State v. Rigby

2016 UT App 42

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ZACHARY RIGBY,
Appellant.

Opinion
No. 20140553-CA
Filed March 3, 2016

First District Court, Logan Department
The Honorable Brian G. Cannell
No. 135100370

Brandon J. Smith, Attorney for Appellant
James Swink and Aaron M. Jossie, Attorneys
for Appellee

JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGE
GREGORY K. ORME and SENIOR JUDGE JAMES Z. DAVIS concurred. 1

ROTH, Judge:

¶1 Zachary Rigby appeals his conviction for driving with a
measurable controlled substance in the body and possession or
use of a controlled substance, both class B misdemeanors. Rigby
challenges the trial court’s denial of his motion to suppress
evidence that the police found during a warrantless search of his
vehicle. Rigby contends that the Utah Constitution provides its

1. Senior Judge James Z. Davis began his work on this case as a
member of the Utah Court of Appeals. He retired from the court,
but thereafter became a Senior Judge. He completed his work on
this case sitting by special assignment as authorized by law. See
generally Utah R. Jud. Admin. 11-201(6).
State v. Rigby

citizens greater protection against unreasonable searches than
the United States Constitution because Utah courts have
required police officers to have both probable cause and exigent
circumstances when performing a warrantless search under the
automobile exception. He concedes the officers had probable
cause to search his automobile following the traffic stop but
asserts that they violated his constitutional rights by conducting
the search without a warrant in the absence of exigent
circumstances. Because we are reluctant to diverge from our
supreme court’s historical pattern of paralleling federal search
and seizure law, we conclude that law enforcement officers were
only required to have probable cause to justify the search of
Rigby’s vehicle under the automobile exception to the warrant
requirement. Accordingly, we affirm.

BACKGROUND

¶2 Ordinarily, ‚*w+e recite the facts in the light most
favorable to the trial court’s findings from the suppression
hearing.‛ State v. Giron, 943 P.2d 1114, 1115 (Utah Ct. App. 1997)
(citation and internal quotation marks omitted); see also State v.
Patefield, 927 P.2d 655, 656 (Utah Ct. App. 1996). But for purposes
of Rigby’s motion to suppress and, by extension, this appeal,
both parties have stipulated to the facts as presented in the
original police report. ‚A stipulation of fact filed with and
accepted by a court . . . is conclusive of all matters necessarily
included in the stipulation.‛ Yeargin, Inc. v. Auditing Div. of Utah
State Tax Comm’n, 2001 UT 11, ¶ 20, 20 P.3d 287 (citation and
internal quotation marks omitted); see also Prinsburg State Bank v.
Abundo, 2012 UT 94, ¶ 14, 296 P.3d 709 (‚*W]hen a court adopts a
stipulation of the parties, the issues to which the parties have
stipulated become settled . . . .‛ (citation and internal quotation
marks omitted)). Therefore, we recite the facts in accordance
with the parties’ stipulation.

20140553-CA 2 2016 UT App 42
State v. Rigby

¶3 On March 28, 2013, a police officer pulled Rigby’s
automobile over for a stop sign violation. Upon approaching the
vehicle, the police officer could ‚*i+immediately . . . detect[] the
odor of both burnt and fresh marijuana coming from the
vehicle.‛ Rigby and the two other occupants were ‚exhibiting
physical indicators of recent marijuana use, including bloodshot
eyes, droopy eyelids and a stoned look,‛ along with acting
‚extremely nervous‛ during the traffic stop. Additional officers,
including a K9 officer, were called to the location. The officer
who initiated the traffic stop then ‚explained *to Rigby+ that *he+
was going to be searching the vehicle, not only based on the fact
that [he] could smell the marijuana in the vehicle but because the
drug dog had given a positive indication as well.‛ Two officers
then searched Rigby’s vehicle; they recovered a small metal pipe
with marijuana residue and plastic bags containing fresh
marijuana. Rigby was arrested and charged with possession of
drug paraphernalia, a class A misdemeanor; driving with a
measurable controlled substance in the body and possession or
use of a controlled substance, both class B misdemeanors; and
failure to stop at a stop sign, a class C misdemeanor.

¶4 Rigby filed a motion to suppress ‚*a+ll evidence seized
and any statement obtained‛ ‚as a result of the unlawful
searches‛ conducted ‚in violation of the Utah Constitution.‛ At
the evidentiary hearing on Rigby’s motion, he conceded that the
‚odor of marijuana was sufficient‛ to establish probable cause
but argued that exigent circumstances were also ‚required in
order to justify a warrantless search‛ under the automobile
exception. The trial court denied Rigby’s motion to suppress,
finding that ‚the search was reasonable under the circumstances
and such evidence was lawfully obtained under the automobile
exception to the warrant requirement.‛

¶5 Rigby subsequently pled guilty to one count of driving
with a measurable controlled substance in the body, see Utah
Code Ann. § 41-6a-517(2) (LexisNexis 2014), and one count of
possession or use of a controlled substance, see id. § 58-37-

20140553-CA 3 2016 UT App 42
State v. Rigby

8(2)(a)(i).2 In entering his pleas, Rigby reserved the right to
appeal the trial court’s denial of his suppression motion. See State
v. Sery, 758 P.2d 935, 938 (Utah Ct. App. 1988) (describing how a
conditional plea ‚specifically preserves the suppression issue for
appeal and allows withdrawal of the plea if defendant’s
arguments in favor of suppression are accepted by the appellate
court‛) (citations omitted).

