State of Utah v. Wells
Annotate this CaseOPINION
(For Official Publication)
IN THE UTAH COURT OF APPEALS
----ooOoo----
State of Utah, Plaintiff and Appellee,
v.
Stephen Laine Wells, Defendant and Appellant.
Case No. 950773-CA
F I L E D (November 21, 1996)
Third District, Salt Lake Department, Division I
The Honorable J. Dennis Frederick
Attorneys: Elizabeth A. Bowman and Linda M. Jones, Salt Lake
City, for Appellant
Jan Graham and Marian Decker, Salt Lake City, for
Appellee
Before Judges Orme, Bench, and Billings.
BILLINGS, Judge:
Stephen Wells appeals his conviction of attempted possession of a controlled
substance, a class A misdemeanor, in violation of Utah Code Ann.
58-37-8(2)(a)(i) (1994). Wells claims the trial court erred when it
denied his
motion to suppress evidence. We reverse and remand.
FACTS
Because search and seizure issues are fact sensitive, "we recite the
facts in detail."
State v. Naisbitt, 827 P.2d 969, 970 (Utah App. 1992).
On December 27, 1993, four Salt Lake County police officers went to
appellant's
home to execute drug-related arrest warrants for appellant and his
girlfriend, Kelly
Jensen. One of the officers, Detective Russo, knew appellant. While
Detective
Russo stood out of view, another officer knocked on a rear sliding
glass door.
When appellant appeared at the door, the officer asked if "he were
Steve Wells,
or if he lived there." Appellant replied that "no Steve is here." Detective
Russo then
made a positive identification of appellant. Appellant also recognized
Detective
Russo and immediately ran downstairs.
Detective Russo announced that the officers had arrest warrants, but
appellant
refused to open the door. Thus, to gain entry, Detective Russo picked
up a nearby
shovel and shattered the sliding glass door. Deputy Sterner entered
the home first
and ran downstairs, where he was bitten by appellant's dog. Deputy
Sterner
testified he arrested appellant at the bottom of the stairs immediately
after the
officers had subdued the dog. Jensen was found hiding in a downstairs
closet and
was also placed under arrest.
While sitting with Jensen in a bedroom adjacent to where she was arrested,
Deputy Sterner observed a baggie containing a substance he believed
to be
marijuana. As he went to retrieve the baggie, Deputy Sterner also noticed
two
marijuana pipes on the floor. Deputy Sterner testified that he then
asked Jensen
"where the cocaine was." In response, Jensen explained that appellant
had hidden
marijuana in a vacuum cleaner and cocaine in the lining of a leather
jacket lying on
a bed. Detective Russo recognized the jacket as belonging to appellant.
Subsequently, the officers retrieved the cocaine from the lining of
the jacket.
Detective Russo testified that "the basement . . . is divided into about
three rooms,
but they all adjoin," and that appellant "was down in the basement
just several feet
from us" when the cocaine seizure occurred. Both Detective Russo and
Deputy
Sterner testified that sometime after arresting the suspects, the officers
determined
there was no one else in the house.
An amended information was filed charging appellant with unlawful possession
of
controlled substances (cocaine and marijuana). Appellant pleaded not
guilty to the
charges. Appellant then filed a motion to suppress the marijuana and
cocaine as
evidence obtained in an illegal, warrantless search. The trial court
denied the
motion to suppress, concluding exigent circumstances justified the
search and
seizure.
After the denial of his motion to suppress, appellant withdrew his not
guilty plea,
and the State dismissed the second count dealing with the marijuana
possession.
Appellant then pleaded guilty to the charge of attempted possession
of a
controlled substance (cocaine), conditioned upon his right to appeal
the trial
court's denial of the motion to suppress and to withdraw the guilty
plea if
successful on appeal. See Utah R. Crim. P. 11(i); State v. Sery, 758 P.2d 935
(Utah App. 1988).
On appeal, appellant contends the trial court erred in denying his motion
to
suppress this warrantless seizure of contraband.
STANDARD OF REVIEW
"The factual findings of a trial court that underlie its decision to
grant or deny a
motion to suppress will not be disturbed on appeal unless clearly erroneous."
State
v. Davis, 821 P.2d 9, 11 (Utah App. 1991); accord State v. Smith, 781
P.2d
879, 880 (Utah 1989). The trial court's "legal conclusions are reviewed
for
correctness, with a measure of discretion given to the trial judge's
application of
the legal standard to the facts." State v. Moreno, 910 P.2d 1245, 1247
(Utah
App.), cert. denied, 916 P.2d 909 (Utah 1996).
ANALYSIS
Scope of Review
At the outset, we must determine the proper scope of our inquiry in
this case.
