This opinion is subject to revision before final

publication in the Pacific Reporter

2013 UT 9

IN THE

SUPREME COURT OF THE STATE OF UTAH

———————

STATE OF UTAH,

Plaintiff and Appellee,

v.

ALAN L. CHETTERO,

Defendant and Appellant.

———————

No. 20110667

Filed February 15, 2013

———————

Third District, Silver Summit

The Honorable Bruce C. Lubeck

No. 081500301

———————

Attorneys:

John Swallow, Att‘y Gen., Jeffrey S. Gray, Asst. Att‘y Gen., 

Salt Lake City, David R. Brickey, Paul R. Christensen, Park City, 

for appellee

Gerry D‘Elia, Park City, for appellant

———————

JUSTICE LEE authored the opinion of the Court, in which 

CHIEF JUSTICE DURRANT and JUSTICE PARRISH joined.

ASSOCIATE CHIEF JUSTICE NEHRING filed an opinion concurring and 

dissenting in part, in which JUSTICE DURHAM joined.

———————

JUSTICE LEE, opinion of the Court:

¶1 In mid-November 2008, the Utah Highway Patrol (UHP)

performed a drug interdiction exercise on a rural stretch of I-80 in 

Summit County. Most of the cars stopped during the exercise, including one driven by Alan L. Chettero, were licensed in other 

states. Chettero‘s traffic stop yielded evidence of illegal drugs (105 

pounds of marijuana), which Chettero sought to suppress during 

his subsequent prosecution for possession with intent to distribute. Chettero filed two suppression motions—one based on the 

Equal Protection Clause and right to travel, and the other rooted 
STATE v. CHETTERO

Opinion of the Court

2

in the Fourth Amendment. The district court denied both. Chettero then entered a conditional guilty plea. He now appeals.

¶2 We affirm. The traffic stop Chettero complains of did not 

restrict his movement in a manner implicating his fundamental 

right to travel. His equal protection claim is equally meritless: 

There was a rational basis for UHP‘s choice to focus the bulk of its 

enforcement efforts on cars bearing out-of-state license plates given UHP‘s understanding that significant quantities of drugs 

would be transported from California through Utah during midNovember. Finally, to the extent the district court erred in failing 

to consider any evidence of relevance to the Fourth Amendment 

motion to suppress, it is excusable as harmless error.

I

¶3 UHP‘s interdiction exercise took place November 14-16, 

2008. The exercise was designed to ―prevent accidents, while removing criminals, drug proceeds, and controlled substances from 

[Utah] highways.‖ Its timing was prompted by California law enforcement communications, which indicated that the marijuana 

harvest in California ended in late October and that marijuana 

would likely be ready for transport eastward in mid-November.

UHP hoped to intercept some of this illegal traffic. To do so, it 

made high-volume traffic stops on a stretch of I-80 in eastern 

Summit County between Kimball Junction and the Wyoming 

border.

¶4 Most vehicles stopped were licensed outside Utah. According to Summit County dispatch tapes, 147 vehicles were stopped 

during the exercise, and all but one (99.3 percent) bore out-of-state 

plates. The troopers‘ daily logs show slightly different numbers. 

These logs reveal that of the 144 stops made, 136 (95 percent) involved out-of-state plates. Despite these statistics, the state maintains that troopers were not instructed to target out-of-state vehicles. 

¶5 In one of the twenty-three stops Trooper Jensen made during the exercise—all of which involved cars with out-of-state 

plates—he stopped Alan Chettero‘s California-plated vehicle.

1

 

1 This stop occurred at 9:30 p.m. on November 13, 2008. Although this raises the question whether Chettero was stopped during the course of the interdiction exercise (which ran from No-
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Opinion of the Court

3

Jensen asserts that he stopped Chettero because he crossed the fog 

line three times in a one-half-mile stretch. Upon approaching

Chettero‘s car after making the stop, Jensen noticed that the rear 

compartment of the vehicle was completely filled with something 

covered by a blanket. As Jensen spoke with Chettero through the

open front window, he noticed a strong odor of raw marijuana. 

Jensen then searched the vehicle, finding 105 pounds of marijuana.

¶6 Chettero was arrested and charged with possession of marijuana with intent to distribute. He filed two motions to suppress 

the evidence seized during the stop and/or to dismiss the information filed against him. 

