Associate Chief Justice DURRANT, opinion of the Court:
¶ 1 In this appeal, we consider the constitutionality of a search warrant issued by a magistrate judge authorizing the police to draw blood from Appellant, Chanzy Walker. At a pretrial hearing, the district court concluded that the warrant issued by the magistrate lacked probable cause. But despite this conclusion, the district court denied a motion to suppress filed by Ms. Walker based on its determination that the good faith exception to the exclusionary rule, articulated by the United States Supreme Court in United States v. Leon,
¶ 2 On appeal, Ms. Walker argues that the district court erred in concluding that there is a good faith exception to the Utah exclusionary rule. In contrast, the State contends that, even if there is not a good faith exception to the Utah exclusionary rule, we should affirm the district court's denial of Ms. Walker's motion to suppress on the alternative ground that the search warrant was supported by probable cause.
¶ 3 Based on our review of the information contained in the affidavit filed in support of probable cause, we hold that the magistrate had a substantial basis to believe that evidence of illegal conduct would be found in Ms. Walker's blood. We therefore affirm the district court's denial of Ms. Walker's motion to suppress on the alternative ground that the warrant was supported by probable cause. Because we affirm the district court's denial of Ms. Walker's motion on this ground, we do not reach the other issues Ms. Walker and the State have raised on appeal.
¶ 4 In 2007, Ms. Walker was driving south on Bacchus Highway in Salt Lake City. As the southbound lanes merged from two lanes to one lane, Ms. Walker's vehicle crossed over the double yellow line and sideswiped a trailer being towed by a pickup truck in the northbound lane. This collision caused the trailer to "swerve wildly" and resulted in significant bodily injuries to the man towing it. After colliding with the trailer, Ms. Walker's vehicle continued south and struck, nearly head on, a second vehicle. The driver of this second vehicle was declared dead at the scene of the accident.
¶ 5 As a result of the last collision, Ms. Walker's vehicle spun out of control and eventually came to rest on the east side of the highway. Once emergency personnel arrived at the scene, Ms. Walker was transported to the hospital by helicopter.
¶ 6 Detective Mike Anderson, an accident investigator for the Salt Lake County Sheriff's Office, arrived at the scene sometime after Ms. Walker was taken to the hospital. During his investigation of the scene, Detective Anderson learned that Ms. Walker's driver license had been revoked for an alcohol violation and that she was restricted to driving vehicles with interlock ignitions.
¶ 7 As Detective Anderson continued his investigation, Detective Brett Adamson, a homicide detective, went to the hospital to interview Ms. Walker. During the interview, Detective Adamson requested that Ms. Walker submit to a blood draw, but Ms. Walker declined, stating that she thought she should speak to an attorney first. Ms. Walker also claimed she didn't remember anything. She did, however, ask several questions during the interview about the accident and the conditions of the other drivers.
¶ 8 After conducting the interview and learning of Ms. Walker's driving history from Detective Anderson, Detective Adamson suspected that Ms. Walker had been under the influence of drugs or alcohol at the time of the accident. Based on this suspicion, Detective Adamson prepared an affidavit (the Affidavit) in support of a warrant to draw and
Based on these facts, a magistrate judge determined that there was probable cause to believe that "[Ms.] Walker's blood consisted of or constituted evidence of illegal conduct" and issued a search warrant (the Warrant). After obtaining the Warrant, Detective Adamson returned to the hospital and obtained a blood sample from Ms. Walker. Subsequent analysis of this blood revealed the presence of methamphetamine and amphetamine.
¶ 9 Based on these test results, Ms. Walker was charged with three offenses: (1) causing the death of another by operating a motor vehicle in a negligent manner with a controlled substance in the body, a second degree felony; (2) causing serious bodily injury to another by operating a motor vehicle in a negligent manner with a controlled substance in the body, also a second degree felony; and (3) possessing a controlled substance, a third degree felony.
¶ 10 Shortly after these charges were filed against her, Ms. Walker filed a motion to suppress the results of the blood test. In support of her motion, she argued that the Affidavit "was insufficient to support a determination [by the magistrate] that probable cause existed." Additionally, she argued that the officer who executed the Warrant was not justified in relying on it and could not have believed in good faith that the search was justified by probable cause. The trial court judge agreed with Ms. Walker that the Warrant lacked probable cause. But despite this conclusion, the judge refused to grant Ms. Walker's motion to suppress after determining that the officer who conducted the search had relied on the Warrant in good faith.
