Brigham Young University Law School
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Utah Court of Appeals Briefs
1998
State of Utah v. Steven Knight : Brief of Appellant
Utah Court of Appeals
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Original Brief Submi?ed to the Utah Court of Appeals; digitized by the Howard W. Hunter Law
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OCR, may contain errors.
Utah A?orney General: A?orneys for Appellee.
Shelden R. Carter; A?orney for Appellant.
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Recommended Citation
Brief of Appellant, State of Utah v. Knight, No. 981046 (Utah Court of Appeals, 1998).
h?ps://digitalcommons.law.byu.edu/byu_ca2/1642
**ifutwiirtryr
APPEALS
BRIEF
UTAH
DOCUMENT
KFU
50
DOCKET
NO.
J2H
OCi6
>
'°^
SHELDEN
R
CARTER (0589)
CARTER, PHILLIPS & WILKINSON
Attorney
for
Defendant
3325
N.
University
Ave., Ste. 200
Jamestown Square, Clocktower Bldg.
Provo,
Utah 84604
Telephone: 375-9801
IN THE UTAH COURT OF APPEALS
--000O000--
STATE OF UTAH,
Plaintiff,
vs.
STEVEN KNIGHT,
Defendant.
BRIEF OF APPELLANT
Case
No.
QfrOw6'<H
--000O000--
THIS
IS
AN APPEAL FROM
A
CRIMINAL CONVICTION ENTERED
IN
THE FOURTH JUDICIAL DISTRICT COURT FOR UTAH COUNTY, STATE OF
UTAH. THE HONORABLE GUY BURNINGHAM, TRIAL JUDGE.
PRIORITY NO.
2
ATTORNEYS
FOR
APPELLEE
UTAH
ATTORNEY
GENERAL
ATTORNEY FOR APPELLANT
SHELDEN
R
CARTER
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SHELDEN R CARTER (0589)
CARTER, PHILLIPS & WILKINSON
Attorney for Defendant
3325 N. University Ave., Ste. 200
Jamestown Square, Clocktower Bldg.
Provo, Utah 84604
Telephone: 375-9801
IN THE UTAH COURT OF APPEALS
--000O000--
STATE OF UTAH,
Plaintiff,
vs.
STEVEN KNIGHT,
Defendant.
--000O000--
THIS IS AN APPEAL FROM A CRIMINAL CONVICTION ENTERED IN
THE FOURTH JUDICIAL DISTRICT COURT FOR UTAH COUNTY, STATE OF
UTAH. THE HONORABLE GUY BURNINGHAM, TRIAL JUDGE.
ATTORNEYS FOR APPELLEE
UTAH ATTORNEY GENERAL ATTORNEY FOR APPELLANT
UTAH STATE CAPITOL SHELDEN R CARTER
SALT LAKE CITY, UTAH 3325 NORTH UNIVERSITY
SUITE 200
PROVO, UTAH 84604
BRIEF OF APPELLANT
Case No.
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TABLE OF CONTENTS
TABLE OF AUTHORITIES 2
STATUTORY & CONSTITUTIONAL 2
TABLE OF CASES 2
JURISDICTIONAL STATEMENT 3
STATEMENT OF CASE AND STANDARD OF REVIEW 4
DETERMINATIVE CONSTITUTIONAL PROVISIONS &
STATUTES 4
STATEMENT OF CASE 5
STATEMENT OF RELEVANT FACTS 5
SUMMARY OF ARGUMENT 10
DETAILS OF ARGUMENT 11
POINT ONE— AN UNSIGNED WARRANT IS NOT
ADMISSIBLE. IT MUST BE SIGNED BY THE
MAGISTRATE. 11
A. GOOD FArTH EXCEPTIONS
AND PROCEDURAL ERRORS 15
B.
FAILURE TO PRODUCE A SIGNED
WARRANT AT TRIAL 17
C. STATUTORY GUIDELINES 19
POINT TWO— THE SEARCH OF THE DEFENDANT'S
HOME IS INVALID BECAUSE IT WAS NOT
ISSUED UPON PROBABLE CAUSE 20
CONCLUSION 24
ADDENDUM 25
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PAGE 1
TABLE OF AUTHORITIES
STATUTORY OR CONSTITUTIONAL LAW
United States Constitution, Fourth Amendment 11
Utah Constitution, Article 1 §14 17,19
Utah State Code 77-23-201 11
U.C.A. § 57-18-2 13
77-23-9(1953) 15
U.C.A. 77-23-206 18
U.C.A. 77-23-207 18
U.C.A. 77-23-208 18
U.C.A. 77-23-209 18
TABLE OF CASES
State v. Anderton. 668 P.2d 1258 (Utah 1983) 15
State v. Babbell. 770 P.2d 987, 990 (Utah 1989)
1
9
State v. Espinoza. 723 P.2d 420 (Utah 1986) 20
State v. Droneburg. 781 P.2d 1303, at 1306 (1989) 20,21
Illinois v. Gates 462 U.S. 213 (1983) 19,20
People v. Hentkowsk. 154 Mich.App. 171, 397 N.W.2d 255 (1986).12
United States v. Glover. 104 F.3d 1570 (10th) 11
Mathews v. State. 934 P.2d 931 (Idaho 1997) 11
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PAGE 2
Mapp v. Ohio. 81 S.Ct. 1684 (1961) 16
Sliverthorne Lumber Co. v. United States. 251 U.S. 383, 40 S.Ct. 182
(1920) 22
State v. Larocco. 794 P.2d 460 (Utah 1990) 13,22
State v. Mclntire. 768 P.2d 970 (Utah App. 1989) 11
State v. Mapp. 170 Ohio St. 427, 431,166 N.E.2d 387, (1960) 23
State v. Potter. 860 P.2d 9S2, 954 (Utah Ct. App. 1993) 11
State v. Sessions. 583 P.2d 44 (1978) 16
State v. Singleton. 854 P.2d 1017, 1019 (Utah Ct. App. 1993) 11
State v. Weaver 817 P.2d 830 (Utah Ct. App. 1991) 20
State v. Williams. 57 Ohio St.3d 24, 565 N.E.2d S63 (1991) 12
United States v. Ceccolini. 435 U.S. 268, 280 (1978) 22
United States v. Mayer. 620F. Supp. 249 (D. Utah 1985), rev'd on
other grounds, 818 F.2d 725 (10th Cir. 1987) 13,14
Weeks v. United States. 232 U.S. 383, 34 S.Ct. 341 (1914) 22
Wong Sun v. United States. 371 U.S. 471, 488, 83 S.Ct. 407, 418
(1962) 22
JURISDICTION OF APPELLATE COURT
Authority for said appeal is found within the confine of Section
Rule 26 of the Utah Rules of Criminal Procedure; Utah State
Constitution Article I, Section 12; Utah Code Annotated Section 77-1
6(g);
and Section 78-2-2 (i) Utah Code Annotated, and the Rule of the
Utah Court of Appeals. 3
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STATEMENT OF ISSUES AND STANDARD OF REVIEW
Appellant seeks review of the trial court's ruling denying the
defendant's motion to suppress.