Although appellant asks us to review the issues underlying the marijuana
seizure,
the State argues that, because the marijuana charge was dismissed pursuant
to the
plea agreement, the legality of the seizure underlying that charge
is not properly
before this court.
We agree with the State and therefore do not address the marijuana seizure.
See
State v. Rivera, 906 P.2d 318, 320 (Utah App. 1995), cert. granted,
917 P.2d
556 (Utah 1996). In Rivera, this court interpreted Utah R. Crim P.
11(i) to
"permit the review of the denial of pretrial motions which were made
in connection
with the charge to which the defendant entered a plea." Id. We concluded,
however, that the rule "does not allow review of the denial of pretrial
motions
relating to charges which were dismissed and to which the defendant
did not enter
a plea." Id. Because the State dismissed the marijuana charge, and
appellant
pleaded guilty only to the cocaine charge, "[w]e deem it unnecessary
and, in fact,
improper to analyze" appellant's challenge to the trial court's ruling
on the
marijuana seizure. Id. Therefore, we limit our analysis to the trial
court's denial of
appellant's motion to suppress the cocaine.(1)
Motion to Suppress
"Warrantless searches are per se unreasonable unless undertaken pursuant
to a
recognized exception to the warrant requirement." State v. Brown, 853 P.2d 851,
855 (Utah 1992) (citing Katz v. United States, 389 U.S. 347, 357, 88
S. Ct.
507, 514 (1967)). The State must demonstrate "that the circumstances
of the
seizure constitute an exception to the warrant requirement." State
v. Strickling,
844 P.2d 979, 985 (Utah App. 1992); see also State v. Christensen,
676 P.2d
408, 411 (Utah 1984) ("Since the officers had no warrant, it was the
burden of
the State to show that the search was lawful.").
A. Exigent Circumstances
Appellant argues the trial court erroneously upheld the search under
the exigent
circumstances exception to the warrant requirement.(2)
Exigent circumstances exist "only when the inevitable delay incident
to obtaining a
warrant must give way to an urgent need for immediate action." United
States v.
Satterfield, 743 F.2d 827, 844 (11th Cir. 1984). Utah courts have identified
several exigent circumstances that may justify a warrantless search,
including the
immediate need to prevent harm to the officers, destruction of evidence,
or escape
of the suspect. State v. Ashe, 745 P.2d 1255, 1258 (Utah 1987); City
of Orem v.
Henrie, 868 P.2d 1384, 1388 (Utah App. 1994); State v. Belgard, 840
P.2d
816, 823 (Utah App. 1992); State v. Palmer, 803 P.2d 1249, 1252 (Utah
App.
1990), cert. denied, 815 P.2d 241 (Utah 1991). "The determination of
exigency is
based on the totality of the circumstances." Henrie, 868 P.2d at 1388.
In State v. Beavers, 859 P.2d 9 (Utah App. 1993), this court concluded
"[t]he
existence of exigent circumstances must be based on the reasonable
belief of the
police officer." Id. at 18. The mere possibility that a suspect may
have a weapon,
id. at 19, or that evidence might be destroyed, Palmer, 803 P.2d at
1253, is
insufficient. See also United States v. Tarazon, 989 F.2d 1045, 1049
(9th Cir.
1993) (stating police must have "reasonable belief" that exigent circumstances
exist); United States v. Roark, 36 F.3d 14, 17 (6th Cir. 1994) (rejecting
exigent
circumstances claim based solely on "unsubstantiated suspicions" of
police officer
who feared removal of marijuana).
The record reflects that both suspects were handcuffed and in custody
when the
cocaine was seized. Detective Russo testified that, although appellant
attempted to
elude the officers before their entry, the officers handcuffed him
soon after entering
the home. Detective Russo further testified that Jensen was "[p]robably
handcuffed" when she directed the officers to appellant's jacket. The
officers had
controlled the initially chaotic situation by the time they searched
the jacket.
Therefore, the initial exigencies, which had dissipated by the time
of the search,
could not have justified the cocaine seizure.
The State argues the officers did not determine whether third persons
were in the
home until after the arrests were made. The officers, however, never
indicated any
belief that others in or outside the home were likely to seize the
contraband. See
United States v. Napue, 834 F.2d 1311, 1327 (7th Cir. 1987) (recognizing
possibility that officers "suspected, or had reason to suspect," that
hotel room was
occupied, but concluding "the government did not offer evidence at
the
suppression hearing to support such a suspicion"). Because "[t]here
is almost
always a partisan who might destroy or conceal evidence," United States
v. Davis,
423 F.2d 974, 979 (5th Cir. 1970), the State must show more than "a
mere
possibility that evidence might be removed," People v. Blasius, 459 N.W.2d 906,
916 (Mich. 1990). The State failed to present evidence "that even intimated
that
the officers reasonably believed that destruction, removal or concealment
of
contraband material was imminent or threatened." State v. Peterson,
525 S.W.2d
599, 607 (Mo. Ct. App. 1975).
