State v. Tripp

2010 UT 9
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. 20081068
Plaintiff and Petitioner,
v.
F I L E D
Susan Tripp,
Defendant and Respondent. February 19, 2010
---
Third District, Salt Lake
The Honorable John Paul Kennedy
No. 051903300
Attorneys: Mark L. Shurtleff, Att’y Gen., Jeffrey S. Gray,
Asst. Att’y Gen., for plaintiff
Ronald J. Yengich, Elizabeth Hunt, Salt Lake City,
for defendant
---
On Certiorari to the Utah Court of Appeals
DURHAM, Chief Justice:
INTRODUCTION
¶1 On writ of certiorari, the State seeks review of the
court of appeals’ decision in State v. Tripp, 2008 UT App 388,
197 P.3d 99. The State asserts that the court of appeals erred
when it reversed the trial court’s denial of Defendant Susan
Tripp’s motion to suppress blood test results in her jury trial
on a charge of automobile homicide. The court of appeals held
that the State did not meet its burden to prove that her consent
was voluntary, and it declined to affirm the trial court under
the exigent circumstances exception or the inevitable discovery
doctrine. Id. ¶ 26. We affirm.
BACKGROUND
I. MS. TRIPP KILLED A MOTORCYCLIST IN AN AUTOMOBILE ACCIDENT
¶2 On April 23, 2004, Ms. Tripp was involved in an
automobile-motorcycle accident. At about 6:50 p.m., Ms. Tripp
drove her truck up to an intersection with a two-way stop sign.
The intersection, located on the outskirts of West Jordan, was

No. 20081068 2
surrounded by farmland. Claiming she saw no traffic, she drove
into the intersection. As she did, Ms. Tripp collided with a
motorcyclist. A helicopter transported the severely injured
motorcyclist to a hospital. The motorcyclist died the next day.
II. THE POLICE ASKED AN APPARENTLY UNIMPAIRED
MS. TRIPP TO GIVE A BLOOD SAMPLE
¶3 Shortly after 7:00 p.m., West Jordan Police Officer
Doug Saunders arrived at the scene of the crash. Upon his
arrival, Ms. Tripp was sitting in her husband’s car. Tripp’s
husband had arrived sometime earlier. Officer Saunders observed
Ms. Tripp crying and shaking. She had a cigarette in her hand
and a heavy odor of smoke about her. He did not observe any
signs of impairment. Speaking to her from within three feet he
did not smell any alcohol, nor could he detect any slurred
speech. Officer Saunders asked Ms. Tripp to fill out some
paperwork. She returned the paperwork properly completed. When
he asked Ms. Tripp if she had consumed any alcohol or taken any
prescription medications, she replied, “No.” Officer Saunders
later admitted that he had no reason to disbelieve Ms. Tripp.
¶4 As a matter of practice in serious investigations, and
not based on any particularized suspicion, Officer Saunders
wanted to rule out impairment. Officer Saunders asked Ms. Tripp
to submit to a blood draw. Ms. Tripp told him that she was
afraid of needles and did not want her blood drawn with one.
When Officer Saunders asked Ms. Tripp if she would submit to a
urinalysis, she said she would, but Officer Saunders never
administered the test.
¶5 At 7:30 p.m., Cecilia Budd, a victim advocate in the
employ of West Jordan City, arrived at the scene. She spent
roughly two hours with Ms. Tripp. When Ms. Budd first made
contact with Ms. Tripp, Ms. Tripp was still sitting in her
husband’s car. Ms. Budd testified that she smelled alcohol in
the husband’s car when she poked her head through the window but
was not sure where the odor came from. Ms. Budd told Ms. Tripp
that she was there to support her. Ms. Budd testified that she
reported the odor of alcohol in the husband’s car to an officer.
¶6 Ms. Budd observed that Ms. Tripp was very upset and
cried most of the time and that her crying “was like a roller
coaster.” She also saw Ms. Tripp smoke one cigarette because,
according to Ms. Tripp, it calmed her down.
¶7 At 8:05 p.m., Detective Daniel Roberts arrived at the
scene to investigate the expected death. Officer Saunders
delegated the task of obtaining Ms. Tripp’s blood sample to
Detective Roberts. Detective Roberts acknowledged that Officer