¶7 In the first motion, he argued that UHP‘s selective enforcement of the traffic laws had impermissibly infringed on his 

right to travel and violated his equal protection rights. The court 

held oral argument on the motion, and then denied it in a written 

order. In the order, the court concluded that Chettero had failed to 

prove that the traffic laws had been selectively enforced against 

him, noting that a selective enforcement claim requires proof of

both discriminatory effect and discriminatory purpose. The court 

found Chettero had shown the former but not the latter, indicating that he had failed to show an ―improper motivation‖ underlying the stops.

¶8 After the case had been transferred to a different judge, 

Chettero filed an additional motion to suppress. This motion—

based on the Fourth Amendment—claimed that Trooper Jensen 

had fabricated the basis for the traffic stop. The district court held

oral argument on the motion, and the State advanced two main 

pieces of evidence to prove there was an adequate basis for the 

stop—testimony by Trooper Jensen and a videotape showing the 

actual traffic stop (but not the offense precipitating it).

¶9 Trooper Jensen testified at the hearing that Chettero was 

stopped as part of an interdiction exercise. Chettero‘s counsel 

asked him whether the ―primary goal‖ of the exercise was to ―interdict marijuana for out-of-state plate vehicles.‖ Jensen responded, ―[n]o.‖ Chettero‘s counsel then asked him what the purpose of 

 

vember 14-16), the State concedes that he was, and we accordingly 

assume that fact. 
STATE v. CHETTERO

Opinion of the Court

4

the exercise was, to which Jensen responded, ―[m]ake high volume traffic stops.‖ Chettero‘s counsel queried, ―[h]igh volume of 

out-of-state traffic stops?‖ Jensen answered, ―[n]ot specifically out 

of state.‖ 

¶10 Following this exchange, Chettero‘s counsel tried to impeach Jensen‘s testimony with statistical evidence showing that

mostly out-of-state plated vehicles had been stopped. The district 

judge sustained a relevance objection to the admission of this evidence. Chettero‘s counsel challenged this ruling, indicating that

he would like to submit a supplemental memorandum explaining 

how this evidence was relevant. The judge responded that he was 

―willing to let [him] have additional time . . . to submit a memorandum based upon what‘s happened here today.‖ Ultimately, 

after conferring with Chettero, counsel declined this opportunity.

The court then denied the motion to suppress, basing its ruling on 

both the ―testimony of . . . officer [Jensen] and reviewing 

the videotape.‖ 

¶11 After both of his motions were denied, Chettero entered a 

conditional guilty plea, reserving the right to appeal the issues 

raised in his motions. Chettero was then sentenced to a suspended 

term of one to fifteen years, and was placed on probation for 

eighteen months. He then filed this appeal.

II

¶12 Chettero contends that the district court made two primary errors in denying his motions to suppress. First, in considering 

his equal protection/right to travel motion, Chettero asserts that 

the court wrongly concluded that he had not proved discriminatory enforcement of Utah‘s traffic laws. Second, in considering his 

Fourth Amendment motion, Chettero insists that the district court

failed to consider relevant statistical evidence. We find both arguments unpersuasive and accordingly affirm. 

A

¶13 Chettero‘s first motion to suppress was based on the claim

that it was constitutionally impermissible for the highway patrol 

to selectively enforce the traffic laws against those driving cars 

bearing out-of-state license plates. Chettero supported this assertion with two related, but distinct, arguments, one based on the 

constitutional right to travel, and the other on the Equal Protection Clause. The district court rejected both arguments after con-
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Opinion of the Court

5

cluding that Chettero had failed to show that the traffic laws had 

been selectively enforced against him at all. We affirm, albeit on 

slightly different grounds—that his right to travel and equal protection claims are meritless, even assuming he proved selective 

enforcement of the traffic laws.

1

¶14 We find no basis for a conclusion that the UHP interdiction 

violated Chettero‘s constitutional right to travel. The mere assertion of disparate treatment of out-of-state vehicles is insufficient. 

For the constitutional right to travel to be implicated, Chettero 

would have to establish that such disparate treatment infringed

on his fundamental constitutional rights. And that is a showing he 

cannot make. 

¶15 Under U.S. Supreme Court precedent, the right to travel is 

understood to comprise three components: (1) ―the right to go 

from one place to another,‖ by using ―highway facilities and other 

instrumentalities of interstate commerce,‖ which ―includ[es] the 

right to cross state borders while en route‖; (2) ―the right to be 

treated as a welcome visitor rather than an unfriendly alien when 

temporarily present in the second State‖; and (3) ―for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.‖ See Saenz v. Roe, 526 U.S. 489, 

500–01 (1999) (internal quotation marks omitted). 