¶ 11 After the district court denied her motion, Ms. Walker entered a conditional plea to causing the death of another by operating a motor vehicle in a negligent manner with a controlled substance in the body and possessing a controlled substance. Under the terms of the conditional plea, Ms. Walker reserved the right to challenge the district court's ruling on appeal as it related to the officer's reliance on the defective warrant.
¶ 12 "[W]e review [a] district court's assessment of [a] magistrate's probable cause determination for correctness and ask whether the district court erred in concluding that the magistrate [did not have] a substantial basis for [his or] her probable cause determination."
¶ 13 The Fourth Amendment to the United States Constitution requires that "no Warrants shall issue but, upon probable cause, supported by Oath or affirmation."
¶ 14 In relevant part, the Affidavit submitted to the magistrate in this case contained the following information: (1) Ms. Walker's vehicle "crossed the center line" for "an unknown reason"; (2) after crossing the center line, Ms. Walker's vehicle struck two other vehicles, causing serious injury to the driver of one of the vehicles and the death of the driver of the other vehicle; (3) when Detective Adamson asked Ms. Walker about the crash, she responded that she "didn't remember anything"; (4) a check of the Utah Criminal Justice Information System revealed that Ms. Walker's driver license had been "revoked for alcohol" and that she was restricted to an interlock device until February 27, 2010; and (5) at the time of the accident, Ms. Walker was driving a vehicle owned by her boss.
¶ 15 Interpreting these facts in a practical, commonsense fashion, in light of the totality of the circumstances, and with deference to the issuing magistrate, we conclude that the district court erred in concluding that the magistrate lacked a substantial basis for his finding of probable cause. After reviewing the facts contained in the Affidavit, the magistrate was aware that Ms. Walker had some history of driving under the influence of alcohol and that, as a result of this history, her license was currently suspended and she was currently restricted to an interlock device. These facts alone may not have been sufficient to support a finding of probable cause.
¶ 16 Ms. Walker argues that the crossing of her vehicle over the center line "could have been [caused] by a mechanical problem, driver inattention, a cell phone call, or any number of reasons unrelated to alcohol impairment." But when making a probable cause determination, a magistrate is not required to eliminate all possible innocent explanations for conduct or evidence.
¶ 17 In sum, based on our review of the facts contained in the Affidavit, we conclude that the magistrate had a substantial basis to believe that evidence of a crime would be found in Ms. Walker's blood. We therefore hold that the Warrant authorizing the police to draw Ms. Walker's blood was supported by probable cause.
¶ 18 Viewing the facts contained in the Affidavit in a practical, commonsense fashion, in light of the totality of the circumstances, and with deference to the issuing magistrate, we conclude that the magistrate had a substantial basis to believe that evidence of a crime would be found in Ms. Walker's blood. We therefore affirm the district court's denial of Ms. Walker's motion to suppress on the alternative ground that the Warrant used to draw her blood was supported by probable cause.
¶ 19 Chief Justice DURHAM and Justice PARRISH concur in Associate Chief Justice DURRANT's opinion.
Justice NEHRING, concurring:
¶ 20 Like Justice Lee, I concur in Associate Chief Justice Durrant's excellent opinion for the court. The magistrate in this case had probable cause to issue a warrant authorizing the acquisition of Ms. Walker's blood sample. And like Justice Lee, I agree that we ought to affirm on that narrow basis.
¶ 21 I write separately in this case to respectfully express my disapproval of Justice Lee's decision to write at length on a topic that does not affect the resolution of this case. Like all of my colleagues, I disagree with many judicial opinions. I have even come to take issue with opinions I have authored for the Court. But I also believe that giving voice to those opinions should be reserved for an occasion where the issues presented are properly before the Court.
¶ 23 I also disagree with Justice Lee's characterization of his opinion as an "alternative ground"
¶ 24 Let me be clear, I do not fault Justice Lee for using his concurring opinion as a vehicle for communicating his strongly held views about whether the Utah Constitution contemplates an exclusionary rule as a remedy for violations of article I, section 14. I note only that I disagree with his choice to voice this view in a case where we unanimously conclude that probable cause existed for the search. In cases where we conclude that probable cause exists, we typically decline to address the constitutional arguments brought by the parties, even when fully briefed and argued before the court.