3 No. 20081068
Saunders did not identify any probable cause justifying a blood
draw. Rather, as Detective Roberts understood, the blood draw
was standard procedure for an accident involving a death and that
if a death was involved he could force the blood draw.
¶8 When Detective Roberts asked Ms. Tripp to consent to a
blood draw, she refused. She told him that she would only give
blood if no needle were used. Detective Roberts knew of no way
to obtain blood without a needle. Nonetheless, in the span of
about forty-five minutes, Detective Roberts requested three times
that Ms. Tripp consent to a blood draw. In at least one of these
requests, Detective Roberts was accompanied by two other
officers. Ms. Tripp consistently refused to a blood draw by
needle, but she again told the officers she would submit to a
urinalysis. Nonetheless, the officers never administered a
urinalysis, performed any field sobriety tests, or sought a
warrant for a blood draw.
¶9 When speaking with Ms. Tripp, Detective Roberts was
about three to four feet away from her. He did not detect any
odor of alcohol. He did observe, however, that her eyes were
red. He did not see any tears, and no one told him that she had
cried. She was shaking and seemed to be nervous. However,
Detective Roberts testified that the more he visited with Ms.
Tripp, the more concerned he became that Ms. Tripp was perhaps
impaired. Specifically, he observed that the redness in her eyes
did not dissipate and she did not cry, she “lacked concern” for
the victim of the accident, and she continually smoked.
¶10 With this concern in mind, Detective Roberts asked the
victim advocates, Cecilia Budd and Diana Greives, to talk with
Ms. Tripp in order to calm her down and to help her “become more
relaxed to the idea of having a blood draw.” Ms. Budd testified
that persuading Ms. Tripp to submit to the blood test was “not
[her] job.” Nevertheless, she explained to Ms. Tripp that she
had seen the blood technician draw blood and that he was “good,
very gentle, and that Ms. Tripp did not have to look at the
needle.”
III. DETECTIVE ROBERTS ARRESTED MS. TRIPP
BECAUSE SHE REFUSED TO GIVE BLOOD
¶11 Each time Detective Roberts made his request, Ms. Tripp
was seated in her husband’s vehicle with her friends, family, and
the victim advocates. Upon Ms. Tripp’s adamant refusal of
Detective Roberts’s third request, he arrested her and informed
her that he would force the blood draw with a warrant. He
explained:

No. 20081068 4
[T]he more we tried to convince her, the more
defiant she became and then her family and
her friends started to intervene and tell us
what we could do and what we couldn’t do and
we were losing control of the situation so I
took her into custody and removed her where
we could control the whole situation.
When asked how the family and friends interfered, Detective
Roberts responded that they were “[t]elling her not to answer the
questions. . . . Telling us that we couldn’t take the blood and
so I informed her that we were going to obtain a warrant then to
get the blood draw and I took her into custody.”
¶12 Detective Roberts did not handcuff Ms. Tripp, but he
placed her in the back of his unmarked police car. At no time
did Detective Roberts or any other officer read a Miranda warning
to Ms. Tripp.
¶13 Detective Roberts asked Officer Joseph Monson to watch
Ms. Tripp. Officer Monson did not know why Detective Roberts
arrested Ms. Tripp. Officer Monson explained that although the
family had interfered with the investigation, Ms. Tripp herself
had never interfered. Further, Officer Monson did not detect any
signs of impairment in Ms. Tripp. Ms. Tripp had no trouble
walking, and Officer Monson did not smell any odor of alcohol.
¶14 At one point during the custody, Ms. Tripp’s husband
attempted to contact her while she was seated in the back of the
unmarked car. Officer Monson refused to allow any contact, and
he threatened to arrest the husband. Meanwhile, Ms. Budd
remained by Ms. Tripp’s side. Sitting in the backseat with Ms.
Tripp, Ms. Budd again smelled alcohol. This time she was sure
the odor came from Ms. Tripp.
IV. THE POLICE PROCURED A WARRANTLESS BLOOD DRAW
¶15 Detective Roberts testified that to obtain a warrant he
customarily follows a certain procedure. This procedure requires
him to review all the information with the officers at the scene,
call another detective to help draft and review the warrant with
the district attorney, and then obtain a district court judge’s
signature, which is available by electronic communication.
¶16 Detective Roberts never attempted to secure a warrant.
When the blood technician, Brian Davis, arrived, Detective
Roberts informed Mr. Davis of the need to obtain a warrant and
that the process would take a couple of hours. When Mr. Davis
learned that Ms. Tripp’s nonconsent stemmed from her fear of
needles, the two agreed that Mr. Davis would talk to Ms. Tripp to

5 No. 20081068
“work around [her] fear of needles,” and that Ms. Tripp might
give her consent because Mr. Davis was “not . . . a police
officer or involved in any of the original investigation [and]
that she might be easier with [his] demeanor.” Detective Roberts
ordered Officer Monson to supervise the situation between Mr.
Davis and Ms. Tripp. Detective Roberts did not return until Mr.
Davis had drawn a blood sample.
¶17 Mr. Davis spoke with Ms. Tripp for about ten to fifteen
minutes. Talking about six inches from Ms. Tripp’s face, Mr.
Davis noticed a slight odor of alcohol coming from Ms. Tripp’s
mouth. Mr. Davis testified that Ms. Tripp continually insisted
that she was afraid of needles and wanted her husband. Mr. Davis
also testified that “[a] couple of times during [the]
conversation [he] kind of paraphrased her civil entitlements” and
told her about her right to counsel and the right to remain
silent.
¶18 At about 9:00 p.m., Mr. Davis took a blood sample from
Ms. Tripp. During the draw, Ms. Tripp sat in the backseat of
Detective Roberts’s car. The door was open, and she sat with her
legs and arms outside the car. Mr. Davis recalled that Ms. Tripp
was a “little upset” with Officer Monson. Mr. Davis told Ms.
Tripp, “You know, just let me put the tourniquet on your arm, see
if we can find a spot that would be easy to do this.” Ms. Tripp
told him, “[W]e’ll go ahead and do that.” Ms. Tripp stuck her
arm out for Davis. He rolled up her sleeve and applied the
tourniquet. Ms. Budd kneeled down to hold Ms. Tripp’s other
hand. Mr. Davis then said, “[W]e can go ahead and take care of
this.” But, as Mr. Davis testified, he did not think that Ms.
Tripp knew he had all his equipment ready. Ms. Budd told Ms.
Tripp “not to look at the needle because she was afraid of
needles and take a deep breath.” Officer Monson “shield[ed] Ms.
Tripp’s eyes so [she] wouldn’t look at the needle.” Mr. Davis
stuck Ms. Tripp with the needle as quickly as he could and drew
the blood. The draw did not take long. According to Mr. Davis
and Ms. Budd, Ms. Tripp never said “no” and she did not tell Mr.
Davis to “stop.” However, Officer Monson testified that during
the draw, Ms. Tripp was upset; “to me [she] looked terrified.”
Officer Monson did not remember Ms. Tripp’s exact words, but he
testified: “She was pulling away. She was crying.”
¶19 After the draw, Ms. Tripp appeared to calm down; she
did not say anything, but she stopped crying. Ms. Budd observed
that Ms. Tripp was very calm after the draw, and that Ms. Tripp
said “it wasn’t as bad as she thought.” A toxicology report of
Ms. Tripp’s blood sample revealed a blood alcohol level of .089
and a metabolite of cocaine.