ISSUE AND STANDARD OF REVIEW

¶6 On appeal, Rigby argues that although the United States
Constitution and the Utah Constitution contain nearly
identically phrased protections against unreasonable searches,
the Utah Constitution provides greater protection to its citizens
by requiring law enforcement officers to have both probable
cause and exigent circumstances before conducting a warrantless
search under the automobile exception to the warrant
requirement, even though the United States Supreme Court has
held that under the federal constitution the automobile exception
requires only probable cause. ‚Matters of constitutional
interpretation are questions of law that we review for
correctness, and we provide no deference to the district court’s
legal conclusions.‛ State v. Gonzalez-Camargo, 2012 UT App 366,
¶ 15, 293 P.3d 1121 (citation and internal quotation marks
omitted); see also Menzies v. State, 2014 UT 40, ¶ 27, 344 P.3d 581
(‛Constitutional issues . . . are questions of law that we review
for correctness . . . .‛ (first omission in original) (citation and
internal quotation marks omitted)).

2. Because the statutory provisions in effect at the relevant times
do not differ materially from the statutory provisions now in
effect, we cite the current version of the Utah Code for
convenience.

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State v. Rigby

ANALYSIS

¶7 Both the United States Constitution and the Utah
Constitution contain nearly identical provisions safeguarding an
individual’s right against unreasonable searches and seizures.3
Both protect ‚*t+he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures‛ by the government. U.S. Const. amend.
IV; see also Utah Const. art. I, § 14. Some time ago, the Utah
Supreme Court observed that ‚Article I, section 14 of the Utah
Constitution reads nearly verbatim with the fourth amendment,
and thus [the] Court has never drawn any distinctions between
the protections afforded by the respective constitutional
provisions. Rather, the Court has always considered the
protections afforded to be one and the same.‛ State v. Watts, 750
P.2d 1219, 1221 (Utah 1988). The question presented here is
whether Utah courts should continue to follow this principle and
track the relatively recent evolution of the automobile exception
under federal law or chart its own path under the Utah
Constitution. To address this question, we first trace the history
of the automobile exception under both federal and state case
law. Next we examine the status of the automobile exception
under federal law in light of the United States Supreme Court’s
decision in Pennsylvania v. Labron, 518 U.S. 938 (1996) (per
curiam). Finally, we consider whether Utah is likely to continue
to track federal law after Labron with regard to the automobile
exception or chart a new path under the Utah Constitution.

3. The Fourth Amendment to the United States Constitution
provides,
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation,
(continued<)

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State v. Rigby

I. The Automobile Exception to the Warrant Requirement

¶8 Because warrantless searches are ‚per se unreasonable,‛
Katz v. United States, 389 U.S. 347, 357 (1967), ‚*p]olice officers
generally need a warrant to search a place in which a person has
a reasonable expectation of privacy,‛ State v. Boyles, 2015 UT
App 185, ¶ 10, 356 P.3d 687 (citing Franks v. Delaware, 438 U.S.
154, 164 (1978)); see also id. (citing Franks, 438 U.S. at 164) (noting
that ‚*b+efore issuing a search warrant, a magistrate must
determine that probable cause exists to conduct the search‛).
‚There are, of course, exceptions to the general rule . . . one [of
which] is the so-called ‘automobile exception’ . . . .‛ California v.
Carney, 471 U.S. 386, 390 (1985). Historically, under the
automobile exception, police were permitted to search an
automobile without a warrant so long as both probable cause
and exigent circumstances existed. See, e.g., Chambers v. Maroney,
399 U.S. 42, 48–51 (1970); State v. Limb, 581 P.2d 142, 144 (Utah
1978).

(<continued)
and particularly describing the place to be
searched, and the persons or things to be seized.

U.S. Const. amend. IV. The Utah Constitution is phrased very
similarly:

The right of the people to be secure in their
persons, houses, papers and effects against
unreasonable searches and seizures shall not be
violated; and no warrant shall issue but upon
probable cause supported by oath or affirmation,
particularly describing the place to be searched,
and the person or thing to be seized.

Utah Const. art. I, § 14.

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A. The Automobile Exception Under Federal Case Law

¶9 In 1925, the United States Supreme Court decided Carroll
v. United States, 267 U.S. 132 (1925), the seminal case addressing
the automobile exception to the Fourth Amendment’s warrant
requirement. In Carroll, the Court determined that while an
individual has a constitutionally protected privacy interest in an
automobile, the degree of protection is lessened ‚because the
vehicle can be quickly moved out of the locality or jurisdiction in
which the warrant must be sought.‛ Id. at 153. This mobility
principle has continued to be a factor in the Supreme Court’s
approach to automobile search cases since Carroll. See, e.g.,
Labron, 518 U.S. at 940; New York v. Class, 475 U.S. 106, 112–13
(1986); Carney, 471 U.S. at 392–93; South Dakota v. Opperman, 428
U.S. 364, 367 (1976); Cardwell v. Lewis, 417 U.S. 583, 588–89 (1974);
Cady v. Dombrowski, 413 U.S. 433, 441–42 (1973); Coolidge v. New
Hampshire, 403 U.S. 443, 459–60 (1971); Chambers, 399 U.S. at 52;
Cooper v. California, 386 U.S. 58, 59 (1967).

