State v. Oryall

2018 UT App 211
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
JENNIFER O RYALL,
Appellant.
Opinion
No. 20170110-CA
Filed November 8, 2018
Fourth District Court, Provo Department
The Honorable James R. Taylor
No. 161400218
Douglas J. Thompson, Margaret P. Lindsay, and
Dustin M. Parmley, Attorneys for Appellant
Sean D. Reyes and Marian Decker, Attorneys
for Appellee
JUDGE R YAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. O RME and JILL M. POHLMAN concurred.
HARRIS, Judge:
¶1 	May a police officer, without reasonable suspicion of
criminal activity, run a license plate check on a passing vehicle?
The 	federal 	courts, 	interpreting 	the 	U.S. 	Constitution, 	have
answered this question in the affirmative. Jennifer Oryall, who
was found to be driving under the influence of drugs after an
officer checked her license plate and detained her, asks us to
conclude 	that 	law 	enforcement 	officers 	violated 	the 	Utah
Constitution by performing such a check without reasonable
suspicion that Oryall was engaged in criminal activity. The
district court was not persuaded by Oryall’s arguments, and
neither are we. Accordingly, we affirm.

State v. Oryall
20170110-CA 	2 	2018 UT App 211
BACKGROUND
¶2 	Jennifer Oryall was driving on State Road 198 in Payson,
Utah, when she passed a police officer (Officer) who was parked
on the side of the road running license plate checks on passing
cars. 	Officer 	ran 	Oryall’s 	license 	plate 	number 	through 	a
government-managed 	electronic 	database 	containing 	vehicle
registration records. This check revealed that the vehicle was
registered 	to 	Oryall, 	a 	person 	Officer 	had 	previously
encountered in his law enforcement career. Intrigued, Officer
then ran a check on Oryall’s driver’s license records in a separate
government-managed electronic database. This check revealed
that Oryall’s driver’s license was suspended. Officer then sought
to confirm that Oryall was indeed the driver of the vehicle, and
he watched as the car parked at a nearby convenience store. He
then saw Oryall exit the vehicle and go inside, allowing him to
confirm her identity.
¶3 	After Oryall walked out of the convenience store, she got
back in her car and resumed driving, and Officer initiated a
traffic stop. Officer immediately observed that Oryall manifested
several signs of impairment, including white powder in and
around her nostrils, glossy eyes, constricted pupils, foam on her
lips, muscle and eyelid tremors, and slurred speech. Officer then
performed field sobriety tests and determined that Oryall was
impaired. Oryall later confessed to having ingested a number of
controlled substances prior to driving. Oryall was arrested and
later charged with driving under the influence, a third degree
felony, possessing drug paraphernalia, a class B misdemeanor,
and driving on a suspended license, a class C misdemeanor.
¶4 	Following 	a 	preliminary 	hearing, 	the 	magistrate
dismissed the drug paraphernalia charge, but bound Oryall over
for trial on the two remaining charges. Oryall then moved to
suppress all evidence from her traffic stop. In the memorandum
accompanying 	her 	motion, 	Oryall 	argued 	that 	the 	Utah
Constitution “[conferred] an expectation of privacy in motor

State v. Oryall
20170110-CA 	3 	2018 UT App 211
vehicle and driver records,” that the Utah Government Records
Access 	and 	Management 	Act 	(GRAMA) 	recognized 	that
expectation, and that therefore, under Utah law, police officers
are not entitled to check license plates against the government-
managed databases containing vehicle registration or driver’s
license information without a reasonable suspicion of criminal
activity. The district court denied Oryall’s motion to suppress.
Later, Oryall entered into a plea agreement with the State
pursuant to which she entered a conditional guilty plea to the
felony DUI charge, reserving the right to appeal the court’s
denial of her motion to suppress,1 and the State agreed to the
dismissal of the remaining misdemeanor count.
ISSUE AND STANDARD OF REVIEW
¶5 	Oryall now exercises that right to appeal, and asks us to
reverse the district court’s denial of her motion to suppress. A
district court’s denial of a motion to suppress presents a mixed
question of law and fact. State v. Fuller, 2014 UT 29, ¶ 17, 332
P.3d 937. In this context, we review a district court’s factual
findings for clear error and its legal conclusions, including its
application of law to the facts of the case, for correctness. Id.
ANALYSIS
¶6 	The Utah Constitution protects “[t]he right of the people
to be secure in their persons, houses, papers and effects against
1. Under rule 11(j) of the Utah Rules of Criminal Procedure, if
approved by the court and consented to by the prosecution, a
criminal 	defendant 	may 	enter 	a 	conditional 	guilty 	plea,
reserving the right to appeal an “adverse determination of any
specified pre-trial motion,” and the right to “withdraw the plea”
if the appeal is successful.