No. 20081068 6
V. THE COURT OF APPEALS REVERSED THE TRIAL COURT’S
DENIAL OF MS. TRIPP’S MOTION TO SUPPRESS
¶20 The State charged Ms. Tripp with one count of
automobile homicide, a third degree felony, and one count of
failure to yield the right of way, a class C misdemeanor. Prior
to trial, Ms. Tripp filed a motion to suppress the evidence from
the blood draw. She argued that her consent was involuntary.
The trial court heard testimony at a suppression hearing. The
trial court entered findings of fact, concluded that Ms. Tripp
voluntarily consented to the blood draw, and denied Ms. Tripp’s
motion to suppress. Following a four-day trial, a jury found Ms.
Tripp guilty of both counts as charged. Ms. Tripp appealed.
¶21 The court of appeals reversed the trial court’s denial
of Ms. Tripp’s motion to suppress. See State v. Tripp, 2008 UT
App 388, 197 P.3d 99. Specifically, the court of appeals held
that “the State did not meet its burden of proving that her
consent was voluntary.” Id. ¶ 26. Further, it declined to
affirm on the exigent circumstances exception because “the State
did not demonstrate that there was probable cause for a forcible
blood draw.” Id. It also declined to affirm on the inevitable
discovery doctrine because the State failed to demonstrate any
proper basis for discovery. See id. ¶¶ 24-25.
¶22 The State filed a petition for writ of certiorari,
which we granted. We have jurisdiction pursuant to Utah Code
section 78A-3-102(3)(a) (2008).
STANDARD OF REVIEW
¶23 “On certiorari, we review the court of appeals’
decision for correctness, giving its conclusions of law no
deference.” State v. Bujan, 2008 UT 47, ¶ 7, 190 P.3d 1255
(internal quotation marks omitted). “The correctness of the
court of appeals’ decision turns on whether that court accurately
reviewed the trial court’s decision under the appropriate
standard of review.” State v. Visser, 2000 UT 88, ¶ 9, 22 P.3d
1242. A trial court’s ruling on a motion to suppress is reviewed
for correctness, including its application of the law to the
facts. See State v. Brake, 2004 UT 95, ¶ 15, 103 P.3d 699. The
trial court’s underlying factual findings are reviewed under the
clearly erroneous standard. See State v. Krukowski, 2004 UT 94,
¶ 11, 100 P.3d 1222.
ANALYSIS
¶24 The State asks that we reverse the court of appeals’
decision. Specifically, the State argues that the court of
appeals erred in three ways: (1) it imposed a burden of proof

7 No. 20081068
greater than that required by the Fourth Amendment when it
demanded clear and positive testimony that the consent was
unequivocal and freely given; (2) it misassessed probable cause
in considering whether the warrantless blood draw was justified
under the exigent circumstances exception; and (3) it imposed a
burden of proof for inevitable discovery greater than required
under State v. Topanotes, 2003 UT 30, 76 P.3d 1159. We address
each issue in turn.
I. THE COURT OF APPEALS APPLIED THE PROPER STANDARD OF REVIEW
FOR DETERMINING WHETHER MS. TRIPP VOLUNTARILY CONSENTED
TO THE BLOOD DRAW SEARCH
¶25 The State argues first that the court of appeals erred
by imposing a burden of proof greater than that required by the
Fourth Amendment. According to the State, the court of appeals
demanded a standard of “clear and convincing” by using the
language of “clear and positive testimony that the consent was
unequivocal and freely given.” State v. Tripp, 2008 UT App 388,
¶ 14, 197 P.3d 99 (quoting State v. Bredehoft, 966 P.2d 285, 293
(Utah Ct. App. 1998)). The State misreads this language and
misinterprets its effect on the proper standard. We therefore
affirm the court of appeals’ decision.
¶26 The Fourth Amendment ensures “[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S. Const. amend.
IV. Blood tests “plainly constitute searches of ‘persons,’ and
depend antecedently upon seizures of ‘persons.’” Schmerber v.
California, 384 U.S. 757, 767 (1966). A warrantless search is
per se unreasonable unless the search falls within one of the few
“‘specifically established and well-delineated exceptions.’”
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)(quoting Katz
v. United States, 389 U.S. 347, 357 (1967)). A search conducted
pursuant to consent is an established exception. Id. “[F]or a
consent search to be valid, consent must have been given
voluntarily . . . .” State v. Bisner, 2001 UT 99, ¶ 43, 37 P.3d
1073.
¶27 In determining whether voluntary consent was given for
a warrantless search, we have a two-prong analysis. “A consent
is valid only if ‘(1) the consent was given voluntarily, and
(2) the consent was not obtained by police exploitation of [a]
prior illegality.’” State v. Hansen, 2002 UT 125, ¶ 47, 63 P.3d
650 (quoting State v. Thurman, 846 P.2d 1256, 1262 (Utah 1993)).
As illustrated by our analysis of this first prong in Hansen, for
a defendant to voluntarily consent to a search the defendant must
(A) actually consent to the search and (B) consent must be
voluntary. See id. ¶¶ 47, 48, 51.

