State v. Babbell

• Decision Date: 03 March 1989
• Docket Number: No. 21033,21033
• Citation: 770 P.2d 987
• Parties: STATE of Utah, Plaintiff and Appellee, v. William H. BABBELL, Defendant and Appellant.
• Court: Utah Supreme Court

Page 987

770 P.2d 987

STATE of Utah, Plaintiff and Appellee, v. William H. BABBELL, Defendant and Appellant.

No. 21033.

Supreme Court of Utah.

March 3, 1989.

Rehearing Denied March 23, 1989.

Brooke C. Wells, Salt Lake City, for defendant and appellant.

R. Paul Van Dam, Dave B. Thompson, Salt Lake City, for plaintiff and appellee.

ZIMMERMAN, Justice:

Defendant William H. Babbell appeals from his jury conviction of two counts of aggravated sexual assault and one count of aggravated kidnapping. He contends that the trial court should have excluded evidence seized pursuant to a search warrant because the warrant was issued without probable cause. We find that there was probable cause to support the warrant and affirm the convictions.

In setting out the facts from the record on appeal, we resolve all conflicts and doubts in favor of the jury's verdict and the rulings of the trial court. See, e.g. State v. Verde, 770 P.2d 116, 117 (Utah 1989); State v. Booker, 709 P.2d 342, 345 (Utah 1985). The victim, K., was camping in Millcreek Canyon near Salt Lake City in April of 1985. She and three friends were standing around a campfire in the early morning hours when a pickup truck approached. The driver left the truck and walked up to the campers. He told them he was a police officer investigating a crime in the canyon and asked if they had any alcohol. He then told the campers they would have to leave the canyon and asked to see their identification. After determining that K. was only nineteen years old, he warned the group that K. was violating a curfew and was subject to arrest if she remained in the canyon. He then offered to take her out of the canyon in his truck to a service station at the bottom of the canyon, where she could rejoin her friends, thus avoiding arrest by the other officers purportedly searching the canyon. K. agreed to the proposal and climbed into the truck. As the truck pulled away, the other campers noticed that it was an older model with no bumpers and no license plates. They became suspicious and immediately followed in their car. At the bottom of the canyon, the truck did not turn in at the service station, but instead sped off toward another canyon and eventually raced out of sight of the friends, who then called the police.

The truck's driver took K. to the Dogwood campground in Big Cottonwood Canyon, held a hunting knife to her throat, and ordered her to perform fellatio on him. He then used her coat to restrain her and threatened to kill her if she attempted to escape while he drove down to a service station and then up to Corner Canyon. There, he forced her to disrobe and raped her. He took her wallet, looked at the contents, and warned her that he would kill her and her family if she reported the crimes. He then ordered her to walk to the top of the remote canyon without stopping or looking back. After the truck pulled away, K. walked for some two and one-half hours down to a pay telephone where she called her husband, who contacted the police.

Detective Larry Cazier of the Salt Lake County Sheriff's Department investigated the case. He obtained descriptions of the assailant and his truck from the victim and the other campers. Another officer, Virgil Johnson, suggested to Cazier that the defendant, William Babbell, might be a suspect. Johnson's suspicion was based on the modus operandi of the assailant. A search of motor vehicle records revealed that Babbell owned a truck similar to that described by the witnesses.

Four days after the attack, Cazier and Johnson went to Babbell's home and, from the street, observed a truck in the driveway fitting the description given by the witnesses. The officers then went to the door of the home and, without identifying themselves as police officers, spoke with Babbell's mother. When told that Babbell was not at home but would return, the officers parked down the street to await his return. When Babbell did not return as expected, the officers again went to the house, identified themselves as sheriff's deputies, and explained that Babbell was a suspect. They then obtained the mother's permission to look closely at the truck, but not to enter the cab. They looked in through the truck's windows and saw details that matched the description given by the victim, including a cracked windshield on the passenger side, a printed stick-pin button with the slogan "55 mph sucks" on the visor, yellow-orange seat covers, a cassette player, beverage holders on the dashboard, and a four-wheel-drive shifter on the floor. The officers then left to obtain a search warrant.

