State v. Mikkelson

2016 UT App 136
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellant,
v.
M ORIAH LEE M IKKELSON ,
Appellee.
Opinion
No. 20150252-CA
Filed June 30, 2016
Seventh District Court, Price Department
The Honorable Douglas B. Thomas
No. 141700193
Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellant
Don M. Torgerson and Mandie J. Torgerson,
Attorneys for Appellee
S ENIOR JUDGE J UDITH M. BILLINGS authored this Opinion, in
which JUDGE J. F REDERIC VOROS JR . and S ENIOR JUDGE P AMELA T.
GREENWOOD concurred.1
BILLINGS, Senior Judge:
¶1 	This appeal arises from the district court’s grant of a
motion to suppress evidence obtained after officers conducted a
traffic stop for the sole purpose of investigating a passenger’s
possible 	probation 	violations. 	The 	State 	appeals 	the 	district
court’s ruling, asserting that the driver’s Fourth Amendment
1. Senior Judges Judith M. Billings and Pamela T. Greenwood sat
by special assignment as authorized by law. See generally Utah R.
Jud. Admin. 11-201(6).

State v. Mikkelson
20150252-CA 	2 	2016 UT App 136
rights were not violated in the course of the stop. See U.S. Const.
amend. IV. We reverse and remand.
BACKGROUND
¶2 	On April 22, 2014, two patrol officers observed a vehicle
idling behind an apartment building in an area of Price, Utah,
known for drug and criminal activity. The officers confirmed the
vehicle was registered to an individual they knew to have been
involved in the use and distribution of drugs. After the officers
had observed the vehicle for approximately ten minutes, a
woman “approached the vehicle, placed something into the back
bed of the truck and then entered the vehicle” on the passenger
side “as the vehicle began to leave.” The officers recognized the
woman from previous law enforcement encounters involving
drugs and other crimes, and both knew she was currently on
probation. The officers contacted the woman’s probation officer
and confirmed that she was in violation of her 11:00 p.m. curfew.
The probation officer was also concerned that the probationer
had not contacted him upon her release from jail, was in an area
of high drug activity, and was riding in a vehicle registered to a
known drug offender. The probation officer asked the officers to
make contact with the probationer, “find out what’s going on,”
and call him back.
¶3 	The officers pulled over the vehicle and questioned the
probationer. They discovered that she had been using drugs and,
at the direction of the probation officer, took her into custody on
a seventy-two-hour probation hold. They also ran a background
check on the driver, Moriah Lee Mikkelson,2 and discovered that
her license had expired and that there was an active warrant for
her arrest. The officers arrested Mikkelson on the warrant and, in
2. Although Mikkelson was driving the vehicle, she was not its
registered owner.

State v. Mikkelson
20150252-CA 	3 	2016 UT App 136
a search incident to arrest, discovered drug paraphernalia on her
person. During an inventory of the vehicle, they also discovered
methamphetamine and more drug paraphernalia.
¶4 	Mikkelson 	was 	charged 	with 	unlawful 	possession 	of
methamphetamine, a third degree felony; unlawful possession of
drug paraphernalia, a class B misdemeanor; and driving on a
suspended license, a class C misdemeanor. Mikkelson moved to
suppress the drug evidence, arguing that the traffic stop was not
supported by reasonable suspicion of criminal activity. The
district court agreed, concluding that there was no justification
for the stop apart from the investigation of the passenger’s
probation violation. The court determined that probation officers
cannot delegate their authority to investigate probationers to
police officers. The State appeals.
ISSUE AND STANDARD OF REVIEW
¶5 	The 	State 	challenges 	the 	district 	court’s 	grant 	of
Mikkelson’s motion to suppress. “We review a trial court’s
decision to grant or deny a motion to suppress for an alleged
Fourth Amendment violation as a mixed question of law and
fact,” reviewing the 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. State v. Fuller, 2014 UT
29, ¶ 17, 332 P.3d 937.
ANALYSIS
¶6 	While 	probationers 	and 	parolees 	“have 	constitutional
rights greater than do prisoners,” their “rights against searches
and seizures by parole [or probation] officers are not governed
by 	the 	same 	standards 	that 	govern 	the 	privacy 	rights 	of
individuals not subject to the supervisory control of the state.”
State v. Velasquez, 672 P.2d 1254, 1258 (Utah 1983); see also State v.