¶ 25 The issue of whether the Utah Constitution contemplates an exclusionary rule is a controversial one. I have no doubt it will come before the court again, and that, when it does Justice Lee will express a strong opinion about it. I also have strong opinions
¶ 26 Chief Justice DURHAM and Justice PARRISH concur in Justice NEHRING's concurring opinion.
Justice LEE, concurring:
¶ 27 I concur in Justice Durrant's excellent opinion for the court. As that opinion demonstrates, the magistrate had a substantial basis for concluding that probable cause existed to draw and test Chanzy Walker's blood. That is an appropriate ground for affirming Walker's conviction, and I agree with the court's decision to affirm on that basis.
¶ 28 I write separately, however, to articulate an alternative ground for affirmance on an important issue of state constitutional law. The issue is whether article I, section 14 of the Utah Constitution contemplates an exclusionary rule as a remedy for its violation. This court's recent jurisprudence suggests that it does. See State v. Larocco, 794 P.2d 460, 471-73 (Utah 1990) (plurality opinion); State v. Thompson, 810 P.2d 415, 419 (Utah 1991) (adopting the Larocco plurality without discussion or analysis). Yet these decisions enshrine this sweeping remedy without any consideration of the original meaning of the constitutional provision in question. They also casually cast aside settled, longstanding precedents of this court that held the contrary. See State v. Aime, 62 Utah. 476, 220 P. 704, 705 (1923); see also State v. Fair, 10 Utah.2d 365, 353 P.2d 615, 615 (1960). My own review of the text and history of article I, section 14 leads me to disagree with our recent case law on this issue. In my view, Utah's constitution as originally understood did not contemplate the remedy of exclusion in the event of an illegal search or seizure. Thus, I would also affirm the decision in this case on the alternative ground that there is no exclusionary rule under the Utah Constitution. I think Larocco and Thompson should be overruled, and I would do so in this case.
¶ 29 It should go without saying that our construction of a provision of the constitution must rest on the original meaning of the constitutional text. Originalism is more than just "the dominant form of constitutional interpretation during most of our nation's history."
¶ 30 For statutes, the original meaning of the law as enacted by the legislature may be changed only by new legislation produced through bicameralism and presentment.
¶ 31 With a notable exception, the accepted processes for amending our laws do not include judicial reconsideration or adaptation of the law by our judges, who are the least accountable of our government officials. For the most part, the role of modern judges is to interpret the law, not to repeal or amend it, and then to apply it to the facts of the cases that come before them.
¶ 32 All of this underscores the crucial importance of the judicial inquiry into original meaning. A judge who assumes the role of secondary interpreter of the law must stick to the original meaning of the text of the law as handed down by the lawgiver. If and when he substitutes his own views for that of the original lawgiver, he has exceeded the proper bounds of his judicial office.
¶ 34 In other fields where the common law has been displaced by legislative code or constitutional provisions, a judge's view of the law's original meaning takes on a fundamentally different role. Where the judge's primary lawmaking authority has been usurped by legislative or constitutional enactments, he cannot ignore the original meaning of the law without exceeding the bounds of his judicial authority as a secondary interpreter and not a primary lawgiver. Thus, on most questions facing the modern judge, originalism is not just a wise starting point; it is the beginning and end of the judge's function, and an essential limitation on judicial power.
¶ 35 This limitation is most important on matters of constitutional law. Our state and federal constitutions are not just supreme; they are organic or constitutive, in that they establish the fundamental ground rules for lawmaking and fixed bulwarks against potential tyrannies of the majority. The provisions of these founding documents "form[] the fundamental and paramount law of the nation," establishing "certain limits not to be transcended" and "designed to be permanent." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176, 178, 2 L.Ed. 60 (1803). "The exercise of this original right is a very great exertion" that ought not "be frequently repeated," id. at 176, least of all by judicial fiat.
¶ 36 Thoughtful judges might understandably bristle at these restraints on their authority. Capable people don't like to be told that their views don't matter, or that their role is merely to implement someone else's policies. A judge on a court of last resort (like this one) may be especially prone to object to such a limited conception of his role, since his court has the final say in interpreting the law in his jurisdiction.
¶ 37 But the luxury of having the final say does not erase the necessity of assuring the propriety of our exercise of judicial power. Justice Robert Jackson's words are an appropriate reminder: "We are not final because we are infallible, but we are infallible only because we are final." Brown v. Allen, 344 U.S. 443, 540, 73 S.Ct. 397, 97 L.Ed. 469 (1953) (Jackson, J., concurring). The obviously constructive nature of our "infallibility" is an important reminder of our obligation to constantly limit the sphere of our decisionmaking to the role that we are afforded under the constitution.