¶16 At oral argument, Chettero‘s counsel clarified that his claim 

was rooted solely in the second component of the right to travel.2

 

2 Counsel‘s waiver of the first component might seem puzzling 

at first blush, given that Chettero sought to traverse Utah using its 

interstate highways and the traffic stop arguably restricted his 

freedom to do so. On reflection, however, the waiver of this component seems necessitated by the case law, which limits the reach 

of this component to cases involving significant impediments on 

the right to freely traverse a state—impediments beyond the mere 

threat of a traffic stop for a violation of the traffic laws. See, e.g.,

Edwards v. California, 314 U.S. 160, 174, 177 (1941) (striking down a 

law that criminalized bringing an entire class of persons [indigents] into California); see also Maryland State Conference of NAACP 

Branches v. Maryland Dep’t of State Police, 72 F. Supp. 2d 560, 568–
STATE v. CHETTERO

Opinion of the Court

6

But this second component was not implicated by the traffic stop

in question.

¶17 The second component of the right to travel is rooted in Article IV, Section 2 of the United States Constitution, which entitles 

citizens of ―each State‖ to ―all Privileges and Immunities of Citizens in the several states.‖ See Saenz, 526 U.S. at 501 (internal quotation marks omitted). A review of the cases cited in Saenz in support of this component of the right to travel indicates that it protects only the rights of non-residents to exercise fundamental economic rights (e.g., obtaining employment or commercial licenses) 

or to seek important services (such as medical services).3 See id. at 

501–02 (citing cases). And even in circumstances involving one of 

these substantial rights, the second component of the right to 

travel does not foreclose all discrimination against non-residents. 

See id. It bars only ―discrimination . . . where there is no substantial reason for the discrimination beyond the mere fact that [individuals] are citizens of other States.‖ Id. (internal quotation marks 

omitted).

¶18 Chettero‘s right to travel claim cannot succeed under these 

standards. Here there is no allegation of any withholding of access 

to fundamental economic rights or essential services in Utah. Nor 

is there any indication of discrimination based on the mere fact of

citizenship in another state. To the extent there was discrimination, it was based on intelligence that suggested marijuana would 

be transported from California (where it was grown) across Utah 

on its way east. So any differential treatment was not based on the 

―mere fact‖ that Chettero was a citizen of another state, and the 

right to travel was not implicated even assuming some form of 

discrimination.

 

69 (D. Md. 1999) (observing that a mere traffic stop probably does 

not implicate the first component of the right to travel).

3 This is consistent with the U.S. Supreme Court‘s pronouncement that the Privileges and Immunities Clause applies only to 

rights that ―bear[] on the vitality of the Nation as a single entity‖ 

and are ―sufficiently basic to the livelihood of the Nation.‖ Supreme Court of Virginia v. Friedman, 487 U.S. 59, 64 (1988) (internal 

quotation marks omitted). 
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Opinion of the Court

7

2

¶19 Chettero‘s parallel claim of selective enforcement of the 

traffic laws in violation of the Equal Protection Clause fails on 

similar grounds. The charge of discrimination on the basis of driving an out-of-state vehicle misses a key point: Selective enforcement alone is insufficient to prevail on equal protection grounds, 

as most ―targeting‖ is simply not prohibited by the Equal Protection Clause. 

¶20 Classifications are regularly made in the creation and enforcement of the law. Most such classifications are permissible, 

and thus are subject only to minimal scrutiny under the Equal 

Protection Clause (i.e., rational basis review). See State v. Robinson, 

2011 UT 30, ¶ 22, 254 P.3d 183 (explaining that ―rational basis‖ 

scrutiny is applied unless a ―fundamental right or suspect class 

[is] at issue‖). Only a handful of classifications are so generally 

problematic (and so unlikely reasonable) that they trigger heightened scrutiny. Such problematic classifications include race4 and

gender.5

¶21 Chettero, however, has not alleged that the traffic laws 

were selectively enforced on the basis of any judicial-scrutinyheightening classification. He asserts only that those driving 

Utah-licensed vehicles were treated differently than those driving 

vehicles licensed elsewhere. His equal protection claim is thus 

subject to mere rational basis review. 

¶22 And his equal protection claim fails under this standard.

Rational basis scrutiny requires only that a classification bear 

some conceivable relation to a legitimate government purpose or 

goal. See L.C. Canyon Partners, L.L.C. v. Salt Lake Cnty., 2011 UT 63, 

¶ 12 n.2, 266 P.3d 797 (explaining the wide degree of discretion 

 

4 See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 

U.S. 701, 720 (2007) (―[R]acial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.‖ (internal quotation marks omitted)). 