Considering the "mosaic of evidence" before us, Ashe, 745 P.2d at 1258,
we
cannot conclude that exigent circumstances justified the officers'
warrantless
seizure of cocaine from appellant's jacket.
B. Search Incident to Arrest
Alternatively, the State argues for the first time on appeal that the
officers properly
seized the cocaine incident to appellant's lawful arrest.(3) We disagree.
The State
has failed to meet its burden of proof to justify this search as a
search incident to
arrest.
As is the standard in all search and seizure cases, whether a search
is reasonable
under the incident-to-arrest exception depends on the particular facts
of each
case. See State v. Austin, 584 P.2d 853, 855 (Utah 1978). Under this
exception,
an officer may search the area within the arrestee's "immediate control"
to prevent
the arrestee from obtaining weapons or destroying evidence. Chimel
v. California,
395 U.S. 752, 763, 766, 89 S. Ct. 2034, 2040-41 (1969); Austin, 584
P.2d at
855; State v. Harrison, 805 P.2d 769, 784 (Utah App.), cert. denied,
817 P.2d
327 (Utah 1991).
In discussing the "immediate control" test, the Chimel Court refused
to draw an
arbitrary line by validating, for example, the search of one room,
while invalidating
the search of a larger area. Rather, the Court held:
No consideration relevant to the Fourth Amendment suggests any point
of rational
limitation, once the search is allowed to go beyond the area from which
the person
arrested might obtain weapons or evidentiary items. The only reasoned
distinction
is one between a search of the person arrested and the area within
his reach on the
one hand, and more extensive searches on the other.
Chimel, 395 U.S. at 766, 89 S. Ct. at 2041 (emphasis added)
(footnotes omitted). The Chimel Court also concluded that while there
was ample
justification for a search of the area within the arrestee's immediate
control,
"[t]here is no comparable
justification . . . for routinely searching any room other than that
in which an arrest
occurs." Id. at 763, 89 S. Ct. at 2040.(4)
Utah courts have focused on the totality of the factual circumstances
to determine
if the area searched was within the arrestee's immediate control. The
case of State
v. Austin, 584 P.2d 853 (Utah 1978), is the Utah case closest to the
case at
bar.(5) However, Austin involved the search of a hotel room rather
than a
defendant's home. Id. at 856. Notably, the Austin court recognized
the inherent
differences an arrest at a hotel creates. Id. at 856-57. The evidence
found in the
hotel was in a garbage can and the court noted that it was likely that
"even though
the appellant was in police custody, the hotel maid could have entered
the room
and inadvertently destroyed the evidence." Id. at 857. Thus, the court
relied upon
the totality of the circumstances and not just the proximity of the
evidence to the
defendant. Id. at 855 ("[T]he unreasonableness of a search is determined
from the
attendant circumstances.").
Courts have relied upon the following factors to determine whether the
items
seized were within a defendant's control: (1) "[w]hether or not the
arrestee was
placed in some form of restraints";(6) (2) "[t]he position of the officer
vis-a-vis the
defendant in relation to the place searched"; (3) "[t]he ease or difficulty
of gaining
access" to the searched area or item; and (4) "[t]he number of officers
present in
relation to the number of arrestees or other persons." Wayne R. LaFave,
Search
and Seizure 6.3(c), at 306-07 (3d ed. 1996).
Applying the relevant factors to the facts of the present case demonstrates
that the
cocaine in the jacket's lining was not within appellant's control.
First, appellant was
in handcuffs when the search took place. Second, in determining the
officers' and
appellant's proximity to the item searched, the State relies on one
officer's
testimony that appellant was in the basement "several feet" away. Taken
in the
context of the officer's entire response, this testimony is too ambiguous
to support
the search. In response to a question asking where appellant was as
the two
officers searched the jacket, Officer Russo initially replied "I can't
tell you for sure"
before he stated the appellant was "several feet" away in the basement.
More
importantly, the officer's testimony never defines "several feet" more
accurately,
and "in the basement" was not defined to mean within the same room,
in an
adjoining room, or in the hallway. Several feet could mean three or
twenty.
Furthermore, the two police officers were between appellant and the
jacket.
