State of Utah v. Hughes

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Jeffrey Todd Hughes and Pam Kay Barrett,
Defendants and Appellants.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981384-CA

F I L E D
October 7, 1999
  1999 UT App 285 -----

Second District, Ogden Department
The Honorable Roger S. Dutson

Attorneys:
Maurice Richards, Ogden, for Appellants
Jan Graham and Catherine M. Johnson, Salt Lake City, for Appellee

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Before Judges Wilkins, Greenwood, and Bench.

GREENWOOD, Associate Presiding Judge:

Defendants appeal their convictions for third-degree felony burglary, third-degree felony theft, and intentional or knowing possession of methamphetamine. We affirm.

Defendants first challenge the validity of the drug search warrant, claiming its supporting affidavit was inadequate. Our review of this issue is limited. Specifically, we must determine only whether the affidavit, given the totality of the circumstances described in the affidavit, provided the issuing magistrate with a substantial basis for concluding the search would uncover evidence of a crime. See Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331-32 (1983).

We agree with the State that "[t]he warrant . . . sought drugs rather than individuals, and the affidavit's failure to identify who rented the room was not critical to the object of the search." Because the affidavit indicated a methamphetamine sale occurred in the motel room in the previous twenty-four hours, the magistrate did not need to conclude with absolute certainty that the registered occupants of the motel room would be the same when police executed the warrant, only that a fair probability existed that the room would still contain evidence of an illegal drug sale. We therefore conclude a substantial basis for determining probable cause existed. The drug warrant was thus valid.

Defendants also challenge the particularity of the stolen property warrant and supporting affidavit. The Fourth Amendment's particularity requirement is satisfied when the description of items "'enables the searcher to reasonably ascertain and identify the things authorized to be seized.'" United States v. Le, 173 F.3d 1258, 1271 (10th Cir. 1999) (citation omitted). Moreover, "the line between what is and what is not sufficiently particular must be drawn with a view to accomplishment of the constitutional purpose and necessarily varies with the circumstances and with the nature of the property to be seized." State v. Gallegos, 712 P.2d 207, 209 (Utah 1985) (citations omitted). This court has agreed, proclaiming "'[t]he adequacy of a description in a search warrant depends in every instance upon the particular facts of the case.'" State v. South, 932 P.2d 622, 626 (Utah Ct. App. 1997) (alteration in original) (citation omitted).

The law disfavors general descriptions supporting search warrants, see U.S. Const., amend. IV; Utah Const. art. I, sec. 14;(1) however, such descriptions have been upheld "'[i]n cases involving contraband, [and] [in cases] where attendant circumstances prevented a detailed description from being given.'" Gallegos, 712 P.2d at 209 (first and third alterations in original) (citation omitted). In this case, the confidential informant reported that while he was in the motel room he witnessed defendants sort through boxes containing car stereo equipment, speakers, home stereo equipment, video games, computers, and radar detectors. The informant also affirmed he had seen defendant Hughes bring boxes from the storage facility over the fence and back to the motel room, carrying bolt cutters at the time. In addition, the informant stated defendant Hughes had appeared surprised at the boxes' contents.

The affidavit submitted to the magistrate, which recounted the facts listed above, sufficiently established a fair probability that the property in the motel room was stolen. It was highly unlikely that defendants were legitimately storing a large collection of the type of property described, packed in cardboard boxes, in a motel room. Furthermore, little or no chance existed that officers would rummage through the wrong cardboard boxes in the room. Relaxing the particularity requirement is therefore appropriate in this case. As such, the warrant allowed officers "'to reasonably ascertain and identify the things authorized to be seized.'" Le, 173 F.3d at 1271 (citation omitted). The stolen property warrant was therefore valid.

Finally, we conclude the plain view doctrine allowed officers to legally seize the drugs and the stolen property in the motel room. Officers were lawfully in the room pursuant to either the valid drug warrant or the valid stolen property warrant. They saw, in plain view, illegal drugs and property that had been suspected of being stolen, and those items were clearly incriminating. See State v. Nield, 804 P.2d 537, 539 (Utah Ct. App. 1990).(2)

Based on the foregoing, we affirm defendants' convictions.
 
 
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge

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WE CONCUR:
 
 
 

______________________________
Michael J. Wilkins,
Presiding Judge
 
 
 

______________________________
Russell W. Bench, Judge

1. The Utah Code also describes a valid warrant as one describing "with particularity the thing, place, or person to be searched and the property or evidence to be seized by [the peace officer] and brought before the magistrate." Utah Code Ann. § 77-23-201 (1995); see also id. § 77-23-203 (prohibiting issuance of warrant unless oath or affidavit particularly describes property to be seized).

2. Defendants also claim in the last sentence of their brief that their statements should have been suppressed as "fruits of the poisonous tree," but provide no analysis or legal authority. We therefore do not address it. See Utah R. App. P. 24(a)(9); State v. Parra, 972 P.2d 924, 926 (Utah Ct. App. 1998).