¶10 The Court has recognized, however, that ‚ready mobility
is not the only basis for the *automobile+ exception.‛ Carney, 471
U.S. at 391. Rather, the exception is also justified because of the
‚reduced expectations of privacy‛ arising from the ‚pervasive
regulation of vehicles capable of traveling on the public
highways.‛ Id. at 392 (citing Cady, 413 U.S. at 440–41); see also
Arizona v. Gant, 556 U.S. 332, 345 (2009) (recognizing that ‚a
motorist’s privacy interest in his vehicle is less substantial than
in his home‛); Wyoming v. Houghton, 526 U.S. 295, 303–07 (1999)
(holding that both drivers and passengers have a reduced
expectation of privacy in an automobile); Class, 475 U.S. at 113
(‚*A+utomobiles are justifiably the subject of pervasive
regulation by the State.‛); United States v. Chadwick, 433 U.S. 1,
12–13 (1977) (‚One has a lesser expectation of privacy in a motor
vehicle because its function is transportation and it seldom
serves as one’s residence or as the repository of personal
effects.‛) (citation omitted), abrogated on other grounds by
California v. Acevedo, 500 U.S. 565 (1991); Cardwell, 417 U.S. at 590.

20140553-CA 7 2016 UT App 42
State v. Rigby

¶11 Historically, the automobile exception has required two
circumstances. First, there must be probable cause for a search.
See Chambers, 399 U.S. at 48 (‚*A+utomobiles . . . may be searched
without a warrant in circumstances that would not justify the
search without a warrant of a house or an office, provided that
there is probable cause . . . .‛). And second, there must be exigent
circumstances. See id. at 50–51 (‚But the circumstances that
furnish probable cause to search a particular auto for particular
articles are most often unforeseeable; moreover, the opportunity
to search is fleeting since a car is readily movable. . . . Only in
exigent circumstances will the judgment of the police as to
probable cause serve as a sufficient authorization for a search.‛).
The required exigency was usually found to inhere in a factor
fundamental to the exception itself, i.e., the characteristic
mobility of an automobile. See, e.g., Acevedo, 500 U.S. at 569
(citing Carroll, 267 U.S. at 158–59) (stating that ‚a warrantless
search of an automobile, based upon probable cause to believe
that the vehicle contained evidence of crime in light of an
exigency arising out of the likely disappearance of the vehicle,
[does] not contravene the Warrant Clause of the Fourth
Amendment‛).

¶12 In 1996, however, the Supreme Court concluded that the
warrantless search of an automobile no longer required separate
consideration of exigent circumstances, so long as there was
probable cause for the search. Labron, 518 U.S. at 940. The Court
held that ‚ready mobility [was] exigency sufficient to excuse
failure to obtain a search warrant once probable cause to conduct
the search is clear.‛ Id. (citing Carney, 471 U.S. at 390–91). In
reaching this conclusion the Court reasoned that in addition to
the mobility principle, its prior recognition of the ‚reduced
expectation of privacy in an automobile‛ justified recasting the
description of the automobile exception to permit a warrantless
search ‚*i+f a car is readily mobile and probable cause
exists . . . without *anything+ more.‛ Id. (citing Carney, 471 U.S. at
393).

20140553-CA 8 2016 UT App 42
State v. Rigby

B. The Automobile Exception Under Utah Case Law

¶13 Historically, Utah case law has mirrored federal case law
with respect to the automobile exception to the warrant
requirement. Utah cases, like their federal counterparts, have
recognized that ‚*w+arrantless searches are per se unreasonable
unless undertaken pursuant to a recognized exception to the
warrant requirement.‛ State v. Brown, 853 P.2d 851, 855 (Utah
1992) (citing Katz v. United States, 389 U.S. 347, 357 (1967)). Our
case law has also echoed federal case law in recognizing that
‚*t+here are . . . several exceptions to the warrant requirement . . .
includ[ing] . . . [the] search of an automobile based on probable
cause.‛ State v. Hygh, 711 P.2d 264, 267 (Utah 1985) (citing
Chambers, 399 U.S. 42); see also State v. Limb, 581 P.2d 142, 144–45
(Utah 1978) (discussing the automobile exception to the warrant
requirement and quoting Chambers, 399 U.S. at 51, with
approval).

¶14 Our cases have also described the rationale for the
automobile exception much like federal cases have. For example,
in the 1948 case City of Price v. Jaynes, while discussing the
validity of a city ordinance modeled after the Fourth
Amendment, our supreme court recognized that under federal
law an individual has a lessened degree of protection in some
instances based on whether the place to be searched is mobile.
191 P.2d 606, 608 (Utah 1948). And in City of Price the Utah
Supreme Court enunciated and followed the principles first
announced in Carroll:

[The Fourth Amendment] has been construed
practically since the beginning of the Government,
as recognizing a necessary difference between a
search of a store, dwelling house or other structure
in respect of which a proper official warrant
readily may be obtained, and a search of a ship,
motor boat, wagon or automobile for contraband
goods where it is not practicable to serve a warrant

20140553-CA 9 2016 UT App 42
State v. Rigby

because the vehicle can be quickly moved out of
the jurisdiction in which the warrant is sought.

