Beller v. Rolfe

2008 UT 68
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Curtis J. Beller, 	No. 20060641
Petitioner, Appellant,
and Cross-Appellee,
v.
Nannette Rolfe, Director, Utah
State Driver License Division, 	F I L E D
Respondent, Appellee,
and Cross-Appellant. 	September 19, 2008
---
Third District, Salt Lake
The Honorable Tyrone E. Medley
No. 050913807
Attorneys: 	Ronald J. Yengich, Elizabeth Hunt, Salt Lake City,
for petitioner
Mark L. Shurtleff, Att’y Gen., Rebecca D. Waldron,
Asst. Att’y Gen., Annina M. Mitchell, Salt Lake City,
for respondent
---
On Certification from the Utah Court of Appeals
NEHRING, Justice:
¶1 	In this appeal we take up the question of whether the
exclusionary rule applies to driver license suspension
proceedings. 	We hold that it does not. 	Curtis Beller, whom
police stopped on noise and light ordinance violations and
subsequently arrested for operating his motorcycle while under
the influence of alcohol, challenges the loss of his driving
privileges. 	Mr. Beller contends that law enforcement lacked a
sufficient justification to stop him, and therefore, the
exclusionary rule should bar the State from admitting in
proceedings before the Utah Driver License Division any evidence
obtained pursuant to the search. 	We hold that the exclusionary
rule does not apply to driver license suspension and revocation
proceedings and therefore affirm.

No. 20060641 	2
FACTS
¶2 	Just after midnight, Salt Lake City Police Officer Jeff
Kendrick, who was stopped on the side of the road, noticed two
motorcycles as they passed on the opposite side of the street.
Officer Kendrick, who was a motorcycle officer and familiar with
motorcycles, noted that the sound coming from one of the
motorcycle’s mufflers was “extremely loud” and that blue lights
illuminated the engine. 	Although Officer Kendrick did not know
the make or model of the passing motorcycle, he noted that the
noise it emitted was “loud enough that you could hear [it], you
know, a block away, and that’s not typical of a regular stock
equipped muffler on a Harley Davidson.” 	At first, he decided not
to follow the two motorcycles because he did not want to leave
his partner. 	His partner was a new officer, whom Officer
Kendrick was helping to train, and who was involved at the time
in an unrelated traffic stop.
¶3 	A few minutes later, the motorcycles passed again.
This time they approached on the side of the street where Officer
Kendrick was situated. 	One of the motorcycles came so close to
the two officers that Officer Kendrick said he was concerned
about his safety. 	He then decided to follow the two motorcycles.
¶4 	Based on his observations and previous experience,
Officer Kendrick thought that the loud motorcycle likely violated
Salt Lake City Ordinance 12.28.100, which prohibits an individual
from operating a motorcycle with a muffler system that has been
modified or replaced in order to make the emitted sound louder.
He also thought that the blue lights coming from the engine
likely violated Salt Lake City Ordinance 12.28.090, which
prohibits an individual from operating a vehicle with excessive
lighting equipment. 	Officer Kendrick followed the two
motorcycles and, when he caught up to them at an intersection,
instructed them to pull over. 	They complied.
¶5 	When Officer Kendrick approached the motorcyclists, he
noticed one of them, Curtis Beller, smelled of alcohol. 	Mr.
Beller stipulated as much at his revocation hearing. 	Officer
Kendrick also noticed that Mr. Beller displayed bloodshot eyes
and relaxed facial features. 	After Mr. Beller admitted he had
been drinking earlier that evening, Officer Kendrick requested
Mr. Beller to perform field sobriety tests. 	Mr. Beller agreed to
perform the tests but failed them. 	When Mr. Beller also failed
the portable breath test, he was arrested for driving under the
influence of alcohol. 	Officer Kendrick gave Mr. Beller notice of
the Division’s intention to suspend his license.

