State v. Beavers, 920056-CA

• Decision Date: 13 August 1993
• Docket Number: No. 920056-CA,920056-CA
• Citation: 859 P.2d 9
• Parties: STATE of Utah, Plaintiff and Appellee, v. Michael Dean BEAVERS, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 9

859 P.2d 9

STATE of Utah, Plaintiff and Appellee, v. Michael Dean BEAVERS, Defendant and Appellant.

No. 920056-CA.

Court of Appeals of Utah.

Aug. 13, 1993.

Ronald S. Fujino and Roger K. Scowcroft, Salt Lake City, for defendant and appellant.

Jan Graham and Christine F. Soltis, Salt Lake City, for plaintiff and appellee.

Before BILLINGS, GARFF and ORME, JJ.

OPINION

ORME, Judge:

Defendant appeals his convictions for theft, a second degree felony, in violation of Utah Code Ann. § 76-6-404 (1990) and burglary, a third degree felony, in violation of Utah Code Ann. § 76-6-202 (1990). He contends that police acquired evidence by way of a constitutionally improper, warrantless seizure and that the trial court therefore erred in denying his motion to suppress evidence. We agree and reverse.

FACTS

In the early morning of November 12, 1990, burglars threw a shopping cart through the window of a Banana Republic store and removed fifty-two coats. Shortly thereafter, defendant and two others allegedly delivered armfuls of coats to Michael Nichols's apartment nearby. After storing the coats, all four purportedly drove to a Mr. Mac clothing store several miles away. Defendant allegedly backed a car through the front door of the store, and the group grabbed thirty-nine leather coats. Those coats were stored with the Banana Republic coats at Nichols's apartment.

Later that morning, at approximately 10:00 a.m., police responded to a call from the manager of Nichols's apartment complex. The manager reported a loud argument coming from Nichols's apartment, apartment 4B. He reported an apparent assault during which he overheard someone say "Don't kill me," or words to that effect. Officer Humphries and Trainee Beger, along with their backup, Officer Foster, met with the manager upon arrival at the scene. The manager confirmed the information he initially reported and explained that he had seen two males enter the apartment earlier that morning, although he did not believe the renter was home. He provided the license number and a description of the car that had dropped off the two visitors. The manager further reported that apartment 4B had been broken into the previous night and a television set was reported missing. He then directed the officers to apartment 4B, a second story apartment.

From the top of the stairway, the officers could hear the voices of males arguing in the apartment. Upon arrival at the apartment, the officers noticed that the latching mechanism and door jam had been broken and the door was open a few inches. ¹ Without alerting the occupants Officer Humphries and Trainee Beger assumed positions on each side of the apartment door while Officer Foster remained in the stairway. The officers listened for two to four minutes, during which time they heard an argument over the price of coats. What they heard promptly obviated their concerns about violence in progress, but at the same time was of considerable interest. At the suppression hearing, Officer Humphries testified:

The one individual was saying he wanted to take the coat, show the coat. "I will give you $10 and I will be back later." The other voice was objecting to that arrangement, was saying, "No, you are not leaving with the coat. I am not going to let you walk with the coat for $10."

A third party at one point in time interjected that--something to the effect, "They have got a lot of coats in there. You have seen the coats they have in there." Or something to that effect.

A moment later, Officer Humphries overheard the person who wanted to take the coat, later identified as Dexter Davis, say "Well, I am leaving. I will see you later." Davis then stepped through the door of the apartment into the hallway, carrying a new coat. As soon as he saw the officers, he exclaimed "Oh, shit" and stepped back across the threshold about a half an arm length into the apartment. Officer Humphries reached across the threshold into the apartment, grabbed Davis's shoulder, flipped his legs out from under him, and placed him in a prone position on the ground. As he reached for Davis, Officer Humphries saw two black males and a black female through the open door. There was no sign of the renter, based on information received from the manager that he was a white male. Officer Humphries observed one of the men fumbling with a pile of clothes on the floor while the other two persons fled from sight. These movements, which occurred after Davis had been seized, caused Officer Humphries to fear for the safety of the officers present. He called for Officer Foster, whereupon the two entered the apartment with guns drawn. They ordered two of the occupants into prone positions on the floor and seized the third. When Officer Humphries checked the rest of the apartment for other individuals, he observed a "large number of new coats hanging in closets." ²

Two other officers arrived, responding to a call for assistance. One of these officers left the scene to obtain a search warrant for apartment 4B. The other officer learned from people at the scene that the defendant had placed some jackets in the back of his girlfriend's car and left in that car with his girlfriend, Ms. Buzzard, for her house on 10th East. Several officers were dispatched to that location. One of those officers, Officer Brown, knocked and asked Ms. Buzzard if defendant was there. She responded he was and went to get him. Officer Brown, without her permission, followed Ms. Buzzard into the apartment and arrested defendant.

