West Jordan City v. Smith

West Jordan City v. Smith

IN THE UTAH COURT OF APPEALS
 

----ooOoo----

West Jordan City,

Plaintiff and Appellee,

v.

Daniel H. Smith,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20031055-CA
 

F I L E D
(April 7, 2005)
 

2005 UT App 162

 

-----

Third District, West Valley Department

The Honorable Terry L. Christiansen

Attorneys: Jacquelynn D. Carmichael and James E. Morton, Salt Lake City, for Appellant

Roger F. Cutler and Ryan B. Carter, West Jordan, for Appellee

-----

Before Judges Bench, Davis, and Orme.

DAVIS, Judge:

    Defendant argues that the trial court erred by denying his motion to suppress evidence obtained through a blood test because his consent to the blood test was not voluntary.(1) "We review the factual findings underlying the trial court's decision to grant or deny a motion to suppress evidence using a clearly erroneous standard. However, we review the trial court's conclusions of law based on these findings for correctness . . . ." State v. Veteto, 2000 UT 62,¶8, 6 P.3d 1133 (quotations and citations omitted). Further, we give no deference to the trial court in its application of the law to its factual findings in search and seizure cases. See State v. Brake, 2004 UT 95,¶15, 103 P.3d 699.

    "The Fourth Amendment prohibits unreasonable searches and seizures, including where the drawing and ensuing chemical analysis of blood is concerned." State v. Bredehoft, 966 P.2d 285, 292 (Utah Ct. App. 1998). However, "[a] warrantless search conducted pursuant to a consent that is voluntary in fact does not violate the [F]ourth [A]mendment." Id. (quotations and citation omitted). "Generally, whether the requisite voluntariness exists depends on the totality of all the surrounding circumstances--both the characteristics of the accused and the details of police conduct." Id. (quotations and citation omitted). Specifically, we look to the following factors to determine whether a defendant's consent to a search was voluntary: (1) "the absence of a claim of authority to search by the officers"; (2) "the absence of an exhibition of force by the officers"; (3) "a mere request to search"; (4) "cooperation by the [party being searched]"; and (5) "the absence of deception or trick on the part of the officer[s]." Id. at 293 (first alteration in original) (quotations and citation omitted). "In the context of a warrantless blood draw, additional relevant considerations include whether the defendant resisted the blood draw or reasonably believed the blood was being drawn for medical rather than law enforcement purposes." Id.

    We now turn to an examination of these factors in light of the facts of this case. First, Officer Hahn never claimed that he had the right or authority to force Defendant to submit to the blood test. Instead, Officer Hahn simply requested that Defendant submit to the blood test. As such, Officer Hahn's request was made in "the absence of a claim of authority." Id. (quotations and citation omitted). Second, there was no "exhibition of force by the officers," id. (quotations and citation omitted), once Defendant was in the hospital, which is where he consented to the blood test.(2) Third, as previously stated, Officer Hahn merely requested that Defendant submit to the blood test. See id. Fourth, during the blood test, Defendant was cooperative with the blood technician and did not do anything inconsistent with the blood technician's instructions. See id. Fifth, Defendant has not pointed to, and our review of the record does not reveal, any evidence of
"deception or trick on the part of" Officer Hahn. Id. (quotations and citation omitted). Finally, Defendant did not "resist[] the blood draw" and he does not assert that he "reasonably believed the blood was being drawn for medical rather than law enforcement purposes." Id.

    Our analysis of the relevant factors leads us to conclude that Defendant's consent to the blood test was voluntary. Therefore, the trial court did not err in denying Defendant's motion to suppress.

    Defendant also argues that the trial court erred by ruling that evidence concerning allegations of the arresting officers' prior assaultive behavior was inadmissible pursuant to Utah Code section 76-2-402. See Utah Code Ann. § 76-2-402 (2003). This argument is wholly without merit. In Salt Lake City v. Smoot, 921 P.2d 1003 (Utah Ct. App. 1996), this court held that "the statutory justification defenses found in sections 76-2-401 to
[-]406 of the Utah Code do not apply to claims of resisting arrest." Id. at 1010; see Utah Code Ann. §§ 76-2-401 to -406 (2003). In reaching this holding, the Smoot court relied upon State v. Gardiner, 814 P.2d 568, 576 (Utah 1991), and stated that "Gardiner noted that the legislature intended to exclude peace officers acting in the course of their duties from the scope of the[] defenses based upon justification." Smoot, 921 P.2d at 1010. Because section 76-2-402 was inapplicable to Defendant's resisting arrest charge, the trial court did not err by ruling that evidence concerning allegations of the arresting officers' prior assaultive behavior was inadmissible pursuant to section 76-2-402.

    Finally, Defendant argues that there was insufficient evidence to support his conviction of disorderly conduct. Although we have some concerns, given the facts and circumstances of this case, about whether Defendant's actions amounted to disorderly conduct, Defendant has failed to satisfy his burden to marshal the evidence. See State v. Pritchett, 2003 UT 24,¶22, 69 P.3d 1278 ("[I]n order to prevail on a sufficiency challenge to a jury verdict, the one challenging the verdict must marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict." (emphasis added) (quotations and citation omitted)). Because Defendant has failed to marshal the evidence in support of the jury verdict, we do not address his
insufficiency of the evidence claim. See State v. Mincy, 838 P.2d 648, 652 n.1 (Utah Ct. App. 1992).

    Affirmed.

______________________________

James Z. Davis, Judge

-----

WE CONCUR:

______________________________

Russell W. Bench,

Associate Presiding Judge

______________________________

Gregory K. Orme, Judge

1. Defendant also asserts that he "did not consent" to the blood test. However, Defendant does not even attempt to demonstrate that he did not consent to the blood test and, instead, focuses exclusively upon whether his consent was voluntary.

2. Although Defendant was involved in an altercation with the arresting officers approximately two hours prior to the blood test, we are unpersuaded that this altercation somehow operated to negate the voluntariness of Defendant's consent to the blood test, given both the amount of time that had passed and the fact that none of the officers exhibited any force while Defendant was in the hospital.