State v. Oryall
20170110-CA 	4 	2018 UT App 211
unreasonable searches and seizures.” Utah Const. art. I, § 14. As
pertinent 	here, 	this 	provision 	“prohibits 	state 	actors 	from
unreasonably 	intruding 	into 	areas 	where 	citizens 	have 	a
legitimate expectation of privacy.” Schroeder v. Utah Attorney
Gen.’s Office, 2015 UT 77, ¶ 22, 358 P.3d 1075. Thus, before
properly invoking article I, section 14 of the Utah Constitution, a
defendant 	must, 	as 	a 	“threshold” 	matter, 	“demonstrat[e] 	a
legitimate expectation of privacy in the area searched.” State v.
Atwood, 	831 	P.2d 	1056, 	1058 	(Utah 	Ct. 	App. 	1992) 	(“The
requirement 	of 	demonstrating 	a 	legitimate 	expectation 	of
privacy in the area searched is a threshold requirement that a
defendant 	must 	satisfy 	in 	order 	to 	establish 	a 	violation 	of
constitutional rights.”); see also State v. Larocco, 794 P.2d 460, 469
(Utah 1990) (stating that “this court will continue to use the
concept of expectation of privacy as a suitable threshold criterion
for determining whether article I, section 14 is applicable”).
¶7 	In this case, Oryall contends that, under article I, section
14 of the Utah Constitution, she has a “right to privacy” in both
her motor vehicle registration records and her driver’s license
records that prevents police officers from accessing those records
without reasonable suspicion of criminal activity, even though
those records are collected and kept by governmental agencies.
She asserts that this “right to privacy” was violated in this case,
because it is undisputed that Officer accessed her records before
forming a reasonable suspicion of criminal activity. Accordingly,
she argues that the district court erred in denying her motion to
suppress all of the evidence resulting from Officer’s check of her
license plate, vehicle registration, and driver’s license records.
¶8 	Before examining Oryall’s argument in detail, we pause
first to note that federal appellate courts, interpreting the federal
constitution, 	have 	unanimously 	determined 	that 	law
enforcement officers may conduct warrantless and suspicionless
checks of passing motorists’ vehicle registration and driver’s
license information. See, e.g., United States v. Miranda-Sotolongo,
827 F.3d 663, 667 (7th Cir. 2016) (stating that “[a] police officer’s

State v. Oryall
20170110-CA 	5 	2018 UT App 211
check of a vehicle registration in a database is not a Fourth
Amendment search,” and noting that “every other circuit that
has considered this issue has [so] held”). Federal courts reason
that, 	because 	a 	vehicle 	registration 	check 	“involves 	only
checking 	publicly 	displayed 	registration 	information 	against
official public records,” it is not substantively different from
comparing “a photograph of a person against mug shots or
latent fingerprints against FBI fingerprint records.” Id. at 668.
¶9 	Furthermore, we are aware of no other state that has
construed its own constitution to require an officer to have a
warrant (or at least reasonable suspicion) before checking a
motorist’s vehicle registration or driver’s license records. See,
e.g., State v. Richter, 765 A.2d 687, 688 (N.H. 2000) (holding that
an officer’s check of “motor vehicle licenses and records” did not
constitute a search within the meaning of the state constitution,
because “the state is the very body that issues, controls, and
regulates such licenses and records” (quotation simplified)); see
also 	People 	v. 	Bushey, 	75 	N.E.3d 	1165, 	1166–68 	(N.Y. 	2017)
(holding that a defendant had no “reasonable expectation of
privacy in either his license plate or the information lawfully
obtained and accessible through the DMV database”).
¶10 	Oryall asks us to strike a different path under the Utah
Constitution, and makes two specific arguments in support of
her position. First, she cites State v. Thompson, 810 P.2d 415 (Utah
1991), and points out that, on occasion, our supreme court
has 	interpreted 	the 	Utah 	Constitution’s 	prohibition 	on
“unreasonable searches and seizures,” see Utah Const. art I, § 14,
more broadly than federal courts have interpreted the similarly-
worded Fourth Amendment, and argues that we should do
likewise here. Second, she asserts that our legislature, in passing
GRAMA, “recognized” a state constitutional right to privacy in
documents such as the ones found in the databases containing
vehicle registration and driver’s license information. We find
neither of Oryall’s arguments persuasive.