Id. at 608 (quoting Carroll, 267 U.S. at 153); see also State v. Dorsey,
731 P.2d 1085, 1087 (Utah 1986) (citing Carroll, 267 U.S. 132, (‚It
has long been held that warrantless vehicle searches are not
invalid under the Fourth Amendment if probable cause for a
search exists.‛)). And subsequent to City of Price, the court has
repeatedly referred to the mobility principle as justification for
the automobile exception. See, e.g., State v. Baker, 2010 UT 18,
¶ 11, 229 P.3d 650; State v. James, 2000 UT 80, ¶ 10, 13 P.3d 576;
State v. Anderson, 910 P.2d 1229, 1234–37 (Utah 1996) (plurality
opinion); Limb, 581 P.2d at 144–45; State v. Farnsworth, 519 P.2d
244, 247 (Utah 1974); State v. Shields, 503 P.2d 848, 849 (Utah
1972).

¶15 Further, like the federal courts, our supreme court has
recognized that in addition to an automobile’s ready mobility,
the automobile exception finds support in reduced privacy
expectations. For instance, in State v. Baker, the Utah Supreme
Court noted that the ‚automobile exception to the warrant rule
arises because occupants of a vehicle have a lesser expectation of
privacy due to the mobile nature of vehicles and their highly
regulated status.‛ 2010 UT 18, ¶ 11 (alteration, citation, and
internal quotation marks omitted); accord James, 2000 UT 80, ¶ 10
(‚Due to the mobile nature of vehicles and their highly-regulated
status, persons traveling in vehicles have a lesser expectation of
privacy than they would have within a private dwelling.‛); see
also State v. Lopez, 873 P.2d 1127, 1131–34 (Utah 1994); State v.
Schlosser, 774 P.2d 1132, 1135 (Utah 1989).

¶16 And like the federal courts until Labron, the Utah Supreme
Court has historically described the automobile exception as
requiring both probable cause and exigent circumstances to
justify a police officer in the warrantless search of an automobile.
See, e.g., State v. Christensen, 676 P.2d 408, 411 (Utah 1984) (‚For
[the automobile] exception to apply, the police must have

20140553-CA 10 2016 UT App 42
State v. Rigby

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.‛); see also State v. Larocco, 794 P.2d 460,
470 (Utah 1990) (plurality opinion) (approving the logic of
Christensen, 676 P.2d 408, and re-iterating the requirement that
police officers have both probable cause and exigent
circumstances to justify a search under the automobile
exception); Limb, 581 P.2d at 144 (citing Carroll, 267 U.S. 132, with
approval and holding that probable cause and exigent
circumstances existed to justify a warrantless search of an
automobile). Also in line with the federal approach, the Utah
Supreme Court has recognized that the required exigency
generally arises from the inherent mobility of an automobile. See
Shields, 503 P.2d at 849 (‚In exigent circumstances, the judgment
of a police officer as to probable cause will serve as sufficient
authorization for a search, i.e., a search warrant is unnecessary
where there is probable cause to search an automobile stopped
on the highway, for the car is movable, . . . and the car’s contents
may never be found again if a warrant must be obtained.‛).

II. The Automobile Exception Under Pennsylvania v. Labron

¶17 On July 1, 1996, the United States Supreme Court decided
the companion cases of Pennsylvania v. Kilgore and Pennsylvania
v. Labron in a consolidated opinion. See Pennsylvania v. Labron,
518 U.S. 938 (1996) (per curiam). In both cases, the Pennsylvania
Supreme Court had held that the Fourth Amendment to the
United States Constitution required law enforcement officers to
obtain a warrant before searching a vehicle unless both probable
cause and exigent circumstances were present. Id. at 938–39. In
particular, the Pennsylvania Supreme Court had held that the
warrantless search of Labron’s vehicle was unjustified because
although law enforcement officers had probable cause to search
the trunk of the vehicle for suspected drug activity, there were
no exigent circumstances justifying the search because ‚the
police had time to secure a warrant.‛ Id. at 939–40. In a relatively
short per curiam decision, the Supreme Court concluded that it

20140553-CA 11 2016 UT App 42
State v. Rigby

was incorrect under the Fourth Amendment for courts to require
law enforcement officers to have both probable cause and exigent
circumstances for the warrantless search of an automobile. Id.
The Court began its analysis with a brief review of the history of
the Fourth Amendment’s automobile exception. Id. (first citing
California v. Carney, 471 U.S. 386, 390–91 (1985); then citing
Carroll, 267 U.S. 132). The Court noted that the first cases
underlying the automobile exception ‚were based on the
automobile’s ‘ready mobility’‛ because ‚‘ready mobility[]’ *is+ an
exigency sufficient to excuse failure to obtain a search warrant
once probable cause to conduct the search is clear.‛ Id. But the
Court explained that ‚*m+ore recent cases provide a further
justification [for the automobile exception+‛ based on an
‚individual’s reduced expectation of privacy in an automobile[]
[because of] . . . its pervasive regulation.‛ Id. (citing Carney, 471
U.S. at 391–92). The Court concluded, ‚If a car is readily mobile
and probable cause exists to believe it contains contraband, the
Fourth Amendment thus permits police to search the vehicle
without more.‛ Id. (citing Carney, 471 U.S. at 393). The Court has
subsequently stated that Labron stands for the rule that under
federal law, ‚the ‘automobile exception’ has no separate
exigency requirement.‛ Maryland v. Dyson, 527 U.S. 465, 466–67
(1999) (per curiam) (discussing Labron, 518 U.S. 938).4

