What is a Terry Stop and Frisk?

In 1968 the United States Supreme Court decided the case Terry v. Ohio, 392 U.S. 1. From that case is what came to be known as the Terry Stop Exception to the Fourth Amendment.  This exception permits a policeman who lacks probable cause but whose observations lead him reasonably to suspect that someone is committing a crime, or just committed a crime, or is just about to commit a crime, to detain the suspect and investigate him.

The policeman’s investigation must be connected with the original reason for stopping the suspect and the investigation must be limited.  The inquiry may include asking the detained individual a moderate number of questions to determine his identity and to obtain information in support of the officer’s suspicions.  What people should keep in mind is that even if a cop conducts a Terry stop, the detained individual does not have to answer the cop’s questions.  If the officer asks for identification then the suspect has to give him that, but he does not have to answer any questions.  The risk a detainee runs by answering questions if that the officer will develop probable cause from the detainee’s answers, thereby allowing the officer to arrest him.  If the detainee simply says nothing, the cop has to let him go.

Terry stop, however, does not oblige the officer to give Miranda warnings to the detained individual, so anything that a suspect says during a Terry stop can be used against him.

The most common example of a Terry stop is a traffic stop.  Police officers patrolling the streets for would-be criminals are permitted under the law to stop any vehicle that gives a policeman “reasonable suspicion” that the vehicle’s occupants committed a crime.  This standard is satisfied by the breaking of a basic traffic law such as speeding or not coming to a complete stop.  When one breaks a traffic law he has committed a crime, and therefore, the policeman who witnesses this has “reasonable suspicion” to stop the vehicle.

Once the cop conducts the Terry stop he may conduct a brief frisk of the person if the officer “reasonably feared for his safety or the safety of others.”  Under the Terry frisk exception the cop can conduct a warrantless search of the person if the circumstances are such that a substantial risk of harm could result to the persons involved if the search were delayed in order to get a warrant.  Officers must still be able to point to specific and articulable facts which would lead a reasonable person to conclude that the suspect may be armed and dangerous.

The Terry stop and frisk exception is a terrible law and gives law enforcement way too much power to harass people.  At least they can’t force us to talk…yet.

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Do I have to Pay to Stay in Jail?

Getting accused of a crime is not cheap.  Take a DUI for example.  When you get arrested your car gets impounded.  You have to pay for your vehicle to be towed and impounded.  You have to hire a lawyer.  If you’re found guilty or you enter into a plea arrangement, you’ll have stiff fines that you have to pay.  If you’re convicted or enter into a plea deal, you will likely have to pay a licensed substance abuse counselor to assess your risk and then you will have to pay to follow the recommendations of the counselor.  You will also have to pay a monthly fee for an interlock device and you’ll have to pay driver’s license reinstatement fees.

Incarceration and Medical Costs

As though that weren’t enough, the Utah Legislature (in its infinite wisdom) mandates that a criminal defendant who is convicted and sentenced to jail must pay the county back for his incarceration costs and any medical care he receives while in there.  That wonderful law can be found in Utah Code Section 76-3-201(6).  The Legislature has given the court power to reduce the amount owed to the county for incarceration costs.  In making that determination, the court will consider:

  • The defendant’s financial resources;
  • How much of a burden it will add to the defendant given his other financial obligations;
  • Whether the defendant can make payments;
  • Whether paying the jail costs will have a rehabilitative effect on the defendant;
  • Anything else the court wants to consider.

Transportation Costs

Not done yet.  If you are in jail and you have charges pending in another county and you are transported to that county for a court appearance and are subsequently convicted of a crime, you have to pay for your transportation costs.

So yeah…apparently taxes don’t pay for anything anymore.

What’s the lesson in all of this?  There are a couple.  First, the government sucks.  Since anyone can be a criminal under our expansive criminal penal code, anyone can get hit with the fines and costs discussed in this post.  Second, do everything you can to avoid getting into any kind of trouble because not only does the government want you to be strictly obedient to all of its laws (whether oppressive or not), in the event you break one of its laws it also wants to bankrupt you.

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The Three Primary Elements of Sexual Abuse of a Child

The crime of sexual abuse of a child seems to indicate that the crime is sexual in nature, but when one looks at the elements of the crime that does not necessarily have to be true.

The first elements of this crime is that the defendant must have touched “the anus, buttocks, genitalia, or breast of a female child.”  In the alternative, the defendant could have taken “indecent liberties” with the child or the defendant could have made the child take “indecent liberties” with him.

