City of Orem v. Henrie

• Decision Date: 04 February 1994
• Docket Number: No. 930411-CA,930411-CA
• Citation: 868 P.2d 1384
• Parties: CITY OF OREM, Plaintiff and Appellee, v. Kari HENRIE, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 1384

868 P.2d 1384

62 USLW 2563

CITY OF OREM, Plaintiff and Appellee, v. Kari HENRIE, Defendant and Appellant.

No. 930411-CA.

Court of Appeals of Utah.

Feb. 4, 1994.

Michael J. Petro (argued), Young & Kester, Springville, for appellant.

Edward A. Berkovich (argued), Orem City Prosecutor, Orem, for appellee.

Before BILLINGS, DAVIS and JACKSON, JJ.

OPINION

BILLINGS, Presiding Judge:

Defendant/appellant Kari Henrie appeals her convictions for leaving the scene of an accident, in violation of Utah Code Ann. § 41-6-30 (1993), and driving under the influence of alcohol, in violation of Utah Code Ann. § 41-6-44 (1993). ¹ She claims the trial court erred in denying her motion to suppress evidence gathered at her home. We affirm.

FACTS

At approximately 6:00 p.m. on January 1, 1993, a two-car accident occurred in Orem, Utah. One of the cars, a full-size, older-model, brown Buick, was observed leaving the scene of the accident. An officer dispatched to the scene obtained a description of the car, including the license plate number, and radioed a request for other units to search for the missing automobile. At approximately 6:15 p.m., Officer Steele located a car matching the description at a fourplex apartment near the scene of the accident. The car had front-end damage consistent with the accident. In addition, it was parked at an extreme angle, and the door on the driver's side was ajar. A strong odor of alcohol emanated from the car.

Officer Steele attempted to locate the owner of the car. As he approached the fourplex, he noticed that "the door on the bottom left [apartment] that had the lights out was closing slowly." He then went upstairs to an illuminated apartment, where he learned from its occupant that defendant owned the car and lived in the darkened apartment where he had seen the door closing. He knocked several times on the outer screen door of defendant's apartment but received no response. As he was turning away from the door, Officer Steele found defendant's purse on the stairs.

Officer Steele was then joined by Officer Jackson, and together they returned to defendant's front door. Officer Jackson reached through a hole in the screen and knocked hard on the inner wooden door, hoping to elicit a response. Instead, the door swung open one to two feet, and the officers observed keys in the doorknob. Both officers testified they had not previously noticed that the door was ajar or that the keys were in the doorknob.

At this point, the testimony of the officers varies. Officer Steele testified that he shined his flashlight into the apartment when the door swung open. However, on cross-examination he admitted that he might have first pushed the door open further. Officer Jackson testified that Officer Steele pushed the door open further and then shined his flashlight into the darkened apartment. ²

The officers noticed defendant on her bed in the rear of the apartment. Officer Steele called out "Kari" and defendant stood up and said, "Yes." He asked if they could talk to her. She said "okay" and approached them, staggering as she walked. The officers opened the screen door and entered one to three feet into the apartment. All three then went outside, where the officers described the car accident to defendant and administered field sobriety tests to her. A third officer joined them and observed the administration of the tests; he then took defendant to the police station, advised her of her Miranda rights, and attempted to administer an intoxilyzer test. After three unsuccessful attempts, defendant's inability to complete the test was recorded as a refusal.

Defendant was charged with driving under the influence of alcohol and leaving the scene of an accident. She moved to suppress all evidence obtained as a result of the warrantless entry into her home. ³ The trial court denied the motion, and the case then proceeded to a bench trial, where defendant was found guilty on both counts. The trial court sentenced her to the statutory maximum for each offense. Subsequently, the court granted a certificate of probable cause and stayed imposition of defendant's sentence pending appeal to this court.

Defendant appeals from her convictions, claiming the trial court erred in denying her motion to suppress because an unlawful search occurred when the police entered her home without a warrant and without exigent circumstances to support the entry. The City responds that there was no search, that defendant consented to the officers' entry into her home, and that even if a search occurred, it was justified by exigent circumstances. We address in detail only the issue of exigent circumstances as we affirm on that basis.