Another factor supporting our conclusion is appellant's relative difficulty
in
accessing the evidence. The evidence was not only in a different room
from where
appellant's arrest took place, the evidence was within the lining of
the jacket. It is
difficult to see how appellant could gain access to the evidence in
order to destroy
it while handcuffed and with two police officers between him and the
evidence.
Additionally, there were four police officers at appellant's home when
the search
took place. The officers had already done a protective sweep of the
home and
knew that only appellant and his girlfriend were present. Moreover,
there is no
evidence of any safety concerns as to the jacket and no evidence that
appellant
had requested to wear the jacket or take it with him. Also, there was
no evidence
that appellant had made any motion toward the jacket. The only testimony
was
that, after both arrests had been made, appellant's girlfriend told
the officers where
the cocaine was and she took them to the jacket. In sum, the search
has none of
the typical characteristics of looking for weapons or contraband within
the control
of an arrestee. The search was clearly conducted because appellant's
girlfriend
indicated where the cocaine could be found and not because the officers
were
checking the immediate area incident to defendant's arrest.(7)
The State simply has not met its burden of proving, as required under
Chimel, that
defendant was or anyone else would be within a range close enough to
obtain
possession of the jacket and destroy the evidence or that the officers
were
reasonably checking for weapons. Therefore, the search cannot be upheld
under
the search incident to arrest exception to the warrant requirement.
CONCLUSION
The trial court erroneously determined that exigent circumstances justified
the
warrantless seizure of cocaine from appellant's jacket. In addition,
the State failed
to demonstrate that the search was permissible under the search incident
to arrest
doctrine. Therefore, we reverse, order the evidence suppressed, and
remand for
further proceedings consistent with this opinion.
Judith M. Billings, Judge
-----
I CONCUR:
_______________________________
Gregory K. Orme,
Presiding Judge
-----
BENCH, Judge (dissenting):
I respectfully dissent. Regardless of whether exigent circumstances
justified the
search, I believe the search was proper as incident to appellant's
lawful arrest. The
jacket was within appellant's "immediate control," as that term has
been defined by
the courts.
The main opinion recognizes that police restraint is not dispositive
of the immediate
control issue. Therefore, even though appellant was handcuffed during
the seizure,
the jacket could still have been within his immediate control. See
State v. Kent,
665 P.2d 1317, 1317-18 (Utah 1983) (upholding search where defendant
was
"handcuffed and required to lie on the ground" and ten officers were
present);
State v. Moreno, 910 P.2d 1245, 1247 (Utah App.) (stating that "doubt
about the
arrestee's ability to access weapons or evidence in a particular area
because of
distance, or police restraint, does not prohibit police from properly
searching that
area"), cert. denied, 916 P.2d 909 (Utah 1996).
The main opinion concludes that, because the cocaine was "hidden in
the lining of
the jacket," it would have been difficult for appellant to grab the
evidence. This
court, however, has upheld the seizure of a diaper bag containing a
gun where it
was improbable that the suspects could physically access the weapon.
State v.
Harrison, 805 P.2d 769, 784-85 (Utah App.), cert. denied, 817 P.2d 327 (Utah
1991); see also United States v. Palumbo, 735 F.2d 1095, 1097 (8th
Cir.)
(stating that area of immediate control "is not constrained because
the arrestee is
unlikely at the time of the arrest to actually reach into that area"),
cert. denied, 469
U.S. 834, 105 S. Ct. 332 (1984); Ricks v. State, 571 A.2d 887, 891
(Md. Ct.
App. 1990) (noting that "the area deemed to be within an arrestee's
reach, lunge
or grasp is broad" and is not necessarily limited by "apparent obstacles
inhibiting
an arrestee's movement"), aff'd, 586 A.2d 740 (Md. 1991). Furthermore,
while
the main opinion concludes that no one else was close to the jacket,
the record
reflects that Jensen was standing near the officers when they searched
the jacket.
Thus, as in Harrison, the officers in this case may have been concerned
that
someone might attempt to gain access to the evidence. See Harrison,
805 P.2d at
785.
Finally, and perhaps most importantly, I strongly disagree that Detective
Russo's
testimony was ambiguous in describing the distance between appellant
and the
jacket. Detective Russo testified as follows:
[Prosecutor]: Okay. All the time you're talking marijuana and cocaine, is that correct?
[Detective Russo]: Yes.
[Prosecutor]: And Mr. Wells is present?
[Detective Russo]: Yes.
[Prosecutor]: Uh, how close is he to you in the conversation?
[Detective Russo]: He was within feet.
. . . .
[Appellant's Counsel]: Did you go to the jacket?
[Detective Russo]: Kelly Jensen took me to the jacket, and Sterner picked it up and she said look in the sleeve . . . .