The next element of the crime involves the intent that the defendant had in touching the child.  There are three specific types of intent that will satisfy the statute.  First, the defendant could have had intent to cause the child substantial bodily pain.  Second, the defendant could have had intent to cause the child substantial emotional pain.  Finally, the defendant could have had the intent arouse or gratify his own sexual desires, the sexual desires of the child, or anyone else.  Any one or more of the above three intents is sufficient to satisfy the statute.

Breaking down these three intents one can imagine what substantial bodily pain is.  Likewise, gratifying one’s sexual desires is easily understood.  The one intent that is more difficult to understand, however, is the intent to cause substantial emotional pain.  The reason this is difficult is because the term is nowhere defined by statute or case law.  Case law has defined the term “emotional distress” as resulting “from conduct that is outrageous and intolerable in that it offends the generally accepted standards of decency and morality.”  Ellison v. Stam, 126 P.3d 1242 (Ut App. 2006).  This is helpful because emotional distress and emotional pain could be found to be similar.  The difference, however, is that “emotional distress” is not as serious as “substantial emotional pain,” so although the definition may give a good starting point it is not wholly applicable.  Utah Code 76-5-406.5 may give some guidance in that it refers to a defendant causing “severe psychological harm” to the child.  This would indicate that the child must have been diagnosed by a mental health professional.  Otherwise, how could one determine that a child had suffered severe psychological harm?

Any good criminal defense lawyer is going to focus on these three factors, because intent must be proved beyond a reasonable doubt and that is very difficult for a prosecutor to do. Contact us for a free consultation if you are facing child sex abuse charges.

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What Constitutes Resisting Arrest in Utah?

Lawful Arrest

Resisting arrest, or interference with an arresting office, is a crime that gets tacked on as an additional offense for any defendant who didn’t just roll over for the cops.  If you are a suspect for a crime and you argue with a law enforcement officer, for example, you run a real risk of getting hit with resisting arrest.

According to the statute, the crime for interfering with an arresting officer can attach only if the arrest was “lawful.”  So for example, let’s say that a Kid A, an 18 year old, is in the bathroom at his school using the facilities.  Kid B is also in the bathroom but he is smoking in the bathroom.  Kid B leaves the bathroom leaving the odor of smoked cigarettes in the bathroom.  Kid A remains in the stall in the bathroom.  Kid A finishes up, washes his hands, and leaves the bathroom.  As soon as Kid A leaves the school officer sees him, walks by him, smells smoked tobacco coming from the bathroom and Kid A’s person and determines that Kid A was smoking underage illegally.  Officer searches Kid A’s person and backpack and finds no   Officer tells Kid A to go to the principal’s office and grabs his arm.  Kid A can’t figure out what’s going on and starts to tell the cop to leave him alone and starts to pull away from the officer.  The officer tackles Kid A and then cites him for resisting arrest.

In the above example Kid A was innocent of the original crime – possessing tobacco.  Thus, his arrest for said crime was unlawful, which means that he cannot be convicted of resisting arrest…at least you would think. This issue was decided nearly 100 years ago when the Utah Supreme Court held: ”Where an unlawful arrest is attempted by an officer or another, the person sought to be thus unlawfully arrested may no doubt resist such an arrest with all proper and reasonable means.”  148 P. 1071, 1076-77 (Utah 1915).  This is the right rule.  Cops can’t simply go around arresting people for no reason and then charge them with resisting arrest when they actually stick up for their rights.

Over the last 100 years, however, the courts have removed the “lawful” component of resisting arrest even though the statute says the arrest has to be lawful!  It makes no sense, but basically if you are arrested unlawfully and you then resist the arrest, you can be found guilty of resisting arrest.  In other words, cops can do whatever they want and you have no right to fight back.

The resisting arrest law in found in the Utah Code. The text of that law is below:

76-8-305. Interference with arresting officer.
A person is guilty of a class B misdemeanor if he has knowledge, or by the exercise of reasonable care should have knowledge, that a peace officer is seeking to effect a lawful arrest or detention of that person or another and interferes with the arrest or detention by:
(1) use of force or any weapon;
(2) the arrested person’s refusal to perform any act required by lawful order:
(a) necessary to effect the arrest or detention; and
(b) made by a peace officer involved in the arrest or detention; or
(3) the arrested person’s or another person’s refusal to refrain from performing any act that would impede the arrest or detention.

