State v. Dominguez
| Decision Date | 19 March 2009 |
| Docket Number | No. 20070865-CA.,20070865-CA. |
| Citation | 2009 UT App 73,206 P.3d 640 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. William Thomas DOMINGUEZ, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Randall W. Richards, Ogden, for Appellant.
Mark L. Shurtleff, atty. gen., and Jeffrey S. Gray, asst. atty. gen., Salt Lake City, for Appellee.
Before GREENWOOD, P.J., THORNE, Associate P.J., and DAVIS, J.
¶ 1 Defendant William Thomas Dominguez was convicted of one count of driving under the influence of alcohol or drugs (DUI), a third-degree felony in violation of Utah Code section 41-6a-502, see Utah Code Ann. § 41-6a-502 (2005). He asserts that the evidence against him should have been suppressed, contending that the arresting officer, Trooper Chris Turley, unlawfully obtained a warrant from the magistrate. Specifically, he argues that the magistrate's failure to comply with rule 40 of the Utah Rules of Criminal Procedure violated his Fourth Amendment rights. We agree and reverse.
¶ 2 On June 3, 2007, Trooper Turley stopped Defendant in his automobile at approximately 1:00 a.m. Defendant appeared to be racing his car against another car. While speaking to Defendant, Trooper Turley observed "red, bloodshot, glassy looking eyes" and slurred speech. Trooper Turley checked Defendant's driver license and discovered that it had been revoked for alcohol-related offenses. Trooper Turley arrested Defendant and, during the arrest, smelled alcohol on Defendant's breath. Trooper Turley asked Defendant to submit to breathalyzer and field sobriety tests, but Defendant refused.
¶ 3 After taking Defendant to the police station, Trooper Turley prepared a written affidavit in support of a search warrant authorizing a blood draw. He then telephoned Judge Brent West. Judge West placed Trooper Turley under oath, after which the officer told Judge West "the subject's name, the reason for the stop, [and] all of the clues [he] observed." Trooper Turley read significant portions of his written affidavit to Judge West but did not read every line. After hearing Trooper Turley's statement, Judge West directed Trooper Turley to sign the affidavit with his own name and also to sign Judge West's name. Trooper Turley followed these directions. The telephone conference was not otherwise recorded.
¶ 4 Defendant was charged with driving under the influence of alcohol, driving with alcohol in his body with a no-alcohol license, driving on a revoked license, driving a vehicle without proof of insurance, and engaging in a speed contest or exhibition. Defendant filed a motion to suppress evidence, arguing that the warrant had not been obtained according to the proper procedures. Defendant did not challenge the probable cause element. At the hearing on the motion to suppress, Trooper Turley testified, but the magistrate did not. Trooper Turley described his telephone conversation with Judge West but not the circumstances leading to Defendant's arrest. The motion to suppress was denied by the court. Defendant then entered a conditional guilty plea to driving under the influence and driving without proof of insurance. Defendant now appeals.
¶ 5 Defendant asks us to consider whether the trial court erred in denying his motion to suppress evidence obtained as a result of the search warrant. Defendant argues that the telephonic warrant did not comply with rule 40 of the Utah Rules of Criminal Procedure and that this alleged violation merits suppression of the evidence. We examine first whether there was an error and, second, whether the error caused harm sufficient to merit suppressing the evidence. The analysis and required application of this rule is a matter of first impression. We review the trial court's interpretation of a rule of procedure for correctness. See Ostler v. Buhler, 1999 UT 99, ¶ 5, 989 P.2d 1073.
¶ 6 Defendant argues that the procedure followed by Trooper Turley and the magistrate violated Defendant's Fourth Amendment right to be free from unreasonable searches and seizures, see U.S. Const. amend. IV, asserting that it did not comply with the requirements of rule 40 of the Utah Rules of Criminal Procedure. The relevant part of rule 40 states:
At the time of issuance, the magistrate shall retain and seal a copy of the search warrant, the application and all affidavits or other recorded testimony on which the warrant is based and shall, within a reasonable time, file those sealed documents in court files which are secured against access by the public.
Utah R.Crim. P. 40(i)(1).1 Defendant contends that, in issuing the warrant telephonically, the magistrate failed to retain, seal, or file the documents, insisting that it must be the magistrate, not the officer, who complies with rule 40's requirements.
¶ 7 Rule 40(i)(1) was implemented in response to recent guidance from the Utah Supreme Court. See id. R. 40(i)(1) Advisory Committee Notes ("(i) Subsection (1) is added in compliance with the order of the Utah Supreme Court in Anderson v. Taylor, 2006 UT 79, 149 P.3d 352 (filed December 5, 2006).").
