State v. Blevins, 971419-CA

• Citation: 968 P.2d 402
• Decision Date: 29 October 1998
• Docket Number: No. 971419-CA,971419-CA
• Parties: 355 Utah Adv. Rep. 3 STATE of Utah, Plaintiff and Appellee, v. Donald BLEVINS, Defendant and Appellant.
• Court: Court of Appeals of Utah

Page 402

968 P.2d 402

355 Utah Adv. Rep. 3

STATE of Utah, Plaintiff and Appellee, v. Donald BLEVINS, Defendant and Appellant.

No. 971419-CA.

Court of Appeals of Utah.

Oct. 29, 1998.

Margaret P. Lindsay, Aldrich Nelson Weight & Esplin, Provo, for Defendant and Appellant.

Jan Graham, Atty. Gen., and Kenneth A. Bronston, Asst. Atty. Gen., Criminal Appeals Div., Salt Lake City, for Plaintiff and Appellee.

Before BILLINGS, GREENWOOD, and ORME, JJ.

OPINION

BILLINGS, Judge:

Appellant Donald Blevins appeals his conviction for possession of methamphetamine, a controlled substance, in a drug-free zone, a second degree felony under Utah Code Ann. § 58-37-9(2)(a)(i) (Supp.1997), asserting the trial court erred in denying his Motion to Suppress. We affirm.

FACTS

"We recite the facts in a light most favorable to the lower court's findings when reviewing its decision denying defendant's motion to suppress." State v. Montoya, 937 P.2d 145, 147 (Utah Ct.App.1997) (citing State v. Anderson, 910 P.2d 1229, 1230 (Utah 1996)).

On September 4, 1997, law enforcement officers from the Utah County Narcotics Enforcement Team (NET) executed a search warrant on a Provo City private residence (the residence) in search of controlled substances. The search warrant's language permitted the officers to search the "[residence], outbuildings and curtilage, persons of individuals present or arriving to this location and vehicles related to individuals present or arriving to the location."

While police were executing the warrant, Blevins drove up to the residence and parked his vehicle nearby on a public street. As Blevins exited his vehicle, NET officers approached him, and upon questioning he told the officers he was there to visit an occupant of the residence. The officers cursorily searched Blevins for weapons, handcuffed him, and led him into the residence where they performed a thorough search for both weapons and controlled substances; neither was found on his person. The NET officers also searched Blevins' vehicle where they found a syringe and a baggie of methamphetamine.

Blevins entered a conditional guilty plea to the charge of possession of a controlled substance in a drug-free zone. He then filed a Motion to Suppress the methamphetamine and paraphernalia found in his vehicle. The trial judge denied Blevins' motion and he now appeals.

ANALYSIS

Blevins asserts the "arriving at" warrant, which allowed police to search the vehicle he drove to the residence, was an impermissible "general warrant" not supported by probable cause.

"We 'accord great deference to the magistrate's decision' regarding probable cause." State v. Doyle, 918 P.2d 141, 143 (Utah Ct.App.), cert. denied, 925 P.2d 963 (Utah 1996) (quoting Salt Lake City v. Trujillo, 854 P.2d 603, 606 (Utah Ct.App.1993)). "The standard of probable cause is described as being 'only the probability, and not a prima facie showing, of criminal activity.' " State v. Brown, 798 P.2d 284, 285 (Utah Ct.App.1990) (quoting Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 2330, 76 L.Ed.2d 527 (1983)) (additional citations omitted). Further,

Utah appellate courts have adopted the totality of the circumstances test ... for determining whether there is probable cause to support the issuance of a search warrant.... Accordingly, the magistrate must consider all the circumstances set forth in the affidavit and make a "practical, common-sense decision whether ... there is a fair probability" that criminal evidence will be found in the described place.

Id. at 285-86 (quoting Gates, 462 U.S. at 238, 103 S.Ct. at 2332) (omission in original) (additional citations omitted). However, in State v. Covington, 904 P.2d 209, 212 (Utah Ct.App.1995), we approved the practice of strictly scrutinizing an affidavit supporting an "all persons warrant."

In Covington, this court first dealt with an "all persons warrant," and framed the issue as follows:

The question remains whether a warrant that authorizes the search of unnamed persons present at a location is lawful if it is supported by probable cause to believe that all persons in the place at the time of the search will be involved in the criminal activity upon which the warrant issued....

[And w]hether, based on the affidavit upon which the search warrant issued, the authorities had probable cause to believe that any person found at the basement apartment would be involved in narcotics trafficking.