Defendant filed a motion to suppress challenging the search of
a 'storage unit' and of his 'home'. The defendant entered a "Sery" plea
on September 24, 1997. He reserved the right to appeal the trial
court's denial of his motion to suppress evidence. The State was
unable to produce a signed search warrant. The officer asserted that
the basis for entry into the 'storage unit' was the search warrant.
The fruits obtained in the 'storage unit' search were the basis for the
probable cause finding to enter his home. Defendant asserts the
search of the home falls under the 'fruit of the poisonous tree'
doctrine and the evidence found therein should be suppressed.
DETERMINATIVE CONSTITUTIONAL PROVISIONS. STATUTES
Article 1, sectionl4 (Unreasonable searches forbidden ~ Issuance of
warrant.):
The right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches
and seizures shall not be violated; and no warrant shall
issue but upon probable cause supported by oath or
affirmation, particularly describing the place to be
searched, and the person or thing to be seized.
4
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Utah State Code 77-23-201:
A search warrant is an order issued by a magistrate in the
name of the state and directed to a peace officer, describing
with particularity the thing, place, or person to be searched and
the property or evidence to be seized by him and brought
before the magistrate.
Utah State Code 77-23-207: The officer, after execution of the
warrant, shall promptly make a verified return of the warrant
to the magistrate and deliver a written inventory of anything
seized, stating the place where it is being held.
Utah State Code 77-23-209. The magistrate shall annex to the
depositions and affidavits upon which the search warrant is
based, the search warrant, the return, and the inventory. If he
is without authority to proceed further with respect to the
offense under which the warrant was issued, he shall return
them to the appropriate court of the county having jurisdiction
within 15 days after the return.
STATEMENT OF CASE
The appeal is from a final order of this Court entering judgment
against the defendant on December 19, 1998. A 'Sery" plea was made
reserving defendant's right to appeal. See Entry of Plea September
24,
1997. The trial court also entered a 'Certificate of Probable
Cause.' The essence of the appeal is to seek a review of the denial of
defendant's motion to suppress. Defendant sought the Court to
suppress evidence taken from the defendant's residence.
5
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STATEMENT
OF
RELEVANT FACTS
The defendant was convicted of the following:
'possession of marijuana with intent to distribute' in violation of
U.C.A. 58-37-8 and 'cultivation of marijuana' in violation of U.C.A. 58-
37-8.
Both third degree felonies.
The defendant filed a motion to suppress seeking suppression
of evidence located within his home. The officers herein searched
the residence of the defendant on December 22, 1995 which is the
basis for the charges. The home search was authorized by a signed
search warrant. The home search was based on a probable cause
finding relating to the contraband located in 'storage units' search by
police previously.
The search of the 'storage unit' was made based on the
reported authority of a search warrant. That warrant was never
signed or authorized by a proper Court. The search of the 'storage
unit' operated as the springboard to a probable cause finding to
search of the defendant's home by warrant. Excepting the contraband
located in the 'storage unit', no probable cause exist to search the
residence.
Defendant questions the legality of the storage unit search and
thereby the residential search.
The second search warrant (defendant's residence) was based
6
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Machine-generated OCR, may contain errors.
on an affidavit. The defendant draws attention the following
provisions and questions whether probable cause exists:
a. The officers served a warrant (search) on a storage unit at
140 West Center Street, Orem, Utah. This was based on
information from a confidential informant who reported that a
large quantity of marijuana (85 pounds) was located therein.
b.
The informant reported that the person renting the unit was
known as Steve and he lived at 172 North 920 West, Orem,
Utah. See paragraph 4 of affidavit. This was contradicted by
the lease or rental agreement for the storage unit.
c. Reports that Steven used a fictitious name to rent out the
storage unit noted above under a fictitious name of a person
who lived down the street from Steven. See paragraph 8.
d. The officers conducted a records check of the storage unit
and learned that the unit was listed to a Justin Dzinblenski as a
renter. Mr. Dzinblenski resided at 1106 West 180 North, Orem,
Utah.
e. The copies of the warrant and affidavit provided the
defendant for authority to search the 'storage unit' were
neither signed by the Court or the affiant.
f. No information is given as the basis for which the
information was obtained. The affidavits report only that the
informant relayed this data to the officers and the officers
believe him to be reliable, although various inconsistencies
exists throughout the affidavits.
7
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The Court: But neither are signed. So we need some evidence. I
guess,
to guess whether or not either were signed. (Transcript
Page 4 Lines 14- Page 5 Line 2)
(Further: Page 16 Line 1 through Line 10.)
The Court: I've got the unsigned affidavit for the storage unit.
Mr. Hadfield: We all have that.
The Court: I have the unsigned search warrant for the storage
unit.
Mr. Hadfield: I'm sure you have the stuff on the home. I
The Court: I have the signed warrant on the home dated the •
27 day of November, 1995, which is on the home, a 171 north
920 west Orem: is that correct.
I
i
Officer Russell Billings was called and testified that he was
asked to provide copies of the warrant and affidavit for the search
of the storage unit and he provided unsigned copies of the same. (T. 1
19 Lines 8-11). The officer believed that the warrants were signed.
(T.
19 Line 17.) His file only contained a copy of the affidavit and
the warrant and he asserted that the signed copies were returned to
the Court for filing. (T. 19 Line 22-25).
Apparently, the documents had not been returned to the Court
as provided under the statutory mandates of U.C.A. 77-23-207 &
77-23-209. The officer reported that the clerks were unable to find 1
anything in the file. (T. 20 Lines 10-11). The officer could not recall
which judge they went to obtain the Court's signature. (T.20 Lines
12-14) (T. 23 Line 16).
The officer reported that at times they have went to the Justice )
Court magistrates or even to a Municipal Justice Court to have
9 '
i
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'ficer reported -lie had "- 'he past,
v\ci ;<
:
usiice -»i
*
!.- IVikc lor Pleasant Gro\c ^i';el. \MS ,ua
authorizes ' ,u*pp»\e uiir.i!!"
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deaniiL ^
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. L\ • • A'
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ovnr il- ^ . j .it,. ; . icti icd
1 u-iii * c documents : ;.•,- i om
:
;.»• ^ .
:
. •-*
;VLordain,
L and
thereby preserving the integrity oi ih^ document.
