State v. Stromberg

• Decision Date: 08 November 1989
• Docket Number: No. 880618-CA,880618-CA
• Citation: 783 P.2d 54
• Parties: STATE of Utah, Plaintiff and Respondent, v. Lane C. STROMBERG, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 54

783 P.2d 54

STATE of Utah, Plaintiff and Respondent, v. Lane C. STROMBERG, Defendant and Appellant.

No. 880618-CA.

Court of Appeals of Utah.

Nov. 8, 1989.

Rehearing Denied Dec. 15, 1989.

Daniel R. Knowlton and Thomas D. Roberts, Salt Lake City, for defendant and appellant.

R. Paul Van Dam and Dan R. Larsen, Salt Lake City, for plaintiff and respondent.

Before BENCH, GREENWOOD and CROFT, ¹ JJ.

BENCH, Judge:

Defendant appeals from a jury conviction of unlawful possession of marijuana within 1,000 feet of a school, a felony of the third degree. We affirm.

FACTS

In late April 1988, Syracuse City Chief of Police John W. Gardiner interviewed T.H., a fifteen-year-old girl, during an investigation of an alleged sexual offense. In the interview, T.H. told Chief Gardiner that she was a close friend of defendant's daughter and that she had been in defendant's Syracuse home several times in the preceding eighteen months. T.H. mentioned that she had seen "marijuana pipes" in various locations in defendant's house and that she had last been in defendant's home approximately six weeks earlier. She also observed defendant smoking marijuana in his home on three or four previous occasions.

Chief Gardiner subsequently attempted to corroborate the girl's statements. He contacted the girl's high school counselor and was told that the girl and defendant's daughter were friends. He also learned that the girl had no juvenile court record. Chief Gardiner then contacted the Davis Metro Narcotics Strike Force (Strike Force) and was told that a marijuana user retains possession of pipes and other drug paraphernalia for long periods of time, leading the Chief to believe that paraphernalia seen six weeks earlier would still be present. He also learned that defendant had been convicted of unlawful possession of marijuana in 1980.

On the basis of this information, Chief Gardiner prepared an affidavit for a search warrant to search defendant's house. The affidavit was presented to Second Circuit Judge Alfred Van Wagenen, who determined that there was probable cause to believe that "controlled substances," "drug paraphernalia," and "items evidencing ownership, occupation or control of the ... premises" were to be found in defendant's home. Judge Van Wagenen issued a search warrant for defendant's residence, a single-family dwelling located adjacent to a public elementary school. That evening, May 20, 1988, Chief Gardiner, officers of the Syracuse City Police Department, and members of the Strike Force executed the warrant. A search of defendant's house and garage uncovered 100 grams of marijuana, over a kilogram of pure cocaine, assorted weapons, five marijuana pipes, and other drug paraphernalia.

Defendant was subsequently arrested and charged with four offenses: 1) unlawful possession of a controlled substance Defendant filed a motion to suppress evidence obtained pursuant to the search warrant. After a hearing, the district court denied the motion in a written ruling, finding that, based on the affidavit, "there was a fair probability that contraband or evidence of crime would be found in defendant's home." The court concluded that

(cocaine) within 1,000 feet of a public school with intent to distribute, a first degree felony, in violation of Utah Code Ann. § 58-37-8(1)(a)(ii), (5)(a)(iii) (Supp.1989); 2) unlawful possession of a controlled substance (marijuana) within 1,000 feet of a public school, a third degree felony, in violation of Utah Code Ann. § 58-37-8(2)(a)(i), (5)(a)(iii) (Supp.1989); 3) unlawful possession of cocaine without tax stamps affixed, a third degree felony, in violation of Utah Code Ann. § 59-19-106(2) (Supp.1989); and 4) unlawful possession of marijuana without tax stamps affixed, a third degree felony, in violation of Utah Code Ann. § 59-19-106(2) (Supp.1989).

the magistrate could have a reasonable common sense belief that the informant had been present when marijuana had been smoked by the defendant upon at least three or four occasions over the past year and a half, that she knew what marijuana was and knew what a marijuana pipe was; that there was an ongoing pattern of marijuana use in the home by the defendant and that marijuana pipes had been seen in the home on a continuing basis over a year and a half period. That such a pipe was observed most recently on the first week of March.