4. In Maryland v. Dyson, 527 U.S. 465 (1999) (per curiam), the
Supreme Court stated that it had been ‚clear‛ since United States
v. Ross, 456 U.S. 798 (1982), that the automobile exception had no
exigency requirement and characterized Labron as simply
reiterating that principle:
The Fourth Amendment generally requires police
to secure a warrant before conducting a search.
California v. Carney, 471 U.S. 386, 390–91 (1985). As
we recognized nearly 75 years ago in Carroll v.
United States, 267 U.S. 132 (1925), there is an
exception to this requirement for searches of
(continued<)

20140553-CA 12 2016 UT App 42
State v. Rigby

III. The Automobile Exception Under Article I, Section 14 of the
Utah Constitution

¶18 The Utah Supreme Court has not specifically considered
the effect of Labron on Utah law. And though we have

(<continued)
vehicles. And under our established precedent, the
‚automobile exception‛ has no separate exigency
requirement. We made this clear in United States v.
Ross, 456 U.S. 798, 809 (1982), when we said that in
cases where there was probable cause to search a
vehicle ‚a search is not unreasonable if based on
facts that would justify the issuance of a warrant,
even though a warrant has not been actually obtained.‛
In a case with virtually identical facts to this one
(even down to the bag of cocaine in the trunk of the
car), Pennsylvania v. Labron, 518 U.S. 938 (1996) (per
curiam), we repeated that the automobile exception
does not have a separate exigency requirement:
‚If a car is readily mobile and probable cause
exists to believe it contains contraband, the Fourth
Amendment . . . permits police to search the
vehicle without more.‛ Id. at 940.
Dyson, 527 U.S. at 466–67 (emphasis in original). But Labron itself
did not mention Ross and seemed at the time to mark a point of
departure from the exigency requirement. Certainly, the
conclusion Dyson draws from Ross seems more apparent in
Labron’s clarifying light than it may have been before then. It is
tempting to surmise that Labron’s per curiam nature may have
signaled that the Court did not consider its decision to be so
much a departure from the past as an acknowledgement that,
given its foundation in the mobility principle, the exigency
requirement may already have largely lost its role as an
independent component of the automobile exception.

20140553-CA 13 2016 UT App 42
State v. Rigby

mentioned Labron on occasion, this court has not had the
opportunity to specifically analyze Article I, Section 14 of the
Utah Constitution in light of that decision. In fact, each of the
few times this court has cited Labron, we did so to support a
conclusion—in the context of analyzing federal law—that a law
enforcement officer’s search of an appellant’s automobile was
justified under the automobile exception to the Fourth
Amendment’s warrant requirement because the officer had
probable cause. See State v. Despain, 2007 UT App 367, ¶¶ 14, 16,
173 P.3d 213 (recognizing that the requirements to justify a
search under the automobile exception have ‚fluctuated in the
past,‛ but ultimately relying on both Dyson and Labron to
conclude that ‚federal law ha*d+ been clarified‛ and therefore
‚*t+he officers’ search . . . was justified under the automobile
exception to the Fourth Amendment[] . . . because the officers
had probable cause‛); State v. Griffith, 2006 UT App 291, ¶¶ 6–8,
141 P.3d 602 (relying on Dyson and Labron to conclude that
because the defendant’s vehicle was mobile the officer needed
only probable cause to search the vehicle under the Fourth
Amendment); State v. Mehew, 2003 UT App 166U, para. 3 (citing
Labron, 518 U.S. at 940) (holding that because the defendant’s
vehicle was mobile and probable cause existed the warrantless
search of the vehicle was valid under the automobile exception).
Further, although not specifically citing Labron, we have applied
the rule Labron recognized—that the automobile exception,
under federal law, has no separate exigency requirement—on a
number of occasions. See, e.g., State v. Juma, 2012 UT App 27, ¶ 9,
270 P.3d 564; State v. Butler, 2011 UT App 281, ¶ 12, 263 P.3d 463;
In re D.A.B., 2009 UT App 169, ¶ 7, 214 P.3d 878; State v. Griffith,
2006 UT App 291, ¶ 6, 141 P.3d 602. And it appears that the only
time we have been asked to consider whether Article I, Section
14 of the Utah Constitution would yield a more restrictive
interpretation of the automobile exception than Labron, we
declined to do so because the state constitutional issues were
inadequately briefed. See Despain, 2007 UT App 367, ¶ 12
(explaining that the ‚[d]efendant mentioned both the Utah and
United States Constitutions in his opening brief,‛ but ‚did not

20140553-CA 14 2016 UT App 42
State v. Rigby

conduct a separate analysis of the protections afforded by each‛
and, as a consequence, this court ‚refrained from engaging in *a+
state constitutional analysis‛ of the automobile exception and
affirmed the district court based on Labron’s holding that the
Fourth Amendment required only probable cause for the
warrantless search of an automobile).

