State v. Moreno

2009 UT 15
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, 	No. 20070240
Plaintiff and Appellee,
v.
F I L E D
Nicholas Frank Moreno,
Defendant and Appellant. 	February 20, 2009
---
Fifth District Juvenile, Cedar City
The Honorable Hans Q. Chamberlain
No. 505393
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Joanne C. Slotnik,
Asst. Att’y Gen., Salt Lake City, for plaintiff
Randall C. Allen, Cedar City, for defendant
---
On Certification from the Utah Court of Appeals
NEHRING, Justice:
INTRODUCTION
¶1 	Nicholas Moreno appeals the juvenile court’s denial of
his motion to dismiss a contempt finding he received from the
juvenile court. 	That court adjudicated his daughter delinquent
for possession of marijuana and attempted possession of
methamphetamine. 	The juvenile court also denied Mr. Moreno’s
motion to vacate his guilty plea to an earlier contempt charge
made by the same court. 	Both contempt charges arose out of Mr.
Moreno’s failure to undergo drug testing, which the juvenile
court ordered as part of his daughter’s delinquency adjudication.
The question before the juvenile court was whether it had
jurisdiction to require a parent of a delinquent child to undergo
drug testing in a delinquency proceeding. 	The juvenile court
held that it had the power to order parents to submit to drug
testing in the context of a child’s delinquency adjudication
because the Legislature empowered it to impose reasonable
conditions on parents whose children were under the jurisdiction

1 Formerly codified as Utah Code section 78-3a-118. 	The
Legislature renumbered Title 78 during the 2008 general
legislative session; however, because substantive changes were
not made to the sections of the Juvenile Code at issue in this
case, we cite to the renumbered sections of the Juvenile Code.
No. 20070240 	2
of the court. 	Utah Code Ann. § 78A-6-117 (2008). 1 	Mr. Moreno
appealed, and we reverse.
BACKGROUND
¶2 	C.M., the juvenile daughter of Mr. Moreno, was
adjudicated delinquent for possession of marijuana and attempted
possession of methamphetamine. 	She was later sent to detention
for violating the terms of her probation by testing positive for
marijuana. 	As part of C.M.’s delinquency adjudication, the court
ordered that her father, Mr. Moreno, complete a urinalysis and
hair test for illegal drugs that same day. 	The court justified
its decision to require Mr. Moreno to undergo drug testing with
the following findings: 	(1) Mr. Moreno was considered a threat
to law enforcement; (2) C.M.’s grandparents thought Mr. Moreno
was an alcoholic; (3) occasional domestic disturbances had
occurred in the home; and (4) Mr. Moreno evaded the police on one
occasion, although he was never charged. 	Additionally, because
the police in Parowan, Utah, suspected that Mr. Moreno and his
girlfriend, Karen Hardy, “may be cooking meth in the hills,” the
juvenile court also ordered Ms. Hardy to submit to drug testing.
Ms. Hardy was a known drug user and had previously served time in
prison on drug charges.
¶3 	Mr. Moreno failed to appear for drug testing as ordered
and was charged with contempt of court under Utah Code section
78A-6-1101. 	Mr. Moreno pled guilty, and the court stayed a fine
of $300 and thirty days in jail on the condition that Mr. Moreno
submit to future random drug tests. 	Mr. Moreno completed a drug
test and tested negative for drug use. 	The court later insisted
that Mr. Moreno submit to another random drug test, but Mr.
Moreno refused. 	His refusal to complete drug testing caused the
court to schedule a second contempt hearing, which Mr. Moreno did
not attend. 	The Fifth District Juvenile Court issued a warrant
for Mr. Moreno’s arrest and reinstated the thirty-day jail term.
¶4 	Mr. Moreno filed a motion to dismiss the second
contempt charge and also moved to vacate his guilty plea to the
earlier contempt charge. 	He argued that the juvenile court
exceeded its narrow grant of jurisdiction over parents of
children involved in delinquency hearings and that the court did
not have jurisdiction to order him to submit to drug testing.