No. 20081068 8
¶28 Because the court of appeals held that consent was not
given voluntarily, it did not need to address the second prong of
police exploitation. We likewise analyze only the first prong of
voluntary consent. But unlike the court of appeals, we analyze
separately the underlying parts to the first prong of voluntary
consent and address (A) whether Ms. Tripp actually consented and
(B) whether Ms. Tripp’s consent was voluntary. See Tripp, 2008
UT App 388, ¶¶ 14-17. In doing so we clarify the standard of
review as to voluntariness.
A. Testimony Reveals That the Findings of Fact Are Clearly
Erroneous and That Ms. Tripp Did Not Consent to the Blood Draw
¶29 The court of appeals concluded that Ms. Tripp did not
give clear indication of her consent to the blood draw. Even
though the court of appeals conflated consent and voluntariness
into one analysis, we agree with its decision. The findings of
fact that state Ms. Tripp consented are clearly erroneous given
the testimony presented to the trial court at the suppression
hearing.
¶30 “Before a court addresses whether consent was
voluntary, it must first determine that there was consent.”
Hansen, 2002 UT 125, ¶ 48. The existence of consent is a factual
finding, and it is based on the totality of the circumstances.
Id. In making factual findings, the trial court “is in a unique
position to assess the credibility of witnesses and weigh the
evidence.” Id. Accordingly, an appellate court should defer to
the factual findings of the trial court unless the findings are
clearly erroneous. See id.; see also State v. Krukowski, 2004 UT
94, ¶ 11, 100 P.3d 1222.
¶31 In this case, the trial court made seventeen factual
findings. Two factual findings are clearly erroneous under the
testimony presented to the trial court at the hearing on Ms.
Tripp’s motion to suppress. Specifically, the trial court found:
15. When asked by Mr. Davis if she would
consent to the blood draw, the defendant
voluntarily extended her arm.
16. When Mr. Davis drew the defendant’s
blood, she never tried to withdraw her
arm and she never said “no” or “stop.”
¶32 Although the court of appeals did not expressly hold
that these two findings of fact were clearly erroneous, it
focused on the interaction between Mr. Davis and Ms. Tripp at the
time of the blood draw. See Tripp, 2008 UT App 388, ¶¶ 16-17.
The testimony at the suppression hearing reveals that Ms. Tripp

9 No. 20081068
did not voluntarily extend her arm when asked to consent to the
draw. Rather, Ms. Tripp extended her arm only in response to Mr.
Davis telling Ms. Tripp, “You know, just let me put the
tourniquet on your arm, see if we can find a spot that would be
easy to do this.” The court of appeals noted that Mr. Davis then
made the ambiguous statement, “[W]e can go ahead and [take] care
of this.” Id. ¶ 16 (second alteration in original). The State,
however, argues there was no ambiguity because at about this same
time Ms. Budd told Ms. Tripp “not to look at the needle . . . and
[to] take a deep breath,” and Officer Monson shielded Ms. Tripp’s
eyes so she would not look at the needle. Yet, as the court of
appeals emphasized, Mr. Davis testified that he did not think Ms.
Tripp knew he had all his blood-drawing equipment ready. See id.
The testimony also contradicts the finding that “[Ms. Tripp]
never tried to withdraw her arm.” Officer Monson testified that
Ms. Tripp looked upset and terrified, and that “[s]he was pulling
away. . . . [and] was crying.” Given this testimony, the court
of appeals did not err in concluding that Ms. Tripp did not
clearly consent. Furthermore, even if we assume Ms. Tripp
consented, she did not do so voluntarily.
B. Under the Totality of the Circumstances, the State
Failed to Prove by a Preponderance of the Evidence
That Ms. Tripp Voluntarily Consented to the Blood Draw
¶33 In reviewing whether Ms. Tripp voluntarily consented,
the court of appeals imposed “‘the totality of the
circumstances’” standard. Id. at ¶ 14 (quoting State v. Hansen,
2002 UT 125, ¶ 56, 63 P.3d 650). The court of appeals further
noted that it “‘look[s] to see if there is clear and positive
testimony that the consent was unequivocal and freely given.’”
Id. (quoting Bredehoft, 966 P.2d at 293). The State interprets
this language as requiring a clear, positive, and unequivocal
standard of proof--a standard stricter than that required under
the Fourth Amendment. The State misreads this language and
disregards the actual standard utilized by the court of appeals.
¶34 The State points out that the “clear, positive, and
unequivocal” language stems from a test in State v. Ham, 910 P.2d
433, 439 (Utah Ct. App. 1996). The Ham test consisted of three
parts:
(1) There must be clear and positive
testimony that the consent was unequivocal
and specific and freely and intelligently
given; (2) the government must prove consent
was given without duress or coercion, express
or implied; and (3) [when evaluating these
first two standards, we] indulge every
reasonable presumption against the waiver of

