State of Utah v. Bangerter

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State of Utah,
Plaintiff and Appellee,

v.

John W. Bangerter,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010039-CA

F I L E D
September 12, 2002 2002 UT App 293 -----

Fifth District, St. George Department
The Honorable James L. Shumate

Attorneys:
Jim R. Scarth, St. George, for Appellant
Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee

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Before Judges Davis, Greenwood, and Thorne.
GREENWOOD, Judge:

Defendant claims that (1) the search warrant affidavit was insufficient to support probable cause; (2) information in the affidavit was stale when the search warrant issued; (3) the search warrant was insufficiently particular; and (4) there was not a substantial basis to support a no-knock, nighttime service of the warrant. We affirm. In reviewing the magistrate's finding of probable cause to support a search warrant based on an affidavit, we will find the warrant invalid only if the magistrate, given the totality of the circumstances, lacked a substantial basis for determining that probable cause existed. In conducting this review, we will consider the search warrant affidavit in its entirety and in a common-sense fashion and give great deference to the magistrate's decision. The affidavit must support the magistrate's decision that there is a fair probability that evidence of the crime will be found in the place or places named in the warrant. State v. Thurman, 846 P.2d 1256, 1259-60 (Utah 1993) (emphasis added) (citations, quotations, and footnote omitted).

First, Defendant argues that the affidavit failed to establish the credibility and knowledge of the two confidential informants (Informants), particularly because one of the Informants relied on information from two confidential sources (Sources). Contrary to Defendant's arguments, hearsay upon hearsay is not automatically improper so long as there is a basis for crediting the evidence at each level. See State v. Blaha, 851 P.2d 1205, 1208 (Utah Ct. App. 1993) (stating reliable hearsay may support search warrant); Savery v. State, 782 S.W.2d 321, 326 (Tex. Ct. App. 1989) ("[H]earsay upon hearsay may be utilized to show probable cause as long as the underlying circumstances indicate that there is a substantial basis for crediting that evidence at each level.").

The first Informant had been a reliable police informant in the past. See State v. Doyle, 918 P.2d 141, 144 (Utah Ct. App. 1996) (affirming probable cause determination based, in part, on "a reliable police informant's" tip); McCray v. Illinois, 386 U.S. 300, 304, 87 S. Ct. 1056, 1059 (1967). The second Informant had first-hand knowledge of suspicious activity and came to the police as a concerned citizen. See Blaha, 851 P.2d at 1208 ("[R]eliability and veracity are generally assumed when the informant is a citizen who receives nothing from the police in exchange for the information." (Quotations and citation omitted.)). The first Informant's Sources witnessed Defendant's criminal activity first-hand and corroborated each other's statements even though they did not know one another. See State v. Deluna, 2001 UT App 401,¶13, 40 P.3d 1136. Furthermore, the police corroborated the Sources' information by identifying members of the local drug culture present at Defendant's residence. See id. at ¶¶20-21. Therefore, the Magistrate was justified in relying on information provided by the Informants and Sources because the totality of the circumstances provide a basis for crediting the evidence at each level. Consequently, the affidavit provided probable cause for the issuance of the search warrant.

Second, Defendant argues that the information contained in the affidavit was stale. The information linking Defendant to criminal activity occurred within ten days before the warrant was issued. Under the facts of this case, ten days is not such a delay that "there [would] no longer [be] probable cause to believe that the evidence [was] still at the targeted locale." State v. Decorso, 1999 UT 57,¶60, 993 P.2d 837.

Third, Defendant argues that the warrant failed to particularly describe the residence, Defendant, and evidence to be seized. By reading the affidavit and warrant as a whole both Defendant and the house were directly linked to drug activity. For example, one Informant observed Defendant smoking meth at his residence, while another Informant witnessed a meth cook occurring at Defendant's residence. Furthermore, known drug traffickers who frequented Defendant's residence were linked to drugs by the residual odor emanating from the trunk of the car they drove. Additionally, the warrant contained the address of Defendant's residence and a description of the property, Defendant's name and physical description, and a detailed description of the items to be seized. Therefore, the affidavit and warrant were sufficiently particular.

Finally, a no-knock, nighttime warrant was justified because of Defendant's past threats of violence against police, the possibility that Defendant would be armed, and because the evidence sought could easily be destroyed if police provided notice of their presence before entering. See State v. Purser, 828 P.2d 515, 518-19 (Utah Ct. App. 1992) (allowing a no-knock, nighttime search to occur because of legitimate concerns about officer safety and the possibility that evidence would be destroyed).

Accordingly, we affirm.(1)
 
 

______________________________
Pamela T. Greenwood, Judge -----

WE CONCUR:
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
William A. Thorne Jr., Judge

1. Defendant argues for the first time on appeal that the warrant was a "general warrant" prohibited by the United States Constitution. We do not consider this argument since it was not raised in the trial court. See State v. Holgate, 2000 UT 74,¶11, 10 P.3d 346. Furthermore, we reject Defendant's argument under Utah Code Ann. § 77-23-203(2) (1999) as meritless. See State v. Allen, 839 P.2d 291, 303 (Utah 1992) (permitting appellate courts to summarily consider and rule on issues).