State v. Ashe
| Citation | 745 P.2d 1255 |
| Decision Date | 12 November 1987 |
| Docket Number | No. 19809,19809 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Gregory ASHE, Molly Ann Glaser, and Kenneth Martin Cricks, Defendants and Appellants. |
| Court | Supreme Court of Utah |
David L. Wilkinson, J. Stephen Mikita, Salt Lake City, for plaintiff and respondent.
G. Fred Metos, Salt Lake City, for defendants and appellants.
Following a nonjury trial, Gregory Ashe was convicted of knowingly and intentionally distributing a controlled substance and of possessing a controlled substance with intent to distribute the same in violation of Utah Code Ann. § 58-37-8 (Supp.1983) (amended 1985 & 1987). Ashe contends on appeal that since there were no exigent circumstances to justify the warrantless entry of his residence, evidence seized as a result thereof should have been suppressed.
On March 14, 1983, codefendant Molly Glaser phoned Police Officer Brown, who was working as a narcotics agent on the Metro Narcotics Strike Force, and arranged to meet him at the Mount Aire Cafe in Park City, Utah, to complete a sale of four ounces of cocaine. After briefing surveillance officers about the transaction, Brown and several other officers left for Park City. Shortly after Brown arrived at the cafe, Glaser arrived with codefendant Kenneth Cricks. Cricks parked the car, and Glaser entered the cafe, leaving Cricks behind. Once inside the cafe, Brown and Glaser began negotiating the particulars of the drug transaction. Initially, Glaser requested that Brown give her the entire purchase price of $8,400, promising that she would later return with all of the cocaine. The two eventually agreed that Brown would give Glaser $500 and that she would return with one of the four ounces for him to test. Then, if the cocaine was acceptable, they would complete the remainder of the sale.
After Brown gave Glaser the $500, she left the cafe and spoke to Cricks in the vehicle outside. Thereafter, she returned to the cafe and instructed Brown to wait five minutes after she left and then to meet her in a nearby parking lot.
In the meantime, while Glaser was meeting with Brown, Cricks, under police surveillance, drove twice to Ashe's house. On each occasion, Cricks exited Ashe's house after several minutes and returned to meet with Glaser at or near the cafe parking lot.
After her final meeting with Cricks, Glaser walked to Brown's car, whereupon she produced an envelope containing a white powdery substance. Brown performed a "wintergreen" test on the substance and determined that it was probably cocaine. He then began counting out the rest of the money, signaling surveillance officers to approach the car and assist in Glaser's arrest. Other officers arrested Cricks, who was parked out of sight nearby.
Prior to her arrest and during the time she was in Brown's car, Glaser voluntarily explained that her supplier was in the vicinity, that he expected the rest of the purchase money to be delivered "quickly," and that the final transaction for the remaining three ounces of cocaine was to take place at the door of her supplier's house in a "few minutes." Based upon this information, the officers decided moments after Glaser's arrest to "secure" Ashe's house and detain anyone inside it. The officers testified they became concerned that if the transaction did not take place almost immediately as planned, someone in Ashe's house would become suspicious and destroy evidence before the officers could obtain a warrant.
Thereafter, upon arriving at and approaching Ashe's residence, one of the officers observed Ashe look out of an upstairs window and then move away. After knocking, identifying himself as a police officer, and briefly waiting for a response, Brown kicked open the front door. As several officers entered, they heard a toilet flush. Brown then kicked open the bathroom door and discovered Ashe, completely dressed and standing away from the toilet. He also noticed two bags containing a white residue in the nearby wastebasket. After taking Ashe into custody, the officers performed a cursory security search of the premises. During this search, some of the evidence later introduced at trial was in plain view. Several of the officers then remained at Ashe's house while Brown and the Park City Police Chief left to obtain a search warrant. 1 When they returned, the officers conducted a thorough search of the house. All the evidence viewed and discovered, both before and after receipt of the search warrant, was seized and later admitted at trial.