SUMMARi oi \K(il Mi M
The evidence s,
•
e.* during ho
1
!, searches shon .1 v
•.,-pressed Both ti s
onnterjKsH protects person- i -m i .le.isonahlc
searches, I he state's failure n- produce .: M.UC \.ni am .••
•
vl
supports the demand I u -f
;
> •*• ••• -
v
r \i
IIIMOII.II
"«,
in in
ii
II!
t
hem
MLIHLU
waiiaul J .. g hecn ;, !c
Ihe prosecution could o.ii\ produce ,. unsigned wairam hk • o ice
failec "!--n ^;a!ut<»'-* auideline^ iui UK -<e< •
!
.*•
I ; t iiKtiTi,.
wiMHi
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•.
•;.
\wtii\m;
\<
a ..' iduii!t:u • * oin
L
e M,,I m the laih:. n-
comply
*
' statutory numdah-- »* -•• .--di e shcvn 'n . IM-:
I' . deler «..
I
• e.
Tli seizure of w
;
\ property b;y tl le i insigned \\ ariani piovided
additional . .J-: . i.dthomdi o^ ;a,|)
u
i
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zc i
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ii'b
•'
*
t
it
i
a coi lfident .inm manf to enier
10
Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU.
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the defendant's home and search the premises. Also, the
information received from the confidential informant failed to
establish the requisite probable cause.
The evidence found while searching of the defendant's
residence should be suppressed under the 'fruits of the poisonous
tree doctrine."
DETAILS OF ARGUMENT
1) The State failed to evidence that a proper court sign the
search warrant presented by the peace officers to the defendant an
the warrant was never produced at trial;
2) The officers did not follow the statutory mandates relating
to the proper return of the warrant and affidavits to the issuing
Court; and
3) There was no probable cause to approve the search of the
home.
POINT ONE
AN UNSIGNED WARRANT IS NOT ADMISSIBLE.
IT MUST BE SIGNED BY THE MAGISTRATE.
Both the Fourth Amendment to the United States Constitution
and the corresponding provision of the Utah Constitution, Article 1
§14,
contain a warrant requirement. The warrant requirement
protects individual privacy from unrestrained exercise of
governmental power. This warrant requirement is not to be taken
11
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Machine-generated OCR, may contain errors.
lighilv.
"A search •*• ^ei/ure ulii.l ' .nderiaken w \[\u Aai . * u
pursuan -v\r 'h r* -:
5
r
P
'laics,
v 1:. $
14.
i»: ihe « ia!)
(OustninHMJ
see. e.g., United States v. Glover. 104
F.3d i.vi i
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mi
ink i I
hi
.ill
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201:
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magiMrale MI tiic
name c! IIK- siaic and directed peace officer, describing
with particularity the thing, place. - \ • •
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he scai\
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e
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, tic1
the property or evidence to he sei/ed - -ui
hiomj.
:
before the •»• on'strate
*
': dr: ihK sCi !M
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' •< :*,-• • \ '• «M|/ ,• . cjea: ,C >;.• • a
i-.agiM'
requires u,., magistrate plnsKaiu Mgn me search wain.
\eri!\
n ithentici!\ : ^i". . : supports the ;, n^r- ii.ii
searc \\ u . .. .
*
;: -siaiL -. Potter. v
;
- \ -S
;
99;
}
Stale \.
Mclntire. (>S P.2d w 1 !.,: \ nwh. and Suite \. Singleton, 854
P.2d .;) - i-'
1
••• M ;
un
-
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.,..v
address
Uv
;
SSJie
/W
Methi-. unsigned sean •: . . \and. die issue IKIA lot
gone unnolucd ni othei lup^dici^wi^ *u , .
is ^ Mathews v.
Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU.
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State. 934 P.2d 931 (Idaho 1997). The Supreme Court held that due
to the judge's failure to sign a warrant to search a residence, in which
the murder weapon and shoes were discovered, the search warrant
was invalid. IdL at 934.
In Michigan, the state court of appeals reached the same
conclusion as the Idaho court. In People v. Hentkowsk. 154 Mich.App.
171,
397 N.W.2d 255 (1986), the court found that a search and
seizure made pursuant to a warrant not signed by a magistrate was
unconstitutional. In that case, the magistrate stated that he intended
to sign the warrant, still the court ruled that it was unconstitutional
"even though failure to sign was merely inadvertent." Id. at 258.
In State v. Williams. 57 Ohio St.3d 24, 565 N.E.2d S63 (1991),
the Supreme Court of Ohio ruled that evidence found during the
search of suspect's home made pursuant to a search warrant that
was not signed by the judge was required to be suppressed, as "the
warrant was void ab intio." I_dL Here the Court reasoned that a
signature requirement "is indeed the best device for safeguarding an
individual's rights as provided in the Fourth Amendment." IdL at 565.
In addition to the above case support, public policy does not
support the encouragement of police misconduct which could result if
searches based on unsigned warrants were declared valid. The
potential for abuse is clear. On the other hand, the police are not
overly burdened by a signature requirement. Those officers who
execute a search must limit their search to the dictates of the
13
Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU.
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w a r
1
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e
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warrant
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officer's iaiiiuc
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be sear,
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and
determine whethei
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documei
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presented
• :\
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the ev
iusionary rule, eviuence
».
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e
-:
/-ci-v consequent
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c
.
11.-
section
:
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State
v.
Larocco.
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460 (Utah 1990).
enntiuiun- ..•,:;*
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signature requirements
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Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU.
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guaranteed by the United States Constitution and the Constitution of
this state to be free from unreasonable searches and seizures should
not be granted any less protection than that afforded to property
rights.
To protect this constitutional right, it is necessary to require
the signature of the issuing magistrate on a search warrant prior to
the search.
A. GOOD FAITH EXCEPTIONS
AND PROCEDURAL ERRORS
The courts are aware that small technicalities can occur during the
issuance of a search warrant and therefore a "good faith" exception
exists for police officers who fail to follow the correct procedures in
obtaining a search warrant as outlined in § 77-23-204(2). However,
this exception only applies when the mistake is in "good faith" and
not when the possessor of the search warrant "should have known it
was patently invalid." United States v. Mayer. 620 F. Supp. 249 (D.
Utah 1985), rev'd on other grounds, 818 F. 2d 725 (10- Cir. 1987).
In Mayer, the Court dealt with a telephonically obtained
warrant wherein the procedures for obtaining such were not
followed per the dictates of statute. The Court found that under Utah
law, the police may obtain a telephonic warrant but the magistrate
must record the warrant as read to him and he must then signed
what he has recorded. In Mayer, the officers read nothing to the
magistrate. Nothing was signed and nothing was returned. The
magistrate did not record what was related to him. No duplicate
15
Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU.
Machine-generated OCR, may contain errors.
o i i g
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was ilo facially valid warram ->i: -Wid, ;:K: dficers e^nui haw iciied.
The Court found that this was ;.-
t t
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V\CJ.
CM
.i ••mk-i the "good lailh" exception
{
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s
proposition ;. accept dw
=
s experienced
:
.Miioivement agent
, ouhi, in ^ood faith, bciic\c thai ^h UIIMLMI^U ^caicli wairani was
.state v. Anderton, 668 P 2H 12^8 (Utah 1983- '"
w
a irgued
\ the deiense - , iuaeuiiah *• tailure t< • . *> '<K -waivh
wan\n.;
:
. .
