Police stopped Anthony Ernesto Jaramillo for a traffic violation late at night. After smelling marijuana, officers searched his vehicle and discovered:

• A handgun under the driver’s seat;
• Marijuana and psilocybin mushrooms in a backpack; and
• Information from Jaramillo’s brother suggesting that additional drug evidence might be found at their home.

An officer then applied electronically for two search warrants:

1. A warrant to search the residence for drugs and related evidence; and
2. A warrant to obtain Jaramillo’s blood and DNA—blood to test for drugs and DNA to connect him to the handgun.

The officer intended to request permission to execute both warrants at night but inadvertently failed to select the required box in the electronic application. As a result, both applications requested daytime execution only, and both warrants expressly authorized execution only during daytime hours—between 6:00 a.m. and 10:00 p.m.

Nevertheless, police executed both warrants at night. The residence search produced additional drugs and a box matching the handgun found in the vehicle. Jaramillo was charged with four controlled-substance offenses and possession of a firearm by a restricted person.

Jaramillo’s argument

Jaramillo moved to suppress the evidence obtained under the warrants, arguing that executing daytime-only warrants at night violated:

• Rule 40(e)(1) of the Utah Rules of Criminal Procedure; and
• The Fourth Amendment.

Rule 40 generally requires warrants to be executed during daytime hours unless the application provides sufficient grounds for nighttime execution and the magistrate specifically authorizes it.

Jaramillo’s fundamental position was that the requirement of prior judicial approval for a nighttime search is substantive and cannot be excused merely because:

• The officer intended to request nighttime authority;
• The magistrate probably would have granted it; or
• The searches were conducted peacefully.

Allowing officers to make that decision themselves would eliminate the magistrate’s required review of the heightened privacy concerns associated with nighttime searches.

The State’s argument

The State conceded that executing the warrants at night violated Rule 40(e)(1), but argued that a procedural-rule violation does not automatically require suppression.

Under State v. Fixel and State v. Rowe, suppression is appropriate only if the violation:

1. Also violated the defendant’s constitutional rights;
2. Resulted from an intentional, bad-faith disregard of the rule; or
3. Substantially prejudiced the defendant—meaning the search would not have occurred or would have been less intrusive if the rule had been followed.

The State argued that none of those circumstances existed because:

• The officer’s omission was inadvertent;
• The magistrate likely would have authorized nighttime execution; and
• The searches were peaceful and no more intrusive because of the timing.

District court’s decision

The district court suppressed the evidence.

It specifically found that the officer did not act maliciously or deliberately attempt to evade Rule 40. It also recognized that the magistrate likely would have approved nighttime execution and that the searches were peaceful.

Nevertheless, the district court concluded that suppression was necessary because police bypassed an important procedural safeguard: the requirement that a magistrate—not an officer—decide whether nighttime execution was justified.

Utah Supreme Court’s decision

The Utah Supreme Court unanimously reversed the suppression order and remanded the case.

The Court held that violating Rule 40(e)(1), by itself, does not justify suppression. Under Fixel and Rowe, suppression is available only when the rule violation:

• Amounts to a constitutional violation;
• Was committed in bad faith; or
• Substantially prejudiced the defendant.

Here, the district court found no bad faith and effectively found no substantial prejudice. Although Jaramillo also alleged constitutional violations, the district court never actually decided whether the searches violated the Fourth Amendment or the Utah Constitution.

Because the district court suppressed the evidence solely based on the Rule 40 violation, it applied the wrong legal standard.

Ultimate holding

Executing a daytime-only search warrant at night violates Rule 40(e)(1), but that procedural violation does not automatically require suppression.

Suppression requires an additional finding of a constitutional violation, bad faith, or substantial prejudice. The Supreme Court did not decide whether these nighttime searches were unconstitutional; it left that issue open for the district court to address on remand.

Touching the nose, counting, or reciting the alphabet backwards. Although you may have seen them performed on TV, these are not valid field sobriety tests in Utah. There are three field sobriety tests a Utah police officer may conduct when suspecting a DUI—three standardized field sobriety tests adopted by the National Highway Traffic Safety Administration (NHTSA), and the portable breathalyzer test (PBT).

What are the types of field sobriety tests?

The three tests adopted by the NHTSA help determine if you have the balance, coordination, and ability to divide attention among several tasks, making them a valid or reliable basis for DUI cases by law enforcement officers or prosecutors.

If you are deemed unfit to drive after proper administration of these sobriety tests, the police officer may require you to take a chemical test. Such test(s) determine whether you are driving under the influence or not.

Remember: You’re not required to take any of these field sobriety tests because Utah’s implied consent law only applies to chemical tests—breath, blood, and urine—after you are arrested. Police officers cannot “test out” their suspicions that you are impaired using field sobriety tests if you do not give them permission.

