846 P.2d 1256 (Utah 1993), 910494, State v. Thurman

Docket Nº:910494.
Citation:846 P.2d 1256
Opinion Judge:ZIMMERMAN, Justice:
Party Name:STATE of Utah, Plaintiff and Appellee, v. Steven Douglas THURMAN, Defendant and Appellant.
Attorney:R. Paul Van Dam, David B. Thompson, Richard G. MacDougall, Salt Lake City, for plaintiff and appellee. Robert Van Sciver, Salt Lake City, for defendant and appellant.
Case Date:January 07, 1993
Court:Supreme Court of Utah

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846 P.2d 1256 (Utah 1993)

STATE of Utah, Plaintiff and Appellee,


Steven Douglas THURMAN, Defendant and Appellant.

No. 910494.

Supreme Court of Utah.

January 7, 1993

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[Copyrighted Material Omitted]

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R. Paul Van Dam, David B. Thompson, Richard G. MacDougall, Salt Lake City, for plaintiff and appellee.

Robert Van Sciver, Salt Lake City, for defendant and appellant.


Steven Douglas Thurman appeals from an interlocutory order denying his motion to suppress evidence linking him to a fatal bomb explosion. He is charged with aggravated murder, a capital felony, Utah Code Ann. § 76-5-202(1), delivering an infernal machine, a second degree felony, id. § 76-10-307, and construction of an infernal machine, a third degree felony, id. § 76-10-308. We affirm.

The facts are largely undisputed. Eleven-year-old Adam Cook was killed by a pipe bomb explosion in his father's vehicle on the night of May 15, 1991. On the night following the bombing, a federal magistrate issued a warrant to search Thurman's apartment. The application for the warrant requested authorization to enter the apartment without giving notice (a "no-knock" entry) at any time of the day or night. The application was accompanied by the affidavit of Special Agent Conner of the Federal Bureau of Alcohol, Tobacco & Firearms ("ATF"). The affidavit recited the findings of the agent's investigation and concluded, inter alia, that there was reason to believe that Thurman possessed illegal destructive devices in his apartment and his vehicle and that a no-knock entry was necessary for public safety. However, the magistrate did not authorize a no-knock entry and issued a warrant restricting the search to the hours between 6 a.m. and 10 p.m.

At 6:14 a.m. on May 17th, law enforcement officers from the Murray City Police Department and ATF executed the warrant. Within less than thirty seconds after knocking on Thurman's apartment door, the officers used a ramming device to force their way in. Six officers entered Thurman's 650-square-foot apartment with weapons drawn, simultaneously announcing their identity and intent. Thurman was in bed, naked and asleep, and offered no resistance when the officers approached and handcuffed him. During the handcuffing, Thurman's nose was injured and began bleeding. Paramedics attended to Thurman's injury at the scene, and an officer informed him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The record is unclear as to when the officers allowed him to dress, but by 7:30 a.m., he was clothed.

Shortly thereafter, Thurman signed two preprinted consent forms to allow the officers to search two automobiles and a cab-over camper. Prior to signing, he was read the consent form verbatim. During this time, the officers learned that Thurman rented a garage-type storage unit in nearby Midvale and asked Thurman to sign another preprinted consent form to search the unit. 1 One of the officers told Thurman that the storage unit would be

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searched with or without his consent. 2 At 7:40 a.m., Thurman signed the consent form, which was identical to the previous forms except for the specification of the search target.

Between 8:30 a.m. and 9:30 a.m., Thurman was again informed of his Miranda rights. At 11 a.m., an officer removed Thurman's handcuffs, and he accompanied the officers to the storage unit. Upon arrival, Thurman opened the combination lock to the unit and the officers opened the door. Before the officers entered, Thurman was asked to sign a second preprinted consent form to allow the officers to search the unit. After an officer went over the form with him, Thurman signed it at 11:29 a.m. and was placed back into handcuffs. The search of the storage unit proceeded until about 12:30 p.m. or 1 p.m. The police formally arrested Thurman at 2:30 p.m.