'^en .;
:
;ij.....uv '" '
;
* !
k
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;
M> tendered the
uoeumeiii • * i
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d found thai '•
violation *• nothing moie
.
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K.
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u
noted that w- deiense fadeo *<• diov ;: •• i ., lailur. to VIMIIP.^
the statute affected defendant's substantial i ighls "i m , n
1
,
-L'Wipioiiii.siw
ijiv. iiiicLjin\ Hi. _._he documents.
Here,
the Stale purposes ' i. • unsigned wan.uii based m
:
- officer'- statement ! ai •• . • H<n\cw.M the dTicei •* *
• leea
:
u a: - •• •••• • • f
:
l
iiapsihiU' aidlhWi ^ .-. jp;'io\
v
- u.inaho de.mae
• :i: :Uv-;-_ matter^ o* oi \i' -^ geographical Minsdi. n* r o-e
i
'he
conduct. He failed to return ^v loci u i iei its b ; !:!:
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recordation and thereby preserving the integrity of the document.
Here, the substantial rights of the defendant are affected by an
unsigned warrant which we have simply the officer's testimony
alone to assure that they were in fact signed.
B.
FAILURE TO PRODUCE THE SIGNED WARRANT AT TRIAL
The State's failure to produce the unsigned warrant at trial
raises further suspicion as to its authenticity. In Mapp v. Ohio. 81
S.Ct. 1684 (1961), the Supreme Court reversed the Ohio Supreme
Court in a similar criminal case. In Mapp the police showed the
defendant a piece of paper "claimed to be a warrant." Id., 1686. But
at trial, "no search warrant was produced by the prosecution, nor
was the failure to produce one explained or accounted for." The state
court had held that even though the existence of the warrant was in
doubt, the fact that the evidence had not been "taken from the
defendant's person by brutal or offensive physical force against the
defendant" that the search was not unreasonable. State v. Mapp, 170
Ohio St. 427, 431, 166 N.E.2d 387, 389-90 (1960). The United State's
Supreme Court reversed, holding that the rule excluding illegally
seized evidence is of Constitutional origin and protected by the
Fourth Amendment. IdL at 1686 88. The Supreme Court stressed that
it is not the physical force that is offensive in an illegal search but
rather "the invasion of his indefeasible right of personal security,
personal liberty and private property." Id., 1687.
17
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The Supreme Court of Utah has held, in State v. Sessions. 583
P.2d 44 (1978), that when a warrant is not properly challenged at
trial it "must be presumed valid, and the evidence thereby obtained
was properly admitted." This is opposed to substantive issues
addressed here.
Here, considerable doubt as to whether there ever was any
warrant for searching the storage unit. No signed warrant was
offered into evidence, and the warrant's absence from the Court's
file is neither explained or otherwise accounted.
From the facts, the search of the storage unit appears to have
been without a proper warrant and therefore illegal under the Utah
Constitution and the Fourth Amendment Constitution of the United
States. Indeed, it would be a strange burden for the court to place
upon the accused the necessity to prove the existence of a signed or
unsigned search warrant when the accused never had possessed
control or had access to such a document.
It would run contrary to good public policy, by allowing the
police to engage in sloppy, unsupported searches. It would run
contrary to public policy to allow police to utilized unsigned
warrants or to allow sloppy accounting of said warrants and their
return to the judiciary.
It promote good public policy to forewarn police of the
necessity to maintain a proper accounting of the warrants and return
them to the judiciary for safekeeping and thereby allowing the
18
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accused and public access to such documents.
To provide otherwise seems to be far too comprehensive and
susceptible to abuse by police and prosecution authorities.
C. STATUTORY GUIDELINES
The legislature has provided for an accounting of the search
warrant and the actions of the police in confiscating property by
warrant. U.C.A. 77-23-206 requires that a receipt be left with the
person or property searched. U.C.A. 77-23-207 requires that police
make a verified return of the warrant to the magistrate and deliver a
written inventory of anything seized and state the place where it is
being held. The police are required to safely keep the property
confiscated. U.C.A. 77-23-208.
Upon return to the issuing magistrate, he/she is required to
annex the depositions and affidavits upon which the warrant is
based to the search warrant, the return, and the inventory. If said
magistrate is without jurisdiction, the magistrate shall forward onto
the proper court having jurisdiction within 15 days. U.C.A.
77-23-
209.
Thus police are accountable to the judiciary; allowing the
judicial supervision over the legal authorization to
enter into a person's home and property. The return of such
documents to the judiciary allows inspection by the accused or the
public. It preserves the integrity of the process and avoids
challenges as this.
19
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Clearly per the testimony of the officer, the procedures were
not followed to assure the proper preservation (integrity) of the
search warrant, the inventory, the affidavit or depositions. The clerk
of the court could find no evidence of their filing. No records were
found to substantiate the magistrate's signature and the legality of
the search.
Obviously, when the integrity of the warrant is challenged, the
filing of such documents with the Court would resolve such doubts.
Any presumptions should be made against the person charged with
the burden of preserving the documents integrity.
POINT TWO. THE SEARCH WARRANT OF THE
DEFENDANT'S HOME IS INVALID BECAUSE IT IS
BASE ON AN AFFIDAVIT LACKING PROBABLE
CAUSE
Under Article 1, § 14 of the Utah Constitution searches not
supported by probable cause are forbidden. The article states that a
warrant will only be issued upon "probable cause." Before issuing a
search warrant, a neutral magistrate must review an affidavit
containing specific facts sufficient to support a finding of probable
cause. State v. BabbelL 770 P.2d 987, 990 (Utah 1989). The
magistrate must not merely ratify the bare conclusions of others.
Illinois v. Gates 462 U.S. 213 (1983). The magistrate's task is to
decide "whether, given all the circumstances set forth in the affidavit
20
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before him, including the 'veracity' and 'basis of knowledge' of
persons supplying hearsay information, there is a fair probability
that contraband or evidence of a crime will be found in a particular
place." Gates. 462 U.S. at 238.
Utah courts, in determining whether probable cause has been
established, rely on the "totality of the circumstances doctrine"
established in Gates. See, e.g. State v. Weaver 817 P.2d 830 (Utah Ct.
App.
1991). This standard looks at "the totality of the circumstances
and holds that the affidavit should be viewed in its entirety in a
common sense fashion." State v. Espinoza. 723 P.2d 420 (Utah 1986).
Utah courts stress that although veracity, reliability, and basis of
knowledge of confidential informants are no longer strict
prerequisites for establishing probable cause, "they are still relevant
considerations, among others, in determining the existence of
probable cause under 'a totality-of-the-circumstances"' test. State v.
