750 P.2d 1219 (Utah 1988), 860092, State v. Watts

Docket Nº:860092.
Citation:750 P.2d 1219
Opinion Judge:HALL, Chief Justice:
Party Name:STATE of Utah, Plaintiff and Respondent, v. Allen R. WATTS, Defendant and Appellant.
Attorney:Gregory M. Warner, Provo, for defendant and appellant. David L. Wilkinson and Earl F. Dorius, Salt Lake City, for plaintiff and respondent.
Case Date:February 17, 1988
Court:Supreme Court of Utah

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750 P.2d 1219 (Utah 1988)

STATE of Utah, Plaintiff and Respondent,


Allen R. WATTS, Defendant and Appellant.

No. 860092.

Supreme Court of Utah.

February 17, 1988

       Gregory M. Warner, Provo, for defendant and appellant.

       David L. Wilkinson and Earl F. Dorius, Salt Lake City, for plaintiff and respondent.

       HALL, Chief Justice:

       Defendant and his wife were charged with the unlawful production and possession of marijuana in violation of Utah Code Ann. §§ 58-37-8(1)(a)(i) (1986) (amended 1987), -8(2)(a)(i) (Supp.1985) (amended 1986 & 1987), -4(2)(a)(iii)(M) (1986). The charges against defendant were severed from those against his wife, and defendant stood trial before the court, sitting without a jury. The court found defendant guilty of the production offense, but acquitted him of the felony possession charge because there was insufficient evidence that he possessed

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more than 16 ounces of marijuana. 1 On appeal, defendant renews his challenge to the lawfulness of the search for and seizure of the marijuana used to obtain his conviction, and he also claims that the evidence is insufficient to support his conviction.


       The facts are not materially in dispute. On the morning of September 16, 1985, Provo City, Utah, Police Officer Leatham met an unidentified informant in front of defendant's residence, which was located on a Provo lot, enclosed by a fence running down both sides and across the back. The informant advised Leatham that a shed located approximately twenty to twenty-five feet to the rear of defendant's residence was in fact a make-shift greenhouse that contained live marijuana plants. Plexiglass panels covered portions of the south wall and the roof of the structure.

       Later that day, the police returned with a warrant to search the shed. Finding no one on the premises, the officers entered the shed, which was divided into two small rooms separated by an interior wall and a door. The first room contained a bicycle which was hanging on the wall and four large marijuana plants which had been left drying on the dirt floor. The second room, partially roofed and sided with plexiglass, contained three large marijuana plants growing out of the dirt floor. These plants were plainly under cultivation, standing eight to ten feet tall, being supported from the ceiling with twine, and having been pruned and watered. Both the drying and the growing plants were seized and thereafter verified as marijuana.

       Sometime prior to the search, Provo police had told the informant that if he provided them with information leading to a prosecutable case, a criminal case against him might be dismissed. The police did not give the informant any direction or guidance, nor did they tell him to enter anyone's property or do anything illegal to obtain evidence. Also, prior to the informant's September 16th disclosure, the police did not suspect any criminal activity at defendant's residence.

       The record does not disclose the means or the circumstances that permitted the informant to learn that marijuana was being cultivated in the greenhouse. At a pretrial hearing, defendant took the position that the informant had invaded his privacy and violated his right of exclusive possession by unlawfully entering upon his property and by searching the greenhouse as an agent of the police department. Defendant therefore moved to suppress the evidence on the bases of the fourth amendment of the United States Constitution and article I, section 14 of the Utah Constitution. The motion was denied for lack of sufficient evidence that the informant was operating under an agency relationship with the police department.