¶ 38 We fall short of that solemn duty when we "interpret" the law without attempting to determine its original meaning.
¶ 39 This court's decisions in Larocco and Thompson appear to me to fall short under these standards. Despite decades-old precedents holding that article I, section 14 of our constitution did not incorporate a remedy of exclusion, a plurality in Larocco expressed the inclination of two members of this court to adopt such a rule. And although the Larocco plurality made no attempt to identify the original meaning of that provision of the constitution or to distinguish or overrule our prior precedents to the contrary, a majority in Thompson casually embraced the Larocco plurality position as the law of this state. For reasons elaborated below, I think we should reconsider the position identified in Larocco and adopted in Thompson.
¶ 40 Until relatively recently, this court had long declined to find an exclusionary remedy in the provisions of article I, section 14. The court's first pronouncement on this issue was its decision in State v. Aime, where we unanimously held that "the admissibility of evidence is not affected by the illegality of the means through which it has been obtained." 62 Utah. 476, 220 P. 704, 708 (1923). This holding was reaffirmed in State v. Fair, where we concluded that "[i]t is not necessary to determine whether or not the search was legal, because this court has previously held that evidence, even though illegally obtained, is admissible." 10 Utah.2d 365, 353 P.2d 615, 615 (1960) (citing Aime, 220 P. 704).
¶ 41 Our decision in Fair was eclipsed and largely preempted by the United States Supreme Court's decision a year later in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Mapp held for the first time that the United States Constitution required exclusion in state court of evidence seized in violation of the Fourth Amendment. Id. at 665, 81 S.Ct. 1684. Our decisions following Mapp necessarily acquiesced in the federal exclusionary rule. See State v. Louden, 15 Utah.2d 64, 387 P.2d 240, 241-42 (1963) (indicating "no disposition to disagree with the doctrine that where police officers have obtained evidence by illegal methods, such as unlawful search in violation of the [Fourth] Amendment to the United States Constitution and Article I, Sec[tion] 14 of our Constitution, it should not be used to convict a person of crime, as held by the United States Supreme Court in the case of Mapp v. Ohio"). For several decades, however, this court "never separately articulated an exclusionary rule as a necessary part of article I, section 14," but instead simply handed down "a series of cases ... approv[ing] the federal rule and afford[ing] its protections to Utah citizens." Larocco, 794 P.2d at 471.
¶ 42 That all changed in Larocco. In that case, a two-justice plurality acknowledged the above-described state of this court's exclusionary rule cases but nonetheless proceeded to reverse course on the issue. The Larocco plurality's justification for jettisoning Aime and Fair had nothing to do with a reevaluation of the text of article I, section 14 as understood at the time of the framing of the Utah Constitution. In fact, the Larocco plurality made no reference to the text, history, or original meaning of that provision in support of its adoption of a Utah exclusionary rule. Instead, the plurality simply deemed it "useful to examine opinions from other state courts"—opinions indicating a trend of "[a]t least eighteen states" that had "adopted an independent state constitutional exclusionary rule." Id. at 472, 794 P.2d 460. Significantly, none of the cited cases predated the adoption of the Utah Constitution, and the plurality failed to explain how these later interpretations of the constitutions of other states were relevant to understanding the meaning of article I, section 14.
¶ 43 Thus, the Larocco plurality was simply jumping on what it perceived as the state exclusionary rule bandwagon. In claiming an independent Utah exclusionary rule, the Larocco plurality seemed to treat this important
¶ 44 The exclusionary rule accepted by a plurality in Larocco was embraced by a majority of the court in State v. Thompson. The Thompson court's holding on this issue was even more cursory. Thompson failed to cite Aime or Fair and again made no reference to the text or original meaning of section 14. Instead the court simply quoted Larocco for the purportedly uncontroversial proposition that "`exclusion of illegally obtained evidence is a necessary consequence of police violations of article I, section 14.'" 810 P.2d at 419 (alteration omitted) (quoting Larocco, 794 P.2d at 472).
¶ 45 Thompson thus relied on the Larocco plurality for the existence of a Utah exclusionary rule without acknowledging that the Larocco rule had never commanded a majority and without any discussion of the court's contrary precedent or of the history and text of article I, section 14. None of our subsequent decisions offers any further analysis of this issue.