Droneburg. 781 P.2d 1303, at 1306 (1989).
In the subject case, the confidential informant informed the
officers that the person renting the unit was known as "Steve" and
that he lived at "172 North 920 West, Orem, Utah." However, when
the officers conducted a records check of the storage unit they
learned that the unit was listed to a "Justin Dzinblenski" who resided
at " 1106 West 180 North, Orem, Utah." Under a "common sense"
"reasonable person" test this erroneous information should have
caused the police officers to question their information. Espinoza. 723
21
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P.2d at 421.
This very fact that the informant's information contradicted the
lease or rental agreement of the storage unit raises grave doubts as
to "probable cause." Although the marijuana in the storage shed
corroborates some of the informants information, "it certainly was
not substantial, independent information that would establish
probable cause." See Droneburg, 781 P.2d at 1306. Partial
corroboration of deficient information does not transform the
underlying facts and circumstances into probable cause. IcL
In the subject case, defendant asserts after it was determined
that "Steve" was not the lessee of the storage shed and thereby the
warrant's remaining content was "insufficient to establish probable
cause" and the warrant should be voided.
Secondly, evidence seized from the defendant's residence is not
admissible when the only probable cause used to produce the
residential search warrant was obtained from the illegal storage unit
search.
Evidence obtained from unlawful searches is not admissible in the
state of Utah under the exclusionary rule. State v. Lacrocco. 794 P.2d
460 (199). The Supreme Court has held that "evidence seized during
an unlawful search could not constitute proof against the victim of
the search." Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341 (1914).
This exclusionary prohibition extends to direct as well as indirect
products of such invasions. Sliverthorne Lumber Co. v. United States.
22
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251 U.S. 383, 40 S.Ct. 182 (1920). The Court has held that the
Government might not make use of information obtained during an
unlawful search to subpoena from the victims the very documents
illegally viewed. IcL At 392.
Under the "fruit of the poisonous tree" doctrine, information that
would not have come to light except for illegal police actions can not
be used as evidence. Wong Sun v. United States. 371 U.S. 471, 488,
83 S.Ct. 407, 418 (1962). This principle that evidence obtained as the
result of an unlawful search and seize should not be admitted at trial
has been adopted in Utah. State v. Lacrocco, 794 P.2d 460, 471
(1990).
"Fruits of the poisonous tree" must be exclude despite their
probative value, unless the facts of the case justify a finding of
sufficient attenuation. United States v. Ceccolini. 435 U.S. 268, 280
(1978).
Furthermore, the Supreme Court has held that evidence
obtained by an unconstitutional search is inadmissible, in state
prosecutions, under the Fourteenth Amendment. Mapp, 367 U.S. at
655.
The Mapp Court stated that search and seizure "evidence
secured by official lawlessness in flagrant abuse of a basic right,
reserved to all persons as a specific guarantee against that very same
unlawfill conduct" was inadmissible. Id. Thus, because the state used
evidence found in the illegal search of the storage unit to secure a
warrant to search defendant's residence, the evidence seized from
the residence must also not be admitted. The state cannot use the
"fruits"
of an illegal search to justify further searches.
23
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CONCLUSION
Physical entry into the home is the chief evil against which the
wordings of the Fourth Amendment/Art. I Section 14 is directed.
Under the guise of tainted memory, the trial court ignored the
mandates and protections afforded by the Fourth Amendment and
Art. I Section 14 of the Utah State Constitution.
As a matter of public policy, the Courts should not allow police
to invade homes or property unless a signed warrant justifies the
entry. Further, the police/prosecution should be required to make a
proper accounting of such an invasive power to the judiciary. If the
Court simply looks the other way and sweeps such violations away
under a 'good faith' exception or 'ministerial act' provision, intrusive
acts as entering our homes shall not be deterred but promoted.
The police and prosecution's task is simple. First, get a signed
warrant. Secondly, report back to the Court and file the warrant. If
you do not, your case will fail.. Otherwise, we promote sloppy and
unrestrained police conduct where officers can cured such errors by
taking the stand and remembering that the warrant must have been
signed.
DATED this \\ day of NOVEMBER, 199&\
SlMJDENRCAipER
Attorney for Defendant
24
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ADDENDUM
Attached our the following:
1.
Unsigned warrant with affidavit to search storage unit.
2.
Affidavits and Warrants to search home.
3.
COURT RULING ON MOTION TO SUPPRESS
MAILING CERTIFICATE
I HEREBY CERTIFY that I personally mailed a true and correct
copy of the foregoing on this day of })&*•£<*— , 1998,
by first-class, U.S. Mail, postage prepaid to the following:
Utah Court of Appeals (8 copies)
230 S. 500 East, Suite 400
Salt Lake City, Utah 84102
Attorney General for the State of Utah (4 copies)
Utah State Capitol
Salt Lake City, Utah
Shelde
25
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KAY BRYSON
UTAH COUNTY ATTORNEY
,~;\ -
100 EAST CENTER, SUITE
2100 ""*"" ~
PROVO, UTAH 84601
PHONE:
(801)
370-8026
J^J
FOURTH CIRCUIT COURT
UTAH COUNTY
STATE OF UTAH,
Plaintiff,
vs.
SEARCH WARRANT
Criminal No.
A NARCOTICS
INVESTIGATION
1380 South University Ave, Room #220
PROVO, UTAH
Defendants
#
J^MSlK
THE STATE
OF
UTAH
TO ANY
PEACE OFFICER
OF THE
STATE
OF
UTAH:
Magistrates
It has
been established
by
oath
or
Endorsement affirmation made
or
submitted
to me
this
day
of
December,
1995
that there
is
probable cause
to
believe
the
following:
- 1. The
property described below:
was unlawfully acquired
or
unlawfully possessed;
has been used
or is
possessed
for the
purpose
of
being used
to
cormit
or
conceal
the
commission
of
an offense;
or
is evidence
of
illegal conduct.
2.
The
property described below
is
most probably
located
at the
premises also
set
forth below.
3.
The
person
or
entity
in
possession
of the
property
is
a
party
to the
alleged illegal conduct.
4. That this warrant
may be
served without notice
of
intent
or
aurhoriry
to
search,
due to the
fact that
the property
to be
searched
for may be
easily
secreted, disposed
of
#
or
destroyed
if
notice
of
intent
to
search
is
given. Officers
are
aware that
Steven Knight
is
known
to
carry
a
handgun
on a
regular basis based
on
information from
a
reliable
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Confidential Informant.""
5. That this warrant may be served in the night time
hours as the delay of this search would result in
the distribution of the illegal narcotics into the
community. Furthermore, your affiant is aware that
Steven Knight conducts most narcotic transactions
during the late evening hours.