[Appellant's Counsel]: Okay. Where was
Mr. Wells at the time you uh, found the jacket and looked through it?
[Detective Russo]: He was - the basement has, is divided into about three rooms, but they all adjoin, um, I can't tell you for sure, he was, he was down in the basement just several feet from us.
(Emphasis added.) In my view, Detective Russo's inability to specify
the exact
number of feet separating appellant and the jacket is not fatal to
the State's
argument. I believe that "several feet" is a sufficient approximation
of the "area
from within which [appellant] might gain possession of a weapon or
destructible
evidence." Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034,
2040
(1969); see also State v. Robalewski, 418 A.2d 817, 823 (R.I. 1980)
(requiring
an approximation of the distance between the arrestee and the object
searched).
Therefore, I believe the uncontroverted evidence establishes that the
jacket was
within appellant's immediate control.
In State v. Austin, 584 P.2d 853, 856 (Utah 1978), the Utah Supreme
Court held
that a search incident to arrest must be "properly confined to a limited
area within
the [suspect's] control." I believe the limited search in this case
was so confined. I
would therefore affirm the trial court's denial of appellant's motion
to suppress the cocaine.
Russell W. Bench, Judge
1. Before the trial court, appellant did not seek a separate analysis
of the Utah
Constitution's search and seizure provision, article I, section 14.
Therefore, we
limit our discussion to the Fourth Amendment. See State v. Ramirez,
817 P.2d
774, 785 (Utah 1991); State v. Belgard, 840 P.2d 819, 821 n.1 (Utah
App.
1992). Appellant's mere reference to article I, section 14, in his
motion to
suppress lacked the "actual analysis" required to preserve the state
constitutional
issue for appeal. See State v. Shamblin, 763 P.2d 425, 426 n.2 (Utah
App.
1988).
2. The State must also show probable cause to uphold a warrantless search.
State
v. Harris, 671 P.2d 175, 179 (Utah 1983); State v. Menke, 787 P.2d 537, 542
(Utah App. 1990). However, appellant concedes that Jensen's disclosures
as to
the location of the drugs provided the officers with sufficient probable
cause for
the search. See City of Orem v. Henrie, 868 P.2d 1384, 1388 (Utah App.
1994).
3. We note that "[a]lthough search incident to arrest was not the ground
relied
upon by the trial court, this court may affirm the trial court's decision
on any
proper ground." State v. Moreno, 910 P.2d 1245, 1247 n.1 (Utah App.),
cert.
denied, 916 P.2d 909 (Utah 1996).
4. Similarly, the Utah Supreme Court in State v. Austin held "[n]o warrant
was
necessary as long as the search was . . . . restricted to a single
room where the
defendant was arrested and held in custody." 584 P.2d 853, 857 (Utah
1978).
Although the Chimel Court concluded the room of arrest was the maximum
area
of a permissible search incident to an arrest, subsequent courts have
recognized
that Chimel's immediate control test, in some circumstances, such as
a defendant
standing in a doorway, could include two adjoining rooms. See United
States v.
Patterson, 447 F.2d 424, 426-27 (10th Cir. 1971) (upholding search
of kitchen
cabinet located four to six feet from defendant, who was standing in
doorway
between kitchen and living room).
5. Our colleague in dissent relies on Utah cases which we believe are
dissimilar to
the present case. Both State v. Kent, 665 P.2d 1317 (Utah 1983), and
State v.
Moreno, 910 P.2d at 1245, involved searches of automobiles incident
to arrest,
which this court has recognized requires a different standard. See
Moreno, 910
P.2d at 1247-48. Also, in State v. Harrison, 805 P.2d 769 (Utah App.),
cert.
denied, 817 P.2d 327 (Utah 1991), the defendant was arrested on a public
sidewalk in the company of his wife and babies. Id. at 773. The Harrison
court
relied on the search incident to arrest line of cases involving searches
of
automobiles and noted the public nature of the arrest meant "there
was no way to
secure [the diaper bag] at the scene pending the obtaining of a warrant
to search
it. The bag, stroller, and babies were going to be moved. Additionally,
babies
being babies, somebody would need to get into the bag before long."
Id. Thus, the
circumstances of an arrest occurring in a public place is not readily
comparable to
an arrest occurring in a defendant's home.
6. Utah courts have determined that being placed in restraints is not
dispositive;
nonetheless, it is one factor to be considered in determining the "immediate
control" question. Austin, 584 P.2d at 855; Harrison, 805 P.2d at 785
n.29.
7. This is probably why the prosecutor did not argue the search was
incident to
arrest in defending the search at the suppression hearing and why the
trial court did
not uphold the search as incident to arrest.
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