5 See United States v. Virginia, 518 U.S. 515, 531 (1996) (―Parties 

who seek to defend gender-based government action must 

demonstrate an  ̳exceedingly persuasive justification‘ for that action.‖).
STATE v. CHETTERO

Opinion of the Court

8

afforded under rational basis review).6 This ―conceivable relation‖

standard does not require documentary evidence or other actual 

proof to sustain a classification. See F.C.C. v. Beach Commc’ns, Inc., 

508 U.S. 307, 313–15 (1993) (explaining that classifications ―may be 

based on rational speculation unsupported by evidence or empirical data‖ because classifications ―must be upheld against equal 

protection challenge if there is any reasonably conceivable state of 

facts that could provide a rational basis for the classification‖). After all, ―the law need not be in every respect logically consistent 

with its aims to be constitutional. It is enough that there is an evil 

at hand for correction, and that it might be thought that‖ the classification selected is a ―rational way to correct it,‖ even if it ―exact[s] a needless, wasteful requirement.‖ Williamson v. Lee Optical 

of Okla., 348 U.S. 483, 487–88 (1955).

¶23 Preventing drug trafficking across a state is at least a legitimate goal. See United States v. Place, 462 U.S. 696, 703 (1983) 

(―[T]he public has a compelling interest in detecting those who 

would traffic in deadly drugs for personal profit.‖ (emphasis added) (internal quotation marks omitted)). And UHP had every reason to believe that high-volume traffic stops conducted in the 

middle of November would help it achieve this goal. After all, 

UHP had been in communication with California law enforcement authorities, and these authorities had informed UHP that 

because of the marijuana harvest in late October, drug trafficking 

from California eastward was most likely to occur during November. Moreover, it was certainly conceivable that individuals in 

cars bearing plates from other states were more likely to be passing through the state (as opposed to going from Point A to Point B 

within the state) and thus were more likely to be transporting 

 

6 See also State v. Robinson, 2011 UT 30, ¶ 24, 254 P.3d 183 (explaining that classifications are sustained under rational basis review ―if we can reasonably conceive of facts which would justify 

the distinctions‖ (internal quotation marks omitted)); Ry. Express 

Agency, Inc. v. New York, 336 U.S. 106, 110 (1949) (―It is no requirement of equal protection that all evils of the same genus be 

eradicated or none at all.‖); Skinner v. Oklahoma ex rel. Williamson, 

316 U.S. 535, 539–40 (1942) (explaining that the Equal Protection 

Clause does not require ―abstract symmetry‖ (internal quotation 

marks omitted)).
Cite as: 2013 UT 9

Opinion of the Court

9

some of these drugs. And, as noted, mere conceivability that those 

driving vehicles licensed outside the state were more likely to be 

transporting drugs is all that the Equal Protection Clause demands. We thus reject Chettero‘s contrary assertion that UHP 

needed concrete documentary proof to sustain its classification.

¶24 In these circumstances, making high volume traffic stops 

focusing on out-of-state licensed vehicles had a conceivable relation to UHP‘s legitimate goal of intercepting drug traffic across 

the state. Chettero‘s equal protection claim accordingly fails as

there is an ample rational basis for any discrimination engaged in 

by the state. 

B

¶25 Chettero‘s second motion to suppress was rooted in the 

Fourth Amendment. In challenging the denial of this motion, 

Chettero contends that the district court erred in excluding relevant evidence at the hearing on this motion. The hearing centered 

on Chettero‘s assertion that Trooper Jensen had fabricated the basis for his traffic stop. In support of that charge, Chettero sought 

to admit statistical evidence showing that the vast majority of cars 

stopped by UHP during the course of the interdiction exercise 

bore out-of-state license plates, claiming this statistical evidence 

impeached Trooper Jensen‘s credibility because Jensen had allegedly denied that the primary goal of the interdiction exercise was 

to target out-of-state individuals.

¶26 We affirm the denial of this motion to suppress. Although 

the district court may have misapprehended Chettero‘s argument, 

two key considerations convince us that there was either no error 

at all or that any error was harmless.7

1

¶27 First, it is not at all clear that the statistical evidence Chettero advanced would have impacted Trooper Jensen‘s credibility, 

and Chettero affirmatively waived the opportunity that the dis-

 

7 See H.U.F. v. W.P.W., 2009 UT 10, ¶ 44, 203 P.3d 943 

(―[H]armless error is an error that is sufficiently inconsequential 

that there is no reasonable likelihood that it affected the outcome 

of the proceedings.‖ (alteration in original) (internal quotation 

marks omitted)).
STATE v. CHETTERO

Opinion of the Court

10

trict court provided him to show how it might have. After all, 

Trooper Jensen never indicated that there was no ongoing interdiction campaign at the time of the Chettero stop. Nor did Jensen 

ever deny stopping more cars from out of state (which is what the 

statistical evidence Chettero advanced would have shown). Rather, Jensen noted only that the purpose of the exercise was not 

―specifically‖ to stop those from out of state. 