The county attorney's office prepared an affidavit of probable cause, sworn to by Cazier. Cazier took the affidavit to the home of Fifth Circuit Judge Michael Burton, who issued a search warrant. The officers returned to Babbell's home and seized a number of items gathered from the truck, another vehicle, a nearby camper, and the residence. Babbell was then arrested and charged with the assault. Babbell filed a pretrial motion to suppress all of the seized items, and at the hearing on that motion, the State stipulated to the suppression of some of the seized items which had not been described in the warrant or the supporting affidavit. The court refused to exclude several other items, including a long flashlight, three baseball caps, an "O.P." brand T-shirt, three knives, and the "55 mph sucks" button. This ruling is the subject of this appeal.

At trial, the only issue of contention was the identity of the assailant. The victim described the assailant as having brown hair, squinty green eyes, small lips, and tatoos on one arm and as having worn Levis, brown cowboy boots, a white "O.P." T-shirt with blue lettering, and a blue baseball cap. She described a brown pickup truck with an automatic transmission, a four-wheel-drive shifter on the floor, a cracked windshield on the passenger side, no license plates, an in-dash radio-cassette player, wire-rim beverage holders, a "55 mph sucks" button on the driver's visor, and "orangeish" seat covers. She further described cassette tapes and papers that were strewn on the dashboard, a pack of cigarettes, a bottle of "Wondra" brand lotion, a long flashlight, and a hunting knife and case.

Two of the other campers testified, describing both the truck and the assailant. The victim and both of these witnesses identified Babbell's truck from photographs as being the truck used in the crime. The victim and one of the campers made in-court identifications of Babbell as the assailant. The other eyewitness refused to pick out Babbell as the assailant.

Babbell did not take the stand, but he presented an alibi defense through his parents. They testified that he was at home during at least part of the time the assault took place.

The jury acquitted Babbell of the aggravated robbery charge, which was based on the taking of the victim's wallet, but found him guilty of two counts of aggravated sexual assault, a first degree felony, and one count of aggravated kidnapping, also a first degree felony. See Utah Code Ann. §§ 76-5-405, -302 (Supp.1985).

Before this Court, Babbell claims that the items of physical evidence seized under the search warrant and introduced at trial, including the "O.P." T-shirt, the baseball caps, and the knives, should have been suppressed because there was no probable cause for the issuance of the warrant. But Babbell claims that even if the warrant were properly issued, two items--the long flashlight and the "55 mph sucks" button--should have been suppressed because they were not listed in the search warrant as items to be seized. Babbell bases his claims for exclusion of the evidence on the fourth amendment to the United States Constitution. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); State v. Mendoza, 748 P.2d 181 (Utah 1987); U.S. Const. amend. IV. ¹ He further argues that the trial court's failure to exclude the evidence was harmful, rather than harmless, error because absent the challenged evidence, there would have been insufficient evidence to support a guilty verdict. Because we find that no error was committed in admitting the evidence, we do not reach the question of whether the claimed error was harmful.

The first question is whether the search warrant was supported by probable cause. The fourth amendment requires that when a search warrant is issued on the basis of an affidavit, that affidavit must contain specific facts sufficient to support a determination by a neutral magistrate that probable cause exists. State v. Nielsen, 727 P.2d 188, 190 (Utah 1986), cert. denied, 480 U.S. 930, 107 S.Ct. 1565, 94 L.Ed.2d 758 (1987). The affiant must articulate particularized facts and circumstances leading to a conclusion that probable cause exists. Mere conclusory statements will not suffice. Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 2333, 76 L.Ed.2d 527 reh'g denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983). The magistrate's task is to make a "practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him [or her] ... there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. at 238, 103 S.Ct. at 2332; see State v. Espinoza, 723 P.2d 420, 421 (Utah 1986).

When a search warrant is challenged as having been issued without an adequate showing of probable cause, the fourth amendment does not require that the reviewing court conduct a de novo review of the magistrate's probable cause determination; instead, it requires only that the reviewing court conclude "that the magistrate had a substantial basis for ... [determining] that probable cause existed." Illinois v. Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)); see State v. Romero, 660 P.2d 715, 719 (Utah 1983); see generally LaFave, Search and...