STANDARD OF REVIEW

This court previously characterized the determination of exigent circumstances as a question of fact, "which should not be disturbed on appeal unless clearly erroneous." State v. Morck, 821 P.2d 1190, 1194 (Utah App.1991). However, in State v. Thurman, 846 P.2d 1256 (Utah 1993), the supreme court undertook a rigorous analysis of the standard of review applicable to determinations of voluntariness of consent and attenuation. Id. at 1262-72. The court adopted a bifurcated standard for both determinations, concluding that the "ultimate conclusion that a consent was voluntary or involuntary is to be reviewed for correctness ... [and the] underlying factual findings will not be set aside unless they are found to be clearly erroneous." Id. at 1271 (citation omitted). That standard also applies to determinations of exploitation and attenuation. Id. at 1271-72.

Since Thurman, we have applied the bifurcated approach to a determination of exigent circumstances. State v. Beavers, 859 P.2d 9, 12 (Utah App.1993). In Beavers, because the underlying facts were undisputed, we employed the second prong of Thurman, applying a nondeferential correction of error standard to "the [trial] court's application of Fourth Amendment principles to the undisputed facts of [that] case." Id. ⁴

In the instant case, the facts relevant to the exigent circumstances determination are undisputed. We thus review for correctness the trial court's conclusion that exigent circumstances justified the warrantless search.

I. EXISTENCE OF SEARCH

As a threshold matter, the City argues that no search occurred. Our review of the record, however, reveals that at the suppression hearing, the City expressly conceded that a search occurred. The following colloquy illustrates this concession THE COURT: And shining the light was a search?

MR. PETRO [counsel for defendant]: Yes.

THE COURT: Do you disagree?

MR. STEPHENS [counsel for the City]: We'd at least concede that shining the light would be a search....

THE COURT: So we're not going to be asked to define if that was a search? The parties agree that it was.

Based upon this concession, the trial court proceeded to consider the issues of probable cause and exigent circumstances.

The City cannot on appeal circumvent its earlier concession. "[A]n appellate court normally will not consider issues, even constitutional ones, that have not been presented first to the trial court for its consideration and resolution." State v. Webb, 790 P.2d 65, 71 n. 2 (Utah App.1990), aff'd sub nom. Webb v. Van Der Veur, 853 P.2d 898 (Utah App.1993), cert. denied, 860 P.2d 943 (Utah 1993); accord Ong Int'l Inc. v. 11th Ave. Corp., 850 P.2d 447 (Utah 1993) (declining to address issues on appeal that trial court should have addressed first); Stillinovich v. Ottilia Villa, Inc., 14 Utah 2d 222, 381 P.2d 210 (1963) (binding parties to concession, upon which trial court relied, that suit was a class action).

In the instant case, the trial court relied upon the concession that a search occurred when the officer shined his flashlight into defendant's apartment. Thus the court had no occasion to consider the issue. Accordingly, we will not treat this issue for the first time on appeal. State v. Rangel, 866 P.2d 607, ----, 229 Utah Adv.Rep. 51, 53 (Utah App.1993). We now consider whether the warrantless search was proper. ⁵

II. PROPRIETY OF WARRANTLESS SEARCH

A. Utah Constitution

Defendant argues that the warrantless search violated both the Fourth Amendment of the United States Constitution and Article I, Section 14 of the Utah Constitution. In her brief, she highlights the recent trend among state courts grounding their search and seizure analyses on state constitutional provisions, which may afford greater protections than their federal counterpart. See, e.g., State v. Larocco, 794 P.2d 460, 465 (Utah 1990) (plurality opinion). Defendant, however, engages in no analysis as to why our examination of exigent circumstances under Article I, Section 14 should be different from traditional Fourth Amendment treatment of the issue. We refuse to provide the independent analysis defendant has failed to submit. See, e.g., State v. Brown, 853 P.2d 851, 854 n. 1 (Utah 1992); State v. Webb, 790 P.2d 65, 71 n. 2 (Utah App.1990), aff'd sub nom. Webb v. Van Der Veur, 853 P.2d 898 (Utah App.1993), cert. denied, 860 P.2d 943 (Utah 1993). Therefore, we consider her claim only under the Fourth Amendment.

B. Fourth Amendment

Under the Fourth Amendment, we employ a strong preference in favor of warrants, particularly when a person's residence is involved. Indeed, " 'physical entry of the home is the chief evil against which the ... Fourth Amendment is directed.' " Welsh v. Wisconsin, 466 U.S. 740, 748, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732 (1984) (quoting United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752 (1972)). As such, "searches and seizures inside a home without a warrant are presumptively unreasonable." Id. 466 U.S. at 749, 104 S.Ct. at 2097 (citing Payton v. New York, 445 U.S. 573, 587, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980)); accord State v. Christensen, 676 P.2d 408, 411 (Utah 1984); State v. Beavers, 859 P.2d 9, 13 (Utah App.1993).

However, the...