State v. Oryall
20170110-CA 	6 	2018 UT App 211
¶11 	First, Thompson is entirely distinguishable from the case at
hand. In that case, a prosecutor issued a subpoena—ultimately
determined to be an illegal subpoena, see Thompson, 810 P.2d at
4192—to a third-party financial institution in an effort to obtain
bank 	records 	relevant 	to 	various 	defendants 	suspected 	of
bribery, racketeering, and antitrust violations. Id. at 415. The
prosecutor was able to obtain the documents from the bank, and
presented some of those documents as evidence at trial. Id. at
416. Defendants were convicted after a jury trial and appealed,
arguing 	that, 	unlike 	the 	federal 	Constitution, 	the 	Utah
Constitution afforded to individuals a right of privacy in bank
records held by a third-party financial institution and, therefore,
that 	they 	had 	a 	constitutional 	right 	against 	unreasonable
searches of those records. Id. at 415–16. Our supreme court
agreed 	with 	the 	defendants, 	stating 	that 	“it 	is 	virtually
impossible to participate in the economic life of contemporary
2. In Thompson, the Utah Supreme Court made clear that, had the
subpoena in question been legally issued, there would have been
no constitutional problem with the prosecutor obtaining the
bank records. See State v. Thompson, 810 P.2d 415, 418 (Utah 1991)
(stating 	that 	“[a] 	bank 	can 	be 	compelled 	to 	turn 	over 	a
customer’s records when served with a lawful subpoena,” and
that “the depositor or customer cannot maintain a constitutional
challenge to evidence gathered pursuant to a subpoena duces
tecum lawfully issued to his bank”). Indeed, the Utah Supreme
Court 	recently 	noted 	that 	Thompson 	“stands 	for 	the
unremarkable proposition that there is no violation of article I,
section 	14 	when 	the 	state 	obtains 	bank 	records 	through 	a
reasonable search and seizure,” and that “whatever ‘right of
privacy’ individuals may have in their bank records, the Utah
Constitution permits the state to intrude upon it ‘pursuant to a
subpoena’ that is ‘lawfully issued’ to a bank.” See Schroeder v.
Utah Attorney Gen.’s Office, 2015 UT 77, ¶ 24, 358 P.3d 1075
(quoting Thompson, 810 P.2d at 418).

State v. Oryall
20170110-CA 	7 	2018 UT App 211
society without maintaining an account with a bank,” and that
therefore “opening a bank account is not entirely volitional and
[does not] constitute[] a waiver of an expectation of privacy.” Id.
at 418 (quotation simplified). The court concluded that “it is
reasonable for our citizens to expect that their bank records will
be protected from disclosure” to the government. Id. (quotation
simplified). 	Accordingly, 	the 	court 	held 	that 	that 	the 	Utah
Constitution 	establishes 	a 	right 	to 	privacy 	for 	all 	records
“supplied to [a] bank to facilitate the conduct of . . . financial
affairs upon the reasonable assumption that the information
[will] remain confidential.” Id. (quotation simplified).
¶12 	Oryall urges that vehicle registration and driver’s license
records, like bank records, contain information that the subject of
the record may consider private or confidential. Oryall further
contends that “it is reasonable for our citizens to expect [that]
personal data compiled by the government” will be protected
from disclosure because, like opening a bank account, “it is
virtually 	impossible 	to 	participate 	in 	contemporary 	society
without . . . registering motor vehicles [or] obtaining drivers
licenses or other ID cards.” Accordingly, Oryall contends that
her vehicle registration and driver’s license records should have
been protected from Officer’s suspicionless search.
¶13 	We 	see 	the 	matter 	differently. 	Significant 	details
distinguish the sort of search contemplated in Thompson from
Officer’s examination of Oryall’s records, not least of which is
the fact that, in Thompson, government officials sought records
that were in the possession of third-party banks, Thompson, 810
P.2d at 416, whereas in this case the records Officer sought were
issued, controlled, and regulated by the very government from
which Oryall sought to protect them. It is one thing to hold that
the constitution recognizes a right to privacy that prevents the
government—without 	a 	lawful 	warrant 	or 	subpoena—from
accessing information that a citizen has entrusted to a third
party, such as a bank or a mobile phone provider. See Thompson,
810 P.2d at 418; see also Carpenter v. United States, 138 S. Ct. 2206,