3 	No. 20070240
Mr. Moreno also contended that under Utah Code section 78A-6-
108(6), the juvenile court can only order a parent to complete
physical testing in child custody hearings and child welfare
cases. 	Alternately, he presented the argument that the order to
submit to drug testing was not a “reasonable condition” that the
juvenile court could impose under Utah Code section 78A-6-
117(2)(p)(i) since it did not relate to conditions imposed on the
minor and because the juvenile court had no reason to suspect
that Mr. Moreno was abusing drugs. 	Finally, Mr. Moreno argued
that drug testing violated his Fourth and Fifth Amendment rights.
¶5 	The State countered that the juvenile court had
jurisdiction to order Mr. Moreno to be drug tested as part of his
daughter’s delinquency proceeding. 	The State argued that the
Legislature has granted the juvenile court broad authority to
make “reasonable orders . . . for the best interest of the minor”
under section 78A-6-117(2)(t) and that the court’s authority
should be interpreted broadly. 	Accordingly, the State argued
that the juvenile court’s order requiring Mr. Moreno to submit to
drug testing was reasonable.
¶6 	The juvenile court denied both of Mr. Moreno’s motions
to dismiss, and he appealed. 	We have jurisdiction over the
appeal pursuant to Utah Code section 78A-3-102(3)(b) (2008).
STANDARD OF REVIEW
¶7 	Whether the juvenile court has subject matter
jurisdiction over parents whose children are involved in
delinquency proceedings is a question of law, which we review for
correctness. 	K.S. v. S.H. (In re B.B.), 2002 UT App 82, ¶ 4, 45
P.3d 527. 	Determining whether the juvenile court’s decision that
imposing drug testing on Mr. Moreno was a reasonable condition
requires us to construe the term reasonable as a matter of law.
In issuing orders, however, the juvenile court is presented with
a wide variety of potential fact patterns. 	In its call to both
interpret reasonableness as a matter of law and consider the
range of possible fact patterns, the question in this case is
analogous to the review of whether a police stop was supported by
probable cause. 	Where a court finds that under a particular set
of facts there is probable cause to support a search, we review
the court’s decision as a question of law. 	State v. Chapman, 921
P.2d 446, 450 (Utah 1996). 	Although we review the court’s
decision for correctness, because of the numerous fact patterns
that can occur, some deference is given to the lower court’s
ruling. 	Id. 	Because the question of whether a condition imposed
on a parent by the juvenile court is similar to the question of

2 The record does not indicate whether Ms. Hardy was made a
party to C.M.’s juvenile proceeding. 	She was, however, also
charged with contempt by the juvenile court for refusing to
submit to drug testing. 	She does not join in Mr. Moreno’s
appeal.
No. 20070240 	4
whether probable cause was present, we will review the juvenile
court’s decision under the same standard of review.
ANALYSIS
¶8 	Juvenile courts are created by statute, and their
jurisdiction is limited to the power that is specifically
conferred on them by the Legislature. 	Hardinger v. Scott (State
ex rel. B.B.), 2004 UT 39, ¶ 13, 94 P.3d 252. 	Two provisions of
the Juvenile Court Act give the court jurisdiction over parents
in certain delinquency cases. 	The first provision is Utah Code
section 78A-6-117(2)(p)(i), which gives the court power to “order
reasonable conditions to be complied with by a minor’s parents or
guardian . . . or any other person who has been made a party to
the proceedings.” 2 	The second provision is Utah Code section
78A-6-117(2)(t), which specifies that “[t]he court may make any
other reasonable orders for the best interest of the minor or as
required for the protection of the public, except that a child
may not be committed to jail or prison.” 	These statutes reflect
a legislative policy judgment to give juvenile courts broad
authority with respect to the remedies ordered so long as they
are in the best interest of the child.
¶9 	By their plain language, these sections give the
juvenile court subject matter jurisdiction over parents whose
children are subject to delinquency proceedings and third parties
associated with those children. 	Additionally, section 78A-6-
1101(1) allows the juvenile court to require “[a]ny person who
willfully violates or refuses to obey any order of the court” to
be “proceeded against for contempt of court.” 	Utah Code Ann.
§ 78A-6-1101(1) (2008). 	The ability to hold “any person” in
contempt clearly indicates that the juvenile court may exercise
jurisdiction over adults.
¶10 	Although subsections 78A-6-117(2)(p)(i) and (t) appear
to grant the juvenile court extensive power, both provisions
allowing the juvenile court to impose orders on parents are
limited to mandates that are reasonable. 	The question that we
answer today is whether the conditions imposed on Mr. Moreno were
reasonable.

5 	No. 20070240
Under our rules of statutory construction, we
look first to the statute’s plain language to
determine its meaning. 	We read [t]he plain
language of a statute . . . as a whole and
interpret its provisions in harmony with
other provisions in the same statute and with
other statutes under the same and related
chapters. 	We do so because a statute is
passed as a whole and not in parts or
sections and is animated by one general
purpose and intent. 	Consequently, each part
or section should be construed in connection
with every other part or section so as to
produce a harmonious whole.
Sill v. Hart, 2007 UT 45, ¶ 7, 162 P.3d 1099 (alteration and
omission in original) (citations and internal quotation marks
omitted). 	By contrast, where statutory language is unclear, this
court will interpret the ambiguous provision in a way that
protects the public interest. 	Clover v. Snowbird Ski Resort, 808
P.2d 1037, 1045 (Utah 1991). 	Finally, “[i]n construing statutes,
we are obligated to avoid interpretations that conflict with
relevant constitutional mandates.” 	State v. Mooney, 2004 UT 49,
¶ 12, 98 P.3d 420 (internal quotation marks omitted). 	In
determining what types of juvenile court orders directed at
parents are reasonable in a child delinquency proceeding and are
therefore within the juvenile court’s jurisdiction, we will bring
to bear each of these rules of statutory construction.
I. 	PLAIN LANGUAGE, PURPOSE AND INTENT OF THE STATUTE, AND PUBLIC
INTEREST
¶11 	Reasonable is a term that by its ordinary meaning
connotes flexibility and a range of permissible conduct. 	Thus,
as used in section 78A-6-117, “reasonable” could permit the court
to impose a wide range of orders on parents whose children are
adjudicated delinquent. 	Its reach is limited, however, by the
purpose and intent of the statute stated in other provisions of
the Juvenile Court Act. 	For example, section 78A-6-102(5)(b)
states that the purpose of the juvenile court is to “order
appropriate measures to promote guidance and control, preferably
in the minor’s own home, as an aid in the prevention of future
unlawful conduct and the development of responsible citizenship.”
Utah Code Ann. § 78A-6-102(5)(b) (2008). 	Additionally, section
78A-6-102(5)(g) provides further that the purpose of the juvenile
court is to, “consistent with the ends of justice, act in the
best interests of the minor in all cases.” 	Id. § 78A-6-
102(5)(g).