¶28 In context, Jensen might reasonably have been insisting only that the subjective purpose of the exercise was to stop those 

likely to be carrying drugs (and not generally to stop those from 

out of state). And presumably that was the specific purpose of the 

interdiction. With this in mind, the statistical evidence Chettero 

sought to introduce would not obviously have contradicted

Trooper Jensen‘s testimony or undermined his credibility.

8

¶29 And in any event, Chettero‘s counsel waived the express 

opportunity afforded by the district court to show that it did. After Trooper Jensen‘s testimony, and before the court ruled on 

Chettero‘s motion, the court gave him the opportunity to submit 

―a memorandum based upon what’s happened here today.‖ Chettero‘s 

counsel declined this opportunity after conferring with Chettero.

If Chettero wished to preserve an objection to the trial court‘s failure to consider the relevant statistical evidence, he should have 

availed himself of this opportunity. Submitting the memorandum 

would have allowed Chettero to specifically explain just how the 

statistical evidence affected Trooper Jensen‘s credibility, based 

upon the testimony Jensen actually gave at the hearing. This 

 

8 The dissent claims that Trooper Jensen‘s testimony ―makes 

clear that the officer [was] saying under oath that the purpose of 

the exercise was to stop everyone, not to focus on out-of-state 

plates.‖ Infra ¶ 36. But as the full hearing colloquy reveals, infra 

¶ 34, Trooper Jensen never clearly manifested such a purpose. 

Trooper Jensen‘s general statement that the purpose of the exercise was to ―[m]ake high-volume traffic stops‖ simply does not 

indicate an answer to the more nuanced question of which individuals would be targeted in making those stops. And when 

asked that more nuanced question specifically, Trooper Jensen 

never denied that he may have stopped more individuals driving 

vehicles licensed outside of Utah. Rather, he merely denied that 

doing so was the ―specific[]‖ purpose of the interdiction exercise. 
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Opinion of the Court

11

showing was one that Chettero had not made previously,9 and 

that he never made at the suppression hearing itself. 

¶30 Rather, at the hearing he did no more than generally assert 

that the statistical evidence was relevant to Trooper Jensen‘s credibility in the abstract, noting that ―the more evidence that there is 

that the officer stopped these vehicles and that his mission was to 

search these vehicles for marijuana coming from out-of-state that 

goes to the officer‘s credibility.‖ But this general assertion was only true to the extent that Trooper Jensen‘s testimony actually indicated he had some other ―mission‖ at the time of the stop. And for 

the reasons already noted, it was less than clear that his testimony 

did so. Chettero‘s supplemental brief could have offered such a 

showing. His failure to do so forecloses his argument on appeal.

 

9 Chettero raised a related argument in his earlier memorandum 

in support of the motion to suppress. This memorandum had 

referenced State v. Lopez, 873 P.2d 1127 (Utah 1994), in asserting 

that evidence indicating that a police detention is motivated by 

suspicions unrelated to the traffic offense makes an officer‘s 

assertion that the offense occurred less credible. But this general 

argument was not the same as the specific one that the trial judge 

gave Chettero the opportunity to make, and certainly is not a 

basis to determine that he did not waive expounding on his 

theory regarding Trooper Jensen‘s testimony. Until the 

suppression hearing, after all, Chettero did not know what 

Trooper Jensen would say about the purpose underlying the 

traffic stop. The dissent fails to grasp this point in suggesting that 

the initial memorandum was sufficient. Infra ¶ 37. This 

memorandum did not (and could not) give the trial court the 

opportunity to rule on the specific argument that the statements 

made by Trooper Jensen at the suppression hearing were actually 

contradicted by the statistics. And it was this specific issue that 

the supplemental memorandum would have allowed Chettero to 

raise. An initial memorandum that, by the dissent‘s admission, 

―speaks in generalities,‖ cannot be said to have specifically 

preserved this more nuanced argument. Infra ¶ 37.
STATE v. CHETTERO

Opinion of the Court

12

2

¶31 Further, even if the statistical evidence had clearly borne on 

Trooper Jensen‘s credibility, the district court‘s ruling denying 

Chettero‘s motion to suppress was not based solely on Jensen‘s 

testimony. Rather, in ruling on the motion, the district court also 

relied in part on the videotape of the stop.10 And although the 

videotape did not show the traffic violation leading to the stop, it 

did show the actual stop. Apparently, moreover, the videotape

corroborated portions of Trooper Jensen‘s testimony related to the 

stop, including the fact that Chettero had crossed the fog line 

again as he was being pulled over, straddling it for quite a 

distance until his vehicle came to rest at a stop sign at the bottom 

of the ramp.11 It also appears to have discredited portions 

of Chettero‘s testimony, including his assertion that Trooper 

Jensen was a mere half-car-length away when he made the stop.