¶ 46 Thus, although this court has embraced an independent state exclusionary rule for the past couple of decades, it has done so without ever considering the original meaning of the constitutional provision in question. Given the importance of this issue and the absence of any careful analysis in this court's cases, I would be inclined to reconsider the rule in Larocco and Thompson in an appropriate case.
¶ 47 When this court does consider the text and history of article I, section 14, it should hold that this provision does not incorporate the sweeping remedy of an exclusionary rule. That section provides as follows:
UTAH CONST. art. I, § 14. This language simply provides a guarantee of security against unreasonable searches and seizures and a prohibition on warrants without probable cause. It says nothing about an exclusionary—or any other—remedy for the violation of its provisions.
¶ 48 The absence of any textual reference to a remedy shifts the focus to the historical context of this provision. If section 14 was adopted in a legal environment in which unlawfully seized evidence was deemed inadmissible in court, it would be appropriate to interpret that provision to incorporate an exclusionary rule.
¶ 49 In my view, the historical record points decidedly against the conclusion that section 14 would have been understood in its historical context to call for an exclusionary remedy. That remedy, in fact, was virtually unknown at that time. When the Utah Constitution was ratified, no appellate court in any state had excluded unlawfully obtained evidence under its constitution.
¶ 50 In 1904, shortly after the Utah Constitution was ratified, the United State Supreme Court surveyed the common law on admissibility of illegally seized evidence in a number of jurisdictions. See Adams v. New York, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575 (1904). The Adams court noted that the general rule was that "[e]vidence which is pertinent to [an] issue is admissible, although it may have been procured in an irregular[,] or even in an illegal[,] manner." Id. at 596, 24 S.Ct. 372 (internal quotation marks omitted). The court explained that this rule had been upheld in "the English, and nearly all of the American cases." Id. at 598, 24 S.Ct. 372.
¶ 51 In the face of this extensive historical record, Walker's briefs in this case cite one historical data point purportedly to the contrary: the United States Supreme Court's decision in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886). It is true that Boyd excluded evidence obtained through an improper subpoena in a civil forfeiture case. But the decision provides no basis for attributing to the Utah framers an intent to adopt a broad exclusionary remedy for search-and-seizure violations under section 14.
¶ 52 Boyd was a narrow anomaly in nineteenth-century jurisprudence on the admissibility of illegally obtained testimonial evidence. The government in Boyd had initiated a forfeiture proceeding against two businessmen for importing (smuggling) dozens of cases of plate glass in violation of federal import and revenue laws. Id. at 617-18, 6 S.Ct. 524. During the civil forfeiture trial, the government sought discovery of invoices for the goods in order to prove their quantity and value. Id. at 618, 6 S.Ct. 524. The government served the defendants with a subpoena declaring that if they did not produce the invoices, "the allegations which it is affirmed they will prove shall be taken as confessed." Id. at 621, 6 S.Ct. 524. The defendants grudgingly produced the requested documents, but following a verdict for the government, they appealed on the grounds that the compelled production of the invoices violated their constitutional rights under the Fourth and Fifth Amendments. Id. at 618, 6 S.Ct. 524.
¶ 53 Boyd was a civil (not a criminal) case,
¶ 54 Although Boyd is sometimes cited as the seedbed of the modern exclusionary rule, that decision does not sustain this construction. Instead of recognizing an exclusionary rule under the Fourth Amendment, as was later done in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), Boyd cobbled together a unique, hybrid rule using the Fourth and Fifth Amendments to exclude certain testimonial evidence under the theory that to admit illegally seized papers and books would violate the Fifth Amendment—an amendment meant to protect a defendant's rights at trial. See Boyd, 116 U.S. at 619-20, 632-38, 6 S.Ct. 524.
¶ 55 The narrow limits of Boyd were explained by the United States Supreme Court in Adams v. New York. See 192 U.S. at 596-98, 24 S.Ct. 372. In Adams, the defendant sought to exclude improperly seized evidence on the basis of Boyd. See id. at 596-97, 24 S.Ct. 372. But the Adams court distinguished Boyd and allowed the illegally obtained evidence to be admitted, noting that the statute at issue in Boyd was unique because it required the defendant to either produce his books or records or "the allegation of the government's attorney as to their contents [would] be taken as true." Id. at 597, 24 S.Ct. 372. Consequently, the unique statute "virtually compelled the defendant to furnish testimony against himself in a suit to forfeit his estate." Id. at 598, 24 S.Ct. 372.
