State v. Ham
| Decision Date | 11 January 1996 |
| Docket Number | No. 950062-CA,950062-CA |
| Citation | 910 P.2d 433 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Gordon Ray HAM, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Solomon J. Chacon and Gary L. Bell (argued), Salt Lake City, for Appellant.
Thomas B. Brunker, Asst. Atty. Gen., and Jan Graham, Atty. Gen., Crim. Appeals Div., Salt Lake City, for Appellee.
Before DAVIS, Associate P.J., ORME, P.J., and GREENWOOD, J.
Defendant Gordon Ray Ham appeals his conviction of possession of a controlled substance with the intent to distribute, a second degree felony, in violation of Utah Code Ann. § 58-37-8(1)(a)(iv) (Supp.1995). We reverse.
On the day in question, defendant was on probation because of a felony conviction related to sexual misconduct. As a condition of his probation, defendant signed a probation agreement which contained the following "Conditions of Probation":
2. I shall permit visits to my place of residence ... as required by the Department of Corrections for the purpose of ensuring compliance with the conditions of probation.
....
8. I agree to allow an agent of the Department of Corrections to search my person, residence, vehicle or any other property under my control, without a warrant, any time day or night, upon reasonable suspicion as ascertained by an agent of the Department of Corrections to ensure compliance with the conditions of probation.
Another condition of defendant's probation was that he abstain from alcohol.
On October 13, 1994, two agents from Adult Probation and Parole, Scott McCullough and Craig Hillam, visited defendant at his residence to conduct a routine "home visit." The agents knocked on defendant's door, were greeted by an unknown woman, and waited inside the front door as she informed defendant that he had visitors. Agent McCullough told defendant that they were there for a routine visit to ensure defendant's compliance with the "no alcohol" provision in his probation agreement. Although the agents had no reasonable suspicion that defendant had violated any of the terms of his probation agreement, Agent McCullough stated, "We need to look in the refrigerator for alcohol." 1 Although neither agent could recall defendant's precise response, both testified that defendant responded affirmatively. All parties agree that at no time did defendant object to Agent McCullough's request.
Agent McCullough looked in defendant's refrigerator and found nothing of note; however, Agent Hillam found two bottles of alcohol in defendant's separate, free-standing freezer. After reminding defendant that this was a violation of his probation agreement, Agent Hillam poured the alcohol down the kitchen drain.
At this time, the agents believed that there might be additional alcohol violations and requested that defendant escort them on a cursory "walk through" of defendant's residence. Nothing was discovered during the initial, cursory search of the main floor. However, upon reaching the basement, Agent McCullough observed a cooler which was filled with ice and fourteen cans of beer. As Agent McCullough was securing the cooler, Agent Hillam walked into a back storage room. After turning the light on, Agent Hillam discovered a mirror holding a white powdery substance, razor blades, and devices which are commonly used for ingesting cocaine. Believing the white powdery substance to be cocaine, Agent Hillam placed defendant under arrest.
After defendant was arrested, but before he was given any Miranda warnings, Agent Hillam asked defendant whether other drugs were in the house. Defendant responded that there were mushrooms in a cup in the storage room. When questioned about the white powdery substance, defendant confirmed that it was cocaine. At this point, defendant was read his rights by Agent Hillam. 2 Agent Hillam asked defendant if he understood those rights; defendant responded affirmatively and also agreed to talk to the agents without an attorney present.
After defendant was given his Miranda warnings, Agent Hillam returned to the storage room to retrieve the mushrooms. During this time, Agent McCullough questioned defendant regarding additional drugs in the house. 3 Defendant revealed that there was cocaine in a closet locked in a chest bolted underneath the stairs and gave Agent McCullough a key to unlock the chest. Located inside were two Crown Royal bags containing cocaine.
Defendant was ultimately charged with possession of cocaine with intent to distribute, a second degree felony, in violation of Utah Code Ann. § 58-37-8(1)(a)(iv) (Supp.1995), and possession of psilocybin mushrooms, a third degree felony, in violation of Utah Code Ann. § 58-37-8(2)(a)(I) (Supp.1995). On November 10, 1994, defendant filed a motion to suppress the evidence, claiming that the agents did not have either reasonable suspicion that defendant had violated his probation agreement or defendant's consent to search his residence. Thus, defendant contended that all evidence seized was done so in violation of his constitutional rights.