¶32 Significantly, though, this video was not included in the 

record on appeal. And ―[w]hen crucial matters are not included in 

the record, the missing portions are presumed to support the action of the trial court.‖ State v. Pritchett, 2003 UT 24, ¶ 13, 69 P.3d 

1278 (internal quotation marks omitted). Thus, even if it was error 

to not consider the statistical evidence, Chettero still cannot show 

that this error was prejudicial, given that the judge also based his 

ruling on the video evidence, which was not included in the appellate record.

12 Consequently, we conclude that the trial court‘s 

 

10 In particular, the court noted that ―based upon what I have 

heard here, based upon the testimony of the officer and reviewing 

the videotape, I believe that there‘s probable cause to stop.‖ (Emphasis added.)

11 Trooper Jensen‘s testimony had indicated his observation that 

―as the vehicle was taking the offramp, [Chettero] crossed the fog 

line again and straddled the fog line with the vehicle until coming 

to a stop at a stop sign,‖ and that this was something that caused 

him ―further concern‖ as the ―vehicle came to a stop.‖

12 The dissent finds fault with this analysis based on its 

suggestion that there was ―nothing critical about the video‖ 

because it did not show the Chettero traffic infraction and was 

accordingly ―not relevant to the question of whether the officer 
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ACJ NEHRING – COP & DOP

13

exclusion of the statistical evidence was, at most, harmless error, 

and affirm the denial of his second motion to suppress. 

———————

ASSOCIATE CHIEF JUSTICE NEHRING, concurring and dissenting 

in part:

¶33 I concur in the court‘s equal protection analysis and agree 

with the judgment of the court that the traffic stop of Mr. Chettero 

did not infringe his right to travel. However, the majority 

explains that any discrimination in this case ―was based on 

intelligence that suggested marijuana would be transported from 

California (where it was grown) across Utah . . . [s]o any 

differential treatment was not based on the  ̳mere fact‘ that 

Chettero was a citizen of another state.‖1 The only information 

that animated law enforcement to make the high volume of traffic 

stops that included Mr. Chettero was that marijuana could come 

from out of state. Had troopers stopped cars based on the mere 

 

had reasonable suspicion to seize Mr. Chettero when he activated 

his lights and initiated the stop.‖ Infra ¶ 38. But while it is true

that the video does not show the Chettero infraction—a point 

already made clear above, supra ¶ 31—the video is nonetheless 

significant. This significance follows from the fact, acknowledged 

by the dissent, that Chettero‘s suppression motion was, ―like most 

suppression motions, . . . a credibility contest.‖ Infra ¶ 34. The 

video evidence bore on the issue of credibility by, apparently, 

both corroborating Trooper Jensen‘s account of the stop and 

discrediting portions of Chettero‘s account. Supra ¶ 31. But 

because this video evidence was not included in the appellate 

record, Chettero cannot bear his burden of showing that the 

exclusion of the statistical evidence he sought to introduce—

which also bore on credibility—was prejudicial error warranting 

reversal. After all, the videotape could have been sufficient to 

independently convince the trial court that, in this ―credibility 

contest,‖ Jensen was telling the truth and Chettero was not. And 

in the absence of its inclusion in the appellate record, we have no 

choice but to presume that it supports the trial court‘s conclusion 

that Trooper Jensen was the winner of the ―credibility contest,‖ 

infra ¶ 34, such that the trial court‘s ultimate denial of suppression 

was proper. 

1 Supra ¶ 18.
STATE v. CHETTERO

ACJ NEHRING – COP & DOP

14

fact of bearing foreign license plates, their activities would have 

been more suspect. Still, Justice Lee‘s analytic approach, when 

examined more closely, actually concedes the ―mere fact‖ point. 

