Salt Lake Criminal Defense Attorney - Clayton Simms

new_clayton_about A criminal charge, whether it is a felony or misdemeanor, can be a life changing event. Clayton Simms is a fierce advocate for people who have been charged with misdemeanor and felony offenses. He represents clients who are facing charges in Salt Lake City and Greater Salt Lake County. In addition, he also represents clients along the Wasatch front. Clayton Simms represents defendants in other crimes Clayton has represented athletes, doctors, lawyers, and other notable people and has been featured on the news. Do you have a legal question? Contact Clayton Simms today!

Law Enforcement Use of GPS Tracking Devices

Law enforcement officers have different measures to obtain information about a potential suspect including the use of “slap-on” GPS tracking devices attached to vehicles. Without a warrant however, this practice may constitute a violation of the suspect’s Fourth Amendment rights regarding unreasonable searches.

GPS tracking devices

Photo by: Surrey County Council News

Photo by: Surrey County Council News

The “slap-on” GPS tracking devices are mechanisms that can be placed inconspicuously on the undercarriage of a vehicle allowing police the ability to track the movement and location of said vehicle. These tracking tools allow law enforcement to keep tabs on potential suspects over an extended period of time and can be used to learn the whereabouts of illegal activity.

Protection from unreasonable searches

For several years, “slap-on” GPS tracking devices were under debate, with many claiming they violated a person’s Fourth Amendment rights regarding unreasonable searches. The Fourth Amendment states “The right of the people to be secure ( . . . ) against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause ( . . . ). In October of 2013, the U.S. Court of Appeals agreed that GPS tracking devices constituted a “search” and law enforcement must obtain a warrant based on probable cause before placing such devices on a vehicle.

Ankle monitors

Photo by: Washington State House Republican

Photo by: Washington State House Republican

While tracking devices on vehicles were deemed unconstitutional without a warrant, the question was raised whether or not SBM monitors, commonly referred to as ankle monitors should fall under the same scrutiny (Grady v. North Carolina). Each state has their own specific uses for electronic tracking in the form of ankle monitors. Some states use these devices to forever track the whereabouts of convicted sex offenders after they have finished their sentencing. Other states such as Utah permit law enforcement to use ankle monitors on individuals placed on probation. (Utah Code 77-18-1.16)

Grey area

As law enforcement’s use of electronic searches is being evaluated, it is wise to consult with a knowledgeable criminal defense attorney to ensure that your rights are not being violated by the use of tracking devices or other means of technological trespass.

Right of a Probationer to Refuse Consent to Search by Police

Offenders on probation have to follow strict rules to ensure their freedom including permitting AP&P officers to visit them at home and work, conducting searches anytime without a warrant; however the Fourth Amendment protects the probationer the right to refuse consent to search when approached by the police.

Knock and talk

7983552552_c70b8d6c86_z

Photo by: Chris Yarzab

Police officers will often use a controversial investigative technique called a “knock and talk” to gather information and possibly gain admission to a residence without having reasonable suspicion of a crime. This is done simply by knocking on the door and asking to speak to the resident or even asking to come in. The neighboring Ninth Circuit Court of Appeals which governs appeals in the western U.S. stated “T]here is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person’s right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man’s “castle” with the honest intent of asking questions of the occupant thereof — whether the questioner be a pollster, a salesman, or an officer of the law.”

Come on in!

Donald William Fretheim of Cedar City Utah was on probation following a conviction for drug possession and distribution when a pair of officers with the narcotics division used the knock and talk approach at his door. While investigating a drug case in the neighborhood, they found their way to Fretheim’s apartment. The officers asked Fretheim if they could come into his apartment to speak with him to which he agreed and willfully let them enter.

Consent to search

Once inside Fretheim’s apartment, the officers spotted a soft drink can on the ground that appeared to have been constructed into a cheap pipe used to smoke marijuana. When questioned about it, Fretheim admitted it was drug paraphernalia and gave the officers consent to search the rest of his apartment. The consensual search turned up with additional paraphernalia along with marijuana and methamphetamine. After being read his Miranda rights, Fretheim confessed to the police officers that the drugs and paraphernalia were his.

Probation searches apply to AP&P officers only

Consent to Search

Photo by: Hernán Piñera

Since Fretheim was on probation, he assumed he had to comply with the police officers’ request to speak with him, enter his home, and search his belongings. The reason he thought this was possibly due to the declaration in the Probation Standard Conditions issued by the Utah Department of Corrections stating that being a probationer, he must “Permit officers of Adult Probation and Parole to search [his] person, residence, vehicle or any other property under [his] control without a warrant at any time, day or night upon reasonable suspicion to ensure compliance with the conditions of the Probation Agreement.”

Mistakenly waived Fourth Amendment rights

Unfortunately, Fretheim was unaware that although he was on probation, his Fourth Amendment rights still allowed him to refuse consent to search as long as it was not by an AP&P officer. When he permitted officers to not only enter his apartment but to search his home as well, he waived his Fourth Amendment rights to search and seizure. Even though he was unaware of his right to refuse consent to search, he gave his permission so the consent was deemed valid in court.

Know your rights

When police knock at the door it can be intimidating and most residents wish to be compliant with law enforcement. It may seem illegal to deny them entry to a home and feel downright criminal to ignore the door completely. This is why it is important for individuals to understand their constitutional rights, especially during “knock and talk” approaches when the police have no legal reason to be at their home. Unless an officer has a warrant or demands to enter, the occupant has a choice. If an officer asks permission to enter or search the home, the resident has the option whether to even respond; just as they would to a nosy neighbor or a door-to-door salesman. For more information on your Fourth Amendment rights regarding searches and seizures so you can be prepared if law enforcement knocks at your door or for counsel regarding charges, contact a criminal defense attorney.

No Drugs Located after Drug Dog Alerted on Vehicle

Utah motorists may wonder what their rights are regarding searches from a drug dog of their car and what to do when no drugs are located after an alert on a vehicle.

Sniffing isn’t considered searching

Drug Dog

Photo by: David Beach

Just as an officer is allowed to look in a window to see if drugs are in plain view, a drug dog is allowed to sniff vehicles without a warrant as it doesn’t violate any rights of the motorist. The inspection by the drug dog cannot cause the motorist to be detained while the dog sniffs around however. It has to be done during the same time that an officer is performing a traffic stop for a legitimate reason.

Probable cause

If a sniffer dog alerts after sniffing a vehicle, he is giving his handler some kind of a sign, however subtle, that there are drugs in the vehicle. Once the dog has alerted, the officer then has probable cause to search the vehicle. Any drugs confiscated from that point are done so with probable cause and can be used as evidence in court.

Drug dog false alarm

One issue that occasionally comes up when a drug dog alerts during a traffic stop is that no drugs turn up inside the vehicle. When this happens, motorists may wonder whether or not the dog actually alerted on the vehicle. They may just be grateful that the alert turned out to be a false alarm and be on their way. However, their constitutional rights may have just been violated by the officer and that should not be ignored. For more information on your Fourth Amendment rights during a traffic stop, especially when it involves a drugdog contact a criminal defense attorney immediately.