State v. Gettling

2010 UT 17
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah, No. 20080037
Plaintiff and Appellee,
v.
F I L E D
Bradford Gettling,
Defendant and Appellant. March 12, 2010
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Fourth District, Provo
The Honorable Lynn W. Davis
No. 061400084
Attorneys: Mark Shurtleff, Att’y Gen., Marian Decker, Asst.
Att’y Gen., Salt Lake City, for plaintiff
Margaret P. Lindsay, Spanish Fork, for defendant
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On Certification from the Utah Court of Appeals
Parrish, Justice:
INTRODUCTION
¶1 Bradford Dale Gettling appeals the district court’s
denial of his motion to suppress. Police found drugs and drug
paraphernalia in Gettling’s personal belongings while conducting
a search of the vehicle in which he had been traveling incident
to the arrest of the vehicle’s driver. During the pendency of
this case, the United States Supreme Court ruled in Arizona v.
Gant that officers could conduct a search of a vehicle incident
to the arrest of a vehicle occupant only if the arrestee could
actually access the passenger compartment of the vehicle or if a
failure to search could actually result in the loss of evidence
pertaining to the crime underlying the arrest. 129 S. Ct. 1710,
1719 (2009). Because the police officers were not authorized to
conduct a search of the vehicle incident to the driver’s arrest,
we hold that Mr. Gettling was illegally detained at the time
officers conducted a dog sniff and subsequent search of the car.
However, we apply the federal good-faith exception to the
exclusionary rule and therefore uphold the denial of Mr.
Gettling’s motion to suppress.

No. 20080037 2
BACKGROUND
¶2 On January 2, 2006, Deputy Shawn Radmall, a K-9 officer
with the Utah County Sheriff’s Department, pulled over a vehicle
for an improper lane change and failure to come to a complete
stop at a stop sign. The vehicle had three occupants Steven
Canals, the driver; Amber Childs, the front seat passenger and
vehicle owner; and Mr. Gettling, the backseat passenger. None of
the vehicle occupants held a valid driver license. After
discovering that Mr. Canals had outstanding warrants and was
driving with a suspended license, Deputy Radmall arrested him and
placed him in the police cruiser. While effecting the arrest of
Mr. Canals, Deputy Radmall noticed Mr. Gettling making furtive
movements in the back seat and ordered him and Ms. Childs to exit
the vehicle. Deputy Radmall then conducted a free air sniff
around the exterior of the vehicle with his narcotics-detection
dog. The dog indicated the presence of narcotics in two areas:
(1) the top of the driver’s window, and (2) the door handle of
the back passenger-side door. After the positive indication,
Deputy Radmall put the dog in the car, where it detected
narcotics in Mr. Gettling’s belongings. Upon searching those
belongings, Deputy Radmall discovered methamphetamine and drug
paraphernalia in a closed glasses case. Both the driver and the
other passenger denied ownership, and Mr. Gettling indicated by
nodding that the glasses case and its contents belonged to him.
He later entered a conditional guilty plea, which allowed him to
appeal the district court’s denial of his motion to suppress the
evidence.
ANALYSIS
I. POLICE OFFICERS CAN DETAIN PASSENGERS UNTIL THE PURPOSE OF
THE TRAFFIC STOP HAS BEEN COMPLETED
¶3 Mr. Gettling argues that he was illegally detained at
the time Deputy Radmall conducted the free air sniff with his
narcotics-detection dog and that the drugs and drug paraphernalia
found in the subsequent search of his belongings should be
suppressed. The State counters that Mr. Gettling was lawfully
detained at the time of the search because Deputy Radmall was
still permitted to conduct a search incident to the arrest of the
driver and thus had not concluded the lawful purpose of the stop
at the time of the canine sniff. After the Supreme Court issued
Arizona v. Gant, 129 S. Ct. 1710 (2009), clarifying that officers
are not permitted to conduct routine searches incident to arrest,
the State filed a supplemental brief arguing that Gant does not
apply to situations with unsecured passengers, that Deputy
Radmall had further need to control the scene, and that the dog