The troopers were after drugs. They had received word that the 

bounty of the California marijuana harvest was coming this way 

and decided to do something about it. During the interdiction 

exercise, 95–99 percent of all the cars stopped, and all twentythree of the cars stopped by the trooper in question, were from 

out of state.2 Whatever else might be said about the trooper‘s 

motives, it is safe to say they were not responding to an epidemic 

of motorists crossing the fog line. Based on what law enforcement 

knew, out-of-state marijuana was transiting Utah, transported in 

vehicles bearing out-of-state license plates. A foreign license plate 

was not one of several reasons given for stopping cars, it was the 

only reason. Was it unconstitutional? No. The stops were 

supported by a rational basis and affected lesser interests than 

those targeted in right to travel cases.

¶34 I am troubled by the court‘s analysis in Part II.B. and for 

the reasons set out below, cannot join it. Mr. Chettero pressed his 

Fourth Amendment claim after the court rejected his right to 

travel and equal protection arguments. His suppression motion 

was heard by a new judge and, like most suppression motions, it 

was a credibility contest. The following exchange captures the 

flavor of testimony concerning the purpose of the stops. 

Q: And wasn‘t the primary goal to interdict 

marijuana for out-of-state plate vehicles?

A: No.

Q: What was the purpose of it?

A: Make high volumes traffic stops.

Q: High volumes traffic stops?

A: Yes.

Q: High volumes of out-of-state traffic stops?

A: Not specifically out-of-state.

Q: Do you know what the statistics are? Because we 

have it in evidence in this case already for how 

 

2 Supra ¶¶ 4–5.
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ACJ NEHRING – COP & DOP

15

many you stopped for out of state people versus 

in-state.

MR. BRICKEY: Objection. Irrelevance.

THE COURT: Sustained. That‘s already been 

addressed . . . by the court, then ruled on by the court.

MR. D‘ELIA: Oh, absolutely. I‘ll move on. And, again, 

I was only getting into the credibility of the officer 

and what this officer would say on the stand today 

versus what the court did find. 

During argument before the district court, Mr. Chettero‘s counsel 

again mentioned the statistics, specifically reading from a 

memorandum filed with the court before the hearing that cited

State v. Lopez:

[A]n officer‘s subjective suspicions unrelated to the 

traffic violation for which he or she stops a defendant 

can be used by defense counsel to show that the 

officer fabricated the violation. The more evidence 

that detention was motivated by police suspicions 

unrelated to the traffic offense, the less credible the 

officer‘s assertion that the traffic offense occurred.3

The court responded that it is constitutionally acceptable to target 

out-of-state cars. The majority acknowledges that the court ―may 

have misapprehended Chettero‘s argument,‖4 possibly confusing

it with his right to travel and equal protection arguments.

¶35 The statistical evidence was both relevant and admissible 

for impeachment purposes, and the trial court abused its 

discretion when it rejected it. The lead opinion asserts that there 

―was either no error at all or that any error was harmless‖ in 

excluding the evidence because the evidence might not have 

impacted Trooper Jensen‘s credibility ―and Chettero affirmatively 

waived the opportunity that the district court provided him to 

show how it might have.‖5

¶36 First, the majority states that Trooper Jensen was only 

suggesting that the purpose of the exercise ―was not  ̳specifically‘ 

 

3 873 P.2d 1127, 1138–39 (Utah 1994) (citation omitted).

4 Supra ¶ 26.

5 Supra ¶¶ 26–27.
STATE v. CHETTERO

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16

to stop those from out of state.‖6 ―In context,‖ he was only 

insisting that the subjective purpose of the exercise was to stop 

those carrying drugs, not generally to stop everyone from out of 

state.7 But the only suggested method for how to find drugs the 

majority mentions is to stop high volumes of cars and to target 

cars registered in another state. And the testimony quoted above 

makes clear that the officer is saying under oath that the purpose 

of the exercise was to stop everyone, not to focus on out-of-state 

plates. The statistics would have been relevant to impeach this 

remark.

¶37 Next, the majority asserts that Mr. Chettero waived the 

argument because, after making it to the court, he conferred with 

his attorney and declined to file an additional memorandum. The 

memorandum would necessarily have been based on authority

already before the judge, primarily State v. Lopez, after the judge 

had made his ruling clear. An argument is preserved if a party 

has presented it to the district court in such a way that the court 

had an opportunity to rule on it. ―In determining whether the 

district court had an opportunity to rule on an issue, a court 

considers three factors: (1) whether the issue was raised in a 

timely fashion, (2) whether the issue was specifically raised, and 

(3) whether supporting evidence or relevant authority was 

introduced.‖8 The district court here had an opportunity to rule 

on this issue. It was raised in a timely fashion, it was raised 

specifically, and it included the same authority Mr. Chettero uses

on appeal. The judge gave Mr. Chettero an opportunity to file a 

memorandum that would have made these same arguments and

he declined, possibly in order to save all parties involved time and 

resources on a case he already anticipated appealing. Justice Lee 

states that the argument in the motion citing Lopez ―was not the 

same as the specific [argument] that the trial judge gave Chettero 

the opportunity to make‖ because ―[u]ntil the suppression 

hearing . . . Chettero did not know what Trooper Jensen would 

say about the purpose underlying the traffic stop.‖9 The 

memorandum speaks in generalities, but it clearly anticipates that 

 