No. 20070240 	6
¶12 	In State v. Schofield, we held, “As a tribunal geared
toward the special needs of youth offenders, the juvenile court
. . . is not designed to deal with adults charged with crimes.
When adults do become involved with the juvenile court, its
statutory jurisdiction over them is appropriately very limited.”
2002 UT 132, ¶ 17, 63 P.3d 667. 	Court orders in such cases
cannot exceed the limited grant of statutory authority.
Hardinger v. Scott (State ex rel. B.B.), 2004 UT 39, ¶ 13, 94
P.3d 252. 	A practical way to gauge the reasonableness of
conditions imposed under subsections 78A-6-117(2)(p)(i) and (t)
is to account for them in light of the likelihood that they would
further the goals of the Act stated in section 78A-6-102.
¶13 	The stated purpose of the Act requires that orders
under 78A-6-117(2)(p)(i) and (t) must have behavioral reform of
the minor as the sole motivation. 	Therefore, for reasons set out
below, juvenile court orders may not be aimed at punishing the
parent, and there must be some nexus between the actions of the
parent that are to be constrained by the court’s conditions, the
behavior of the minor that led to her adjudication as delinquent,
and the order imposed by the court. 	A nexus between the actions
of the parent, the misbehavior of the child, and the order of the
court ensures that the court’s order will advance the statute’s
goal of reforming the minor’s behavior.
¶14 	Because the juvenile court’s purpose is rehabilitation
of minors, juvenile court orders must first have goals other than
punishing the parent. 	Utah Code Ann. § 78A-6-102(5)(b);
Schofield, 2002 UT 132, ¶ 16. 	In determining whether an action
is punishment, we
[f]irst . . . determine whether a statute
indicates an express or implied preference
for a civil or criminal penalty. 	Second,
where a statute is intended to establish a
civil penalty, we must inquire further to
determine whether the statutory scheme is so
punitive either in purpose or effect as to
negate that intention.
State v. One 1980 Cadillac, 2001 UT 26, ¶ 10, 21 P.3d 212
(citation and internal quotation marks omitted).
¶15 	In One 1980 Cadillac, we were called upon to determine
if the imposition of a civil fine was a punishment such that it
would violate the Double Jeopardy Clause if imposed after a
criminal conviction. 	Although the question in this case does not

7 	No. 20070240
concern double jeopardy, the test used to determine whether the
civil fine in One 1980 Cadillac was a punishment is suitable for
guiding the analysis of whether ordering Mr. Moreno to undergo
drug testing in the context of his daughter’s delinquency
proceeding is punitive.
¶16 	The second component of a test of a condition’s
reasonableness is whether there is a logical connection between
the parent’s conduct, the minor’s conduct, and the court order.
If the court order is premised on a belief that there may be drug
use in the home, then there must be, at minimum, sufficient
evidence to suggest that drug use is in fact occurring in the
home. 	Finally, if the goal of the order is to reform the minor’s
drug use, the order must be related to drug use rather than to
another aspect of the parent’s behavior unrelated to drugs. 	By
requiring that to be reasonable the conditions imposed by the
court order bear some relationship to the behavior of both the
minor and the adult, the test we announce today ensures that
court-ordered restrictions and expectations conform to generally
accepted parenting norms. 	A court order requiring a parent to
complete drug testing that has no connection with the
circumstances of the case would not be reasonable.
¶17 	An example of the connection required can be found in
child welfare cases. 	In those cases, before a parent’s parental
rights may be terminated, sufficient record facts must be
presented to satisfy the statutory elements for termination,
including that termination of parental rights is in the best
interest of the minor. 	M.G. v. M.S.H. (In re T.H.), 2007 UT App
341, ¶ 11, 171 P.3d 480. 	In M.T.M. v. State (State ex rel.
T.M.), the court determined that a father’s parental rights were
correctly terminated because there was a connection between the
court order terminating his rights and facts material to his
relationship with the child, such as his past incidents of
domestic violence that occurred in front of the children, his use
of methamphetamine in the presence of the children that caused
the children to test positive for methamphetamine residue, his
failure to stay in drug treatment, and his refusal to stop
leaving the children in the care of their mother, who was a
habitual methamphetamine user. 	2006 UT App 435, ¶ 18, 147 P.3d
529. 	An analogous standard can be applied in child delinquency
cases. 	The greater the nexus between the order and reformatory
goal, the more likely an order and the conditions it imposes will
be reasonable.
¶18 	While a connection between the facts of the case, the
court order, and the rehabilitative goal is necessary for an
order imposing conditions on the parent to be reasonable, this

