856 (9th Cir.1987); United States v. Hamilton, 792 F.2d 837, 842-43 (9th Cir.1986); United States v. Hepperle, 810 F.2d 836, 840 (8th Cir.1987) (rejected appellant’s argument that no exigent circumstances existed because the automobile was in disrepair and was incapable of being moved finding that probable cause is all that is necessary to justify a warrantless search); State v. Badgett, 200 Conn. 412, 512 A.2d 160, 169 (1986); State v. Cain, 400 N.W.2d 582, 585 (Iowa 1987); State v. Akers, 723 S.W.2d 9, 13 (Mo.App.1986).

. Justice White in his dissent in Coolidge argued that the confusing morass of legal technicalities surrounding warrantless searches of automobiles should be eliminated. He proposed the adoption of a simple rule — a search of a movable vehicle without a warrant would be per se reasonable so long as the police had probable cause for the search. Coolidge, 403 U.S. at 527, 91 S.Ct. at 2068 (White, J., dissenting).

Justice White’s views were essentially adopted by the Supreme Court in the recent case of California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985).