6 Supra ¶ 27.

7 Supra ¶ 28.

8 Winward v. State, 2012 UT 85, ¶ 9, _ P.3d _ (internal quotation 

marks omitted).

9 Supra ¶ 29 n.9.
Cite as: 2013 UT 9

ACJ NEHRING – COP & DOP

17

the officer will fabricate a reason for the stop. And in any event, 

counsel coherently made the argument that he repeats on appeal 

at the suppression hearing, citing controlling authority, and 

received a ruling on it. More should not be required for 

preservation.

¶38 Next, the majority opinion states that the court‘s error was 

harmless because it also based its decision on a videotape. The 

video was not included in the record on appeal and ―[w]hen 

crucial matters are not included in the record, the missing 

portions are presumed to support the action of the trial court.‖10

But there was nothing critical about the video. Both parties agree 

that the video does not start until ―right at the point [the officer] 

activate[d] the overheads.‖ The ―driving pattern that [the officer] 

described is not on [the] video.‖ The purpose of the suppression 

hearing was to determine whether the officer had reasonable 

suspicion to initiate the stop. Once the lights were activated, the 

detention was initiated. ―[A]ny reasonable driver would 

understand a flashing police light to be an order to pull over, 

although the Supreme Court has said that such an order would 

not give rise to a  ̳stop‘ unless the driver submitted to the order or 

was physically apprehended.‖11 Here, Mr. Chettero did submit to 

 

10 Supra ¶ 32 (alteration in original) (quoting State v. Pritchett, 

2003 UT 24, ¶ 13, 69 P.3d 1278).

11 United States v. Swindle, 407 F.3d 562, 566 (2d Cir. 2005). 

Swindle involved a defendant who did not yield, and therefore 

was not seized. It begins its analysis by discussing the importance 

of reasonable suspicion at initiation: ―While not explicitly 

addressing the point from which reasonable suspicion must be 

measured, other courts have emphasized that a stop must be 

justified at its inception.‖ Id. at 567. The Second Circuit in that 

case cites Feathers v. Aey, 319 F.3d 843, 848–49 (6th Cir. 2003) (―The 

question is whether, at the moment that they initiated the stop, 

the totality of the circumstances provided the officers with the 

reasonable suspicion required in order to detain a citizen under 

Terry.‖); United States v. Finke, 85 F.3d 1275, 1279 (7th Cir. 1996) 

(―Under Terry the stop must be justified at its inception . . . .‖); 

United States v. Crain, 33 F.3d 480, 485 (5th Cir. 1994) (―[T]he issue 

of whether an investigatory detention or traffic stop complies with 

the Fourth Amendment depends [in part] upon . . . whether the 

stop was justified at its inception.‖); and United States v. Walker, 

933 F.2d 812, 815 (10th Cir. 1991) (in support of the proposition 
STATE v. CHETTERO

ACJ NEHRING – COP & DOP

18

the show of authority. The videotape showed what happened 

after that: Mr. Chettero pulled over and was apprehended 

because the officer smelled the large amount of drugs in his car. 

This is not relevant to the question of whether the officer had 

reasonable suspicion to seize Mr. Chettero when he activated his 

lights and initiated the stop. That the video may have offered 

some support to the officer‘s testimony is not enough to render 

the error that occurred at the hearing harmless.

¶39 ―An error is harmful if it undermines our confidence in 

the verdict; if, minus the error, there is a sufficiently high 

likelihood of a different outcome.‖12 When the court must decide 

which of two witnesses is telling the truth and has improperly 

excluded evidence that goes to credibility, the error is not 

harmless. I would reverse the trial court and remand for 

additional proceedings concerning the legitimacy of the stop.

———————

 

that to uphold a Terry stop, a court must determine ―whether the 

officer‘s action was justified at its inception‖ (internal quotation 

marks omitted)).

12 State v. Arguelles, 2003 UT 1, ¶ 94, 63 P.3d 731 (internal quotation marks omitted).