¶19 Here, Rigby acknowledges that both ‚the U.S.
Constitution and the Utah Constitution contain almost identical
protections against unreasonable searches‛ and that ‚in 1996 the
U.S. Supreme Court [in Labron] changed the requirements under
the U.S. Constitution to require probabl*e+ cause only,‛ no
longer requiring a separate showing of exigency. Rigby argues,
however, that ‚*n+o such decision has been issued regarding the
status of the Utah Constitution.‛ And therefore, according to
Rigby, ‚under the Utah Constitution an officer must still have
both probable cause and exigent circumstances to justify the
warrantless search of an automobile.‛ Unlike the appellant in
Despain, we believe that Rigby analyzes the issue in a manner
sufficient to warrant our consideration of whether, in light of
Labron, the Utah Constitution now provides its citizens greater
protection against unreasonable searches than the United States
Constitution by continuing to require that police officers have
both probable cause and exigent circumstances to justify a
warrantless search under the automobile exception. Rigby
primarily draws support for his argument that Utah ought to
depart from the federal path with regard to the automobile
exception from three opinions, which seem to be the Utah
Supreme Court’s last ventures into the realm of the Utah
Constitution’s relationship to the automobile exception prior to
Labron: State v. Watts, 750 P.2d 1219 (Utah 1988), State v. Larocco,
794 P.2d 460 (Utah 1990) (plurality opinion), and State v.
Anderson, 910 P.2d 1229 (Utah 1996) (plurality opinion). We
address each case in order to determine whether our supreme
court has established a discernible distinction between the
Fourth Amendment to the United States Constitution and Article
I, Section 14 of the Utah Constitution that may apply here.

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State v. Rigby

A. State v. Watts

¶20 In State v. Watts a majority of the Utah Supreme Court
affirmed the appellant’s conviction for unlawful production and
possession of marijuana. Watts, 750 P.2d at 1225. The appellant
in Watts had unsuccessfully moved the trial court to suppress
evidence based upon the Fourth Amendment to the United
States Constitution and Article I, Section 14 of the Utah
Constitution. Id. at 1220. While ultimately holding that private
searches did not fall within the protection of the Utah
Constitution, the Watts court acknowledged and affirmed its
historical pattern of interpreting both the federal and the state
constitutions as providing identical protections:

Article I, section 14 of the Utah Constitution reads
nearly verbatim with the fourth amendment, and
thus this Court has never drawn any distinctions
between the protections afforded by the respective
constitutional provisions. Rather, the Court has
always considered the protections afforded to be
one and the same. We do not depart from that view
in this case, and hold that unreasonable private
searches are not subject to the protection of article
I, section 14 of the Utah Constitution.

Id. at 1221 (footnotes omitted).

¶21 Although Rigby acknowledges the court’s reasoning, he
points to a footnote in Watts in which the court opined that
‚choosing to give the Utah Constitution a somewhat different
construction may prove to be an appropriate method for
insulating this state’s citizens from the vagaries of inconsistent
interpretations given to the fourth amendment by the federal
courts.‛ Id. at 1221 n.8. Rigby interprets this footnote as
indicating that ‚*t+he Watts court reserved the right to
distinguish between the protections afforded by the two
Constitutions.‛ But the footnote’s indication of the court’s

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willingness to consider a different direction at some point in the
future must be considered in light of the majority’s unequivocal
decision not to ‚depart . . . from *the court’s+ consistent
refusal . . . to interpret article I, section 14 of [the Utah]
constitution in a manner different from the fourth amendment to
the federal constitution.‛ Id. Therefore, the supreme court’s
statement in Watts reinforces Utah’s historical pattern of tracking
federal law in this area both in principle and in practice while
keeping open the possibility of departing from that pattern,
should the circumstances undergirding it change in some
significant way. Cf. State v. Worwood, 2007 UT 47, ¶ 11, 164 P.3d
397 (‚In cases involving Fourth Amendment questions under the
United States Constitution, we review mixed questions of law
and fact under a correctness standard in the interest of creating
uniform legal rules for law enforcement.‛ (emphasis added)).

B. State v. Larocco

¶22 In State v. Larocco a plurality of the supreme court (two
justices concurring and one concurring only in the result) urged
departure from continued reliance on federal jurisprudence as
the basis for interpreting Article I, Section 14 of the Utah
Constitution. Larocco, 794 P.2d at 470–71. The plurality reasoned
that although both federal and Utah courts had historically
interpreted the automobile exception to require both probable
cause and exigent circumstances, id. at 470, exigency had become
essentially a given based on a too-simplistic notion about the
ready mobility of automobiles, id. at 469. The Larocco plurality
thus concluded that an automobile’s mere potential for mobility
ought no longer to be sufficient to satisfy the exigency
requirement under the Utah Constitution. Rather, a two-step
process was required: first, it should be established that officers
had probable cause for a search; then in order to meet the
required level of exigency, ‚*t+he next step requires justification
of the warrantless search by showing either that the
procurement of a warrant would have jeopardized the safety of
the police officers or that the evidence was likely to have been

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lost or destroyed.‛ Id. at 470. In other words, for the automobile
exception to apply, the State must go beyond the general concept
of ready mobility and show exigency particularized to the actual
circumstances at hand. Thus, in Larocco, there was probable
cause for a search, but the State failed to show that the
presumably stolen automobile, while operable and likely mobile,
would no longer have been available to search if the officers had
taken the time to obtain a warrant. As a result, the warrantless
search was not justified. Id. at 470–71.

