State of Utah v. James

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State of Utah,
Appellee,

v.

Douglas B. James,
Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 971544-CA

F I L E D
February 15, 2001
2001 UT App 45
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First District, Logan Department
The Honorable Burton H. Harris

Attorneys:
D. Bruce Oliver, Salt Lake City, for Appellant
Tony C. Baird, Logan, for Appellee

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Before Judges Greenwood, Jackson, and Billings.

JACKSON, Associate Presiding Judge:

"James presented a third distinct ground for suppression of" a portion of the intoxication evidence which we did not reach in our prior opinion. State v. James, 2000 UT 80,¶17, 13 P.3d 576. The supreme court remanded for us to address James's argument that the officers "lacked the probable cause and exigent circumstances necessary to enter [James's] garage without a warrant and arrest him." Id. On undisputed facts we address these issues as a matter of law, reviewing for correctness. See State v. Parra, 972 P.2d 924, 926 (Utah Ct. App. 1998); Orem City v. Henrie, 868 P.2d 1384, 1386 (Utah Ct. App. 1994).

"Where probable cause and exigent circumstances are prov[ed], a warrantless search of a home is permissible." Henrie, 868 P.2d at 1388. In State v. Yoder, 935 P.2d 534 (Utah Ct. App. 1997), we pointed to three factors which led us to conclude that, "under the totality of the circumstances," the officers had probable cause to conduct a warrantless search. See id. at 542. The objective facts are similar in this case. First, a citizen informer(1) approached an officer who was stopped at the road side. The citizen informer told the officer that the citizen had observed a truck swerving and nearly hitting three cars and gave the truck's make, color, direction of travel, and license plate number to the officer. Next, when the officer arrived at the address corresponding to the license plate information, James was pulling into his driveway. The officer observed evidences of a crime: an open twelve pack of beer in the cab of the pickup; a strong odor of alcohol from James's person and from the cab of the pickup; and James's slurred speech, flaccid face, and ptosis of the eye. See id. Finally, James's behavior "further validated [the officer's] suspicions." Id. at 541. James admitted to drinking alcohol, was clumsy and dropped his wallet and other papers, appeared unstable on his feet, and attempted to avoid questioning and investigation by the officer.(2) Thus, we conclude that "under the totality of the circumstances," the officers had probable cause to enter James's garage without a warrant and arrest him.(3) Id. at 542.

We now turn to exigent circumstances. The State argued that the exigent circumstances element was met by the need to preserve evidence, to prevent the escape of the suspect, and to prevent the frustration of law enforcement efforts. See State v. Beavers, 859 P.2d 9, 18 (Utah Ct. App. 1993) ("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.'" (Citations omitted.)). "The determination of exigency is based on the totality of the circumstances." Henrie, 868 P.2d at 1388. In Henrie, we "recognized that the possible destruction of blood alcohol evidence can constitute an exigent circumstance." Id. There, we reviewed eight factors discussed in State v. Ashe, 745 P.2d 1225, 1258 (Utah 1987), to assess the existence of exigent circumstances, based on the totality of the circumstances.(4) See id. at 1392.

Here, several of the factors indicate exigent circumstances existed. First, driving under the influence is a serious offense. See Henrie, 868 P.2d at 1392. Second, as discussed above, the officers had "more than minimal probable cause." Id. Third, although a telephonic warrant may have been available, which would weigh in favor of James if true, it "is only one of several factors," and, alone, it is not dispositive. Id. at 1393. Fourth, the officer was "engaged in a continuous and ongoing" investigation of the offense. Id. Fifth, the officer's conduct was "objectively reasonable in light of the attendant circumstances" because the officer only entered the garage after James had fled into the house, the officer spoke to James through the door to the house, and James voluntarily exited. Id. Finally, by leaving the scene of the investigation while under orders to "stay put," James may have violated Utah Code Ann. § 76-8-305 (1996), the interference statute.(5) After analyzing these factors, we conclude that exigent circumstances did exist.

Accordingly, the officers had both "the probable cause and [the] exigent circumstances necessary to enter [James's] garage without a warrant and arrest him." James, 2000 UT 80 at ¶17.
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge -----

WE CONCUR:
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 
 

______________________________
Judith M. Billings, Judge

1. "[R]eliability and veracity are generally assumed when the informant is a citizen who receives nothing from the police in exchange for the information." State v. Purser, 828 P.2d 515, 517 (Utah Ct. App. 1992); see also Yoder, 935 P.2d at 541 n.3 (stating, although an "unverified anonymous tip" is insufficient as sole basis for reasonable suspicion, it may be a "factor supporting the probable cause determination").

2. "Although defendant's nervous or suspicious behavior is insufficient by itself to establish probable cause, it may . . . be considered in conjunction with other relevant and objective facts." Yoder, 935 P.2d at 541.

3. The State contends probable cause for a warrantless entry is unnecessary because the officer entered the garage only and not the house. A garage that is connected to a house is within the "curtilage," and Fourth Amendment protections are extended to the garage. See Rosencranz v. United States, 356 F.2d 310, 313 (1st Cir. 1966) (The word "house" of the Fourth Amendment "has been enlarged by the courts to include the 'curtilage' or ground and buildings immediately surrounding a dwelling"); Care v. United States, 231 F.2d 22, 25 (10th Cir. 1956) (Fourth Amendment protections "apply to buildings within the curtilage which may include a garage").

4. "Relevant facts may include the distance to the nearest magistrate, the availability of a telephonic warrant, the feasibility of a stake-out or other form of surveillance while a warrant is being obtained, the seriousness of the underlying alcohol-related offense, the commission of another offense such as fleeing the scene, the ongoing and continuing nature of an investigation, the extent of probable cause, and the conduct of the investigating officers." Henrie, 868 P.2d at 1392.

5. The interference statute makes interference with a police officer illegal when "the arrested person's or another person's refusal to refrain from performing any act . . . would impede the arrest or detention." Utah Code Ann. § 76-8-305(3) (1996). The interference statute violation was not addressed in the trial court because the State failed to include the charge in a timely manner.