¶ 8 In Anderson v. Taylor, 2006 UT 79, 149 P.3d 352, the Utah Supreme Court reviewed the Fourth District Court's customary procedures for issuing search warrants. See id. ¶ 1. The Fourth District Court did not retain copies of search warrants or their supporting documentation. See id. ¶ 2. Instead,
after issuing a warrant, the issuing magistrate return[ed] both the warrant and the supporting material to the law enforcement officer seeking the warrant. After the warrant [wa]s executed, the officer deliver[ed] the original warrant, the supporting material, the return, and the inventory of items seized in the search to the magistrate, who then review[ed] it and either fil[ed] it with the court or return[ed] it to law enforcement with a request that law enforcement file it with the court.
Id. ¶ 2. The supreme court invalidated this practice. See id. ¶ 26. We quote liberally:
Giving law enforcement sole custody of all affidavits and warrants up through the point where the warrant has been executed and a return filed is inherently problematic for at least two reasons. First, it leaves the court without any record of the [warrant] or the materials supporting its issuance until after the [warrant] is executed and a return filed. Second, it allows for the possibility that affidavits and other court records may be mishandled or even altered without detection. When the records upon which the magistrate acts in issuing a warrant are handled by persons other than court personnel prior to being filed with the court, the court has no basis for confidence in the accuracy, authenticity, or completeness of those documents. In the matter of warrants for the search and seizure of persons or property, more is required. We accordingly require that magistrates issuing search warrants retain in their custody copies of all search warrants issued, as well as the material supporting search warrant applications, rather than surrendering to law enforcement the only copies of such material.
To ensure the integrity of our court records, we have concluded that the courts of this state must retain copies of all search warrants and supporting material.
Id. ¶¶ 22-23 (emphasis added). The supreme court indicated that it did not have the authority "to prescribe the particular procedures to be followed in maintaining and disclosing' such records" but instructed the appropriate body to do so. Id. ¶ 23. Rule 40(i) was adopted in response and became effective April 30, 2007. See Utah R.Crim. P. 40(i)(1) Advisory Committee Note (i).
¶ 9 The State attempts to distinguish Anderson by pointing out that Anderson did not involve a telephonic warrant and that in the context of a telephone request for a warrant, the court cannot "retain" what it never had. Section (l) of rule 40 allows a peace officer to obtain a search warrant remotely, i.e., telephonically, including entering the magistrate's signature, if so directed by the magistrate. See Utah R.Crim. P. 40(l)(1), (4). That section further states that "[t]he testimony and content of the warrant shall be recorded ... by writing or by mechanical, magnetic, electronic, photographic storage or by other means." Id. R. 40(l)(2). Although the rule does not specify by whom the recording must be made, the State suggests that this can be accomplished by the peace officer. However, subsection (l)(5) requires compliance with section (i): "[t]he warrant and recorded testimony shall be retained by and filed with the court pursuant to Section (i)," id. R. 40(l)(5), which assigns that responsibility to the magistrate, see id. R. 40(i). Subsection (l)(5) was also amended in response to Anderson. Compare id. R. 40(l) (2008) with id. (2006).
¶ 10 Although it is not controlling, the corresponding federal rule offers insight as to how these sections might co-exist. Rule 41(d)(3) of the Federal Rules of Criminal Procedure requires that a magistrate judge, issuing a warrant by telephone, must "make a verbatim record of the conversation with a suitable recording device, if available, or by a court reporter, or in writing." Fed. R.Crim.P. 41(d)(3)(B)(ii). Federal rule 41(e)(3) further requires that the applicant for a search warrant "must prepare a `proposed duplicate original warrant' and must read or otherwise transmit the contents of that document verbatim to the magistrate judge," and "the magistrate judge must enter those contents into an original warrant." Id. R. 41(e)(3)(A), (B).
¶ 11 Because the language at issue was added in direct response to the Utah Supreme Court's desire to ensure "that the issuing court will maintain reliable records of the warrants and the documents supporting them," Anderson, 2006 UT 79, ¶ 26, 149 P.3d 352, and since the federal rules explicitly...
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State v. Dominguez
...Dominguez did not challenge the probable cause element or the truth of any of the evidence contained in Turley's affidavit. See State v. Dominguez, 2009 UT App 73, ¶ 17, 206 P.3d 640. ¶ 6 The district court denied Dominguez's motion to suppress, and Dominguez entered a conditional plea to d......
- State v. Domingue