¶23 But Larocco’s plurality status ‚represents the view of only
two justices . . . and is therefore not the law of this state.‛
Anderson, 910 P.2d at 1234 n.5. Accordingly, the holding from
Watts remained ‚the law of this state.‛ See id.; see also State v.
Giron, 943 P.2d 1114, 1121 (Utah Ct. App. 1997) (‚Because Larocco
was only a plurality opinion, its analysis is not binding.‛).
Therefore, we cannot conclude that the plurality decision in
Larocco signals our supreme court’s intent to interpret the state
constitution to provide different protections than the federal
constitution. See State v. Mohi, 901 P.2d 991, 996 n.3 (noting that
‚a plurality opinion . . . does not establish precedent‛). A
subsequent plurality decision, State v. Anderson, underscores this
notion.

C. State v. Anderson

¶24 In State v. Anderson, issued just months before Labron,5 the
Utah Supreme Court was again asked to depart from its practice
of interpreting in tandem the search and seizure requirements of
the state and federal constitutions in the context of the
automobile exception. See Anderson, 910 P.2d at 1235. But the
Anderson plurality rejected the approach taken by the Larocco

5. State v. Anderson, 910 P.2d 1229 (Utah 1996), was issued on
February 2, 1996, while Labron, 518 U.S. 938, was issued
approximately five months later, on July 1, 1996.

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plurality and affirmed that Utah would continue to track the
federal path in this area: ‚Because this portion of Larocco
coincides with federal law, we agree with those who joined the
Larocco plurality that article I, section 14 of the Utah Constitution
requires that warrantless searches of automobiles be justified by
a showing of probable cause and exigent circumstances.‛ Id. at
1237. Based on this statement, Rigby urges us to acknowledge
Anderson as the irrefutable last word on the issue. In other
words, Rigby argues that even if Larocco’s more restrictive
plurality approach is not binding, we should conclude at a
minimum that the Anderson plurality has accurately articulated
Utah law just prior to Labron as holding that probable cause
alone is not sufficient to justify the warrantless search of an
automobile but that exigent circumstances are also required.
Rigby contends that the Anderson court ‚went into great detail to
explain that under both the Federal and Utah constitutions the
warrantless search of an automobile required ‘both probable
cause and exigent circumstances.’‛ (Quoting Anderson, 910 P.2d
at 1236.)

¶25 While that is true, Anderson does not support Rigby’s
position as strongly as he contends, because Rigby does not
acknowledge the context in which that explanation occurred.
Although the Anderson plurality recognized that in the past,
federal Fourth Amendment law had been ‚the source of much
confusion among judges, lawyers, and police,‛ it went on to
explain that our supreme court ‚ha*s+ endeavored toward
uniformity in the application of the search and seizure
requirements of the state and federal constitutions, particularly
since the respective provisions are practically identical,‛
cautioning that ‚*a+n opposite approach could lead to
unfavorable results.‛ Id. at 1235–36 (citation and internal
quotation marks omitted). In accordance with this principle,
recognizing that at the time Anderson was issued, federal law
‚require*d+ that such a search be premised on probable cause
and exigent circumstances,‛ id. at 1237, the plurality concluded
that the Utah Constitution required the same: ‚*T+he Utah

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Constitution requires that warrantless searches of automobiles
be justified by a showing of probable cause and exigent
circumstances,‛ id. Thus, rather than fixing the combination of
probable cause and exigent circumstances as the invariable
components of the automobile exception under the Utah
Constitution, Anderson can be read to express the plurality’s
view that the Utah Supreme Court had expressed a distinct and
continuing preference to have Article 1, Section 14 interpreted
consistently with the Fourth Amendment in order to avoid the
‚unfavorable results‛ that a different approach ‚could lead to.‛
Id. at 1235 (‚For these reasons, Utah courts should construe
article I, section 14 in a manner similar to constructions of the
Fourth amendment except in compelling circumstances.‛ (citing,
among other cases, Watts, 750 P.2d at 1221 & n.8)).

D. The Current State of the Automobile Exception Under
Utah Law

¶26 The plurality decisions in Larocco and Anderson present
two competing approaches. On the one hand, the Larocco
plurality analyzes the automobile exception to require a
complex, policy-based analysis giving due consideration to the
principle that the Utah Constitution ought to be independently
analyzed with the potential for affording Utah citizens greater
liberties than the federal. Larocco, 794 P.2d at 469–71. On the
other hand, the Anderson plurality firmly rejects that approach
and urges that the court instead adhere to the historical pattern
of following the path of federal law to avoid confusion and
‚unfavorable results.‛ Anderson, 910 P.2d at 1234–37. But
although the pluralities in Larocco and Anderson began an
internal dialogue that could eventually lead to changes in Utah’s
approach, we are effectively left with Watts as the supreme
court’s last majority expression, and therefore what appears to
be the court’s last word on the automobile exception. And while
Watts held that the automobile exception required both probable
cause and exigent circumstances, its reasoning was firmly based

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on the principle of tracking the path set by the United States
Supreme Court. Watts, 750 P.2d at 1220–21 & n.8.