No. 20070240 	8
does not mean that court orders directed at parents require
probable cause to believe that the parent is engaging in
undesirable behavior in order to be reasonable. 	Nor does it
require that there be probable cause to believe that the parent’s
alleged behavior caused the delinquent behavior of the child for
the order to be reasonable. 	Rather, where the condition imposed
by the juvenile court does not impair the parent’s constitutional
rights, an order will be reasonable if it is based on a more than
wholly speculative belief that the parent is engaging in behavior
that is likely contributing materially to the minor’s delinquent
behavior.
¶19 	Consideration for the parent’s constitutional rights
brings us to the final step of our interpretation of “reasonable
condition.” 	Because we must construe statutes to be
constitutional whenever possible, Mountain States Tel. & Tel. Co.
v. Garfield County, 811 P.2d 184, 187 (Utah 1991), even if an
order meets the two tests for reasonableness articulated above,
it will not be reasonable if it violates established
constitutional rights of the parent.
II. 	CONSISTENCY WITH ESTABLISHED CONSTITUTIONAL RIGHTS
¶20 	Mr. Moreno argued that the order to submit to drug
testing violated his Fourth and Fifth Amendment rights. 	Because
we find that the order was unreasonable based on its violation of
Mr. Moreno’s Fourth Amendment rights, we will not address whether
it violated his Fifth Amendment rights.
¶21 	An order that a parent submit to drug testing
constitutes a search under the Fourth Amendment. 	See Skinner v.
Ry. Labor Executives’ Ass’n, 489 U.S. 602, 617 (1989) (holding
that drug testing constituted a search under the Fourth
Amendment); see also Chandler v. Miller, 520 U.S. 305, 313 (1997)
(“[G]overnment-ordered collection and testing of urine intrudes
upon expectations of privacy that society has long recognized as
reasonable.” (internal quotation marks omitted)). 	As such, even
where a drug test is undertaken for a purpose other than a
criminal investigation, it is governed by the constitutional
restrictions on searches. 	See O’Connor v. Ortega, 480 U.S. 709,
715 (1987) (holding that the protections of the Fourth Amendment
apply to civil as well as criminal proceedings). 	“Except in
certain well-defined circumstances, a search or seizure . . . is
not reasonable unless it is accomplished pursuant to a judicial
warrant issued upon probable cause.” 	Skinner, 489 U.S. at 619.
Generally, where a search is conducted without a warrant, it must
fall into one of the limited exceptions to the warrant
requirement and must still be based on probable cause. 	C.R. v.

3 In re A.R. lists the following recognized exceptions to
the warrant requirement: 	the good faith exception, the exigent
or emergency circumstances exception, and the stop-and-frisk
exception. 	937 P.2d at 1042 n.7. 	Other exceptions include the
motor vehicle exception, searches incident to arrest, and
inventory searches.
9 	No. 20070240
State (In re A.R.), 937 P.2d 1037, 1042 (Utah Ct. App. 1997); 3
see also Mincey v. Arizona, 437 U.S. 385, 390 (1978). 	“Probable
cause exists where the facts . . . acquired from reasonably
trustworthy sources are sufficient to permit a reasonably
cautious person to believe that an offense has been, or is being,
committed.” 	Brigham City v. Stuart, 2005 UT 13, ¶ 16, 122 P.3d
506, rev’d on other grounds 547 U.S. 1017 (2006).
¶22 	Although probable cause is usually required for a
search to be lawful, the Fourth Amendment does not prohibit all
warrantless searches, only those that are unreasonable. 	Terry v.
Ohio, 392 U.S. 1, 9 (1968). 	This is because reasonableness is
“the touchstone of the constitutionality of a governmental
search.” 	Bd. of Educ. v. Earls, 536 U.S. 822, 828 (2002). 	The
Supreme Court has stated that “although some quantum of
individualized suspicion is usually a prerequisite to a
constitutional search or seizure[,] . . . the Fourth Amendment
imposes no irreducible requirement of such suspicion.” 	New
Jersey v. T.L.O., 469 U.S. 325, 342 n.8 (1985) (alteration in
original) (internal quotation marks omitted). 	“Where a careful
balancing of governmental and private interests suggests that the
public interest is best served by a Fourth Amendment standard of
reasonableness that stops short of probable cause, [the Court
has] not hesitated to adopt such a standard.” 	Id. at 341.
¶23 	One of the areas where warrantless searches have been
held to be reasonable is where there is a reduced expectation of
privacy or no expectation of privacy. 	See, e.g., State v.
Velasquez, 672 P.2d 1254, 1260 (Utah 1983). 	In Velasquez, we
held that a parolee has a reduced expectation of privacy and
could be searched without a warrant if his parole officer
reasonably believed the parolee violated his parole or committed
a crime. 	Id. 	Similarly, in State ex rel. A.C.C., we held that a
juvenile probationer had no reasonable expectation of privacy and
therefore a suspicionless search of his belongings could be
conducted. 	2002 UT 22, ¶ 21, 44 P.3d 708. 	Suspicionless
searches of prisoners have also been allowed based on a finding
that prisoners have no reasonable expectation of privacy. 	Hudson
v. Palmer, 468 U.S. 517, 528 (1984). 	Reaching such conclusions
“requires a balancing of the government’s interest in operating