NOW, THEREFORE, YOU AND EACH OF YOU, are hereby directed to conduct
a search of the residence described as a single-family dwelling
located at 172 North 920 West, Orem, Utah, Utah County. It is a
two-story home, with gray aluminum siding. The residence faces
west on
92 0
West and has the numbers "172" posted on a support beam
at the front entrance of the home. There is an attached two-car
garage. Your are also hereby directed to conduct a search of
curtilage, attached or unattached, to the home.
You are also hereby directed to search vehicles, and the person of
any individuals present at the time of the execution of this
warrant, including vehicles belonging to those individuals.
You are directed to search for the presence of the following
property: controlled substances, together with associated
paraphernalia, including items used or capable of being used for
the storage, use, production, cr distribution df marijuana and
other controlled substances.
IF YOU FIND THE DESCRIBED PROPERTY, you are directed to bring
the property forthwith before me at the above Court or to hold the
same in-your possession pending further order of this court. You
are instructed to leave a receipt for the property with the person
in whose possession the property is found or at the premises where
the property was located. After execution of the warrant you shall
promptly make a verified return cf the warrant to me together with
a written inventory of any property seized identifying the place
where the property is being held.
THIS WARRANT MAY BE SERVED AKY TIKE DCTRING THE NIGHT TIME
HOURS.
THIS WARRANT MAY BE SERVED WITHOUT NOTICE OF INTENT OR
AUTHORITY OF PURPOSE.
THIS WARRANT MUST BE SERVED FITHIN TEN (10) DAYS FROM THE DATE
OF ISSUANCE.
DATED this day cf December, 1995, , .M.
y.
MAGISTRATE
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}AS^(kh^
KAY BRYSON
UTAH COUNTY ATTORNEY
100 E. CENTER, SUITE 2100
PROVO, UTAH
PHONE:
(801) 370-8026
•/~"-*«
/•
-*-\
\ ,*
"
FOURTH CIRCUIT COURT, STATE OF UTAH
UTAH COUNTY
STATE OF UTAH
Plaintiff,
-vs-
A NARCOTICS
INVESTIGATION
PROVO, UTAH
Defendants
AFFIDAVIT IN SUPPORT OF
A SEARCH WARRANT
Criminal No.
STATE OF UTAH
COUNTY OF UTAH
:ss.
)
Comes now Russ Billings, having been duly sworn, who deposes
and states as follows:
1. Your affiant is a peace officer for the State of Utah,
Utah County, Provo Police Department and has been so employed since
July 1, 1990. Your affiant is currently assigned to the Special
Investigative Services Bureau. That your affiant has received
training in the recognition of controlled substances, including
both undercover work and surveillance and controlled transactions.
Your affiant is familiar with the appearance and methods of
storage, use, packaging and distribution of controlled substances.
Your affiant has had training through POST academy in basic
narcotics investigation and has also received training in Arizona
in an advanced narcotics school.
2.
On 12-21-95 officers from NET and Provo Police served a
search warrant in Orem, Utah at
14 01
West Center Street, based on
information from a Confidential Informant (CIII) that a large
quantity of marijuana would be contained within the storage unit.
3. Information given by the Confidential Informant (CI#1)
was that the storage unit contained 85 pounds of marijuana. When
officers entered thic ci-nrarr<
r A n«^
*
^ii%>i «/<r +»V»^ —.«
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4.
This same Confidential Informant (CI?1) also gave your
affiant information that the individual who rented the storage unit
was known to him only as Steve. Your affiant received information
from this Confidential Informant that Steve (last name unknown)
lives at 172 North 920 West in Oren, Utah in a two-story gray home.
5. Your affiant checked with Orem Police Department, as well
as City Utilities, and received information that the individual
described to your affiant by the Confidential Informant is Steven
Knight. Officers are familiar with an individual named Steven
Knight who has had several dealings with officers in the past.
Your affiant received information from Orem Police Department that
Steven Knight, DOB 11-24-77, has prior records with Orem Police
Department at the above-listed address. Furthermore, driver's
license information returns to Steven Knight at 172 N. 920 W.,
Orem, Utah. Utilities information from Orem City lists this
residence in the name of Howard and Laura Knight, whom your affiant
found from Orem Police Department to be the legal guardians of
Steven Knight.
6. A second Confidential Informant (CI#2) advised officers
that Steven Knight is receiving large quantities of marijuana from
another individual in Utah County and sometimes receives/gives
payment for marijuana with guns. Your affiant received information
on 12-21-95 that individuals involved with a marijuana transaction
on this date were in possession of a handgun. This marijuana buy
lead to the information to obtain the search warrant for the
storage unit mentioned in #2 and 3 above. Furthermore, zhis
narijuana buy took place during the night time hours, as your
affiant is aware that Steven Knight conducts most narcotic
transactions during the late evening hours.
7.. Confidential Informant #1 advised your affiant that
Steven Knight has been dealing marijuana for several years and is
often in possession of large quantities on his person and at his
residence. Your affiant also has information that Steven Knight
transports large quantities of marijuana in his vehicle. The
Confidential Informant also advised your affiant that Steven Knight
rents storage units on a regular basis under fictitious names to
store large quantities of marijuana within the units. Steven
Knight is known to change storage units on a regular basis, to
avoid discovery by police.
8. CI#1 told your affiant that Steven Knight rented the
storage unit where the search warrant was served in #2 and 3 above
under a fictitious name of an individual that use to live just down
the street from Steven Knight. After execution of the search
warrant at the storage units at 14
01
W. Center in Orem, a records
check with management of those unirs listed Jusrin Dzinblenski as
the renter of said storage unit with an address of 1106 West 180
North, Orem, Utah. This address is located just west of Steven
Knight's residence.
9. That your affiant belie%*es confidential informant #1 to
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be reliable in that information about the storage units listed in
items #2 and 3 above lead to the recovery of six pounds of
marijuana by NET and Provo Police officers* That the informant has
given no information which has proved to be false. That the
Confidential Informant freely gave officers the information
regarding the marijuana contained within the storage unit at 1401
W. Center, Orem, Utah.
10.
The amounts of marijuana imply possession of amounts for
use and distribution. Such amounts of marijuana are typically
packaged in baggies of one ounce or less, quite small in volume.
Such baggies can quickly or easily be hidden in clothing or
destroyed if notice is given of intent to search. Moreover, it is
my experience that persons with a potentially violent disposition
may react with violence when confronted with a search. Your
affiant believes that Steven Knight may have a potentially violent
disposition when confronted by officers in that he advised your
affiant's Confidential Informant that he carries a gun on a regular
basis.
Entry without notice allows officers to secure the
residence and effectively preserve officers safety and evidence.
Furthermore, entry into the residence under the veil of darkness
will greatly preserve officer safety and preservation of evidence.
11.
Marijuana and Paraphernalia are often kept in vehicles.