¶27 Certainly, Rigby’s contention that Utah courts ought now
to depart from the federal interpretive path and determine that
Article I, Section 14 of the Utah Constitution provides Utah
citizens with more expansive rights than those guaranteed under
the Fourth Amendment to the United States Constitution finds
resonance in the language of some prior cases. See State v. Brake,
2004 UT 95, ¶ 16 n.2, 103 P.3d 699 (first citing Anderson, 910 P.2d
at 1234–37; and then citing Larocco, 794 P.2d at 469–70) (declining
‚the implicit invitation‛ inherent in the circumstances of the case
‚to revisit the dormant but unresolved debate in this court over
the merits of whether and when to depart from federal Fourth
Amendment doctrine and chart our own course in the realm of
search and seizure law based on the protections afforded by
article I, section 14 of the Utah Constitution‛); State v. DeBooy,
2000 UT 32, ¶ 12, 996 P.2d 546 (‚While this court’s interpretation
of article I, section 14 has often paralleled the United States
Supreme Court’s interpretation of the Fourth Amendment, we
have stated that we will not hesitate to give the Utah
Constitution a different construction where doing so will more
appropriately protect the rights of this state’s citizens.‛); Larocco,
794 P.2d at 465 (‚*W+e have by no means ruled out the
possibility of [drawing distinctions between the protections
afforded by article I, section 14 of the Utah Constitution and the
fourth amendment of the United States Constitution].‛ (quoting
Watts, 750 P.2d at 1221 n.8)); Watts, 750 P.2d at 1221 n.8 (‚In
declining to depart in this case from our consistent refusal
heretofore to interpret article I, section 14 of our constitution in a
manner different from the fourth amendment to the federal
constitution, we have by no means ruled out the possibility of
doing so in some future case. Indeed, choosing to give the Utah
Constitution a somewhat different construction may prove to be
an appropriate method for insulating this state’s citizens from
the vagaries of inconsistent interpretations given to the fourth
amendment by the federal courts.‛). But the decades-long

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pattern of Utah decisions following the lead of federal law in this
area before Larocco and Anderson—a pattern acknowledged and
applied in Watts—is established enough that the burden must be
on the challenging party to persuade us that a change is
justifiable, and Rigby has not carried that burden here. Rather,
the strength of that pattern and the very intensity of the
disagreement between the Larocco and Anderson pluralities deter
us from concluding that the current court would mark Labron as
Utah’s point of departure from the path of federal law on the
automobile exception.

¶28 And even were we tempted to do so,

as an intermediate court of appeals, we would be
reluctant, in any event, to become overly creative
in fashioning a state constitutional rule different
from the federal rule. Such a task lies more
appropriately with the Utah Supreme Court as ‚the
ultimate and final arbiter of the meaning of the
provisions in the Utah Declaration of Rights and
the primary protector of individual liberties.‛

State v. Jackson, 937 P.2d 545, 550 (Utah Ct. App. 1997) (first
quoting Anderson, 910 P.2d at 1240 (Stewart, J., concurring in the
result); then citing State v. Larocco, 742 P.2d 89, 95 n.7 (Utah Ct.
App. 1987) (stating that any departure from Fourth Amendment
case law ‚should be announced by our state’s supreme court, not
this court‛), rev’d on other grounds, 794 P.2d 460 (Utah 1990)); cf.
DIRECTV v. Utah State Tax Comm’n, 2015 UT 93, ¶¶ 44–46
(declining to ‚embark on a constitutional*+ . . . journey‛ when
asked to extend federal dormant commerce clause precedent
because the United States Supreme Court’s current approach
does not seem to point in that direction and because it is not the
province of the Utah Supreme Court to embark on that journey).
Accordingly, we decline to depart from the path of federal law
and conclude that under the automobile exception, as
interpreted in Labron, the law enforcement officers in this case

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were only required to have probable cause to justify the search
of Rigby’s vehicle under the automobile exception to the warrant
requirement of either the federal or Utah constitutions. See State
v. Despain, 2007 UT App 367, ¶¶ 13–16, 173 P.3d 213. Because
there is no dispute that the officers here had probable cause for a
search, the trial court did not err in denying Rigby’s motion to
suppress.6

CONCLUSION

¶29 For the reasons stated above, the judgment of the trial
court is affirmed.

6. Because we follow Labron’s lead and conclude that no separate
showing of exigent circumstances is required under the
automobile exception, we do not reach Rigby’s argument that
the availability of warrants by telephone or other electronic
media means that there was no exigency here as a matter of law.
Cf. State v. Rodriguez, 2007 UT 15, ¶ 60, 156 P.3d 771 (‚*P+ractical
considerations associated with warrant acquisition remain
central to inquiries into whether exigent circumstances justify a
warrantless search.‛); State v. Larocco, 794 P.2d 460, 470 (Utah
1990) (plurality opinion) (recognizing ‚*t+he amount of time
necessary to obtain a warrant‛ is a factor used to ‚determin*e+
whether circumstances are exigent‛); City of Orem v. Henrie, 868
P.2d 1384, 1391–92 (Utah Ct. App. 1994) (identifying ‚the
availability of a telephonic warrant‛ as one consideration when
determining whether exigency exists).

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