3 	No. 20060641
¶6 	Mr. Beller requested an administrative hearing before
the Division to challenge the suspension. 	After his efforts
failed to persuade the Division not to suspend his license, Mr.
Beller filed a petition for review by trial de novo in the
district court. 	At that hearing, Mr. Beller argued that Officer
Kendrick lacked reasonable suspicion that Mr. Beller had
committed a traffic offense and therefore had no lawful reason to
stop him. 	Mr. Beller further argued that because the detention
was constitutionally unreasonable in accordance with the
exclusionary rule, “his driver’s license [should] be reinstated
accordingly.”
¶7 	The district court disagreed. 	Although the court found
that Officer Kendrick lacked reasonable suspicion to initiate the
stop, it ruled that the exclusionary rule did not apply to Mr.
Beller’s driver license hearing, which it determined to be
remedial in nature rather than quasi-criminal. 	Mr. Beller and
the State appealed. 	The Utah Court of Appeals certified the case
to this court for determination. 	We now affirm.
ARGUMENT
¶8 	The parties ask us to consider several arguments on
appeal. 	First, the State argues that Mr. Beller waived his right
to argue that the exclusionary rule applied to his driver license
hearing because he failed to raise the issue before the Division
in his initial administrative hearing. 	Mr. Beller counters that,
for essentially the same reasons, the State waived its right to
argue that the exclusionary rule did not apply. 	Second, assuming
the parties did not waive the issue, they ask us to consider the
underlying merits of their arguments regarding the exclusionary
rule’s application. 	Finally, the parties ask us to consider
whether the district court erred in concluding that Officer
Kendrick violated the Fourth Amendment by stopping Mr. Beller
without reasonable suspicion. 	We will address each of these
arguments in turn.
I. 	NO WAIVER OCCURRED
¶9 	Because Mr. Beller received a trial de novo, we need
not determine whether he (or the State) waived the issue of
whether the exclusionary rule applies. 	Individuals whose driver
licenses have been revoked are entitled to seek judicial review.
Utah Code Ann. § 41-6a-521(6) (Supp. 2008); id. § 53-3-224
(2007). 	Utah’s Administrative Procedures Act extends to district
courts the jurisdiction to review these agency decisions by

1 The Administrative Procedures Act was renumbered in 2008;
since substantive changes were not made to the Act, we cite to
the newly numbered section.
2 Although the exclusionary rule finds its origins in
(continued...)
No. 20060641 	4
“trial de novo.” 	Id. § 63G-4-402 (Supp. 2008). 1 	Although, as we
have previously stated, the term “de novo” literally means
“‘anew, afresh, a second time,’” we are aware that the term is
often imprecisely used. 	Bernat v. Allphin, 2005 UT 1, ¶ 30, 106
P.3d 707 (quoting Pledger v. Cox, 626 P.2d 415, 416 (Utah 1981)).
Trial de novo can refer to either a complete retrial upon new
evidence or a trial upon the record made by a lower tribunal.
The proper meaning largely depends on the context in which it is
used. 	Id. ¶¶ 30, 31.
¶10 	As we previously indicated, Mr. Beller petitioned for
and received a trial de novo before the district court. 	As the
record in this case aptly reflects, Mr. Beller’s trial de novo
provided an opportunity to present new evidence. 	Because Mr.
Beller had the opportunity to present new evidence in what was a
complete repeat of the prior proceeding, he also enjoyed the
opportunity to present new legal arguments--regardless of whether
he had raised them at the administrative hearing. 	And since Mr.
Beller had the chance to present new arguments before the
district court, the State could as well. 	Therefore, neither
party waived the issue of whether the exclusionary rule applied
by failing to argue it before the Division.
II. 	THE EXCLUSIONARY RULE DOES NOT APPLY
¶11 	The exclusionary rule is a judicially created remedy
designed to safeguard the rights created by the Fourth Amendment
to the United States Constitution to be free from unreasonable
searches and seizures. 	One of the central objectives of the rule
is to deter those who would defy the mandate of the Fourth
Amendment. 	The exclusionary rule makes evidence inadmissible in
certain proceedings if law enforcement obtained that evidence in
violation of constitutional or statutory protections. 	State v.
Topanotes, 2003 UT 30, ¶ 13, 76 P.3d 1159; see also Arizona v.
Evans, 514 U.S. 1, 10 (1995); Mapp v. Ohio, 367 U.S. 643, 655
(1961). 	Considering that the exclusionary rule is a judicial
construct without a constitutional pedigree, courts have clear
authority to decide whether the rule should apply to a particular
fact scenario or proceeding. 	This case calls on us to decide
whether Mr. Beller’s arrest is such a fact scenario and whether a
driver license revocation hearing is such a proceeding. 2 	We