Id. at 211-12. In Covington we reviewed both federal and state caselaw and agreed with the majority view that approves of "all persons warrants" in limited situations, and consequently upheld a warrant allowing the search of all persons present at a basement apartment. See id. at 211-13. In so holding, we agreed with the New Jersey Supreme Court that there was sufficient physical nexus to overcome the vice of a general warrant. See id. at 211 (citing State v. DeSimone, 60 N.J. 319, 288 A.2d 849, 850 (N.J.1972)). The DeSimone court stated:

[W]ith regard to the Fourth Amendment demand for specificity as to the subject to be searched, there is none of the vice of a general warrant if the individual is thus identified by physical nexus to the ongoing criminal event itself. In such a setting, the officer executing the warrant has neither the authority nor the opportunity to search everywhere for anyone violating a law. So long as there is good reason to suspect or believe that anyone present at the anticipated scene will probably be a participant, presence becomes the descriptive fact satisfying the aim of the Fourth Amendment. The evil of the general warrant is thereby negated.

Id. at 850 (emphasis added). We also approved of the Massachusetts Supreme Judicial Court's three-factor approach in evaluating the validity of these "all persons warrants":

the premises or area to be searched are small, confined and private; the nature of the criminal activity is such that the participants (in general) constantly shift or change so that it is, practically, impossible for the police to predict that any specific person or persons will be on the premises at any given time; and the items specifically described in the warrant as the target of the search are of a size or kind which renders them easily and likely to be concealed on the person.

Commonwealth v. Smith, 370 Mass. 335, 348 N.E.2d 101, 107 (Mass.), cert. denied, 429 U.S. 944, 97 S.Ct. 364, 50 L.Ed.2d 314 (1976) (footnote omitted).

Subsequently, in State v. Doyle, 918 P.2d 141 (Utah Ct.App.), cert. denied, 925 P.2d 963 (Utah 1996), we held that an affidavit sufficiently established probable cause to issue an "all persons warrant" to search all those present in a trailer home whose resident was suspected of "conducting a retail drug sales operation from [the] residence." Id. at 144. Doyle further held that "an 'all persons warrant' applies equally to all persons who are present within a reasonable time after the execution of the warrant, including those who arrive on the premises while the police are still legitimately present." Id. at 145 (emphasis added).

Defendant argues that this case pushes the scope of an "arriving persons warrant" too far by extending the search to the arriving persons' vehicles. We disagree. In United States v. Alva, 885 F.2d 250, 252-53 (5th Cir.1989), the Fifth Circuit upheld a search for cocaine under a warrant that allowed a search of the house and all "motor vehicles found on the premises" under facts similar to our case. While the search of the house was underway, Alva arrived in his pickup truck and parked about fifteen feet from the house and entered. See id. at 251. While officers detained Alva in the house, other officers left the house and searched the truck where they found a weapon. See id. Based upon the weapon's discovery, Alva was later charged with being a felon in possession of a firearm. See id. Even though the warrant did not expressly include all vehicles arriving to the residence as ours does, the court upheld the search of the truck as not exceeding the warrant's scope nor the proscription against general warrants. See id. at 253.

In State ex rel. L.Q., 236 N.J.Super. 464, 566 A.2d 223, 226 (N.J.Super.Ct.App.Div.1989), cert. denied, 122 N.J. 121, 584 A.2d 199 (N.J.1990), the New Jersey Superior Court in an "arriving persons warrant" case explained the rationale allowing such a warrant, a rationale we think equally applies to "arriving vehicles" carrying these persons.

The evidence was sufficient to create a well-grounded suspicion or belief that numerous sales of CDS were being conducted in the premises. Although the affidavit did not exclude the possibility of other activities on the premises, the description of the activity actually observed provided a firm foundation for the suspicion or belief that any person in the private premises was involved in the overt unlawful activity of sale and possession of cocaine. Such a suspicion or belief is not limited to persons already there when the police arrive, but reasonably extends to a person who enters the premises during the search. Such a person is probably a supplier, a subdealer or a customer. The criminality of the supplier and subdealer are obvious. Even the customer could already be carrying CDS or paraphernalia. At the least, there is probable cause to believe that the customer is attempting to violate the laws prohibiting possession and use of controlled dangerous substances.

Id. at 226 (emphasis added) (citations omitted). If anything, it is more likely that evidence of criminal activity will be found in the vehicle bringing the person to the residence, than it is likely that such evidence will be found on the person himself.

We conclude the extension of the search to the vehicles of persons arriving at a residence does not exceed Covington's nexus requirement, and thus does not violate the general warrant provision. In this case, the officers saw Blevins as he arrived at the street in front...