State of Utah v. Johnsen

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State v. Johnsen. Filed April 8, 1999 IN THE UTAH COURT OF APPEALS


State of Utah,
Plaintiff and Appellee,


Stuart Earl Johnsen,
Defendant and Appellant.

(Not For Official Publication)

Case No. 981073-CA

April 8, 1999
  1999 UT App 113 -----

Fourth District, Provo Department
The Honorable Guy R. Burningham

Margaret P. Lindsay, Provo, for Appellant
Jan Graham and Joanne C. Slotnik, Salt Lake City, for Appellee


Before Judges Wilkins, Bench, and Billings.

BENCH, Judge:

Defendant asserts that the trial court erred in denying his motion to suppress evidence. "'We review the factual findings underlying the trial court's decision to grant or deny a motion to suppress evidence [under the Fourth Amendment] using a clearly erroneous standard.'" State v. Bredehoft, 966 P.2d 285, 290 (Utah Ct. App. 1998) (quoting State v. Brown, 853 P.2d 851, 854 (Utah 1992)). The trial court's conclusions of law based on these facts "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 Ct. App.), cert. denied, 916 P.2d 909 (Utah 1996).

Defendant first argues that the officer created any exigency that might have existed by opening the apartment door. Contrary to defendant's assertion, however, the trial court found that the people inside the apartment were already aware of the officer's presence, as evidenced by the closing of the front door as the officer approached, followed by the lack of response to the officer's knocking combined with the continuing sound of movement within the apartment. Based on this finding, the trial court concluded that "[t]he occupants' flight from a rear window of the apartment as the officers were attempting to make contact at the front door was virtually simultaneous with the actions of the door opening and calling to occupants by the officer." The record supports the trial court's determination that no causal link existed between the officer's act of opening the door and the occupants' escape out the back window of the apartment. Accordingly, we will not disturb the trial court's determination.

Next, defendant argues that after the officers apprehended the seven fleeing individuals, there was no reason to conduct a protective sweep of the apartment. "Warrantless entries are justified with probable cause and exigent circumstances . . . ." State v. Beavers, 859 P.2d 9, 17 (Utah Ct. App. 1993). "'Probable cause exists where "the facts and circumstances within [the officers'] knowledge and of which they had reasonable trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that" an offense had been or is being committed.'" State v. Yoder, 935 P.2d 534, 540 (Utah Ct. App. 1997) (quoting State v. Dorsey, 731 P.2d 1085, 1088 (Utah 1986) (quoting Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 1310-11 (1949))). "Exigent circumstances are those 'that would cause a reasonable person to believe that entry . . . was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.'" Beavers, 859 P.2d at 18 (quoting United States v. McConney, 728 F.2d 1195, 1199 (9th Cir. 1984)).

Before the officers performed a protective sweep in the present case, they knew that (1) the upstairs neighbors had detected and reported the odor of marijuana coming from the apartment below; (2) the same neighbors knew that the lower apartment's tenant was not home and they did not know any of the people entering the apartment; (3) a person that had been inside the lower apartment smelled of burnt marijuana; (4) someone inside the apartment closed the door as the officers approached the apartment; (5) seven people inside the apartment fled out the back window as officers attempted to speak with someone at the front door; and (6) when apprehended, each of the seven fleeing occupants insisted that they neither lived in the apartment nor knew who did. An officer testified that out of concern that there might be additional people still inside, the officers briefly walked through the apartment to secure the premises. "Such action is known as a protective sweep and has been upheld as a security measure." State v. Kelly, 718 P.2d 385, 391 (Utah 1986) (citing United States v. Briddle, 436 F.2d 4, 7 (8th Cir. 1970)).

The trial court properly determined, under the totality of the circumstances, the officers had probable cause to believe that criminal activity, potentially burglary, trespass, and illegal drug use, was ongoing or had been committed inside the apartment. The trial court also properly determined that the occupants' flight, the possible destruction of evidence and a legitimate threat to officer safety by unknown persons still inside, provided exigent circumstances to justify the warrantless entry into the apartment. Thus, both probable cause and exigent circumstances justified the protective sweep of the apartment. See Beavers, 859 P.2d at 17.

We therefore affirm the trial court's denial of the motion to suppress evidence and defendant's resulting conviction.

Russell W. Bench, Judge -----


Michael J. Wilkins,
Presiding Judge

Judith M. Billings, Judge