2 (...continued)
federal jurisprudence, the rule independently exists under Utah
state law as well. 	Utah’s exclusionary rule “permits us to
benefit from federal analysis without being bound by it in our
construction of the Utah Constitution.” 	Sims v. Collection Div.
of the Utah State Tax Comm’n, 841 P.2d 6, 11 (Utah 1992).
5 	No. 20060641
conclude that the exclusionary rule is not applicable to either
one.
¶12 	To determine whether the exclusionary rule applies in
noncriminal proceedings such as a driver license revocation
hearing, we consider whether the policy objectives of the rule
are served by applying it to the proceeding at issue. 	Our
experience with defining the scope of the rule’s applicability
serves us well here by describing a continuum on which we can
plot a proper place for Mr. Beller’s case. 	On one end, we find
Sims v. Collection Division of the Utah Tax Commission, 841 P.2d
6 (Utah 1992). 	We held in Sims that the exclusionary rule
applied because the proceedings involved the assessment of a tax
that was primarily designed to punish. 	To hold otherwise, we
decided, would have ignored the true quasi-criminal nature of the
proceeding. 	Id. at 14-15. 	On the other end, we find State ex
rel. A.R. v. C.R. (In re A.R.), 1999 UT 43, 982 P.2d 73 (1999).
There, we concluded that the exclusionary rule did not apply
because the child protection proceedings at issue were primarily
intended to protect the interests of children and were not
predominately criminal in nature. 	Application of the rule here,
we concluded, would further neither the objectives of the rule
nor Utah’s child protection laws. 	To help understand where
driver license revocation appeal hearings fall on our analytic
continuum, we will look more closely at Sims and In re A.R.
¶13 	We first turn our attention to Sims. 	Law enforcement
officers stopped Louie Sims at a roadblock and, after noticing an
open container of alcohol on the backseat, conducted a search of
the vehicle. 	They discovered marijuana and cocaine. 	Utah’s
Illegal Drug Stamp Tax Act required that any individual
transporting illegal drugs into the state pay a tax and affix a
tax stamp to the goods. 	Sims, 841 P.2d at 7. 	Mr. Sims had not
paid the tax or affixed the requisite stamp.
¶14 	After being arrested for driving under the influence of
alcohol and possession of a controlled substance with intent to
distribute, Mr. Sims was served with a notice and demand for
payment of the tax and a corresponding penalty, totaling nearly
$400,000. 	Mr. Sims filed a petition for redetermination in which
he argued that because the roadblock was unconstitutional, the