At trial, Thurman moved to suppress any evidence found in his apartment and storage unit during the May 17th searches. After an evidentiary hearing, the trial court denied Thurman's motion. The court first ruled that the affidavit supporting the warrant was sufficient to establish probable cause for the search and that the warrant was properly issued. The court then ruled that the officers had executed the warrant in violation of section 77-23-10(1) of the Code, Utah's "knock-and-announce statute." The knock-and-announce statute provides that an officer may enter a premises forcibly "[i]f, after notice of his [or her] authority and purpose, there is no response or he [or she] is not admitted with reasonable promptness." Utah Code Ann. § 77-23-10(1). The court found that the violation occurred when, without no-knock authorization, "the officers made a mere perfunctory knock and seconds later made a forced entry." However, the court held that despite the illegal entry of Thurman's apartment, the evidence found in the storage unit was admissible because Thurman's consents to search the storage unit were voluntary under State v. Whittenback, 621 P.2d 103 (Utah 1980), and were not tainted by the illegal search under State v. Arroyo, 796 P.2d 684 (Utah 1990). 3

On appeal, Thurman raises two claims. First, he argues that the trial court erred in finding the search warrant valid because the warrant application was based on stale and insufficiently specific information that undermined the probable cause for the search. Second, he claims that the trial court erred in finding that his consents to search the storage unit were voluntary and were not the product of the exploitation of an illegality under Arroyo. 4 In response to Thurman's second claim, the State concedes that the trial court was correct in holding that the officers' entry into Thurman's apartment violated section 77-23-10(1), but argues that the court appropriately applied Arroyo in finding the consents to be valid.

We turn first to Thurman's attack on the validity of the search warrant and begin with the appropriate standard of review. In reviewing the magistrate's finding of probable cause to support a search

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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. State v. Babbell, 770 P.2d 987, 991 (Utah 1989); State v. Hansen, 732 P.2d 127, 129 (Utah 1987); State v. Leonard, 825 P.2d 664, 673 (Utah Ct.App.1992). 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. Babbell, 770 P.2d at 991 (quoting State v. Anderson, 701 P.2d 1099, 1102 (Utah 1985)). 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. 5 See id. (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)).

We now address the merits. Thurman argues that the affidavit recites information that is either stale or insufficiently specific to support a finding of probable cause. His staleness argument challenges the magistrate's reliance on alleged events suggesting that he had a motive to commit the crime. His lack-of-specificity argument challenges the magistrate's reliance on alleged facts suggesting that he actually committed the crime.

We first consider Thurman's staleness argument. Staleness issues usually arise when a significant lapse of time occurs between the discovery of information suggesting that evidence of the crime can be found at a particular locale and the magistrate's finding of probable cause or the execution of the warrant. See, e.g., Hansen, 732 P.2d at 131; State v. Stromberg, 783 P.2d 54, 56-57 (Utah Ct.App.1989). The concern is whether so much time has passed that there is no longer probable cause to believe that the evidence is still at the targeted locale. See 2 Wayne R. LaFave, Search & Seizure § 3.7(a), at 75-76 (2d ed. 1987) [hereinafter Search & Seizure ]. Thurman's argument is a variation of this theme. He argues that so much time passed after the alleged events suggesting that he had a motive to commit the crime that by the time the warrant was issued, there was no longer reason to believe that he still had such a motive. Even assuming, however, that the same staleness concepts apply to a probable cause determination of motive, we find Thurman's argument unpersuasive.

Viewing the affidavit in its entirety and in a common-sense fashion, we conclude that the affidavit sufficiently supports a finding that a fair probability existed that Thurman had a motive to commit the crime and that his motive was still present the night of the bombing. Agent Conner's affidavit summarizes interviews with four witnesses that strongly suggest that Thurman held an obsessive hatred for Adam Cook's father, Howard Cook, stemming from an affair that Thurman's ex-wife had with Howard Cook while Thurman and his ex-wife were still married. For example, the affidavit states that one witness said that about six months prior to the bombing, Thurman hired a private investigator to watch Howard Cook and Thurman's ex-wife and that Thurman was "extremely angry" and "hates" his ex-wife as a result of the divorce. Thurman's ex-wife reported that several months prior to the bombing, she and Howard Cook saw Thurman watching them from a car parked near her apartment. Based on these and other allegations in the affidavit, the magistrate easily could have found a fair probability that Thurman continued to harbor resentment against Howard Cook. Cf. Hansen, 732 P.2d at 131.

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We next consider Thurman's specificity argument. In making this argument, Thurman challenges the nexus between him and the...

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