No. 20070240 	10
its institutions and the individual’s privacy interest.” 	A.C.C.,
2002 UT 22, ¶ 20.
¶24 	A similar balancing test has been applied to determine
the extent of a student’s expectation of privacy in a school
setting. 	T.L.O., 469 U.S. at 341. 	In T.L.O., the Court found
that although students had a privacy interest, the school’s
interest in maintaining order was greater than that interest and
permitted searches without warrants based on suspicion that did
not rise to the level of probable cause. 	Id. 	Because the
balance tipped in favor of the school’s interest, students had a
privacy interest that was less than they would have had outside
the school setting.
¶25 	Another instance in which warrantless searches are
sometimes held to be reasonable is the so-called administrative
search. 	An administrative search is a search conducted or
required by a government actor but which does not have criminal
investigation as its goal. 	Because the strict requirement for
probable cause is “peculiarly related to criminal
investigations,” it “may be unsuited to determining the
reasonableness of administrative searches where the [g]overnment
seeks to prevent the development of hazardous conditions.”
Earls, 536 U.S. at 828 (emphasis omitted) (internal quotation
marks omitted). 	Search schemes where drug testing is required
absent any suspicion of wrongdoing have been upheld where the
scheme was enacted for purposes other than criminal investigation
and where there is a “special need” for such searches. 	Chandler,
520 U.S. at 313-14; see also Nat’l Treasury Employees Union v.
Von Raab, 489 U.S. 656, 677 (1989) (holding that the United
States Customs Service’s requirement that employees be drug
tested was reasonable); Skinner, 489 U.S. at 634 (holding that a
statute requiring testing of rail employees involved in accidents
without regard to suspicion was reasonable). 	In Chandler, the
Court held that where
“special needs”--concerns other than crime
detection--are alleged in justification of a
Fourth Amendment intrusion, courts must
undertake a context-specific inquiry,
examining closely the competing private and
public interest advanced by the
parties. . . . 	In limited circumstances,
where the privacy interests implicated by the
search are minimal, and where an important
governmental interest furthered by the
intrusion would be placed in jeopardy by a
requirement of individualized suspicion, a

11 	No. 20070240
search may be reasonable despite the absence
of such suspicion.
520 U.S. at 314 (emphasis added) (citations omitted); see also
Earls, 536 U.S. at 838 (holding that preventing drug use among
students was a special need that justified a suspicionless drug
testing regime for all students participating in extracurricular
activities).
¶26 	The hallmark of the cases allowing warrantless searches
unsupported by probable cause is a weighing of the privacy
interest and the government interest and a finding that the
burden a probable cause requirement would impose on the
government interest outweighs the privacy interest at stake.
¶27 	Because ordering the parent of a delinquent child to
undergo drug testing is not part of a criminal investigation,
determining whether such an order is constitutional will depend
on whether the search was reasonable under the Fourth Amendment.
To do so, we must first determine the extent of the parent’s
expectation of privacy and whether it is reduced such that a
search based on less than probable cause would be justified. 	We
will do so by “balancing . . . the government’s interest in
operating its institutions and the individual’s privacy
interest.” 	A.C.C., 2002 UT 22, ¶ 20. 	If analysis under the
balancing test does not demonstrate that the parent has a reduced
expectation of privacy justifying a search based on less than
probable cause, then the search must be supported by probable
cause.
A. 	Privacy Interest of Parents
¶28 	The first part of the balancing test requires an
assessment of the extent of the privacy interest of the person
being searched, in this case, the parent of a delinquent
juvenile. 	There is nothing in the Juvenile Court Act that
suggests that the parent of a delinquent juvenile has a limited
right to privacy. 	In contrast, the finding that the juvenile
probationer in A.C.C. had a limited privacy interest was heavily
influenced by the fact that the juvenile’s activities were being
monitored while he was on probation and by the fact that he had
signed a probation order subjecting him to search for the
detection of drugs. 	A.C.C., 2002 UT 22, ¶ 22. 	In Velasquez, we
found that a person on parole had a diminished privacy interest
because he was being closely supervised as a condition of a
sentence for a crime. 	672 P.2d at 1259. 	No similar
circumstances exist in the case of a parent whose child has been
adjudicated delinquent.