No. 20060641 	6
evidence seized pursuant to it should be excluded from the
proceeding before the Commission. 	Without addressing the
constitutionality of the stop, the Commission concluded that the
exclusionary rule did not apply and that the seized evidence was
admissible. 	Id. at 7. 	We disagreed.
¶15 	After an extensive analysis that led us to the
conclusion that the roadblock itself was unconstitutional, we
held that the exclusionary rule applied to proceedings conducted
pursuant to the Act “based on the reasoning that illegally
obtained evidence should be excluded from a civil proceeding if
the proceeding is in effect criminal or if the exclusion is
necessary to deter future unconstitutional searches.” 	Id. at 13.
We concluded that “[w]here the aims and objectives of a civil
penalty are closely aligned with those of the criminal law, . . .
the protections afforded by the criminal law ought to be extended
to the quasi-criminal proceeding.” 	Id.
¶16 	We offered several reasons why the Illegal Drug Stamp
Tax Act was quasi-criminal in purpose. 	First, the Act shared the
criminal law’s objective of punishing and deterring those in
possession of illegal drugs. 	Id. 	Second, the Act’s assessment
scheme and penalty provisions imposed “onerous” financial
burdens, which betrayed that it was designed as a tool for
punishment and enforcement rather than revenue collection. 	Id.
Finally, we noted that enforcement of the Act was “inextricably
connected with proof of criminal activity.” 	Id. at 14.
¶17 	We also reasoned that application of the exclusionary
rule furthered the rule’s purpose of “ensuring restraint by law
enforcement officials in connection with the Act.” 	Id. 	The Act
contained a provision that allowed the law enforcement agency
responsible for the investigation to retain sixty percent of the
collected taxes, interests, and penalties. 	We noted, “In view of
the financial motivation given to local law enforcement agencies
to acquire evidence of tax violations, the application of the
exclusionary rule to drug stamp tax proceedings is likely to
provide a significant and substantial additional deterrent to
unconstitutional seizures.” 	Id.
¶18 	At the other end of the exclusionary rule continuum
lies In re A.R., 1999 UT 43. 	There, we considered the
application of the exclusionary rule to a civil child protection
proceeding. 	Id. ¶ 9. 	One winter night, a probation officer and
a social worker discovered two of the petitioner’s children
playing unattended in the street outside of the petitioner’s
house. 	After questioning the children about their mother’s
whereabouts and learning that they had not seen her for at least

7 	No. 20060641
a day, the probation officer called the Salt Lake City Police
Department. 	Id. ¶ 3.
¶19 	When the responding officer arrived at the scene, he
tried to locate the mother’s boyfriend, who had apparently been
entrusted with watching the children. 	After knocking on the
mother’s door and not receiving an answer, the officer entered
the house “to try and determine if there was anyone there, . . .
to have a look around and see what the living conditions were
like, [and] to see if anyone was present to watch the children.”
Id. ¶ 4 (internal quotations omitted). 	The officer then looked
in the bedroom and saw, in plain view, two pipes that had been
used for smoking drugs. 	After the officer reported what he had
found, a drug canine unit responded and conducted a more
comprehensive search of the house, which uncovered various
“sexual devices.” 	Although police officers remained at the scene
until about 11:00 p.m., no one ever appeared with the intention
of attending to the needs of the children. 	Id. ¶ 5.
¶20 	The children were placed in shelter care, and the state
filed a petition alleging that they had been neglected. 	As
support for this contention, the state cited the evidence of drug
paraphernalia and sexual devices uncovered pursuant to the
warrantless searches. 	Id. ¶ 6. 	The mother argued that the
searches were invalid and moved to suppress the evidence under
the exclusionary rule. 	Id. ¶ 7. 	Both the juvenile court and the
court of appeals concluded that the exclusionary rule did not
apply. 	We agreed and focused our analysis on the exclusionary
rule under the United States Constitution. 	Id. ¶ 22.
¶21 	Our analysis in In re A.R. applied the same principles
we used in Sims but with a different result. 	We concluded that,
unlike the statutory framework in Sims, the purpose of child
protection proceedings is not punishment. 	Instead, as we noted,
The primary focus of and sole statutory
justification for child protection
proceedings is to protect the interests of
children who are neglected or abused. . . .
Although parents may suffer a severe
detriment in losing temporary or permanent
custody of their children, punishment of the
parents is not the purpose of the proceeding.
. . . 	In most cases, the primary objective
is to effectuate a family treatment plan that
will allow children to be returned to their
parents. 	In such cases, state intervention

