An off-duty Utah Highway Patrol Trooper violated the constitutional rights of a Juab County man when the trooper seized the man on a remote canyon road and drove him to the trooper's own home so another officer could conduct sobriety tests, a lawyer will argue before the Utah Supreme Court at BYU Wednesday, Nov. 1, 2006.

The court will hear the case at 10 a.m. in the Moot Court Room of the J. Reuben Clark Building, a departure from its usual schedule at the Matheson Courthouse in Salt Lake City.

This will be the third time the case has been heard in a Utah court, having recently been decided in the Utah Court of Appeals against the defendant, Mitchell Worwood. He and his counsel will argue Wednesday the appellate court's decision has created confusion for his case and future situations and has unduly extended the permissible rights of a police officer.

"In light of contradictory precedent from this and other courts cited herein, the Utah Court of Appeals' holding in this case is unhelpful to either police or prosecutors, and thus an unworkable anomaly in search and seizure jurisprudence," Worwood said in his petitioning documents. "It is inconsistent and has only generated additional confusion in an area of the law that is growing increasingly complex."

Worwood also argued in the documents that with the decision, the appellate court created a new "personal convenience exception" to the existing law, which not only broadens the parameters of allowable police conduct during an investigative confinement, "but it [also] blurs the line between an investigative detention and an arrest." He said the new rule also diminishes citizens' rights to privacy and protection against unlawful search and seizure.

The past and present counselors on the case against Worwood have submitted responses saying Wright was well within his rights as an officer and, given the unusual circumstances at the scene, he did the best he could.

"This is a really unique set of facts that won't come up often," said Jared Eldridge, Juab County attorney, who was the opposing counsel to the defendant in the original trial. "Given the circumstances, I believe the officer followed the law."

Cory Wright, a highway patrol trooper, was driving with a friend through Deep Canyon in Juab County in September 2003 when he came upon a large wet spot on the road near a truck parked in the middle of the pass. Levan citizen Mitchell Worwood was standing near the vehicle saw Wright and moved the truck to clear the road.

In passing, Wright stopped to ask if the Worwood was all right. He answered in the affirmative, but Wright suspected the man had been drinking, and in fact concluded the man was "very intoxicated," according to court documents. Upon inspection of Worwood's vehicle, Wright said he smelled alcohol.

The officer, with permission from the man, took Worwood to Wright's house in Levan for field sobriety tests. In court documents, Wright said he made the decision partly because his home was a "safer location," and later in court, he also admitted to thinking if he performed the tests on location, he would have to fill out paperwork and "ruin his time off," Eldridge said.

Meanwhile, Wright's friend, Skyler Fautin, called the Juab County Sheriff's Department and drove to Wright's home. Wright's brother, Trooper Kevin Wright, responded to the call and - upon arriving at the house - observed Worwood's speech was slurred and he swayed when he walked.

Kevin Wright performed the sobriety tests, all of which indicated Worwood was intoxicated. He arrested the man, took him to the sheriff's office and performed a breath analysis test. The analysis showed an intoxication level of 0.248 liters percent, well above the 0.08 percent limit allowed by law, according to court documents.

Worwood took the situation to a district court and lost, as the judge confirmed Wright had acted in accordance with his position and made a reasonable judgment call. The case then went to the state Court of Appeals, where the decision made in the district court was upheld.

This week, Worwood will plead his case before the Utah Supreme Court in an attempt to get evidence of his drunkenness suppressed, said Fred Voros, the assistant state attorney general who is slated to argue the state's position. However, Voros said, there isn't much of a case to discuss.

"There's no evidence that really arose from this and there's nothing to suppress," he said in a phone interview. "Our position is he wasn't prosecuted on any evidence from the arrest."

In court documents, the state also made the points that the issue was not adequately argued in either of the previous courts and thus should not be heard in the Supreme Court.

The state maintains the appellate court did not create a "convenience exception," but merely said the officer did not act unreasonably; and even if the detention was unconstitutional, the conviction should still stand because the sobriety tests confirmed the suspicions of the officer and not from the detention itself.

Eldridge said Worwood is also trying to prove Wright did not have enough reasonable suspicion to remove him from the canyon and he did so for an unreasonable amount of time.

"He is saying the officer didn't have enough cause and should not have transported him," Eldridge said. "He said [Wright] could have administered the tests himself there on the scene and if he failed those, he would have had probable cause."

Eldridge said the district court answered that accusation during the trial, saying the rocky and unstable environment the canyon provided would not have been an adequate place for an officer to perform such a test.

However, Worwood will continue to present this argument during the trial, and the state is ready with a response, Voros said.

"I'm going to argue the detention was reasonable because it was brief, it was benign and he acted in a reasonable manner," he said. "It was only five to 10 minutes, there was no gun or coercion and he [Wright] was off duty at the time."

Voros also said he thought the trial wouldn't make much of a difference to Worwood.

"I'm going to argue it doesn't make any difference anyway," he said. "If he had done the tests in the canyon, he would have failed anyway, and that would put us in the exact same position."

Copyright Brigham Young University 31 Oct 2006