No. 20081068 10
fundamental constitutional rights and there
must be convincing evidence that such rights
were waived.
Id. (internal quotation marks omitted)(alteration in original)
(emphasis added).
¶35 The State argues correctly that we rejected the Ham
test in Hansen. 2002 UT 125, ¶¶ 54-55. But the State reads our
rejection too broadly. In Hansen, we rejected the
“intelligently given” portion of the first prong because it could
imply that “a person must have knowledge of the right to refuse
consent.” Id. ¶ 54. We noted that the Supreme Court in
Schneckloth forbade this because the knowledge of the right to
refuse is not a prerequisite to establish voluntary consent, but
is rather a factor to be taken into account. See id. Also, we
rejected the third prong of the Ham test because a waiver is
incongruous with Schneckloth. See id. ¶ 55; see also Bisner,
2001 UT 99, ¶¶ 44-46. However, we did not reject the remaining
portions of the test. See Hansen, 2002 UT 125, ¶¶ 54-55. Yet
insofar as the “clear, positive, and unequivocal” language causes
confusion, we clarify the standard.
¶36 The voluntariness of consent to a search “is a legal
conclusion, which is reviewed for correctness.” Id. ¶ 51. “The
appropriate standard to determine voluntariness is the totality
of the circumstances test, and the burden of proof [faced by the
prosecutor] is [the] preponderance of the evidence.” Id. ¶ 56.
There is no burden of proof that directly corresponds to a
standard of “clear, positive, and unequivocal.” Rather, the
language of “clear and positive testimony that the consent was
unequivocal and freely given” goes not to the standard of proof,
but to the type of testimony. Tripp, 2008 UT App 388, ¶ 14
(internal quotation marks omitted)(emphasis added). This type of
testimony is but one factor to be considered in the totality of
the circumstances; its presence or absence is not itself
determinative.
¶37 The totality of the circumstances requires careful
scrutiny of “the details of the detention, and the
characteristics of the defendant.” Hansen, 2002 UT 125, ¶ 56.
And “[t]he totality of the circumstances must show consent was
given without duress or coercion.” Id. We have identified five
factors that may show a lack of duress or coercion:
(1) the absence of a claim of authority to
search by the officers; (2) the absence of an
exhibition of force by the officers; (3) a
mere request to search; (4) cooperation by
the owner of the vehicle; and (5) the absence

11 No. 20081068
of deception or trick[ery] on the part of the
officer.
Id. (internal quotation marks omitted).
¶38 Turning to the court of appeals’ decision, we hold that
it properly applied the totality of the circumstances standard.
Indeed, our review demonstrates that the court of appeals
considered the factual findings and the testimony from the
suppression hearing and found them wanting.
¶39 At the suppression hearing, the prosecutor did not
present clear and positive testimony that Ms. Tripp unequivocally
and freely gave her consent to the blood draw. Rather, as the
testimony above reveals, the circumstances surrounding the blood
draw were equivocal. This is only one factor of the analysis,
but other factors demonstrate that Ms. Tripp’s consent was the
result of coercion and duress.
¶40 The police made more than a mere request to draw Ms.
Tripp’s blood. Different officers requested on at least four
separate occasions that Ms. Tripp submit to a blood draw. Ms.
Tripp refused. Though the first request by Officer Saunders may
have been a mere request, the latter three requests were not.
Within the course of forty-five minutes, Detective Roberts
requested three times that Ms. Tripp submit to a blood draw. At
least one time, he made the request with two other officers
present. Each time she refused.
¶41 The State argues that Ms. Tripp refused solely because
she feared needles. Also, the State stresses that Ms. Tripp
agreed to submit to a urinalysis. Nonetheless, the State ignores
that the police rebuffed Ms. Tripp’s offer of cooperation;
neither her fear nor her agreement to another test demonstrate
her agreement to a blood draw. Ms. Tripp refused to submit to
the blood draw; her motives did not negate her refusal.
¶42 Furthermore, the police exhibited force when Detective
Roberts illegally arrested Ms. Tripp and threatened to force the
blood draw with a warrant. When Ms. Tripp “adamantly refused,”
Detective Roberts, without identifying any reasonable suspicion,
let alone probable cause, arrested her. Officer Monson
acknowledged that he did not know why Detective Roberts arrested
Ms. Tripp. Detective Roberts said he arrested Ms. Tripp because
she became more “defiant” and he was “losing control of the
situation” when Ms. Tripp’s family and friends intervened. But
Officer Monson testified that Ms. Tripp herself never interfered.
When pressed, Detective Roberts explained that Ms. Tripp’s family
and friends “interfered” by telling Ms. Tripp not to answer his
questions and that the police could not take her blood. Thus,

