Self Pat-Down = Consent-Search

State v. Hurt, 2010 UT 33, (Utah Court of Appeals, February 11, 2010).

Defendant was a passenger in a car during a traffic stop.  Police arrested Driver.  Officer asked Defendant to step out of the vehicle.  Defendant stepped out of the vehicle.  Officer asked Defendant if he had any weapons and asked him to turn out his pockets.  From his pockets, Defendant produced an eyeglass case.  Officer asked Defendant to open the eyeglass case, he did so and revealed methamphetamine.  Defendant was charged with possession of a controlled substance.  Defendant moved to suppress the evidence.  The trial court found that this was a consent-search.  Defendant Appealed.

The Court of Appeals Affirmed the trial court finding that the police legally detained Defendant, and that the search conducted on Defendant was a consent-search.  The Court found that a command can be a search, but the determination turns on the evaluation of the facts in each case.  (See State v. Bisner, goes more toward voluntariness of consent, but applicable to evaluate whether the command invades voluntariness).  In this case, the command did not rise to the level necessary to overcome the presumption of consent.

Concurrence, Judge Davis: Defendant did not adequately address the facts surrounding the consent in the brief.  The facts are too limited to rule in Defendant’s favor.  Judge Davis also recommends that police inform individuals of their right to refuse consent.

Full Decision available at http://www.utcourts.gov/opinions/appopin/hurt021110.pdf