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Guilty Pleas and Plea Bargaining

Before you enter a guilty plea and/or accept a plea bargain, there are a few things you should be aware of. First, if you do not have a Salt Lake Criminal Defense Attorney representing you in the matter, you should seek one out at least to discuss the terms of your potential plea bargain. This can help you avoid pit falls in the law you may not be aware of. Sometimes a plea you are offered by the prosecution may not be your best case scenario and you may be able to do better or receive a better outcome with the assistance of a qualified lawyer. There is typically a lot on the line if you have been charged with a crime, whether that be a DUI, marijuana charge, domestic violence, or something more serious such as a felony. Thus, it can’t be overstated the importance of having someone in your corner before you potentially make the mistake of entering a guilty plea or accepting the offer of the prosecution.

Types of Pleas

There are essentially 7 kinds of pleas in Utah:

  1. guilty
  2. not guilty
  3. no contest
  4. not guilty by reason of insanity
  5. guilty and mentally ill at the time of the offense
  6. not guilty of the crime charged but guilty of a lesser included offense
  7. not guilty of the crime charged but guilty of a lesser included offense and mentally ill

Some of the above stated pleas may be self explanatory while others might not be readily understood by the public. At Utah Defenders we can advise of all your potential plea options and the best course of action.

Advisement of Rights

A judge in Utah may not accept a guilty plea unless the court finds the defendant voluntarily entered the plea, knows of his/her rights being waived, and has been advised of the limited rights of appeal. As your lawyer, we go through the details of your potential plea bargaining including the rights you are waiving as a result. We work to ensure our clients are well aware of what they are doing long before they make the decision to plead guilty or otherwise proceed in their case. It is also important to note that entering a guilty plea waives all non jurisdictional defects including challenge of a judge for bias.

For more information or to review or particular offer with a Criminal Defense Lawyer in Utah from our office, do not hesitate to pick up the phone and give us a ring anytime of the day or night. We are here to help.

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HB 276 – No Disorderly Conduct for Displaying a Weapon

There is a bill in the Utah House of Representatives, HB 276, which seeks to protect individuals carrying firearms from getting hit with a disorderly conduct charge.  The current law is located in Utah Code 76-9-102.  Representative Paul Ray is the chief sponsor of the bill and he proposes to alter the language of 76-9-102 to include the following language:

The mere carrying or possession of a holstered or encased firearm, whether visible
or concealed, without additional behavior or circumstances that would cause a reasonable person to believe the holstered or encased firearm was carried or possessed unlawfully or with criminal intent, does not constitute a violation of this section. For purposes of this section, the belief of a reasonable person may not be based on a mistake of law. Nothing in this Subsection (3) may limit or prohibit a law enforcement officer from approaching or engaging any person in a voluntary conversation.

One wonders why this language need be proposed at all.  Nothing in the current statute gives law enforcement the authority to charge someone for disorderly conduct simply for having a gun.  At our firm, we have actually never been involved with a disorderly conduct case where the charges have been brought solely on the grounds of possession of a firearm.  In fact, we have not heard of any case like that, but it must be a problem in some jurisdictions or at least in Representative Ray’s district.  There must have been some kind of citizen uprising over this issue to cause Representative Ray to propose this law.

The legal carrying of a firearm is an important right that should be protected and Utah Defenders commends Representative Ray for proposing this law to limit the power or perceived power of law enforcement officers to make arrests because they don’t like the fact that the person is carrying a firearm.

This is only one of the many laws being proposed this legislative session.  Check back often to find out more about other proposed laws.

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Will the Utah State Prison Ever Move?

This year, a few select legislators are trying to get some action on moving the Utah State Prison complex out of Draper Utah. The main state prison has long sat at the lucrative Draper site near the point of the mountain. As south Salt Lake County and North Utah County have expanded over recent years it no longer makes sense to have the prison located right of I-15 in the center of the ever growing Wasatch Front. Every year it seems some law makers try to get a bill before the state legislature to finally make the move. At this point, it doesn’t seem anyone on capitol disagrees the prison needs to be moved, they just can’t seem to come up with a consensus on where to move the prison and how to pay for it. A board which recently looked at the net costs for moving the prison determined the total net costs of the move would be approximately $102 million. This is after deducting the costs of upkeep on the old prison, the sell or leasing of the land to private industry, and other factors.

Efforts this Legislative Session

One Utah lawmaker this year proposed the state adopt a resolution to move the prison even though there is no planned site or plan for covering the costs. This was an attempt to at least get a bill giving a deadline on when the prison complex would be moved by. It was a valiant effort but ultimately failed to garner enough support. There are still several days left in this year’s legislative session so some are still keeping up hope another bill may come up. However, as the last several years have proven, a resolution on this issue is slow moving so I wouldn’t put your money on seeing this prison move anytime soon, at least not in the next couple years.