Ashe contended that since exigent circumstances for the warrantless entry did not exist, he was entitled to a new trial and suppression of the evidence which was in plain view. 2 The trial court denied Ashe's motion to suppress, and we affirm.
When faced with a motion to suppress, the trial court must determine whether proffered evidence is constitutionally defective. 3 In making this determination, the court is often required to resolve preliminary factual disputes. 4 Because of the trial court's position of advantage to observe witnesses' demeanor and other factors bearing on credibility, we will not disturb its factual assessment underlying a decision to grant or deny a suppression motion unless it clearly appears that the lower court was in error. 5 In applying this test to the case before us, the trial court's assessment is not against the clear weight of the evidence and we are not left with a "definite and firm conviction that a mistake has been committed." 6
We begin our analysis with the understanding that searches conducted without a warrant "are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions." 7 The exceptions are " 'jealously and carefully drawn,' and there must be a 'showing by those who seek exemption ... that the exigencies of the situation made [the search] imperative.' " 8 Generally, exigency does not evolve from one individual fact. Instead, there is often a mosaic of evidence, no single part of which is itself sufficient. Our task is to review the totality of the facts and circumstances of the particular case to determine if the finding of exigency was proper. 9 Under the facts of this case, it is clear that exigency existed sufficient to meet the appellate test.
Numerous cases have sustained warrantless entries where the circumstances indicated that evidence might be destroyed or removed if entry was delayed until a warrant could be obtained. 10 In the instant case, evidence of the urgent need to secure Ashe's house to prevent escape and possible destruction of contraband is clearly manifest. Glaser had delivered an ounce of cocaine to Brown and together with Cricks was expected to receive and immediately return $7,900 to their source. This would be followed by the exchange of the remaining three ounces of cocaine. The police had maintained surveillance on Glaser and Cricks and had probable cause to believe that they were middlemen, that at least Glaser's compensation was to be cocaine, and that the money for the purchase of the cocaine was to be paid to someone else. The delivery point and Ashe's house were only two to five minutes apart. The details of the next exchange had already been discussed. Glaser voluntarily explained that her supplier was in the vicinity, that the "money was expected back within just a few minutes," and that the final transaction was to take place "at the door" of his house in a "few minutes." There was no reason to anticipate delay. Upon hearing Glaser's volunteered information, the officers could reasonably believe that at least the remaining three ounces of contraband were at the source's residence and that Glaser and Cricks would be expected to return there promptly with the money. Their failure to quickly return could be expected to alarm the waiting participant(s). In turn, this alarm would likely lead to the speedy removal or destruction of contraband, as well as escape or retaliation against the officers. 11 Therefore, once the officers took Cricks and Glaser into custody, they faced the serious risk that the source (Ashe) would escape or destroy contraband during the time needed to obtain a warrant. The conspirators' failure to return in the length of time necessary to complete the transaction might have tipped Ashe that Glaser and Cricks had been arrested and that his own arrest was imminent. 12
The urgency of the situation escalated with the subsequent events at Ashe's residence. Upon arriving at and approaching Ashe's house, one of the officers observed Ashe look out of an upstairs window and then move away. Given the situation, the officers could logically and reasonably conclude that an interested party was inside the house and was aware that police were surrounding and approaching the residence. 13 These facts, taken as a whole, gave the officers probable cause to believe that Ashe had participated in the sale of cocaine and was present in the house. This information also constituted probable cause to arrest Ashe. Accordingly, exigent circumstances existed to enter the residence and make the arrest. 14
This conclusion is supported by the fact that shortly before arresting Glaser, the officers had no advance information as to where the final sale of cocaine would occur. Indeed, the plan to arrest Glaser had only been made that morning. At that time, the officers, aware of neither Ashe's existence nor his location, were certainly not in a position to secure a warrant. They discovered these critical facts unexpectedly at about the same time Ashe from all appearances became aware of the officers' presence. 15
At that point, the officers' ability to have staged a siege at the house and waited for a search warrant would not have prevented the destruction of the evidence. 16 Moreover, even the officers' ability to merely protect against Ashe's escape was limited by their incomplete knowledge regarding...
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