1. The Horizontal Gaze Nystagmus Test

You may have seen this type of test used in DUI cases in movies. The officer will instruct you to move your eyes from one side to the other while holding a pen or using a finger as a guide. Normally, when a person moves their eyes from left to right, there is a smooth flow of sight. However, if there is involuntary jerking, bouncing, or skipping of your eyes, rather than a smooth flow from left to right, the officer may suspect that you are driving while impaired.

You may be wondering: Is any failure on the test sufficient to conclude that you’re impaired? No.

That’s why it’s critical that this type of test is administered or performed correctly, or it may be deemed invalid. Possible defenses to a failed test include if the officer skipped parts of the test; if you have a physical or neurological condition (such as eye nystagmus) that could affect your test results; or if your surroundings, such as police car’s flashing lights, could have interfered with the test results.

2. The Nine Step Walk and Turn Test

This test is also a kind of “divided attention test,” or a mental and physical exercise. The police officer may ask you to count out loud while taking nine steps in a straight line, heel to toe, then turn around and take nine steps in the opposite direction.

Failures on this test can include walking before the officer tells you to start, not touching heel to toe on every step, correcting your balance, or counting incorrectly. The officer can use these failures to decide you are driving under the influence.

However, many factors can influence your test results. These factors may include an officer’s failure to give straightforward instructions; your attention to the test; poorly fitting shoes; and other health conditions such as poor eyesight, balance, and attention or mental disorders.

3. The One Leg Stand Test

This is also a divided attention test, wherein you must balance and count at the same time. The police officer may ask you to hold one foot 6 inches off the ground while counting out loud by 1000. This will go on for thirty seconds. If you are unable to hold your balance (for example, by swaying or putting your foot down) or if you miscount, the officer may suspect that you are intoxicated.

Again, there could be problems with the results. It’s always best to consider a failure to balance could be caused by a health condition, such as back, foot, or leg injuries, or the body’s natural tendency to sway when balancing on one foot.

4. The Portable Breathalyzer Test (PBT)

This test estimates your BAC by measuring the amount of alcohol on your breath. It is a hand-held mobile breathalyzer—a smaller, simpler version of the larger instruments used at police stations to determine intoxication levels. Their results can be variable, depending on the accuracy of the individual unit and the officer’s ability to use the PBT correctly.

How are field sobriety tests used in Utah?

If a police officer pulls you over and notices slurred speech, bloodshot eyes, or other behaviors that indicate driving under the influence, they may ask you to take any of these field sobriety tests. If you are aware of any injuries or other reasons why you might fail these tests, you may refuse to consent to any field sobriety test. Not until you are placed under arrest for a DUI can the officer require you to submit to a chemical test to determine the level of drugs or alcohol, if any, in your system.

Get a DUI lawyer from Liberty Law

If you are charged with a DUI, contact an experienced defense attorney right away to help you. Liberty Law’s attorneys have a proven track record of DUI dismissals and not guilty verdicts. Reach out to us at james@utahlibertylaw.com or visit any of our offices for free consultation.

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In spring of last year, the Smith^* family was eagerly preparing for all the activities summer would bring; barbecues, camping, and trips to the local pool. They loved spending time outdoors, especially their youngest son, Brian, a well-liked, thoughtful teenager.

Then the unthinkable happened.

One day, Brian was helping a neighbor clear debris from his employer’s land. Other neighborhood boys (along with the employer and his employees) were helping load garbage onto a trailer. The neighbor was pulling the trailer with his truck. Thinking all the garbage had been loaded, the neighbor started his truck forward, without carefully looking behind him. Unfortunately, Brian was in between the trailer and the truck, still loading garbage onto the trailer. As the driver moved forward, the trailer struck Brian on his front knees. In an instant, Brian fell backwards under the wheels of the heavily loaded trailer, dying instantly.

The family got the phone call that afternoon. In disbelief and shock, they made their way to the hospital morgue, where their child lay.

The Smith family sadly went about making all the arrangements for the funeral. Brian had been well liked, and his peers and members of his local congregation held a memorial service for him, before he was buried.

During this time, neither the employer, nor the neighbor, contacted the family, not even to offer sympathy for their loss. They did not offer to pay for any of the funeral arrangements. The family grieved, and had already forgiven their neighbor; but the actions of these men hurt and worried them. These adults had not properly supervised the youth working that day, and because of this their son had died. What would prevent this tragedy from happening again?

After much consideration, the Smith family hired Liberty Law, PLLC to contact the employer. The employer quickly referred Liberty Law to his attorneys. After months of discussions, the employer finally agreed to pay the family a significant sum of money for their loss. For the first time, the employer also offered a sincere apology for Brian’s death. To the Smiths, an apology from those responsible for Brian’s death was exactly what they needed. Before Liberty Law had intervened, the Smiths had been virtually ignored, and their mistreatment by the employer and neighbor had been hurtful. Now, not only could the family feel closure, but with the money they were given, could also establish a memorial fund in Brian’s name. The time had finally come for the Smith family to heal.