¶ 56 The Adams court further noted that although Boyd had been cited many times, it had been "distinguished in many of the cases from the state courts which we have had occasion to examine." Id. at 597, 24 S.Ct. 372. The court thus concluded that the states that had distinguished Boyd had acted appropriately because the Fourth and Fifth Amendments were never intended to exclude evidence without regard to how it was obtained. Id. at 598, 24 S.Ct. 372. Instead, these amendments were to "protect against compulsory testimony from a defendant against himself in a criminal trial, and to punish wrongful invasion of the home of the citizen or the unwarranted seizure of his papers and property," not to exclude evidence "which has been obtained by such means, if it is otherwise competent." Id. at 598, 24 S.Ct. 372. Given the narrow limits of Boyd, that decision is hardly a basis for deeming the Utah framers to have contemplated an exclusionary remedy.
¶ 57 The drafting history of section 14 further undermines the conclusion that that provision would have been originally understood to incorporate an exclusionary rule. The Draft Constitution of 1882 contained search and seizure provisions "almost identical to the Fourth Amendment." Paul G. Cassell, Search and Seizure and the Utah Constitution: The Irrelevance of the Antipolygamy Raids, 1995 BYU L. REV. 1, 4. Boyd was not decided until 1886. Given this drafting history, and the fact that the universal common law made illegally seized evidence admissible, it seems likely that any choice to depart from the common law rule would have generated at least some debate at the time of section 14's adoption. Instead, the records of the 1895 convention show that "Section 14 was read and passed without amendment." 1 PROCEEDINGS OF THE UTAH CONSTITUTIONAL CONVENTION 319 (1898) (recounting proceedings on Mar. 25, 1895).
¶ 58 Thus, I see little ground for attributing to the framers of section 14 the view that evidence collected in violation of its terms would be deemed inadmissible in court. At a minimum, a careful analysis of that question is in order. When we do address the substance of the original meaning of section 14, we should reinstate the longstanding view
¶ 59 In time, the exclusionary rule that was claimed in Larocco and adopted in Thompson could become so ingrained in our jurisprudence that its reconsideration would be difficult. Eventually, a defendant whose section 14 rights are infringed could plausibly contend that he reasonably relied on the availability of an exclusionary rule in Utah constitutional law, and that any repudiation of that rule would undermine his reasonable reliance interests. As our cases have rightly recognized, "[t]he doctrine of stare decisis is ingrained in our law and is entitled to serious consideration." Austad v. Austad, 2 Utah.2d 49, 269 P.2d 284, 290 (1954). "The reason underlying [this doctrine] is that people should know what their legal rights are as defined by judicial precedent, and having conducted their affairs in reliance on such rights, ought not to have them swept away by judicial fiat." Id.
¶ 60 We are not yet at the stage where the Thompson exclusionary rule is beyond our reconsideration. The reliance-based justification for stare decisis is not implicated where the precedent in question "abandon[ed] [a] long-established [previous] rule," "failed to cite [a previous] line of cases altogether," and adopted a standard that is ambiguous or unworkable. State v. Menzies, 889 P.2d 393, 399 (Utah 1994). Because the dimensions and scope of the Utah exclusionary rule have not yet been established, there is little ground for an argument that the rule is so settled that it is beyond reconsideration on reliance grounds. I would accordingly reconsider this issue here and overrule Larocco and Thompson as contrary to the original meaning of the Utah constitution.
¶ 61 I conclude with a response to Justice Nehring, who writes separately to express his "disapproval" of my decision to address the remedial question presented in this case. Supra ¶ 21. With due respect to my esteemed colleague, this is a case where the question of the proper remedy for violations of article I, section 14 is "properly before the Court." Supra ¶ 21. My views on that question are hardly "advisory," as some of Justice Nehring's authorities suggest. Supra ¶ 21 n. 2 (citing cases criticizing the rendering of an "advisory opinion"). Instead, the remedial question I address is simply an alternative basis for resolving the case that is before us, as Walker's state constitutional challenge to the decision below can properly be rejected either on the ground that there is no constitutional violation to begin with or on the alternative basis that the remedy for that violation is not exclusion.