No. 20070240 	12
¶29 	A parent does not surrender his expectation of privacy
merely because he acquires the status of a parent of a minor who
has been adjudicated delinquent. 	In Skinner, the Supreme Court
found that the railroad employees subject to testing under the
statute at issue had a limited privacy right because of their
status as employees. 	489 U.S. at 624-25. 	As employees, they
were not free to come and go as they pleased and were subject to
other restrictions placed on them by their employers. 	Id. 	The
Skinner Court also found that the pervasive regulation of
employees in the rail industry, including rules requiring hearing
and sight tests as well as skill tests, demonstrated that those
employees had limited privacy expectations. 	Id. at 627. 	There
is no corresponding pervasive regulation and oversight of parents
which would lead to a conclusion that they have a limited privacy
interest. 	Although the juvenile court may fashion some orders
affecting parents in the context of a delinquency case, this
power is not equivalent to the pervasive regulation present in
Skinner.
¶30 	Additionally, parents of delinquent children, even
those who are suspected of drug involvement, do not undertake any
voluntary actions that reduce their privacy interests. 	In
A.C.C., Velasquez, Skinner, and Von Raab, the privacy interest of
the people being searched was reduced because of their earlier
bad choices or because of their voluntary participation in
industries that were heavily regulated.
¶31 	Because parents of delinquent children have no reason
to believe their behavior will be more closely monitored than it
would were their children not delinquent, and because there is no
legitimate justification for the regulation of parents outside of
a welfare context, even for those parents with delinquent
children, there is no basis for finding that their privacy
interest is significantly reduced.
B. 	Government Interest
¶32 	The second part of the balancing test requires us to
determine the significance of the government interest in
conducting the search. 	In a delinquency proceeding, the
government interest in ordering the parent of a child involved in
drugs, who is himself suspected of using drugs, to undergo drug
testing is to ensure that the parent is drug free and therefore
is not providing an inappropriate example to the minor or
directly contributing to the minor’s drug use.

13 	No. 20070240
¶33 	The juvenile court has broad authority to act in the
best interest of the child and to fashion remedies that “aid in
the prevention of future unlawful conduct and the development of
responsible citizenship.” 	Utah Code Ann. § 78A-6-102(5)(b)
(2008). 	The focus of the juvenile court system, however, is on
modifying the behavior of the juvenile. 	Because the focus is on
the behavior of the juvenile, the behavior of parents of
juveniles involved in the system is of secondary importance.
¶34 	Attempting to ensure that parents of delinquent
juveniles are drug free also should not be confused with the goal
of protecting children where there is a concern for their
welfare. 	In the presence of a welfare concern related to the
parent’s drug use, the government’s interest is decidedly
increased, as are the possible consequences of waiting until
there is probable cause for a search. 	By contrast, where the
concern of the proceeding is the child’s delinquent behavior,
there is less necessity to obtain information about the parent’s
behavior. 	There is time to obtain information that will provide
probable cause for a search of the parent.
C. 	Weighing of Interests
¶35 	In the cases where searches on less than probable cause
were found to be reasonable, although there was an important
government interest, the description of the privacy interest as
reduced had a significant impact on the balancing. 	Absent a
reduced privacy interest of some kind, it would be nearly
impossible for even the most compelling government interest to
override an individual’s privacy interest unless the burden on
the government interest was particularly onerous. 	Were it
otherwise, the government’s stated compelling interest in
combating drug abuse could be grounds for random drug testing of
all citizens.
¶36 	In this case, there is very little to suggest that the
parent of a delinquent juvenile has a significantly reduced
privacy interest. 	On the other side of the balancing equation,
while it is a commendable goal, the government’s interest in
ensuring that parents of delinquent juveniles provide good
examples to their children is not as compelling as the other
goals of the juvenile courts, such as protecting children from
abuse and neglect. 	The interest is also not one that would be
placed in jeopardy by a requirement that there must be probable
cause for the search. 	While it could be possible for there to be
a government interest in the juvenile court context that is
significant enough and would be burdened enough by a probable
cause requirement that the government interest would overcome a