In a memorandum decision dated November 22, 1994, the trial court denied defendant's motion. The trial court concluded that
1. The search of the freezer which revealed the two bottles of liquor was a lawful reasonable search because the defendant agreed in the probation agreement he signed to allow probation officers to search his residence for evidence of violations of probation, and because the defendant consented to a search of his refrigerator, and by implication, his freezer.
2. Once the liquor was discovered, the probation officers had a "reasonable suspicion" to conduct a more intrusive search of the house pursuant to State v. Velasquez, 672 P.2d 1254 (Utah 1983).
3. The additional discovery of the beer in the cooler in the downstairs of the house further supported a "reasonable suspicion" justifying the scope of the search which led to the discovery of the defendant's possession of cocaine.
4. After his arrest, the defendant was subjected to custodial interrogation in violation of Miranda, but the evidence that was found subsequent to the defendant's arrest is not subject to suppression because its discovery was inevitable in that the probation officers would have conducted the search of the residence even had the defendant not made any statements. See Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377. (1984).
Based on the trial court's denial of his motion to suppress the evidence, defendant entered a conditional guilty plea, pleading guilty to the possession of cocaine with intent to distribute charge and, on the State's motion, the possession of psilocybin mushrooms charge was dismissed. Defendant was sentenced on January 23, 1995, to the statutory prison term of one to fifteen years and was fined $4625 by the trial court. Defendant was immediately taken to the Utah State Prison.
Defendant filed a notice of appeal on January 23, 1995. On February 17, 1995, defendant filed an application for issuance of a certificate of probable cause with the trial court requesting that he be released from prison pending the outcome of the appeal. Based on the parties' stipulation, the trial court granted the application for certificate of probable cause on March 9, 1995. Notwithstanding, because defendant was a probationer at the time the events transpired, his probation was revoked and he remains incarcerated. 4
Although several issues are raised on appeal, we need only address the following: (1) whether the trial court erred in concluding that defendant's probation agreement authorized the agents to search his refrigerator and freezer; (2) whether the trial court's finding that defendant consented to the search was correct, and, if so, whether defendant gave his consent voluntarily; and (3) if the search of the refrigerator was illegal, whether defendant's alleged second consent was sufficiently attenuated from the prior illegality, which would make the cocaine found underneath the stairs admissible into evidence.
Pursuant to defendant's probation agreement, defendant agreed to routine home visits by probation agents such as Agent McCullough and Agent Hillam "for the purpose of ensuring compliance with the conditions of probation." Furthermore, defendant also agreed to warrantless searches of his residence upon an agent's reasonable suspicion that defendant had violated the terms of his probation agreement.
The trial court held that "[t]he search of the freezer which revealed the two bottles of liquor was a lawful reasonable search because the defendant agreed in the probation agreement he signed to allow probation officers to search his residence for evidence of violations of probation." However, the probation agreement authorizes a warrantless search only upon reasonable suspicion; both Agent McCullough and Agent Hillam testified that they did not have reasonable suspicion that defendant had violated any of the terms of his probation agreement. Thus, defendant did not agree in advance to an unfettered right to search at any time for absolutely no reason and, accordingly, the terms of the probation agreement did not give the agents the authority to conduct a warrantless search without either reasonable suspicion or defendant's consent.
A similar analysis was conducted in State v. Martinez, 811 P.2d 205 (Utah App.1991). At issue in Martinez was whether the probationer had validly consented to a search of his residence because he was not present at the time his probation officer searched the apartment. The probationer's probation agreement contained two relevant provisions, one identical to the provision in the case at bar:
8. I agree to allow an agent of the Department of Corrections to search my person, residence, vehicle or any other property under my control, without a warrant, any time of day or night, upon reasonable suspicion as ascertained by...
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...convincing evidence that [the party] waived [its constitutional right against unreasonable searches and seizures]." State v. Ham, 910 P.2d 433, 439 (Utah Ct. App.1996) (citations omitted). This test for determining voluntariness was adopted by the Utah Court of Appeals in State v. Marshall,......
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...court of appeals. ¶ 34 The State points out that the "clear, positive, and unequivocal" language stems from a test in State v. Ham, 910 P.2d 433, 439 (Utah Ct.App.1996). The Ham test consisted of three (1) There must be clear and positive testimony that the consent was unequivocal and speci......
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Article Title: Utah Supreme Court Review 2000
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