State in Interest of A.R.
| Decision Date | 03 April 1997 |
| Docket Number | No. 960239-CA,960239-CA |
| Citation | 937 P.2d 1037 |
| Parties | 314 Utah Adv. Rep. 9 STATE of Utah, in the interest of A.R. and C.P., persons under eighteen years of age. C.R., Appellant, v. STATE of Utah, Appellee. |
| Court | Utah Court of Appeals |
Julie McPherson, Salt Lake City, for Appellant.
Jan Graham and Annina M. Mitchell, Salt Lake City, for Appellee.
Karen Flynn, Salt Lake City, Guardian Ad Litem.
Before DAVIS, GREENWOOD and ORME, JJ.
Appellant challenges the trial court's determination that C.P. is a neglected child as defined by Utah Code Ann. § 78-3a-2(16) (Supp.1995) (repealed 1996). 1 Specifically, appellant argues that the trial court erred in not excluding evidence obtained during a search of her home. We affirm.
At approximately 8:00 p.m. on January 2, 1996, Third District Juvenile Court Probation Officer Steven Ha, along with youth and family specialist Mr. Coddel, went on a home visit to see appellant's eldest child, M.R., a juvenile probationer under Ha's supervision. On the way, Ha and Coddel stopped at a 7-11 convenience store in appellant's neighborhood. While there, they happened upon R.R., M.R.'s father and appellant's ex-husband. R.R. had legal custody of M.R. R.R. told Ha that M.R. had run away from home and noted that he might be staying with appellant. R.R. also stated that he believed A.R. and C.P., both of whom lived with appellant, were being neglected while in her care.
R.R. then took Ha and Coddel to appellant's home. On their arrival at approximately 8:30 p.m., the trio saw A.R. and C.P., then ages nine and seven respectively, riding their bikes on the street in front of appellant's home. R.R. asked the children where M.R. was, and the children responded that he had run away. Ha then independently asked each child if appellant was home. Responding in the negative, A.R. told Ha that they had not seen appellant since before they went to school that morning; C.P. said they had not seen appellant for two days. Because the children told him they did not have a babysitter, Ha became concerned about their possible neglect and contacted the Salt Lake Police Department (SLPD).
Responding to investigate the child neglect complaint, SLPD Officer Matt Larsen arrived at appellant's home at 9:00 p.m. A.R. told Larsen that she and C.P. were being tended by their mother's boyfriend, Randy Knott. However, A.R. added that Knott had been in and out of the house several times during the day, and that she did not know where he was at the time. Both A.R. and C.P. told Larsen they did not know where their mother was, and that she did not have a job. 2 C.P. mentioned that Knott could possibly be visiting a neighbor across the street. Larsen's testimony as to the events following his interview with the children was as follows:
I went to [appellant's] house, as I recall. I knocked on the door and there wasn't anyone there that I could determine. The front door was open and the screen door was shut. I entered the home to try to determine if there was anyone there.... I entered the house to have a look around and see what the living conditions were like, to see if anyone was present to watch the children. I didn't find anybody in the house.... As I entered one of the bedrooms, I noticed as I turned the corner there was a headboard to the bed which was like a bookshelf, and on the shelf there was as I recall a glass pipe with residue. There was also a wooden bowl-type pipe.... [The] glass pipe ... had dirt residue inside the pipe and there was also evidence of carbon residue on the outside of the pipe that was from a heat source.... [I]t was a pipe used for smoking heroine or cocaine.... [T]he pipe had a residue inside the bowl area that had a smell which was similar to what I have smelled in other pipes used for smoking marijuana. It also had a compartment inside the pipe where there was a loose plant material stored that resembled in Larsen also testified that appellant's house was unkempt, and the children identified the bedroom in which the drug paraphernalia was found as appellant's room. While in appellant's house, Larsen did not open and/or search any drawers or closets.
appearance and odor to be unburned marijuana.