Failure to search the person of individuals present, and vehicles
located at the residence at time of the execution of this warrant,
as well as the Defendant's personal vehicles will likely result in
officers missing important evidence. It is your affiant's
experience that most of the people encountered with the unlawful
use of marijuana also occasionally sell, sometimes paying for their
use with profits from sales. It is so common as to be the rule,
rather
"
than the exception, to find evidence related to the
distribution of narcotics whenever marijuana is located within a
residence.
12.
The residence to be searched is more particularly
described as a single-family dwelling located at 172 North 920
West, Orem, Utah, Utah County. It is a two-story home, with gray
aluminum siding. The residence faces west on
92 0
West and has the
numbers "172" posted on a support beam at the front entrance of the
home.
There is an attached two-car garage.
13.
Your affiant expects to locate additional controlled
substances in the residence together with associated paraphernalia
including items used or capable of being used for the storage, use,
production, or distribution of controlled substances.
Wherefore, your affiant requests that a warrant be issued by
this court authorizing the search of the residence, the curtilage
(attached or unattached) together with the person of all
individuals present within the residence, and all vehicles located
at said residence at the time of search for presence of controlled
substances together with associated paraphernalia including items
used or capable of beincr used for the storaae. use. nrnHnrf^n nr
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^W^iVfe
distribution of marijuana and other controlled substances to be
executed without notice of intent or authority during the night
time hours.
Dated this day of December, 1995 .M.
AFFIANT- Russell Billings
Officer/Special Investigations
Subscribed and sworn before me on the day of
December 1995, , .M. *.
MAGISTRATE
'•£;-
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KAY BRYSON
UTAH COUNTY ATTORNEY
100 E. CENTER, SUITE 2100
PROVO, UTAH
PHONE:
(801) 370-8026
FOURTH CIRCUIT COURT, STATE OF UTAH
UTAH COUNTY
STATE OF UTAH
Plaintiff,
-vs-
AFFIDAVIT IN SUPPORT OF
A SEARCH WARRANT
A MATTER OF A NARCOTICS : Criminal No.
INVESTIGATION
SELF STORAGE USA
1401 WEST CENTER STREET,
STORAGE UNITS #172, 173, AND 175
OREM, UTAH
Defendants :
STATE OF UTAH )
COUNTY OF UTAH )
Comes now DEVON JENSEN, having been duly sworn, who deposes
and states as follows:
1. I am a police officer with the Provo Police Department and
currently assigned to the Special Operations Bureau. As an officer
I have participated in operations involving the undercover purchase
of narcotics and/or the arrest of person for substance abuse
related violations. I have experience working undercover providing
first hand experience with narcotics trafficking.
2.
That on 12-21-95 your affiant received an anonymous tip
that 85 pounds of marijuana was being kept in storage units #172,
173,
and 175 at Storage USA, 1401 West Center St., Orem, Utah,
3- That your affiant, along with NET narcotics officers and
Deputy Adams of the Utah County Sheriff's Office and his dog Rudy,
did go to Storage USA at 1401 West Center in Orenw That Deputy
Adams deployed his police service dog, Rudy, searching the air
currence in and about the storage units. Deputy Adams and Rudy
began the pass of the storage units at the west end of the storage
complex, walking eastbound by each storage unit. Units #172, 173,
and 175 are in the center of the storage complex. As police
service dog Rudy passed bv c^nT-arro im^ JM-»B ^..^--
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i
fc>
presence of a controlled substance by alerting on the storage unit
door in Rudy's usual manner. As Deputy Adams and Rudy proceeded
eastbound by storage unit #173 Rudy again alerted on the storage
unit door and also on storage unit #172. In the usual manner he
indicates to Deputy Adams the presence of a controlled substance.
4.
That after Rudy alerted on the three above-listed storage
units (172, 173, and
175),
Deputy Adams walked Rudy east to the end
of the complex. No other units were alerted on. Deputy Adams then
deployed police dog Rudy in a second search off lead allowing the
dog to perform the search on his own, Rudy went from the east
farthest unit in the complex and proceeded west without alerting.
When Rudy got to storage unit #173, he immediately gave a strong
alert on this storage unit, indicating the presence of a controlled
substance.
5. That your affiant found the storage units to have common
vents that pass through each unit, therefore allowing air currents
in one storage unit to send the odor of controlled substances to
the adjacent storage units.
6. Rudy has been trained as a police dog with specific
training in the detection of controlled substances. He has been
trained to exhibit "alerting" type behavior when he detects the
odor of controlled substances, Rudy began service as a police dog
with training with handler Grant Ferre at the Alabama Canine Law
Enforcement Training Center in 1989, Rudy has worked as a police
dog since that time, participating in hundreds of narcotics
searches and police encounters. In 1992 he attended the Adlerhorst
K-9 Course in Riverside California. Rudy has demonstrated
consistent reliability in detecting controlled substances.
7.
That the address 1401 West Center Street in Orem, Utah is
a storage unit complex named Storage USA. The storage complex sits
on the south side of Center Street, west of 1-15. Storage units
#172,
173 and 175 are located in the center of the complex and face
south. They have orange garage-type doors with the numbers of each
unit labelled above the door. Each unit has private pad locks.
8. Due to the fact that this is a business that operates
during normal business hours, your affiant feels it would be in the
best interest of the public that officers search these units during
the night time hours. Furthermore, officers are conducting twenty
four hours surveillance on these units in order to preserve
evidence. That accompanied with the fact that they are storage
units,
night time service would be less intrusive than a day time
service of this warrant.
9. Your affiant expects to locate additional controlled
substances, specifically but not limited to, marijuana, and
associated paraphernalia and any other items associated with the
distribution, use, manufacture, or possession of illegal controlled
substances«
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10 .
Your affiant respectfully requests that the manager or
owner of Storage USA turn over to police any documentation on the
storage units to be searched in order for police to establish
ownership/rental of said units.
Wherefore, your affiant requests that a warrant be issued by
this Court authorizing the search of storage units 172, 173 and 175
of Storage USA, 1401 West Center, Orem, Utah, Utah County for
presence of controlled substances together with associated
paraphernalia including items used or capable of being used for the
storage,
use, production or distribution of marijuana and other
controlled substances to be executed in the night time hours.
Dated this day of December 1995 .M.
AFFIANT-
Devon Jensen
Special Investigations
Subscribed and sworn before me on the day of
September 1995, , .M.
MAGISTRATE
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KAY BRYS0N
UTAH COUNTY ATTORNEY
100 EAST CENTER, SUITE 2100
PROVO, UTAH 84601
PHONE:
(801) 370-8026
FOURTH CIRCUIT COURT
UTAH COUNTY
STATE OF UTAH,
Plaintiff,
vs.