State v. Oryall
20170110-CA 	8 	2018 UT App 211
2217, 2219-20 (2018) (declining to extend the federal “third-party
doctrine” 	to 	cell-site 	location 	information, 	and 	holding 	that
citizens have a “reasonable expectation of privacy” in cell-site
location 	information 	held 	by 	third-party 	mobile 	phone
providers). 	But 	it 	is 	quite 	another 	thing 	to 	hold 	that 	the
constitution recognizes a right of privacy that would prevent a
law enforcement officer—part of the state or local government—
from 	accessing 	information 	that 	another 	part 	of 	that 	same
government already lawfully possesses. We therefore decline
Oryall’s invitation to extend Thompson in such a way as to
prohibit the government from accessing information already in
its lawful possession.
¶14 	Next, Oryall directs our attention to GRAMA, and points
out that, in the “legislative intent” section of that statute, our
legislature expressly “recognize[d]” the citizenry’s constitutional
“right 	of 	privacy 	in 	relation 	to 	personal 	data 	gathered 	by
governmental 	entities.” 	See 	Utah 	Code 	Ann. 	§ 	63G-2-102(1)
(LexisNexis 2016). But even assuming GRAMA applies here,3
GRAMA cannot shoulder the load that Oryall attempts to place
upon it. As an initial matter, GRAMA was enacted to balance
two competing rights: the “public’s right of access to information
concerning 	the 	conduct 	of 	the 	public’s 	business,” 	and 	the
public’s 	right 	of 	privacy 	in 	whatever 	personal 	data 	the
government may have already collected. See id. The “right of
privacy” to which GRAMA refers is, in context and generally
speaking, a reference to a conceptual limit on the public’s right
3. The State argues that GRAMA’s protections “extend only to
‘personal 	data 	gathered’ 	by 	the 	State,” 	and 	that 	because
automobile 	registration 	certificates 	and 	driver’s 	licenses 	are
issued by the State, GRAMA does not apply to those records. We
do not reach the merits of this argument, and simply assume, for
purposes 	of 	our 	analysis, 	that 	automobile 	registration 	and
driver’s license records fall within the ambit of GRAMA.

State v. Oryall
20170110-CA 	9 	2018 UT App 211
to 	access 	governmental 	information, 	and 	not 	a 	general
prohibition on one government agency accessing information
possessed by another government agency.
¶15 	This principle is borne out by the provisions of GRAMA
itself. Three separate statutory subsections appear to give law
enforcement officers the right to access records such as vehicle
registration 	and 	driver’s license 	information. 	First, 	GRAMA
expressly authorizes one governmental entity to provide private
records in its possession to another governmental entity if the
requesting entity “enforces . . . or investigates civil, criminal, or
administrative law, and the record is necessary to a proceeding
or investigation.” See id. § 63G-2-206(1)(b). Second, GRAMA
provides that any governmental entity may disclose private
records in its possession to “a government prosecutor [or] peace
officer,” 	as 	long 	as 	those 	records 	“evidence 	or 	relate 	to 	a
violation of law.” Id. § 63G-2-206(9). Finally, GRAMA provides
that records “to which access is governed . . . pursuant to . . .
another state [or] federal statute” are “governed by the specific
provisions of” the other statute. Id. § 63G-2-201(6)(a). Federal law
provides that personal information in the possession of “[a] State
department of motor vehicles” “shall be disclosed for use in
connection with matters of motor vehicle or driver safety,” and
“may be disclosed . . . [f]or use by any government agency,
including any court or law enforcement agency, in carrying out
its functions.” See 18 U.S.C. § 2721(a) (2000), (b)(1). Oryall does
not 	argue 	that 	any 	of 	these 	statutory 	exceptions 	built 	into
GRAMA are inapplicable here. And Oryall likewise does not
attempt to argue that any of these statutory exceptions are
unconstitutional. 	Accordingly, 	these 	statutory 	provisions 	are
dispositive of Oryall’s second argument.
¶16 	Having considered and rejected Oryall’s two arguments,
we are left with nothing else from which we might conclude that
Oryall had a reasonable expectation of privacy in her driver’s
license and vehicle registration records. Therefore, Oryall has
failed to make the threshold showing required to establish a

State v. Oryall
20170110-CA 	10 	2018 UT App 211
constitutional violation. See Atwood, 831 P.2d at 1058 (“The
requirement 	of 	demonstrating 	a 	legitimate 	expectation 	of
privacy in the area searched is a threshold requirement that a
defendant 	must 	satisfy 	in 	order 	to 	establish 	a 	violation 	of
constitutional 	rights.”). 	Accordingly, 	we 	have 	no 	reason 	to
disturb the district court’s denial of Oryall’s motion to suppress.
CONCLUSION
¶17 	Oryall has failed to establish, as a threshold matter, that
she possessed a reasonable expectation of privacy in her motor
vehicle registration or driver’s license records, and has therefore
failed to establish that Officer was constitutionally prohibited
from accessing those records, even in the absence of reasonable
suspicion that Oryall committed a crime. Accordingly, we affirm
the district court’s order denying Oryall’s motion to suppress.