There is not any crime in Utah called “drug trafficking”, although law enforcement often calls it that on scene, in their reports, and in court testimony. In Utah the proscribed behavior is possession of a controlled substance with intent to distribute. Utah law defines “distribution” extremely broadly. It simply means to deliver a controlled substance or a listed chemical, other than by administering or dispensing. “Deliver” is defined in 58-37-2(1)(j), and means the actual, constructive, or attempted transfer of a controlled substance or a listed chemical, (whether or not an agency relationship exists). Likewise, “distribute” is defined in the same section 58-37-2(1)(o), and simply means to transfer or even attempt to transfer. Technically speaking, then, passing a joint is possession of controlled substance with intent to distribute, although in practical experience it is never charged that way. In any event, distribution clearly does not require value in exchange of value or money.
Also on the books in Utah is the Drug Dealer’s Liability Act, which very interestingly enough imposes possible civil liabilities against the drug dealer, for an individual user’s damages caused by their use of the drug sold to them by the dealer. Now to be clear the law does not appear to allow for legal actions brought by the user him/herself. Instead, it provides remedy for people in a certain relationship to the user, such as an employer, parent, sibling, or child in utero. It is an interesting law, and is not unique to Utah
Are There Any Laws That Address Drug Paraphernalia In Utah?
Utah has an entire law called the Utah Drug Paraphernalia Act. It’s codified as Utah Code Title 58 Chapter 37A. 58-37-3 defines “drug paraphernalia” extremely broadly, to mean any equipment, product, or material used or intended for use to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test analyze, package, re-package, store, contain, conceal, inject, ingest, inhale, or to otherwise introduce a controlled substance into the human body. The obvious example that I run into on almost a daily basis is the situation where a person possesses only a container or bag of weed, and is charged with possession of drug paraphernalia. The common understanding of paraphernalia is a pipe, or a bong, or something else used to ingest cannabis, and they say, “I didn’t have any paraphernalia.” Unfortunately, that bag that contains the weed is included in Utah’s broad definition of drug paraphernalia. In many jurisdictions in Utah possession of a controlled substance and possession of drug paraphernalia are charged in tandem in every possession kind of a case.
Can The Police Execute A Warrantless Search Of a Premises If They Suspect Drug Crimes?
The short answer is, “it depends”. And it depends on the facts of the circumstances and what observable facts are causing the suspicion.
The long answer requires some background and explanation, beginning with the state and federal constitutions. The Fourth Amendment of the Constitution for the United States, as well as article I section 14 of the Utah Constitution, guarantees the right of people to be secure in their houses, persons, papers, and effects against unreasonable searches and seizures. The constitutions then impose the legal requirement that the government obtain a warrant based upon probable cause and supported by oath and affirmation.
Traditionally, this warrant requirement placed upon the government interposes or interjects between the citizenry and law enforcement what is supposed to be a neutral and detached third party, in other words, a judge or judicial magistrate who reviews the affirmation of probable cause and decides whether or not probable cause exists to search or seize the named person, property, and/or place. Now, over the years and decades and centuries, those constitutional protections have, in my opinion, been eroded. Currently, there are upwards of 15 or more recognized exceptions to the warrant requirement, with seven of those being the most common and most notable exceptions.
The first exception is consent. One of the more frustrating things that I face as an attorney is where the client has allowed the government or the police entrance into their home or their car or their back page, by way of consent. You do not have to consent to police searches! Other exceptions can include a search incident to a lawful arrest, or a search where there is contraband in plain view, so the government or law enforcement has the right to see the evidence in plain view; a stop and frisk search or seizure, which is common in automobile traffic stops to ensure officer safety. There is also what’s called the “automobile exception” to the warrant requirement that relaxes the requirement to obtain a warrant on the roadside since automobiles are mobile and fungible. Exceptions could also include hot pursuit, where the police are pursuing someone and perhaps they run into their home, or exigent circumstances where there is a need for the police to enter a place, perhaps because the evidence is being destroyed.
Now, let’s be clear that “reasonable suspicion” and “probable cause” are two different legal standards. One is the reasonable suspicion of a crime, defined as the likelihood of criminal wrongdoing. This would be apparent to a trained police officer, such as someone who’s familiar with the traffic codes, for instance, and the elements of what constitutes an assault or some other crime. Reasonable suspicion is a lower standard or burden of proof, because you’re dealing with someone in a trained officer who is sensitive to these things in a trained way. By comparison, probable cause is a higher standard or burden of proof. Probable cause is defined as a likelihood of criminal wrongdoing that would be apparent to any reasonable person.
With respect to searching the car without a warrant, a police officer in Utah needs probable cause. In the cases that we handle, probable cause is most often established by the claim that the officer detects the odor of weed/cannabis/marijuana (whether raw or burnt). As a result of the automobile exception to the warrant requirement, police have probable cause to conduct a warrantless yet lawful search of the vehicle, Whether or not the facts articulated by the officer ultimately constitutes probable cause is very frequently the issues that are litigated in these kinds of cases involving questionable searches of vehicles and homes.
Now, when it comes to entering a home there is correlating exception to the automobile, and so the protections in a home are much stricter. We traditionally like to think of a man’s (or women’s) home as his/her castle. But even that too has been eroded in recent years. Although police can’t enter the home just based on the odor of marijuana, they can, according to United States Supreme Court in a 2011 case, enter the home if they have evidence that the contraband is being destroyed.
If they hear scurrying about, they can knock and identify themselves, then they can enter the home based on those kinds of exigent circumstances. The Utah courts have not eroded the Utah constitutional protection to that extent. The latest case law does say that the mere odor of marijuana, and the fact that it’s being consumed through smoking, does not allow police to enter without a warrant.
For more information on Drug Trafficking Laws In Utah, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (801) 455-1743 today.