After visually inspecting the home and finding no adults present, Larsen had a Division of Child and Family Services (DCFS) worker and a SLPD youth detective sent to the house. A SLPD canine unit also arrived at the scene. 3 During the canine officer's search of the home, numerous adult sexual devices were discovered in a drawer in appellant's bedroom; the location of the devices was readily accessible to the children. At one time, as many as three marked police vehicles were parked in front of appellant's house, and a total of six police vehicles were present. Nonetheless, despite the presence of several marked police cars and many uniformed police officers at appellant's house, at no time while Ha and Larsen were at appellant's house from 8:30 to 11:00 p.m. did anyone claim responsibility for the children.
Based on the drug paraphernalia, the accessibility of the sexual devices, and the children's lack of supervision, DCFS placed the children in shelter care. Appellee's Verified Petition filed on behalf of A.R. and C.P. alleged that the children were dependent and/or neglected as defined in Utah Code Ann. §§ 78-3a-2(9), (16) (Supp.1995) (repealed 1996). In light of the testimony adduced at the adjudication hearing, the juvenile court concluded that C.P. "is a neglected child in that the child lacked proper parental care by reason of the fault or habits of the parents, guardians, or custodians, and/or the child's parents, guardians, or custodians failed or refused to provide proper or necessary care for his health, safety, morals, or well-being." See Utah Code Ann. § 78-3a-2(16) (Supp.1995) (repealed 1996).
Appellant raises two challenges to the trial court's Findings of Fact, Conclusions of Law and Order, in which C.P. was adjudged a neglected child: (1) whether the trial court erred in ruling that the state and federal constitutional protections against unreasonable searches and seizures are not applicable in child abuse, neglect, and dependency proceedings; and (2) whether, pursuant to state and federal search and seizure law, the search of appellant's home was unlawful, and accordingly, whether the evidence seized from appellant's home should have been excluded.
"Whether police action implicates a fundamental violation of [appellant's] rights is a question of law, which we independently review for correctness." State v. Simmons, 866 P.2d 614, 618 (Utah.Ct.App.1993).
On appeal, appellant challenges the trial court's interpretation of both state and federal search and seizure law. However, at the hearing on her motion to suppress, appellant failed to adequately address the state constitutional search and seizure provision 4 and offered no state constitutional analysis in her memorandum supporting her motion to suppress. This court has previously declared that " 'the proper forum in which to commence thoughtful and probing analysis of state constitutional interpretation is before the trial court, not ... for the first time on appeal.' " State v. Spurgeon, 904 P.2d 220, 224 n. 2 (Utah.Ct.App.1995) (quoting State v. Bobo, 803 P.2d 1268, 1273 (Utah.Ct.App.1990)). "Consequently, '[b]ecause appellant[ ] failed to develop any meaningful state constitutional argument below, our analysis must proceed solely under federal constitutional law.' " Id. (quoting State v. Dudley, 847 P.2d 424, 426 (Utah.Ct.App.1993)).
Appellant contends that the United States Constitution's protection against unreasonable searches and seizures applies in civil child abuse, neglect, and dependency proceedings. During the hearing on appellant's motion to suppress, the trial court presupposed the applicability of the Fourth Amendment when it determined that the exclusionary rule does not apply in civil abuse, neglect, and dependency proceedings. Moreover, in its brief, appellee noted that it
does not dispute, and did not dispute in the juvenile court, that the Fourth Amendment prohibits unreasonable searches by civil authorities other than criminal law enforcement officers. However, that has never been a legal issue in the instant case, in which Appellant challenged the legality of the warrantless entry into her house by [Larsen], a police officer. Although trial counsel contended in his memorandum in support of Appellant's motion to suppress that [DCFS] workers are subject to the Fourth Amendment, [appellee] did not argue otherwise. Moreover, there was no evidence presented to the juvenile court that any civil governmental authority, such as a [DCFS] caseworker, had conducted or participated in any entry or search of [appellant's] house. [ 5]
Nonetheless, because the Fourth Amendment's applicability necessarily precedes consideration of the exclusionary rule, we reach the issue on appeal, even though appellant failed to clearly articulate the issue before the trial court. Cf. Sims v. State Tax Comm'n, 841 P.2d 6, 7-8 (Utah 1992) ().
The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.
U.S. Const. amend. IV (emphasis added).
The Supreme Court has held that the Fourth Amendment's protections apply to civil proceedings 6 and to searches by all state...
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