Conditions at the State Prison

Many inmates and families have been complaining for several years about the ever worsening conditions at the State Prison. Recently there have been talks about charging inmates for communications with their family members and also possibly for meals and other services provided at the state complex. These discussions have brought a lot of criticism from inmates families and outside advocacy groups. Many are hoping a new updated prison complex will bring much better conditions including much needed medical services.

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HB 105: Medical Cannabis Proposal in Utah

Representative Gage Froerer has introduced House Bill 105 which exempts qualified individuals from the penalties of the controlled substances act which makes hemp extract illegal when it is used for qualifying purposes.  It also permits the Department of Health to issue a hemp extract registration card to qualified individuals.

“Hemp extract” is any extract from a cannabis plant that contains less than 0.3% THC (the active ingredient in marijuana) and does not contain any other psychoactive substance.

If passed, the new law would allow anyone over the age of 18 to legally use medical hemp extract if the applicant meets the following requirements:

  • The applicant is a Utah resident;
  • The applicant provides a written statement signed by a physician that the applicant may benefit from the medical cannabis;
  • Pays the application fee; and,
  • Submits the appropriate application.

The law would also permit a parent or guardian of a minor to administer the medical marijuana to the minor child if the parent or guardian has registered with the Department of Health.

This law could drastically reduce the number of possession of marijuana citations handed out each year in Utah.  Those who have a legitimate medical need will finally be able to have legal access to marijuana which can alleviate pain for the terminally ill, cancer patients, and others.  At the same time it will allow others to feign an illness in order to get a doctor’s note for medical marijuana.  Some people will see that as a good thing because access to marijuana will be more open.  Others will think it is a bad thing on moral grounds.

It’s unclear what type of  opposition or support this bill will have, but if it works toward decriminalizing marijuana it can only act as a positive.  Unless and until this law is passed, however, marijuana remains illegal in this state and anyone who possesses, uses, sales, distributes, or produces it will be at risk for being charged and convicted of a crime, spending time in jail, paying fines, and not being able to have access to a product that can be very beneficial for the sick.

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The Leon Exception to the Exclusionary Rule

The Fourth Amendment to the United States Constitution prohibits unlawful searches and seizures.  The Constitution does not set forth any remedy if law enforcement violates this important right so courts have developed what is called the “exclusionary rule” to help deter police from conducting unlawful searches and seizures.  This rule allows the judge to suppress any evidence obtained from an unlawful search or seizure.

Because the exclusionary rule is a judicially created remedy courts have also created an exception to the rule as outlined in United States v. Leon, 468 U.S. 897 (1984).  In that case an investigation began when a confidential informant notified police that defendants were engaged in the distribution of drugs.  A search warrant was issued which police executed and resulted in finding illegal drugs.  The defendants’ attorneys filed suppression motions arguing that the search warrant was invalid and did not establish probable cause and therefore the seized drugs should be suppressed.  The trial court found that the search warrant was invalid in some respects and thus some of the evidence was suppressed.  The government argued that police relied in good faith on the facially valid warrant, and therefore, the evidence should not be suppressed.

On appeal the United States Supreme Court addressed whether “the Fourth Amendment exclusionary rule should be modified so as not to bar the admission of evidence seized in reasonable, good faith reliance on a search warrant that is subsequently held to be defective.”  The Supreme Court found that there should be a “good faith” exception to the exclusionary rule and recognized four situations when the good faith exception would not apply:  (1) If the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth. (2) The issuing magistrate wholly abandoned his judicial role.  (3) Where the warrant is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.  And, (4) when the warrant is facially deficient.

These four exceptions appear to swallow the rule and has made suppression arguments much more difficult for defendants.  Defense attorneys have to be very creative in their arguments to get around the Leon good faith exception to the exclusionary rule and our attorneys have had a lot of success in this area.  Call us for a free consultation anytime and we can give you an evaluation right over the phone.

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Utah Legislature Preparing for Its Annual Infringement on Our Rights

It’s that time of year again, the time when the Utah State Legislature is preparing to sit in session for a couple of months with the sole purpose of taking away our liberties and infringing on our rights. Is that too rough? Nah. When you look at the proposed laws that the Legislature is considering this session (and every session for that matter) it’s tough to come to a different conclusion.  Just look at some of these proposed new laws here.

Just once it would be nice to see someone run for a house or senate seat in the state Legislature who would commit to repealing laws rather than proposing more and more laws.  Nonetheless, we can expect another plethora of useless laws that simply make it harder and more expensive to live.

Check back frequently as Utah Defenders analyzes some of the specific laws that are up for debate this session.  We’ll explain the advantages and disadvantages of these laws, the reason for their proposal, and the likely consequences of their implementation.

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