No. 20081068 12
Detective Roberts arrested Ms. Tripp and threatened to force the
blood draw with a warrant because she refused to waive her
constitutional right.
¶43 Detective Roberts placed Ms. Tripp into custody.
Although he did not handcuff Ms. Tripp, he secured her in the
back of his unmarked car and asked Officer Monson to watch her.
At no time did Detective Roberts or any other officer read Ms.
Tripp her Miranda rights. Officer Monson secluded Ms. Tripp from
all outside contact.
¶44 Finally, although it is unclear whether the police
deceived or tricked Ms. Tripp, we are concerned by the police’s
use of Ms. Budd and Mr. Davis. Ms. Budd is a victim advocate.
In this case, however, she appears to have been acting as an
agent of the police. Ms. Budd focused her efforts on Ms. Tripp.
Upon meeting Ms. Tripp, Ms. Budd informed Ms. Tripp that she was
there for her support. Ms. Budd then smelled the odor of alcohol
in the husband’s car and reported it to an officer. Ms. Budd
“comforted” Ms. Tripp for roughly two hours. Her vigilance
continued even after Detective Roberts arrested Ms. Tripp. While
the police isolated Ms. Tripp from family and friends, Ms. Budd
remained by Ms. Tripp’s side in the backseat of Detective
Roberts’s car. Also, Detective Roberts testified that after he
grew concerned that Ms. Tripp might be impaired, he asked Ms.
Budd to calm Ms. Tripp and help her “become more relaxed to the
idea of having a blood draw.” Ms. Budd testified that this was
“not [her] job.” Still, she told Ms. Tripp that the blood
technician was “very good, very gentle, and that Ms. Tripp did
not have to look at the needle.” She held Ms. Tripp’s hand
during the blood draw and told her “not to look at the needle
. . . and [to] take a deep breath.”
¶45 Similarly, although Mr. Davis is a blood technician, he
followed the officers’ direction. Upon Mr. Davis’s arrival,
Detective Roberts abandoned any attempt to secure a warrant in
favor of letting Mr. Davis “work around [Ms. Tripp’s] fear of
needles.” Mr. Davis testified that he and Detective Roberts
agreed that if Mr. Davis talked to Ms. Tripp she might give her
consent because he was “not . . . a police officer or involved in
any of the original investigation [and] that she might be easier
with [his] demeanor.”
¶46 Weighing these factors under the totality of the
circumstances test, it appears that the near constant police
pressure and coercive tactics overcame Ms. Tripp’s will. The
court of appeals imposed the proper standard, and it correctly
concluded that under the totality of the circumstances, the State
failed to show by a preponderance of the evidence that Ms. Tripp
voluntarily consented to the blood draw. Accordingly, we affirm

1 We also note that because Detective Roberts arrested Ms.
Tripp without probable cause, as discussed below, the arrest was
illegal. Because of our holding, we need not address the second
prong of Hansen, 2002 UT 125. We note, however, that the State
fails to show that Ms. Tripp’s “consent was not obtained by
police exploitation of the prior illegality.” Id. ¶ 47 (internal
quotation marks omitted). This exploitation analysis “look[s] at
the facts of each case” and three factors: “(1) the purpose and
flagrancy of the illegal conduct, (2) the presence of intervening
circumstances, and (3) the temporal proximity between the illegal
detention and consent.” Id. ¶ 64 (internal quotation marks
omitted). This analysis reveals police exploitation in this
case. First, the purpose of the illegal arrest was to obtain Ms.
Tripp’s consent. While the officers cited a routine practice of
requesting blood samples in serious accidents, here, in the
absence of any probable cause, they repeatedly requested a
sample, arrested Ms. Tripp following her fourth refusal, confined
her, isolated her from family and friends, reinitiated their
requests, and then took her blood. Seeking her consent after the
repeated refusals and her arrest shows the purpose of the illegal
arrest “was to exploit the opportunity to ask for consent.” Id.
(internal quotation marks omitted). Second, although Mr. Davis
informed Ms. Tripp of her right to counsel and right to remain
silent, he is not an officer, and he only paraphrased these
rights. Thus, there are no intervening circumstances present.
Third, soon after Ms. Tripp was arrested, Detective Roberts,
through Mr. Davis and Ms. Budd, continued to pressure Ms. Tripp.
This brief time lapse and continued misconduct indicates
exploitation. Accordingly, any voluntary consent given by Ms.
Tripp is the product of exploitation of the prior police
illegality and should have been excluded to “effectively deter
future illegalities.” Id. ¶ 62 (internal quotation marks
omitted).
13 No. 20081068
the court of appeals’ decision, which reversed the trial court’s
denial of Ms. Tripp’s motion to suppress.1
II. THE COURT OF APPEALS DID NOT ERR BY REFUSING TO AFFIRM ON
EXIGENT CIRCUMSTANCES BECAUSE THE POLICE LACKED PROBABLE CAUSE
¶47 The State next asserts that the court of appeals erred
by refusing to affirm the district court on the alternative
ground of exigent circumstances. Specifically, the State argues
that the court of appeals erred in its assessment of probable
cause. We disagree; the court of appeals held correctly that the
State failed to demonstrate probable cause.
¶48 “One class of exceptions to the warrant requirement [of
the Fourth Amendment] is exigent circumstances.” State v.