The district court also determined that the warrant adequately described the premises, authorized the search of the attached garage, and that the affidavit supported a search for controlled substances and paraphernalia. The court responded to defendant's argument that the search exceeded the scope of the warrant by finding that the officers were lawfully in the home and could seize other controlled substances and paraphernalia that came into view during the search. Furthermore, the court found that "the officers ... acted with objective good faith in obtaining the warrant and acted reasonably within its scope." The trial court thus denied defendant's motion, concluding that exclusion of the evidence "would not further the ends of the exclusionary rule."

The parties then agreed to sever the two counts involving "tax stamps" and proceeded to trial on the remaining charges. A jury trial was held on September 21 and 22, 1988. Defendant testified at trial and admitted possessing marijuana, but denied any knowledge of the cocaine found in his garage. He was subsequently convicted of unlawful possession of marijuana, and acquitted of the cocaine charge.

Defendant raises two issues on appeal. First, he claims that the search warrant was unsupported by probable cause and thus evidence seized during the search was improperly admitted. Second, defendant challenges the constitutionality of subsection 58-37-8(5)(a)(iii) both on its face and as applied. That provision modifies the penalty for unlawful possession of small amounts of marijuana from a class A misdemeanor to a third degree felony if possession occurs within 1,000 feet of an elementary or secondary school.

PROBABLE CAUSE

We first address the denial of defendant's motion to suppress. Defendant's initial contention is that the information Chief Gardiner obtained to support the search was stale.

Although defendant does not specifically cite the legal foundation for his arguments, the fourth amendment of the United States Constitution requires that search warrants be supported by "probable cause," "a standard requiring the issuing magistrate to make a reasonable determination whether 'there is a fair probability that contraband or evidence of a crime will be found in a particular place.' " State v. Droneburg, 781 P.2d 1303, 1304 (Utah Ct.App.1989) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, reh'g denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983)). "[W]hen a search warrant is issued on the basis of an affidavit, that affidavit must contain specific When a search warrant is subsequently challenged on the grounds that it was issued without the requisite probable cause, as in this case, "the fourth amendment does not require that the reviewing court conduct a de novo review of the magistrate's probable cause determination." Babbell, 770 P.2d at 991. Rather, the determination is "whether the magistrate had a substantial basis to conclude that in the totality of circumstances, the affidavit adequately established probable cause for the issuance of a search warrant." State v. Hansen, 732 P.2d 127, 129 (Utah 1987). Moreover, in making this determination, the reviewing court is to give the magistrate's decision "great deference." Id. (quoting Gates, 462 U.S. at 236, 103 S.Ct. at 2331).

facts sufficient to support a determination by a neutral magistrate that probable cause exists." State v. Babbell, 770 P.2d 987, 990 (Utah 1989); see also 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 district court reviewed Judge Van Wagenen's probable cause determination after an extensive evidentiary hearing and concluded that there was a substantial basis for issuance of the warrant. Our role in reviewing that determination is limited: "Because a trial court is in an advantageous position to assess witness credibility, 'we will not disturb its factual assessment underlying a decision to ... deny a suppression motion unless it clearly appears that the lower court was in error.' " Droneburg, 781 P.2d at 1305 (quoting State v. Ashe, 745 P.2d 1255, 1258 (Utah 1987)). Clear error is indicated when the trial court's factual assessment is against the clear weight of the evidence or induces a firm conviction that a mistake has been committed. Ashe, 745 P.2d at 1258.

Our review of the record reveals no such error. While the informant had not been in defendant's home in the two months prior to issuance of the warrant, the "mere passage of time does not necessarily invalidate the supporting basis for the warrant." Hansen, 732 P.2d at 131.

Where the affidavit recites a mere isolated violation it would not be unreasonable to imply that probable cause dwindles rather quickly with the passage of time. However, where the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant.

United States v. Johnson, 461 F.2d 285, 287 (10th Cir.1972). The trial court found that the magistrate could have had a "reasonable common sense belief" that "there was an ongoing pattern of marijuana use in the home." This finding is supported by the information that defendant had previously been convicted of a similar offense and that the activity described by the informant had been continuing over an eighteen-month period. The informant observed marijuana use and marijuana paraphernalia in the home on not one occasion, but on numerous visits to the home. Accordingly, we believe that the...