No. 20060641 	8
is designed to benefit parents in the long
run.
Id. ¶ 18 (citations omitted). 	We further observed that the
juvenile court told the petitioner,
I want to make sure you’re clean and sober
and . . . I am interested in getting these
kids back to you. 	I’m not interested in
keeping these kids away from you . . . . 	So
[DCFS] is going to put together a plan which
is going to require . . . certain changes be
made so that those kids have a shot at some
success in life.
Id. (alteration in original).
¶22 	As a second justification for our holding, we concluded
that the principles behind the exclusionary rule were at odds
with the purpose of child protection proceedings. 	When
confronting evidence that points to child abuse or neglect, law
enforcement officers are not acting with the “object of obtaining
evidence for criminal prosecution.” 	Id. ¶ 20. 	Rather, they are
responding to very real emergencies involving the welfare of
children and have “little incentive” to violate the Fourth
Amendment. 	Id. 	More importantly, we concluded, “Whatever
deterrent effect there might be is far outweighed by the need to
provide for the safety and health of children in peril.” 	Id.
¶ 21.
¶23 	Armed with the precedent of Sims and In re A.R., we
turn our attention to Mr. Beller’s case. 	We conclude that the
exclusionary rule does not apply to driver license revocation
proceedings because of the character of the proceedings and the
fact that application of the rule would be both unnecessary and
counterproductive.
¶24 	By keeping inebriated drivers off the roads, suspension
and revocation proceedings serve the important policy function of
disabling individuals who might put themselves and other citizens
at risk. 	Such proceedings, which aim to protect rather than to
punish, differ substantially from the objectives of the criminal
law proscription against operating a motor vehicle while
impaired.
¶25 	We adopted this characterization of driver license
proceedings almost three decades ago in Ballard v. Utah Motor
Vehicle Divison, 595 P.2d 1302, 1305 (Utah 1979). 	After Roger

9 	No. 20060641
Ballard lost his license for driving under the influence, he
argued that driver license revocation proceedings were
quasi-criminal and, thus, that he had been inappropriately denied
the procedural due process protections typically available to a
criminal defendant. 	We disagreed.
¶26 	Although we admitted “that the right to drive is a
valuable right or privilege and it cannot be taken away without
procedural due process, we [did] not agree that revocation
proceedings are therefore necessarily criminal or quasi-criminal
in nature.” 	Id. at 1304 (footnotes omitted). 	Summarizing the
“generally similar” guidance from other jurisdictions, we said
that “[t]he purpose of this administrative procedure is not to
punish the inebriated drivers; such persons are subject to
separate criminal prosecution for the purpose of punishment. 	The
administrative revocation proceedings [exist] to protect the
public, not to punish individual drivers.” 	Id. at 1305.
¶27 	We see no reason to depart from Ballard, especially in
light of the statutory language that governs driver license
suspension and revocation proceedings. 	The Utah Legislature
plainly stated that “the purpose of this title relating to
suspension or revocation of a person’s license or privilege to
drive a motor vehicle . . . while [driving] under the influence
. . . is protecting persons on highways by quickly removing from
the highways those persons who have shown they are safety
hazards.” 	Utah Code Ann. § 53-3-222 (2007).
¶28 	Other relevant statutory provisions confirm the
Legislature’s stated purpose. 	The Division may suspend or revoke
driver licenses for up to two years based on the number and
nature of any prior convictions for driving under the influence
or to otherwise “remove from the highways those persons who have
shown they are safety hazards.” 	Id. § 41-6a-509(2)(a)(i) (2005).
¶29 	Section 41-6a-509(3) reinforces the prophylactic
purpose of license revocation proceedings. 	Under this provision,
the Division shall suspend an individual’s license for an
additional period of time upon notice that the individual failed
to
(i) complete all court ordered:
(A) screening;
(B) assessment;
(C) educational series;
(D) substance abuse treatment; and
(E) hours of work in a compensatory-
service work program; or