State v. Mikkelson
20150252-CA 	4 	2016 UT App 136
Burningham, 2000 UT App 229, ¶ 9, 10 P.3d 355. Searches and
seizures of probationers by probation officers are permissible if
the 	probation 	officer 	has 	“a 	reasonable 	suspicion 	that 	a
[probationer] has committed a [probation] violation or crime”
and the search is reasonably related to the probation officer’s
duties. See Velasquez, 672 P.2d at 1260; see also Burningham, 2000
UT App 229, ¶ 9. But “while a probation officer’s search need
only be supported by reasonable suspicion” of a probation
violation or criminal activity, “police officers are required to
abide by the usual . . . requirements of the Fourth Amendment.”
Burningham, 2000 UT App 229, ¶ 9; see also Velasquez, 672 P.2d at
1262 (“[P]olice officers may [not] engage in warrantless searches
and 	seizures 	as 	to 	parolees 	on 	the 	same 	basis 	as 	parole
officers.”).
¶7 	However, this rule has a narrow application—it applies
where 	an 	officer 	is 	acting 	“solely 	as 	a 	police 	officer” 	and
contemplates the possibility that a police officer might be given
authority to act as a parole or probation officer in certain
circumstances. See Burningham, 2000 UT App 229, ¶ 10. For
example, in some areas, a shortage of probation officers may
require courts to enlist law enforcement officers to carry out the
duties of a probation officer. Id. The probation officer in this case
confirmed that in Price, it is difficult to monitor probationers and
that he relies on police officers to notify him when they observe
potential probation violations. Indeed, our supreme court has
indicated that such cooperation between police officers and
parole officers is permissible:
“The mere fact that [a] police officer was the first to
suspect that [the parolee] was engaged in criminal
activity and related this to the parole officer . . . in
no way alters the legality of the parole officer’s
presence 	[i.e., 	search]. 	It 	does 	not 	require 	the
suppression of the seized evidence from use in a
subsequent criminal prosecution.”

State v. Mikkelson
20150252-CA 	5 	2016 UT App 136
Velasquez, 672 P.2d at 1263 (alterations and omission in original)
(quoting Santos v. New York State Bd. of Parole, 441 F.2d 1216, 1218
(2d Cir. 1971)).
¶8 	Our supreme court has also indicated that “a parole
officer 	may 	properly 	request 	police 	assistance 	in 	the
apprehension and investigation of a parole violator.” Reeves v.
Turner, 501 P.2d 1212, 1214 (Utah 1972). We are aware of no
“reason why the same should not be true in the probation
context.” See State v. Martinez, 811 P.2d 205, 209–10 (Utah Ct.
App. 1991); see also State v. Wheat, 2001 UT App 38U, para. 5
(citing 	Reeves 	in 	stating 	that 	a 	probation 	officer 	may
“legitimately” 	request 	that 	a 	police 	officer 	conduct 	a
breathalyzer test of a probationer). This is consistent with rulings
in a number of other jurisdictions holding that probation officers
may enlist the aid of police officers in performing searches and
seizures of probationers. See, e.g., United States v. McCarty, 82
F.3d 943, 947 (10th Cir. 1996); United States v. Cardona, 903 F.2d
60, 66 (1st Cir. 1990); State v. Armstrong, 347 P.3d 1025, 1031
(Idaho Ct. App. 2015). As the United States Court of Appeals for
the First Circuit has recognized, the Fourth Amendment is more
concerned “with who authorizes searches and seizures, and the
bases on which they are authorized, than with who implements
reached decisions.” See Cardona, 903 F.2d at 66. Police and
probation officers are therefore “fungible when the former serve
as mere implementers of decisions already made by the latter,”
id., and “if a parole or probation officer is justified in making a
search, 	he 	or 	she 	may 	enlist 	the 	aid 	of 	police 	officers 	in
performing that duty,” see Armstrong, 347 P.3d at 1031.
¶9 	Mikkelson 	“concedes 	that 	law enforcement 	can 	assist
probation officers in fulfilling the probation officer’s duties . . . at
the probation officer’s request.” But Mikkelson asserts that it is
not 	within 	a 	probation 	officer’s 	authority—or 	within 	the
authority of an officer acting on a probation officer’s behalf—to
pull 	over 	a 	vehicle 	driven 	by 	a 	non-probationer 	based 	on