No. 20070240 	14
parent’s privacy interest, we do not find that is the case here.
Because the burden a probable cause requirement would place on
the government’s interest does not outweigh the individual
privacy interest in this case, we find that where a delinquent
child’s parent is ordered to be drug tested, the search must be
supported by probable cause.
D. 	Probable Cause
¶37 	Probable cause is not a rigid standard. 	It “exist[s]
where the known facts and circumstances are sufficient to warrant
a man of reasonable prudence in the belief that contraband or
evidence . . . will be found.” 	Ornelas v. United States, 517
U.S. 690, 696 (1996). 	Although the standard is flexible, “common
rumor or report, suspicion, or even strong reason to suspect [is]
not adequate.” 	Henry v. United States, 361 U.S. 98, 101 (1959)
(internal quotation marks omitted).
¶38 	In this case, the juvenile court was presented with the
following facts about Mr. Moreno: 	(1) Mr. Moreno is listed as a
“threat to law enforcement” (although the record does not
disclose how one is determined to be a threat to law enforcement
nor, having found one’s way onto the list, what can be done to
remove oneself); (2) Mr. Moreno has evaded police; (3) police
have been called to Mr. Moreno’s home regarding “domestic
disturbances”; (4) police have seen iodine stains on the hands of
Mr. Moreno’s live-in girlfriend, Karen Hardy; (5) Mr. Moreno made
trips back and forth from the hills near Parowan with Ms. Hardy;
and (6) C.M.’s grandparents believe that Mr. Moreno is an
alcoholic and that Ms. Hardy uses drugs. 	Of all of these facts,
only the fact that Mr. Moreno made trips back and forth to the
hills with a suspected drug user is directly related to Mr.
Moreno’s possible involvement with drugs. 	Even this fact does
not have direct bearing on whether Mr. Moreno was using drugs.
Based on these facts, a person of reasonable prudence would not
have reason to believe that evidence of drug use would be found
through a drug test of Mr. Moreno. 	There is simply nothing in
the evidence that would suggest that Mr. Moreno took drugs. 	The
evidence regarding Mr. Moreno’s girlfriend and the evidence of
Mr. Moreno’s interactions with the police could raise suspicion
that he was using drugs; however, mere suspicion does not create
probable cause.
¶39 	Because a search based on less than probable cause does
not meet the Fourth Amendment standard of reasonableness in this
case, probable cause was required for the search to be
constitutional. 	Since the search lacked probable cause, it
violated Mr. Moreno’s Fourth Amendment rights and was therefore

15 	No. 20070240
not a reasonable condition to impose on him as part of his
daughter’s delinquency proceeding.
CONCLUSION
¶40 	We hold that the Fifth District Juvenile Court had
subject matter jurisdiction over Mr. Moreno under Utah Code
section 78A-6-117. 	The juvenile court had jurisdiction over the
delinquent child and, therefore, jurisdiction to order Mr. Moreno
to comply with “reasonable conditions.”
¶41 	The context in which subsections 78A-6-117(2)(p)(i) and
(t) appear and the public policy underlying the Act lead us to
conclude that a condition imposed on a parent in a child
delinquency case is reasonable if it is not punitive and there is
a nexus between the parent’s alleged act, the minor’s behavior,
and the goal of the order. 	Even if an order meets these
criteria, however, it will be unreasonable if it violates the
parent’s constitutional rights.
¶42 	We find that ordering the parent of a delinquent
juvenile to undergo drug testing absent probable cause to believe
that the parent is using drugs conflicts with the parent’s
established rights under the Fourth Amendment. 	In this case, no
probable cause existed for the drug testing of Mr. Moreno;
therefore, we find that the order is not a reasonable condition
under subsections 78A-6-117(2)(p)(i) and (t). 	As a result, we
reverse the decision of the juvenile court.
---
¶43 	Chief Justice Durham and Justice Parrish concur in
Justice Nehring’s opinion.
---
DURRANT, Associate Chief Justice, dissenting:
¶44 	The majority concludes that the drug testing at issue
here fails to qualify as a special needs search under the United
States Supreme Court’s jurisprudence and therefore must be
supported by probable cause. 	I disagree. 	In my view, this case
fits squarely within that category of special needs cases where
probable cause need not be shown. 	The majority further concludes
that the order requiring drug testing is not reasonable as
required by Utah Code section 78A-6-117(2)(t) (2008). 	Again, I
disagree. 	Applying the majority’s reasonableness test, I
conclude that the testing was reasonable.

1 See Nat’l Treasury Employees Union v. Von Raab, 489 U.S.
656, 665 (1989).
2 Id.
3 Ferguson v. City of Charleston, 532 U.S. 67, 76 n.7 (2001)
(citation and internal quotation marks omitted).
4 Id. at 77 (citing Skinner v. Ry. Labor Executives’ Ass’n,
489 U.S. 602 (1989); Nat’l Treasury Employees Union, 489 U.S.
656; Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995)).
5 Id. at 78.
No. 20070240 	16
I. 	THE DRUG TESTING DOES NOT VIOLATE THE FOURTH AMENDMENT
BECAUSE THE TESTING IS SUPPORTED BY A SPECIAL NEED AND IS
DIVORCED FROM THE STATE’S INTEREST IN LAW ENFORCEMENT
¶45 	The Fourth Amendment prohibits unreasonable searches. 1
Ordinarily, a search without probable cause is unreasonable and
therefore unconstitutional. 2 	As the majority notes, however, the
Supreme Court has held that there are “exceptional circumstances
in which special needs, beyond the normal need for law
enforcement, make the warrant and probable-cause requirement
impracticable.” 3 	Thus, the Court has permitted suspicionless
drug testing under a special needs analysis in cases involving
“railway employees involved in train accidents, . . . United
States Custom Service employees seeking promotion to certain
sensitive positions, and . . . high school students participating
in interscholastic sports.” 4
¶46 	The majority distinguishes these cases from the one
before us on the ground that the persons subject to testing in
these cases had a reduced privacy interest because they were
employees in pervasively regulated industries or had taken
voluntary actions that reduced their privacy interest. 	The
majority concludes that absent such a reduced privacy interest it
“would be nearly impossible for even the most compelling
government interest to override an individual’s privacy
interest.”
¶47 	I disagree. 	In my view, this interpretation misapplies
the balancing test set forth by the Supreme Court in its special
needs cases. 	Under the special needs test, a court weighs “the
intrusion on the individual’s interest in privacy against the
‘special needs’ that supported the program.” 5 	The focus in the
analysis should be on the nature of the special need and the