No. 20060641 	10
(ii) pay all fines and fees, including fees
for restitution and treatment costs.
Id. § 41-6a-509(3)(a).
¶30 	Viewed in its entirety, this provision demonstrates the
value that the Legislature places on attempting to rehabilitate
individuals who have driven while under the influence through
education, treatment, and public service, such that disabling
them their right to drive is no longer necessary.
¶31 	We further conclude that the principles supporting the
existence of the exclusionary rule do not apply in any compelling
manner to driver license revocation proceedings. 	We next
consider the exclusionary rule’s deterrent objectives against the
social benefits that may be achieved through the use of the
fruits of an unlawful search.
¶32 	Law enforcement officers respond to real emergencies
when confronting the possibility of impaired drivers, emergencies
that implicate the health, safety, and lives of many innocent
individuals as they travel on Utah’s roadways. 	In order to
effectively respond to these emergencies and disable impaired
drivers, law enforcement officers must act quickly and might not
always comply with all necessary constitutional and statutory
considerations. 	We conclude, however, as in In re A.R., that the
need to protect society from the often deadly effects caused by
impaired drivers far outweighs whatever deterrent effect might
exist in applying the exclusionary rule.
¶33 	Moreover, as the Arizona Court of Appeals persuasively
reasoned, a deterrent effect specifically for purposes of driver
license revocation proceedings is unnecessary.
When a law enforcement officer stops a
motorist on suspicion of DUI, the officer’s
primary interest is most likely criminal
prosecution, rather than the collateral
consequence of license suspension. 	Because
use in the license suspension hearing of
evidence obtained through an improper stop
falls outside the offending officer’s zone of
primary interest, exclusion of such evidence
in that civil context would not significantly
affect a police officer’s motivation in
conducting a vehicle stop. 	The officer is
already punished by the exclusion of the
evidence in the state criminal trial[, which]

11 	No. 20060641
necessarily, is of substantial concern to him
[or her].
Thus, exclusion of evidence from the
license suspension hearing would have little
deterrent value as compared to the benefit of
having otherwise reliable evidence that a
motorist has been driving while intoxicated
. . . .
. . . .
The record does not reflect, nor are we
aware of, any cases or statistical studies
that suggest a pattern of police misconduct
with respect to DUI stops. 	The prospect of
officers knowingly stopping vehicles, without
reasonable suspicion of criminal activity,
for the purpose of seeking to suspend
motorists’ driver’s licenses if they refuse
to submit to . . . testing is remote at best.
. . . 	Consequently, it strikes us as
extremely unlikely that officers would use
such tactics merely with the hope of
obtaining license suspensions, knowing that
evidence of intoxication obtained from such
an encounter would be inadmissible in any
criminal DUI prosecution and that clearly
impermissible police conduct could subject
officers to civil liability.
Tornabene v. Bonine ex rel. Ariz. Highway Dep’t, 54 P.3d 355,
364-66 (Ariz Ct. App. 2002) (alterations in original) (citations
and internal quotations omitted). 	Accordingly, we hold that the
exclusionary rule does not apply to driver license revocation
proceedings.
III. 	REASONABLE SUSPICION
¶34 	Finally, we turn to the issue of the validity of the
underlying traffic stop. 	The State contends that, given the
district court’s determinative ruling that the exclusionary rule
did not apply, it should not have considered the underlying
constitutional issue of the validity of the stop. 	Because we
conclude that the exclusionary rule does not apply, we decline to
consider whether the district court erred in concluding that
“from a totality of the circumstances . . . Officer Kendrick
lacked reasonable suspicion that [Mr. Beller] was violating the

No. 20060641 	12
law.” 	Considering the merits of this argument is not necessary
for the disposition of this case.
CONCLUSION
¶35 	We hold that neither party waived the issue of whether
the exclusionary rule applies by failing to raise the issue
before the Division. 	We also hold that the exclusionary rule
does not apply to driver license revocation hearings and that
because it does not apply, we do not need to address whether the
stop was supported by reasonable suspicion. 	We therefore affirm
the holding of the district court.
---
¶36 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Parrish concur in Justice Nehring’s
opinion.