Immediately after the arrest, Officer Atkinson, supervisor of the burglary unit, explained to Ms. Buzzard the reason for defendant's arrest and requested permission to search the house and her car. Ms. Buzzard gave permission for those searches. The police found several coats in the room defendant had been using and immediately thereafter questioned defendant in a police car without informing him of his Miranda rights. Defendant admitted there were coats in Ms. Buzzard's car, and, after their discussion with defendant, the police found thirteen stolen coats in her car.

Defendant and codefendant Anthony Harris were charged with theft, a second degree felony, see Utah Code Ann. § 76-6-404 (1990), and burglary, a third degree felony, see Utah Code Ann. § 76-6-202 (1990), in connection with the incidents at the Banana Republic and Mr. Mac stores. After a hearing, the trial court denied defendant's motion to suppress all evidence obtained against him with the exception of the statements he made to police without the benefit of Miranda warnings. All evidence of the statements was ordered suppressed. The court specifically concluded: 1) the initial entry into apartment 4B was reasonable because Davis might have had a weapon and police reasonably believed that their safety was threatened by his retreat into the apartment; 2) the further intrusion and safety sweep of the apartment were also justified by reasonable safety concerns; 3) although defendant's arrest at his girlfriend's residence was unreasonable, none of the evidence flowed from that arrest or, apparently, any search merely incident thereto; 4) the coats in the girlfriend's residence and car were discovered by way of consensual searches based on information received at apartment 4B; and 5) defendant's statement that coats could be found in his girlfriend's car was illegally obtained for lack of Miranda warnings.

The court granted defendant's motion to sever his trial from that of Anthony Harris, but denied his motion to sever charges related to the Banana Republic store from those related to the Mr. Mac store. The jury acquitted defendant of the Banana Republic felony offenses, but convicted him of theft by receiving goods taken in the Banana Republic burglary, a class B misdemeanor, and convicted him of the Mr. Mac burglary and theft.

Defendant appeals the trial court's denial of his motion to suppress because he asserts the warrantless entry into apartment 4B and the warrantless seizure of Dexter Davis were unreasonable under the Fourth Amendment to the Federal Constitution and Article I, § 14, of the Utah Constitution. ³ Defendant further argues that even if the initial entry into apartment 4B was legal, the court erred in not suppressing evidence discovered in Ms. Buzzard's residence and car because those items were fruits of Officer Brown's illegal entry into her home. Finally, defendant contends that the court erred by not severing the charges related to Banana Republic from those related to Mr. Mac. Our conclusion that the initial entry into the apartment and seizure of Davis violated the Fourth Amendment renders our consideration of the other issues raised on appeal unnecessary.

STANDARD OF REVIEW

We will disturb a trial court's factual findings on a motion to suppress evidence only if those findings are clearly erroneous, but we review a court's legal conclusions based upon those findings under a nondeferential correction of error standard. See, e.g., State v. Thurman, 846 P.2d 1256, 1270-71 & n. 11 (Utah 1993); State v. Strickling, 844 P.2d 979, 981 (Utah App.1992); State v. Godina-Luna, 826 P.2d 652, 654 (Utah App.1992). In the present case, neither party disputes the factual findings which underlie the court's legal conclusion that Officer Humphries's warrantless seizure of Davis at apartment 4B was reasonable. Instead, defendant contends, given the facts of this case, the court reached its conclusion by applying the law incorrectly. We accordingly review the court's application of Fourth Amendment principles to the undisputed facts of this case.

ANALYSIS

The State claims that Officer Humphries possessed reasonable suspicion, or perhaps even probable cause, to believe Davis and the others in apartment 4B were involved in criminal activity and that he reasonably feared for his safety when Davis retreated into the apartment. According to the State, reasonable suspicion or probable cause, together with...