State of Utah v. McDonald

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State of Utah,
Plaintiff and Appellant,

v.

Alan Val McDonald,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000549-CA

F I L E D
October 12, 2001 2001 UT App 292 -----

Eighth District, Vernal Department
The Honorable John R. Anderson

Attorneys:
Michael L. Humiston, Heber City, for Appellant
Mark L. Shurtleff and Christopher D. Ballard, Salt Lake City, for Appellee

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Before Judges Greenwood, Billings, and Orme.

BILLINGS, Judge:

Defendant Alan Val McDonald conditionally pleaded no contest to Possession or Use of a Controlled Substance, a third degree felony, in violation of Utah Code Ann. § 58-37-8(2) (1998), and Possession of a Dangerous Weapon by a Restricted Person, a third degree felony, in violation of Utah Code Ann. § 76-10-503 (1999). Defendant reserved the right and now appeals the denial of his motion to suppress evidence obtained in a search of his residence.

Defendant argues the evidence should be suppressed because the search warrant was based entirely upon evidence obtained in an illegal administrative traffic checkpoint search (roadblock). Absent an exception to the exclusionary rule, evidence obtained as the result of a roadblock search which violates the Fourth Amendment of the United States Constitution or Article I, Section 14 of the Utah Constitution, must be excluded as "fruit of the poisonous tree." See, e.g., State v. DeBooy, 2000 UT 32,¶33, 996 P.2d 546; State v. Deherrera, 965 P.2d 501, 505 (Utah Ct. App. 1998). Additionally, unconstitutionally obtained evidence may not serve as probable cause for a warrant. See State v. Harris, 671 P.2d 175, 177, 181 (Utah 1983).

The record does not contain evidence of an illegal roadblock.(1) In his motion to suppress, Defendant asserted the Fourth District Court invalidated and suppressed evidence obtained in the roadblock. The State recognized that assertion in its objection to Defendant's motion. However, "'[t]he "mere mention" of an issue without introducing supporting evidence . . . does not preserve that issue for appeal.'" State v. Tyree, 2000 UT App 350,¶11, 17 P.3d 587 (citations omitted), cert. denied, 26 P.3d 235 (Utah 2001). Although the addenda to Defendant's appellate brief indicate the Fourth District Court invalidated and suppressed evidence obtained in the roadblock, "'[a]ppellate courts of this state do not consider new evidence on appeal.'" State v. Vessey, 967 P.2d 960, 966 (Utah Ct. App. 1998) (citation omitted). Because the record does not include evidence of an illegal roadblock, we affirm the district court's denial of Defendant's motion to suppress.(2)
 
 

______________________________
Judith M. Billings, Judge -----

WE CONCUR:
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 

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Gregory K. Orme, Judge

1. The "bare bones" record includes Defendant's motion to suppress; Defendant's arrest warrant, but not the search warrant at issue; the State's objection to the motion to suppress; and an officer's affidavit in support of the State's objection. Defendant has included as addenda to his appellant brief a minute entry invalidating and suppressing evidence obtained in the roadblock, an order to dismiss issued by the Fourth District Court for Wasatch County, and an order to dismiss issued by the Eighth District Court for Duchesne County. The State made a motion to strike the addenda and we denied that motion without prejudice pending our review of Defendant's appeal.

2. Defendant also argues the Fourth District Court's invalidation of the roadblock is res judicata. The Fourth District Court's minute entry invalidating the roadblock and order to dismiss are not in the record. Further, we agree with the State that the validity of the roadblock and the validity of the search warrant do not present identical issues and therefore this claim fails. See PGM, Inc. v. Westchester Inv. Partners, Ltd., 2000 UT App 20,¶5, 995 P.2d 1252.

Defendant additionally argues the Eighth District Court for Duchesne County's order to dismiss is res judicata. This order is not in the record. Moreover, Defendant did not make this claim before the district court and thus failed to preserve it for appeal. See State v. Brown, 856 P.2d 358, 360 (Utah Ct. App. 1993). We accordingly do not consider this claim.