No. 20081068 14
Rodriguez, 2007 UT 15, ¶ 16, 156 P.3d 771. Under the exigent
circumstances exception, the police may execute a warrantless
search if probable cause exists in an exigent circumstance.
“Probable cause exists where ‘the facts and circumstances within
. . . [the officers’] knowledge and of which they had reasonably
trustworthy information [are] sufficient in themselves to warrant
a man of reasonable caution in the belief that’ an offense has
been or is being committed.” State v. Dorsey, 731 P.2d 1085,
1088 (Utah 1986) (alterations in original) (quoting Brinegar v.
United States, 338 U.S. 160, 175-76 (1949)). Probable cause is
evaluated under the totality of the circumstances and deals with
probabilities and “certain common-sense conclusions about human
behavior” formulated by law enforcement officers. Ill. v. Gates,
462 U.S. 213, 231 (1983) (internal quotation marks omitted).
However, where a search intrudes beyond the human body’s surface,
the interests of “dignity and privacy” require “a clear
indication” that the desired evidence will be found. Schmerber
v. Cal., 384 U.S. 757, 769-70 (1966). An exigent circumstance
exists where there is “an urgency to acquire evidence that falls
outside the ordinary course of law enforcement.” Rodriguez, 2007
UT 15, ¶ 16.
¶49 Here, the court of appeals correctly concluded that the
police lacked probable cause to perform the blood draw under the
totality of the circumstances. The court of appeals considered
the testimony of Detective Roberts, Officer Saunders, and Officer
Monson. See State v. Tripp, 2008 UT App 388, ¶ 22, 197 P.3d 99.
All testified that they did not detect an odor of alcohol or any
signs of impairment. Also, the court of appeals was not
convinced by Detective Roberts’s observation of Ms. Tripp’s red
eyes and nervousness. See id.
¶50 Nonetheless, the State contends that the court of
appeals ignored these and other facts. Detective Roberts grew
concerned that Ms. Tripp was impaired when he observed that the
redness of her eyes was not dissipating and that he had not seen
Ms. Tripp cry. He also observed that Ms. Tripp continually
smoked and that she lacked any concern for the victim. The State
argues that Ms. Tripp’s red eyes were a sign of impairment, her
continuous smoking was used to mask the odor of alcohol, and her
lack of concern suggested her preoccupation with guilt. Also,
the State points out that Ms. Tripp failed to yield the right of
way to the victim despite an apparently unobstructed view of the
intersection. Finally, the State emphasizes that Ms. Budd and
Mr. Davis detected an odor of alcohol from Ms. Tripp.
¶51 Although the court of appeals did not specifically
mention these facts in its analysis, we conclude under the
totality of the circumstances review that the result remains the
same. The State isolates a few facts within the totality of the

2 The State requests that we declare the situation faced by
the officers an exigent circumstance. The court of appeals did
not address this issue. Because the lack of probable cause is
dispositive, neither do we. We do note, however, that although
the evanescent nature of alcohol alone does not create an exigent
circumstance, the severity of an offense--in that the victim soon
succumbed to his injuries--is a dominating fact as to the
exigency of the situation. See Rodriguez, 2007 UT 15, ¶¶ 30, 57.
We also recognize, however, that there can be no exception for
exigency where the police themselves cause the exigent
circumstance, as they arguably did here, by rebuffing Ms. Tripp’s
cooperation with a urinalysis in favor of a more accurate,
(continued...)
15 No. 20081068
circumstances to the exclusion of others. The testimony of Ms.
Budd, Officer Saunders, and Officer Monson reveals that Ms. Tripp
was in fact crying. Although alcohol could have accounted for
her red eyes, her crying--at times uncontrollable and “like a
roller coaster”--was an equally, if not more plausible, reason.
Similarly, testimony from Ms. Budd, who was with Ms. Tripp for
nearly the entire time, reveals that Ms. Tripp only had one
cigarette, and that she smoked the cigarette to calm herself.
¶52 The testimony of Ms. Budd and Mr. Davis regarding the
odor of alcohol from Ms. Tripp could form a basis for probable
cause, but only if the officers had knowledge of it. See State
v. Worwood, 2007 UT 47, ¶ 34, 164 P.3d 397. Here, they did not.
¶53 Testimony at the suppression hearing demonstrates that
none of the officers knew that Ms. Tripp smelled of alcohol. Ms.
Budd testified that when she first put her head into Ms. Tripp’s
husband’s car, she detected the odor of alcohol. She could not,
however, detect the source of the odor. She reported the odor to
an officer. In contrast, sitting in the backseat of Detective
Roberts’ car with Ms. Tripp, Ms. Budd again detected the odor of
alcohol; this time she was certain the odor came from Ms. Tripp.
Mr. Davis also detected an odor of alcohol coming from Ms.
Tripp’s mouth. Nonetheless, neither Ms. Budd nor Mr. Davis
reported these definitive observations to the police.
¶54 In the end, the State leaves us only with speculation
as to Ms. Tripp’s supposed preoccupation with guilt, and an
accident with a motorcycle at an intersection surrounded by
farmland. This does not create a basis for probable cause. Nor
do such facts clearly indicate sufficient impairment to justify
an intrusion into the human body. Accordingly, the State failed
to demonstrate under the totality of the circumstances that
probable cause existed. We thus hold that the court of appeals
did not err in finding a lack of probable cause.2