: SEARCH WARRANT
A MATTER OF A NARCOTICS :
INVESTIGATION
SELF STORAGE USA
1401 WEST CENTER STREET,
STORAGE UNITS #172, 173, AND 175
OREM, UTAH
Defendants
THE STATE OF UTAH TO ANY PEACE OFFICER OF THE STATE OF UTAH:
Magistrate's It has been established by oath or
Endorsement affirmation made or submitted to me this
day of December, 1995 that there is
probable cause to believe the following:
1. The property described below:
was unlawfully acquired or unlawfully possessed;
has been used or is possessed for the purpose of
being used to commit or conceal the commission of
an offense; or
is evidence of illegal conduct,
2.
The property described below is most probably
located at the storage units set forth below.
3. The person or entity in possession of the property
is a party to the alleged illegal conduct.
>
4. Due to the fact that this is a business that
operates during normal business hours, your affiant
f«<=»ic; -n- urtuld be in the best interest of the
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public that officers search these units during the
night time hours. Furthermore, officers are
conducting twenty four hours surveillance on these
units in order to preserve evidence. That
accompanied with the fact that they are storage
units,
night time service would be less intrusive
than a day time service of this warrant.
NOW, THEREFORE, YOU AND EACH OF YOU, are hereby directed to conduct
a search of storage units #172, 173 and 175 located at 1401 West
Center, Orem, Utah, Utah County which is more particularly
described as a storage unit complex named Storage USA. The storage
complex sits on the south side of Center Street, west of 1-15.
Storage units #172, 173 and 175 are located in the center of the
complex and face south. They have orange garage-type doors with
the numbers of each unit labelled above the door. Each unit has
private pad locks*
You are directed to search for the presence of the following
property: additional controlled substances, specifically but not
limited to, marijuana and any other items associated with the
distribution, use, manufacture, or possession of illegal controlled
substances.
IP YOU FIND THE DESCRIBED PROPERTY, you are directed to bring
the property forthwith before me at the above Court or to hold the
same in your possession pending further order of this court. You
are instructed to leave a receipt for the property with the person
in whose possession the property is found or at the premises where
the property was located. After execution of the warrant you shall
promptly make a verified return of the warrant to me together with
a written inventory of any property seized identifying the place
where the property is being held. Due to the serious
hazardous/contaminated materials, chemicals, etc.involved with
clandestine laboratories, you are ordered to destroy those items
after samples have been obtained.
THIS WARRANT MAY BE SERVED WITHOUT GIVING NOTICE OP
INTENT OR AUTHORITY•
THIS WARRANT MUST BE SERVED WITHIN TEN (10) DAYS FROM THE DATE
OF ISSUANCE*
DATED this day of December 1995, , ,M,
MAGISTRATE
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I
M.k
1
IN THE FOURTH DISTRICT COURT IN AND FOR UTAH COUNTY
STATE OF UTAH
STATE OF UTAH,
Plaintiff,
vs.
STEVEN H. KNIGHT and
SPENCER KNIGHT,
Defendants.
Case # 961400271
961400272
RULING ON DEFENDANTS'
MOTION TO SUPPRESS
This matter comes before the Court on Defendants' Motion to Suppress. A search I
warrant for the residence of the defendants was signed by Judge Fred D. Howard in
December, 1995. When the search warrant was executed at the residence on December 22, '
1995,
controlled substances and paraphernalia were found. This formed the basis for the I
charges filed against the defendants. On March 24, 1997, a Suppression Hearing was held
and arguments were heard by the Court. On July 11, 1997, an additional Hearing was held
and arguments regarding the validity of a previous search warrant executed on a storage unit I
and the defendants' standing to object to that search, were heard by the Court. The Court has •
reviewed all evidence, memoranda and the file, and being fully advised in the premises,
makes the following: j
i
i
I
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RULING
Reliability of Confidential Informant
Defendants argue that the evidence should be suppressed because the reliability of the
confidential informant was not sufficiently established. The reliability of information received
from informants is one of the factors considered when determining the sufficiency of an
affidavit in support of a search warrant. A search warrant may be issued when, under the
totality of the circumstances, the information given by multiple confidential informants is
sufficient to establish probable cause. State v. Singleton. 851 P.2d 1017 (Utah App. 1993).
In the instant case, the affidavit in support of the search warrant for the residence of
the defendants cites information received by the affiant from two confidential informants. It
states that on December 21,1995, officers served a search warrant on a storage unit in Orem,
Utah. This search was based on information from a Confidential Informant (CI#2) that a
large quantity of marijuana (85 pounds) would be contained within the storage unit. When
the officers executed the warrant, they located six pounds of marijuana. The difference in the
amount of marijuana found does not make the confidential informant unreliable. Six pounds
is still a large amount and while there is a difference in the amounts, it is not a significant
distinction to render the information unreliable. Thus, the information from CI#2 regarding
the storage unit proved to be reliable.
Officers were given additional information from CI#2 including information that the
person who rented the storage unit was known to him only as "Steve" and that this person
had been dealing marijuana for several years and is often in possession of large quantities on
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his person and at his residence. Another confidential informant (CI#1) gave the affiant
information that "Steve" lived at 172 North 920 West in Orem,Utah in a two-story gray
home. The affiant conducted a sufficient amount of verification both with the Orem Police
Department, the utilities company, and the driver's license division to determine that the
individual described to him by the confidential informant was Steven Knight.
The affiant had a great deal of information regarding the defendants from confidential
informants in this case. The determination of probable cause by Judge Howard did not turn
solely on the fact that the storage unit had been searched and that marijuana had been found
there.
Search of the Storage Unit
In its Response to Defendants' Motion to Dismiss, the State asserts that Defendants
do not have standing to challenge the search of the storage unit. In their Additional
Memorandum in Response to the May 14, 1997 Hearing, Defendants state that they have
never asserted that the storage unit was not rented by them and have relied on the State's
arguments and the probable cause affidavit to set forth their standing. At the July 11, 1997
Hearing, the Court, without ruling en the issue of standing, allowed Defendants' attorney to
assert standing on behalf of his clients for the purposes of that hearing only. Defendants did
so and argued that they have never been supplied with a signed copy of the search warrant
executed on the storage unit. Defendants therefore question whether the warrant was ever
signed by a magistrate before being executed. At this Hearing, Officer Russell Billings
testified that he participated in going to the magistrate and having the warrant approved and
s
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signed. He further testified that he can, at this time, be sure this warrant was signed because
he remembers this case and because he has never served a warrant that was unsigned.
CONCLUSION
The Court finds that the affiant sufficiently verified the information given to him by
the confidential informants and given the totality of the circumstances, the Court finds that
the infonnation is reliable. Therefore, there was a basis for Judge Howard's determination of
probable cause based on the information provided by the confidential informant and the
affiant's verification of that information.
Based on the testimony of Officer Billings, the Court finds that there was a valid
search warrant prepared for the search of the storage unit. Therefore, the Motion to Suppress
is DENIED.
Dated this 2j/ day of July, 1997.
cc:
Shelden Carter, Esq.
Phillip W. Hadfieid, Esq.
BtfRNIN^
8
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