State of Utah v. Bethers

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Kathy M. Bethers,
Defendant and Appellant.

AMENDED MEMORANDUM DECISION(1)
(Not For Official Publication)

Case No. 981649-CA

F I L E D
December 16, 1999
  1999 UT App 372 -----

Fourth District, Provo Department
The Honorable Lynn W. Davis

Attorneys:
Margaret P. Lindsay, Provo, for Appellant
Jan Graham and Catherine M. Johnson, Salt Lake City, for Appellee

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Before Judges Wilkins, Bench, and Orme.

BENCH, Judge:

Appellant contends that the trial court erred in denying her motion to suppress because the warrantless search and seizure of her property did not fall within the "plain view" exception to the warrant requirement of the Fourth Amendment. We agree.

"A seizure is valid under the plain view doctrine if (1) the officer is lawfully present, (2) the item is in plain view, and (3) the item is clearly incriminating." State v. Shepard, 955 P.2d 352, 357 (Utah Ct. App. 1998). In this case, the cylinder was not "clearly incriminating" because the officers did not have "'probable cause to associate [it] with criminal activity.'" State v. Holmes, 774 P.2d 506, 510 (Utah Ct. App. 1989) (citations omitted). Indeed, the trial judge stated that during his years on the bench, handling "literally thousands of drug cases," he has never seen a cylinder like this "that would be typical of hiding drugs."

The trial judge nonetheless determined that the search was justified because the cylinder was found near a butane torch under the bed and a spent shell casing on the bed. The evidence, however, does not indicate that the officers associated the cylinder with illegal drugs or the shooting.

Officer Nielsen testified that he found "items like [the cylinder] associated frequently with drug paraphernalia" and "[m]any times, people will secret property or have [drugs] inside objects like that." However, he also testified that drugs can be hidden in just about any container imaginable, and when he opened the cylinder, he "wasn't certain what it was related to other than it was something that was a new arrival there since the bed had been made up." Additionally, when asked whether there was anything in the bedroom or house that would suggest drug activity, he responded, "I don't recall anything standing out other than when I opened the cylinder there were drugs and paraphernalia." Officer Bean testified as to the butane torch being possible drug paraphernalia, but not the cylinder. Officer Cullimore did not testify at the suppression hearing, but his testimony at the preliminary hearing indicated that he only saw the cylinder after it had been opened, with the drugs sitting next to it. The officers therefore may have been aware of the butane torch and its possible connection to drug activity. However, none of the officers testified that the cylinder was associated in any way with the torch. Similarly, there was no testimony at any stage of the proceedings indicating that the cylinder was associated with the shooting.

It was not until Officer Nielsen opened the cylinder that contraband was revealed. "There was nothing otherwise inherently incriminating about the object." Id. The nature of the cylinder did not give the officers "'probable cause to associate [it] with criminal activity'" regardless of its proximity to the butane torch or spent casing. Id. (citations omitted). Thus, its contents should have been suppressed. See id. at 510-512.

Accordingly, we reverse and remand with instructions that the evidence should be suppressed.
 
 
 
 

______________________________
Russell W. Bench, Judge

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WE CONCUR:
 
 
 
 

______________________________
Michael J. Wilkins,
Presiding Judge
 
 
 
 

______________________________
Gregory K. Orme, Judge

1. This Amended Memorandum Decision corrects the name of the trial judge involved in the suppression hearing, and replaces the Memorandum Decision issued on December 2, 1999.