¶ 62 It is certainly true that the court need not reach the remedial question whether the Utah Constitution contemplates an exclusionary rule. But that does not render this question "irrelevant" or my analysis of it somehow "advisory." This case presents two constitutional questions of equal dignity. Both issues were briefed and argued to the court, and our decision properly could turn on either one. If Justice Nehring's critique were accepted, either issue could be deemed irrelevant in that the resolution of one could obviate the need to reach the other. Yet the existence of two alternative grounds for a decision has never barred our analysis of both of them. We frequently consider and resolve alternative bases for our decisions.
¶ 63 I see no defensible a priori basis for deeming one of these constitutional questions to have "priority" over the other or for treating them as "sequential." Supra ¶ 23. Justice Nehring casts the remedial question as superfluous on the ground that a finding of probable cause makes it unnecessary to decide "what the remedy would be if the search were conducted without probable cause." Supra ¶ 23. But the assertion that that makes the remedial question "second[ary]" or "merely hypothetical" is a boomerang: A finding that Walker has no exclusionary remedy for any underlying violation of article I, section 14 likewise makes it unnecessary to decide whether there would be a violation if there were an exclusionary rule. In that sense the ground on which the court decides the case could be deemed "secondary" and its analysis of the probable cause question could be seen as "merely hypothetical."
¶ 64 Neither issue is logically primary and neither is addressed to the hypothetical. Both issues are before us, and it is within our discretion whether to decide one or the other or both of them. In fact, courts have often resolved suppression cases in the government's favor on the basis of the applicability of an exception to the exclusionary rule without even deciding whether the warrants at issue were supported by probable cause.
¶66 Generally, I would agree with a final point raised by Justice Nehring—that it is usually appropriate to avoid reaching out to resolve a broad legal question when the case may be decided on a straightforward, narrow ground. Supra ¶ 20 n. 1 ("[C]ourts should generally resolve cases on the narrowest applicable grounds unless specific reasons exist for offering broader guidance." (quoting Gallivan v. Walker, 2002 UT 89, ¶ 97, 54 P.3d 1069 (Durham, C.J., concurring))). That principle is properly rooted in judicial conservatism or humility, and I accept it as an appropriate starting presumption. But as the Gallivan case indicates, the presumption is rebuttable in cases where "specific reasons exist for offering broader guidance," and such reasons seem to me to be amply presented here.
¶ 67 In my view, the preference for the limited use of judicial power cuts both ways in this case. On one hand, it could be said that a decision to reach out to overrule Larocco and Thompson would be an act of judicial immodesty. But if those decisions themselves resulted from just such an act (as I think they did for reasons explained above), then a decision to continue to enshrine them can hardly be said to advance the cause of judicial humility. A refusal to reconsider Larocco and Thompson results in the preservation of a judge-made rule that finds no basis in the original meaning of the constitutional text, and in that sense the approach that I advocate actually advances the goal of judicial humility advocated by Justice Nehring.
¶ 68 The problem is further complicated by another principle that is rooted in judicial humility—the doctrine of stare decisis. If we do not promptly reconsider the Larocco-Thompson position, it will eventually be considered settled law in this state, worthy of deference under the doctrine of stare decisis regardless of whether those cases were correctly decided. By articulating my views on this matter, I hope to preserve this court's ability to reconsider this important issue while giving proper heed to the important doctrine of stare decisis.
¶ 69 Thus, while I share Justice Nehring's commitment to the principle of judicial restraint, that principle seems to me to counsel in favor of our separate consideration in this case of the remedial question addressed in Larocco and Thompson. I respect my colleagues' right to disagree with my judgment on that question, and hope that Justice Nehring is right in concluding that the issue "will come before the court again," supra ¶ 25,
This latter approach strikes me as incompatible with a commitment to a passive judicial role in interpreting the law as enacted by the people or their representatives. I understand that an informed, engaged judge may prefer the freedom to inject his views into the law under the guise of judicial review. But a decision to start down that path is a decision to abandon the judicial role. We cannot maintain our commitment to judicial interpretation of the law while retaining the notion of active consideration of social policy in our decisions. The only social policy that matters is the one embraced in the legislation or constitutional provision we are interpreting. We should categorically repudiate our precedents that suggest otherwise—that treat the original meaning of the law as merely one of several "persuasive" grounds for judicial construction and that open the door to any "sister state law" or good "policy" that we deem relevant—and hold consistently to the view that our statutes and constitution mean what they meant when they were originally enacted until repealed or amended by the political branches of government.
