Utah stresses development of state constitutional issues

Utah holds that a state constitutional challenge, that it stresses that it would have welcomed, was waived by defense counsel’s failure to develop the issue at trial and on appeal. State v. Worwood, 2007 UT 47, 164 P.3d 397, 581 Utah Adv. Rep. 8 (2007):

[*P14] We would have welcomed an analysis under article I, section 14 of the Utah Constitution; however, we find Worwood’s state constitutional claim to be procedurally barred and inadequately briefed. We have repeatedly instructed counsel on the consequences of failing to properly preserve and develop a state constitutional law claim. Still, this instruction bears repeating, given the frequency with which these claims are inadequately briefed before this court.

[*P15] When interpreting state constitutional provisions that are similar or identical to those in the federal constitution, we encourage a primacy approach. Under the primacy model, “‘a state court looks first to state constitutional law, develops independent doctrine and precedent, and decides federal questions only when state law is not dispositive.'”

[*P16] In developing an independent body of state search and seizure law, we have held that article I, section 14 of the Utah Constitution often provides greater protections to Utah citizens than the Fourth Amendment, despite nearly identical language. In order to further develop state constitutional law, however, claims must be properly presented to this court. In criminal cases, “‘specific preservation of claims of error must be made a part of the trial court record'” before the issue can be heard on appeal. The issue must be “‘raised to a level of consciousness'” that allows the trial court an adequate opportunity to address it. It follows, then, that perfunctorily mentioning an issue, without more, does not preserve it for appeal. Although inapplicable in this case, a court may consider an unpreserved issue when plain error is apparent or in an exceptional circumstance. Furthermore, in part on the basis of the principle that preservation requires the lower court to be cognizant of a discreet issue, we have repeatedly refrained from engaging in state constitutional law analysis unless “an argument for different analyses under the state and federal constitutions is briefed.” (footnotes omitted)

Inevitable discovery supported admission of evidence found during police entry while a search warrant was being obtained. Officers saw a “bound, motionless body” through a motel room window, and they sought a search warrant, but entered before the warrant issued. Teal v. State, 282 Ga. 319, 647 S.E.2d 15 (2007)*:

In the case before us, the information summarized above contained in the affidavit in support of the application for the search warrant for the motel room had been gathered prior to the illegal entry of the GBI crime scene investigator into the room. We conclude that the State established that the evidence in question would have been discovered by lawful means, and the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the illegal conduct, since the investigation that took place prior to the police error or illegal conduct resulted in information that served as the basis for issuance of a search warrant. Accordingly, we conclude the trial court did not err when it admitted the evidence.