State v. Mikkelson
20150252-CA 	6 	2016 UT App 136
reasonable suspicion that a passenger has violated the terms of
her probation.
¶10 	Mikkelson’s 	argument 	rests 	on 	the 	assertion, 	derived
from language in State v. Morris, 2011 UT 40, 259 P.3d 116, that
Mikkelson “could not be seized (and the vehicle stopped) unless
officers believed that she had committed a traffic offense or that
she 	[or 	her 	passenger] 	was 	involved 	in 	criminal 	activity.”
(Emphasis added.) See id. ¶ 16 (“Under the Fourth Amendment,
a police officer may stop a vehicle only if the officer has a
particularized and objective basis for suspecting the driver or a
passenger is engaged in criminal activity.”). Mikkelson therefore
suggests that regardless of whether her passenger had a reduced
expectation of privacy due to her status as a probationer, and
regardless of whether the probation officer could delegate his
authority to police, only a criminal violation by the passenger
could 	justify 	an 	incidental 	stop 	of 	Mikkelson. 	Despite 	the
language in Morris, we are aware of no case explicitly ruling that
a vehicle may be stopped only on the basis of criminal activity.
Indeed, the United States Supreme Court in Brendlin v. California,
551 U.S. 249 (2007), used much broader language to describe
circumstances where a vehicle may be stopped, indicating that
traffic 	stops 	may 	be 	initiated 	to 	investigate 	“fault,”
“wrongdoing,” or “conduct.” Id. at 257 & n.3; see also State v.
Chism, 2005 UT App 41, ¶ 11, 107 P.3d 706 (indicating that an
investigatory 	detention 	requires 	“reasonable 	suspicion 	of
wrongdoing” 	(emphasis 	added)). 	Mikkelson’s 	passenger’s
probation violation was wrongdoing for which she could be
constitutionally 	detained 	by 	or 	under 	the 	direction 	of 	her
probation officer. Velasquez, 672 P.2d at 1260. Thus, a traffic stop
initiated on this basis was permissible.
¶11 	“During a lawful traffic stop, ‘[t]he temporary seizure of
driver 	and 	passengers 	ordinarily 	continues, 	and 	remains
reasonable, for the duration of the stop.’” State v. Baker, 2010 UT
18, ¶ 13, 229 P.3d 650 (alteration in original) (quoting Arizona v.

State v. Mikkelson
20150252-CA 	7 	2016 UT App 136
Johnson, 555 U.S. 323, 333 (2009)). Traffic stops may be initiated
not only to investigate a driver, but also “solely to investigate a
passenger’s conduct.” Brendlin, 551 U.S. at 257 n.3. We see no
distinction between an occupant seized incidental to a traffic
violation or investigation of criminal activity and an occupant,
such as Mikkelson, seized incidental to the investigation of a
probation violation. In either circumstance, the police have “no
suspicion at all regarding . . . criminal activity” on the part of the
incidentally detained occupants, yet they “may still detain [those
occupants] during the course of the lawful traffic stop.” See
Baker, 2010 UT 18, ¶ 16. The “unique authority to detain [all
occupants of a stopped vehicle] absent any suspicion” is based
on the brevity and inherent danger of traffic stops, not on
individual wrongdoing by the occupants.3 See id. Thus, the fact
3. While all occupants of a lawfully detained vehicle may be
detained until the purpose of the stop is effectuated, see State v.
Baker, 	2010 	UT 	18, 	¶¶ 	16–17, 	229 	P.3d 	650, 	the 	Fourth
Amendment 	protects 	incidentally 	detained 	occupants 	from
further intrusion by prohibiting law enforcement officers from
conducting “[i]nvestigative acts that are not reasonably related
to dispelling or resolving the articulated grounds for [a traffic]
stop” if they “add to the delay already lawfully experienced” or
“represent any further intrusion on [the detainee’s] rights,” State
v. Chism, 2005 UT App 41, ¶ 15, 107 P.3d 706 (third alteration in
original) 	(citation 	and 	internal 	quotation 	marks 	omitted).
Because the grounds for Mikkelson’s motion to suppress were
limited to her assertion that the traffic stop was unlawful at its
inception 	and 	because 	the 	district 	court’s 	findings 	and
conclusions were limited to that question, we do not consider
whether the officers’ background check of Mikkelson during the
traffic stop violated her Fourth Amendment rights or whether
such a violation would require suppression of the evidence
under the circumstances of this case. See Utah v. Strieff, No. 14-
1373 (U.S. June 20, 2016).

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20150252-CA 	8 	2016 UT App 136
that Mikkelson’s passenger was stopped in connection with a
probation violation rather than criminal activity does not affect
the legality of the stop.
CONCLUSION
¶12 	We hold that police officers may investigate, search, and
seize probationers under the direction of probation officers.
We further hold that a driver may be lawfully detained incident
to a traffic stop initiated for the purpose of investigating a
passenger’s 	parole 	or 	probation 	violation. 	Accordingly, 	we
reverse 	the 	district 	court’s 	grant 	of 	Mikkelson’s 	motion 	to
suppress and remand this case for further proceedings.