6 Id. (analyzing and balancing a state hospital’s need to
drug-test new mothers with the mothers’ reasonable expectation
that the test results would not be shared with non-medical
personnel).
7 532 U.S. 67.
8 Id. at 79-82.
9 Id. at 78.
17 	No. 20070240
extent of the privacy intrusion it occasions, not on whether the
privacy interest of the individual subject to the intrusion has
already been reduced for some reason independent of the special
need. 6
¶48 	I believe this point is clearly illustrated by the
United States Supreme Court’s decision in Ferguson v. Charleston,
a case in which the Court conducted a special needs analysis of a
state hospital’s drug testing policy. 7 	Although the Court struck
down the policy, in doing so the Court distinguished some of its
prior special needs cases in a way that I believe strongly
supports the conclusion that the drug testing now before us is
constitutional.
¶49 	In Ferguson, a state hospital had the policy of testing
pregnant mothers for cocaine and turning positive test results
over to the police. 8 	In comparing Ferguson to previous special
needs cases, the Court noted that
[T]he invasion of privacy in this case is far
more substantial than in those cases. 	In the
previous four cases, there was no
misunderstanding about the purpose of the
test or the potential use of the test
results, and there were protections against
the dissemination of the results to third
parties. 9
Most importantly, the Court stated that
The critical difference between those four
drug-testing cases and this one, however,
lies in the nature of the “special need”
asserted as justification for the warrantless
searches. 	In each of those earlier cases,
the “special need” that was advanced as a
justification for the absence of a warrant or

10 Id. at 79.
No. 20070240 	18
individualized suspicion was one divorced
from the State’s general interest in law
enforcement. 10
¶50 	The special need advanced in the case now before us--
the promotion and protection of the child’s best interest by
ensuring that she live in a drug free home--is one divorced from
the State’s interest in law enforcement. 	A drug test for the
purpose of protecting this child is a far less substantial
intrusion on the father’s right of privacy than a test for the
purpose of his criminal prosecution would be. 	I would conclude
that the special need supporting the test outweighs the privacy
intrusion it would require. 	Accordingly, I would hold the
juvenile court’s order constitutional.
II. 	THE DRUG TESTING MEETS THE REASONABLENESS REQUIREMENT OF
UTAH CODE SECTION 78A-6-117(2)(t) BECAUSE ITS PURPOSE IS TO
REFORM THE MINOR, NOT PUNISH THE PARENT, AND THERE IS A NEXUS
BETWEEN THE PARENT’S POSSIBLE DRUG USE AND THE CHILD’S DRUG USE
¶51 	I would further hold that the drug testing order is
reasonable, pursuant to Utah Code section 78A-6-117(2)(t) (2008),
which provides that “[t]he court may make any other reasonable
orders for the best interest of the minor or as required for the
protection of the public, except that a child may not be
committed to jail or prison.”
¶52 	This statutory requirement that the order be reasonable
is not necessarily satisfied by a finding that an order is
reasonable under the Fourth Amendment. 	Rather, the Utah statute,
which applies to all conditions that the juvenile court may order
relating to delinquent children, not just search or seizure
orders, imposes its own requirements as to reasonableness.
Therefore, a separate analysis is required to determine if a
constitutional search order is also reasonable under section 78A-
6-117(2)(t). 	The majority has articulated a test under which
courts should conduct that analysis. 	Applying the majority’s
test, I conclude that the order was reasonable.
¶53 	The majority states that to be reasonable, an order (1)
must “have behavioral reform of the minor as [its] sole
motivation”; (2) must not “be aimed at punishing the parent”; and
(3) must be part of a “nexus between the actions of the parent
that are to be constrained by the court’s conditions, the
behavior of the minor that led to her adjudication as delinquent,
and the order imposed by the court.” 	In this case, the court’s

19 	No. 20070240
order satisfies this test. 	First, the court sought to prevent
C.M. from engaging in further drug activity. 	Second, the court’s
order would not criminally punish the father because the results
of the drug test would not be available to law enforcement. 	And
third, a nexus is apparent. 	C.M. was adjudicated delinquent
because of her marijuana use and attempted methamphetamine
possession. 	The court suspected her father of drug use because
he lived with a known drug user. 	Further, the police suspected
that Mr. Moreno “may be cooking meth in the hills,” and also
considered Mr. Moreno a “threat.” 	While these suspicions are
insufficient to amount to probable cause, they are sufficient to
form a nexus between the actions of the parent that the court
seeks to constrain and the behavior of the child that led to her
adjudication as delinquent. 	Accordingly, I would hold that the
order was reasonable.
---
¶54 	Justice Wilkins concurs in Associate Chief Justice
Durrant’s dissenting opinion.