3 No. 20080037
sniff was only a de minimis extension of the lawful traffic stop.
The State alternatively argues that Gant should not have
retroactive application.
¶4 We determine that the purpose of the stop concluded
after the arrest of the driver. Thereafter, Deputy Radmall had
no continued justification to detain the passengers. However,
while Mr. Gettling was unlawfully detained at the time of the
search, we apply the federal good-faith exception to the
exclusionary rule to any evidence discovered as a result of the
unlawful detention.
¶5 Police can detain individuals on reasonable articulable
suspicion that they are engaged or about to be engaged in
criminal activity. State v. James, 2000 UT 80, ¶ 10, 13 P.3d
576. Observing a vehicle commit a traffic violation gives police
probable cause to detain the driver and passengers of the
vehicle. Arizona v. Johnson, 129 S. Ct. 781, 788 (2009). If,
during the course of a lawful traffic stop, an officer gains
further suspicion that a vehicle occupant is engaged in illegal
activity, the officer can detain the vehicle further in order to
investigate. State v. Hansen, 2002 UT 125, ¶ 31, 63 P.3d 650.
When officers have concluded their investigation of their initial
suspicion and any further suspicion that arose during the stop,
they are required to end the detention. Id. “[E]ven a small
intrusion beyond the legitimate scope of an initially lawful
search is unlawful under the Fourth Amendment.” State v.
Schlosser, 774 P.2d 1132, 1135 (Utah 1989) (citing Arizona v.
Hicks, 480 U.S. 321, 325 (1987)).
¶6 In State v. Baker, also announced today, we held that
when a traffic stop culminates in the arrest of the driver, the
“officers must release any passengers who were detained incident
to the detention of the vehicle” after the officer has completed
all procedures incident to the arrest of the driver. Baker, 2010
UT ____, ¶ 18, ____ P.3d ____. We also declined to adopt any de
minimis exception to a passenger’s Fourth Amendment rights in
order to allow officers to conduct a canine sniff after the
lawful purpose of the stop has concluded. Id. ¶¶ 30, 33; see
also Illinois v. Caballes, 543 U.S. 405, 407-08 (2005) (finding
that although a dog sniff by a trained narcotics-detection dog is
not a search, it is not lawful to conduct a dog sniff if it
prolongs the stop). However, because the detention of the
passengers in Baker took place while officers were conducting a
routine search incident to arrest, a search allowed prior to the
recent United States Supreme Court decision in Gant, 129 S. Ct.
1710, we determined that application of the federal exclusionary
rule would not deter the police from unlawful conduct. Baker
¶ 39. We therefore applied the federal good-faith exception to

No. 20080037 4
the exclusionary rule to searches conducted by officers in
reliance on judicial precedent authorizing a search of a vehicle
incident to the arrest of a vehicle occupant. Id.
¶7 In this case, Deputy Radmall detained Mr. Gettling
while conducting a search incident to driver’s arrest that, prior
to Gant, would have been constitutional. At the time of Mr.
Gettling’s detention, Deputy Radmall had no reasonable
articulable suspicion that Mr. Gettling was involved in criminal
activity and thus could not continue to detain him after he
completed the arrest of the driver. But Deputy Radmall did
detain Mr. Gettling as he circled the vehicle with the narcotics-
detection dog. The fact that Mr. Gettling may have made “furtive
movements” in the back seat is not sufficient justification to
allow the officers to extend the stop. Schlosser, 774 P.2d at
1137 (“Mere furtive gestures of an occupant of an automobile do
not give rise to an articulable suspicion suggesting criminal
activity.”). Additionally, the fact that Deputy Radmall’s
narcotics-detection dog was present in his patrol vehicle at the
time of the stop, rather than arriving on the scene after the
lawful purposes of the stop had concluded, has no bearing on
whether the stop was improperly extended. Once the lawful
purpose of the stop concluded, Deputy Radmall was required to
release the passengers. However, the evidence uncovered during
the search of the vehicle should not be excluded because Deputy
Radmall relied on settled precedent to search the vehicle
incident to the arrest of its driver.
CONCLUSION
¶8 Although Deputy Radmall violated Mr. Gettling’s Fourth
Amendment rights by detaining him after concluding the lawful
purpose of the traffic stop, we apply the federal good-faith
exception to the exclusionary rule and uphold the district
court’s denial of Mr. Gettling’s motion to suppress.
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¶9 Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins and Justice Nehring concur in Justice Parrish’s
opinion.