       The fourth amendment guarantee against unreasonable searches and seizures protects only against governmental actions and does not extend to the independent acts of private citizens. 2 Thus, as was observed in Walter v. United States, 3 the exclusionary rule has no application to evidence obtained from private citizens acting on their own initiative: "[A] wrongful search or seizure conducted by a private party does not violate the Fourth Amendment and ... such private wrongdoing does not deprive the government of the right to use evidence that it has acquired lawfully." 4 Likewise, this Court in State

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v. Newbold 5 held, "The protection of the Fourth Amendment is a restraint only upon the activities of sovereign authority and is not applicable to the searches and seizures by any persons other than government officers and agents." 6

       Article I, section 14 of the Utah Constitution reads nearly verbatim with the fourth amendment, and thus this Court has never drawn any distinctions between the protections afforded by the respective constitutional provisions. Rather, the Court has always considered the protections afforded to be one and the same. 7 We do not depart from that view in this case, and hold that unreasonable private searches are not subject to the protection of article I, section 14 of the Utah Constitution. 8

       A search conducted by a private person acting as the agent of a governmental authority is not a private search. In such an instance, the protections of the fourth amendment do have application, 9 as do the protections of article I, section 14 of the Utah Constitution. The burden of establishing governmental involvement in a private search rests upon the party objecting to the evidence. 10

       In the "gray area" between the extremes of overt governmental participation in a search and the complete absence thereof, the search must be judged according to the nature of the governmental participation in the search process 11 and in light of all of the facts and circumstances of the case. 12 The rendition of sound judicial determinations in this area of jurisprudence requires that courts not lose sight of two basic principles. First, law enforcement agencies out of necessity rely heavily on informants. 13 Second, while the voluntary aiding of law enforcement officials by private persons or bodies does not implicate the fourth amendment or article 1, section 14, 14 those provisions do preclude law enforcement officers or agencies from having informants do for them what they cannot legally do themselves. 15

       Two critical areas of inquiry have been identified which bear upon the determination of whether a private person or body has conducted a search as a governmental agent: (1) the government's knowledge of and acquiescence in the intrusive conduct, and (2) the intent and purpose of the person(s)

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or body(ies) conducting the search. 16 By comparing relatively similar cases dealing with the agency issue, it becomes obvious that "an apparently small difference in the factual situation frequently is viewed as a controlling difference in determining Fourth Amendment rights." 17

       In United States v. Walther, 18 an airline employee (Rivard) found a woman's overnight case, which had been shipped as a "speed pak," suspicious because it was lightweight, did not rattle when shaken, and was taped shut. Rivard opened the case and found "a white powder substance." Rivard contacted the Drug Enforcement Administration (DEA), and his report led to the defendants' arrests on drug-related charges. At a suppression hearing on Walther's motion, it was discovered that the DEA had maintained a file on Rivard for several years, mainly concerning his reporting (while working his employer's ticket counter) of suspicious individuals who fit the "drug profile." On at least eleven occasions, Rivard received payments in exchange for information. And although he had not been financially rewarded for information supplied in connection with the opening of speed paks, "he had no reason not to expect payment" for the same. 19 In affirming the trial court's suppression order, the court of appeals stated:

       We are also satisfied that Rivard's prior experience with the DEA provides proof of the government's acquiescence in the search. While the DEA had no prior knowledge that this particular search would be conducted and had not directly encouraged Rivard to search this overnight case, it had certainly encouraged Rivard to engage in this type of search. 20

       The court continued:

[Rivard] also testified that the only reason why he opened the case was his suspicion that it contained illegal drugs. Thus, legitimate business considerations such as prevention of fraudulent loss claims were not a factor. The record contained sufficient evidence for the court to conclude also that Rivard opened the case with the expectation of probable reward from the DEA. Rivard acknowledged that there was no reason that he should not expect a reward, and the testimony of a DEA agent established that it would be reasonable for him to have such an expectation. Our review of the record, therefore, indicates that the evidence supports the district court's findings. We are thus satisfied that Rivard opened the package with the requisite mental state of an "instrument or agent." 21

       In contrast, in United States v. Wedelstedt, 22 the defendant was convicted of offenses relating to his dealings in stolen films. On appeal, Wedelstedt argued that

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a list of adult films compiled by his employee, Lavin, and admitted at his trial should have been suppressed. The government had obtained the list from its informant, Meade, who saw it attached to a box of films that Lavin was inventorying, and stole it because he "suspected" it pertained to stolen films. 23 The Eighth Circuit Court of Appeals held:

       Assuming arguendo that the search was illegal, we do not feel its commission can fairly be attributed to the government. The testimony at trial and at the pretrial suppression hearing indicates that the government did not solicit Meade to get the...

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