(...continued)
thorough blood test. See, e.g., United States v. Thompson, 700
F.2d 944, 950 (5th Cir. 1983) (“[A]gents cannot justify their
search on the basis of exigent circumstances of their own
making.”); State v. Beavers, 859 P.2d 9, 18 (Utah Ct. App. 1993)
(“[P]olice cannot create the exigency in order to justify a
warrantless entry.”). Additionally, we share concern with the
court of appeals. Had the investigating officers not with
“single-minded focus” pursued the blood test, they may have
“amass[ed] facts to establish probable cause” by accepting Ms.
Tripp’s voluntary cooperation to a urinalysis and by performing
field sobriety tests, or a Breathalyzer or Intoxilyzer test.
Tripp, 2008 UT App 388, ¶ 22 n.9. Nonetheless, because of the
lack of probable cause we do not and need not address whether
this situation constituted an exigent circumstance.
No. 20081068 16
III. THE COURT OF APPEALS’ CONCLUSION COMPORTS WITH THE PROPER
STANDARD REQUIRED FOR THE INEVITABLE DISCOVERY DOCTRINE
¶55 Finally, the State asserts that the court of appeals
erred in refusing to affirm on the alternative ground of
inevitable discovery. Because the court of appeals found the
State’s argument “conjectural at best” and unsupported by the
record, the State argues that the court of appeals imposed a
level of certainty greater than the proper preponderance of the
evidence standard, as enunciated in State v. Topanotes, 2003 UT
30, 76 P.3d 1159. We disagree.
¶56 When evidence is the product of illegal governmental
activity, a court must suppress the evidence to deter the
illegality. See Nix v. Williams, 467 U.S. 431, 442-43 (1984).
However, this deterrence rationale is undermined by the
inevitable discovery doctrine. See id. at 444. The inevitable
discovery doctrine admits unlawfully obtained evidence if the
police would have, in spite of the illegality, discovered the
evidence by some other legal means. See id. To establish
inevitable discovery, the prosecution must satisfy a
preponderance of the evidence standard. See Topanotes, 2003 UT
30, ¶ 14; see also Nix, 467 U.S. at 444.
¶57 The inevitable discovery doctrine does not require “‘an
entirely independent, alternate, intervening, appreciably
attenuated investigation aside from the tainted investigation.’”
Topanotes, 2003 UT 30, ¶ 15 (quoting State v. James, 2000 UT 80,
¶ 15, 13 P.3d 576). But “[a] crucial element of inevitable
discovery is independence; there must be some independent basis
for discovery, and the investigation that inevitably would have
led to the evidence [must] be independent of the constitutional

17 No. 20081068
violation.” Id. ¶ 16 (internal quotation marks omitted)
(alteration in original). Hence, in meeting its burden, the
prosecution may present a hypothetical independent source. See
id. ¶ 15. Such evidence may include “[r]outine or standard
police procedures . . . [as] a compelling and reliable
foundation.” Id. ¶ 17. Nonetheless, in the difficult cases, a
court will be confronted with “whether a single, ongoing
investigation would have developed an independent, legal avenue
for discovery.” Id.
¶58 Although the court of appeals failed to articulate
preponderance of the evidence as the standard, its conclusion
that the State offered no persuasive evidence comports with the
standard. The court of appeals examined the record for an
independent, lawful basis for discovery. It found none. Also,
the court of appeals was not convinced by the State’s
hypothetical that the police would have obtained a warrant and
discovered the blood alcohol evidence. Neither are we.
¶59 The State emphasizes the procedure for obtaining a
warrant. Detective Roberts testified that to obtain a warrant he
would have, among other steps, “review[ed] all the information
with the officers at the scene.” Because of this procedure, the
State argues that Detective Roberts would have taken the
necessary steps to secure a warrant. The State’s position
reminds us of the argument “if we hadn’t done it wrong, we would
have done it right.” Id. ¶ 19 (internal quotation marks
omitted). Although Detective Roberts threatened to seek a
warrant, he took no steps whatsoever to obtain one. Rather, once
Mr. Davis arrived, Detective Roberts abandoned the warrant idea
in the hope of procuring Ms. Tripp’s consent. Moreover, the
procedure cited to by Detective Roberts assumes that he would
have gathered information leading to probable cause. As we
discussed above, the police lacked probable cause. And even if
we assume that Detective Roberts would have learned that Ms. Budd
and Mr. Davis detected an odor of alcohol from Ms. Tripp’s mouth,
this tainted information arose only because Detective Roberts
called off the warrant process. Accordingly, we hold that the
court of appeals did not impose a more burdensome standard in
rejecting the alternative ground of inevitable discovery, and we
affirm its decision.
CONCLUSION
¶60 We recognize that Ms. Tripp’s actions caused the death
of an innocent victim. Nonetheless, the Constitution establishes
a balance between security and liberty. When the government
disrupts that balance by coercion and duress to overcome free and
voluntary choice, we are compelled, even in grievous cases, to
enforce the constitutional balance.

No. 20081068 18
¶61 Accordingly, we hold that in determining whether Ms.
Tripp voluntarily consented, the court of appeals did not impose
a burden of proof greater than required by the Fourth Amendment.
We further hold that the court of appeals concluded correctly
that the police lacked probable cause for the exigent
circumstances exception to apply. Finally, we hold that the
court of appeals did not impose a burden of proof greater than
required under the inevitable discovery doctrine. We therefore
affirm the court of appeals’ decision to reverse the trial
court’s denial of Ms. Tripp’s motion to suppress. We remand to
the trial court for proceedings consistent with this opinion.
---
¶62 Associate Chief Justice Durrant, Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.