State v. Covington, 940716-CA

• Decision Date: 28 September 1995
• Docket Number: No. 940716-CA,940716-CA
• Citation: 904 P.2d 209
• Parties: STATE of Utah, Plaintiff and Appellee, v. Stacey A. COVINGTON, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 209

904 P.2d 209

STATE of Utah, Plaintiff and Appellee, v. Stacey A. COVINGTON, Defendant and Appellant.

No. 940716-CA.

Court of Appeals of Utah.

Sept. 28, 1995.

Shelden R. Carter, Carter, Phillips & Wilkinson, Provo, for Appellant.

Todd A. Utzinger, Asst. Atty. Gen. and Jan Graham, State Atty. Gen., Salt Lake City, for Appellee.

Before ORME, BENCH and BILLINGS, JJ.

OPINION

BILLINGS, Judge:

Defendant Stacey A. Covington appeals from the trial court's denial of his motion to suppress evidence used to convict him of drug-related offenses. Having determined that "[t]he facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument," Utah R.App.P. 29(a)(3), we affirm.

FACTS

On February 22, 1994, Rachel Anderson was arrested by officers of the Pleasant Grove Police Department. At the time of her arrest, officers discovered methamphetamine concealed in her clothing. Anderson later told one of the officers that she had stolen the drug from Rick Close, who had additional quantities of methamphetamine in bindles at his apartment, ready for sale. She said that Close had been supplying her with methamphetamine and that she had been smoking methamphetamine with him that day. She also stated that Close was living with Melissa Seamster and John Walker in the basement apartment of a house located at 479 South 100 East.

The officers were familiar with Mr. Close, who had a history of involvement with controlled substances. Prior to Anderson's arrest, the officers had received tips that Close had been selling methamphetamine and had searched Close's vehicle and found drug paraphernalia. Moreover, the officers were familiar with the house Anderson described, having arrested people residing in it.

Based upon this information, the officers obtained a search warrant. The warrant authorized them to search "[t]he downstairs apartment and the person of all individuals present at 479 South 100 East, Pleasant Grove" for "narcotics and other evidence of trafficking[,] including but not limited to cash, weapons, baggies, scales, buy-owe sheets and paraphernalia for the use, storage, sale or preparation of narcotics."

The officers arrived at Close's apartment to execute the warrant at 8:40 p.m. on February 22, 1994. The door leading to the apartment was located on the north side of a covered porch that protruded from the southeast corner of the rear of the house. A truck with its hood up was parked to the north of Close's door, approximately eight to ten feet away. Defendant stood between the truck and the door. The first officers to arrive at the door encountered defendant. One of them took custody of him, while the others proceeded into the apartment.

The officer who took custody of defendant ordered him to lie down on the ground, with his hands and legs spread. The officer then frisked defendant, and felt a hard, cylindrical object in his shirt pocket, as well as what he believed to be a cigarette package. The officer testified that the hard object "was small, like a pinky size, cylindrical in nature and had the curvature around the mouth piece and things of that nature that I felt indicated to me--or made me feel it was a marijuana pipe."

The officer did not immediately remove either object from defendant's shirt, but instead waited until the apartment had been secured. He then took defendant inside the apartment and stood him next to the other suspects. At that point, the officer searched defendant's person and removed a marijuana pipe and cigarette package from defendant's shirt pocket. Upon inspecting the cigarette package, which contained marijuana, the officer arrested defendant for possession of drug paraphernalia and possession of marijuana. At the Pleasant Grove Police Department, officers conducted an extensive search of defendant and found a small quantity of methamphetamine in the change pocket of his jeans. A larger quantity was also found near the truck where defendant had first been observed.

Defendant was charged with possession of a controlled substance (methamphetamine) in a drug-free zone, a second-degree felony, Utah Code Ann. § 58-37-8(1)(a)(iv) (1994); possession of a controlled substance (marijuana) in a drug-free zone, a class A misdemeanor, id. § 58-37-8(2)(a)(i); noncompliance with the illegal drug stamp tax act, a third-degree felony, id. § 59-19-103(1)(b); and possession of drug paraphernalia in a drug-free zone, a class A misdemeanor, id. § 58-37a-5(1).

Prior to trial, defendant moved to suppress the drugs and marijuana pipe. After an evidentiary hearing, the trial court denied the motion. Defendant then pled guilty to the first two charges, conditioned upon his right to appeal the trial court's denial of his motion to suppress. See State v. Sery, 758 P.2d 935, 939 (Utah App.1988). Defendant now challenges the trial court's ruling as violative of the Fourth Amendment.

"ALL PERSONS PRESENT" SEARCH WARRANT

The Fourth Amendment to the United States Constitution directs that "no Warrants shall issue, but upon probable cause ... and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. As a general rule, therefore, " 'open-ended' or 'general' warrants are constitutionally prohibited." Ybarra v. Illinois, 444 U.S. 85, 92 n. 4, 100 S.Ct. 338, 342 n. 4, 62 L.Ed.2d 238 (1979). Additionally, it is clear that a warrant to search designated premises does not authorize the search of every individual who happens to be on the premises. Id. "Because the standard of probable cause must be particularized to every person or place to be searched, a warrant authorizing the search of premises does not authorize officers to search an individual merely because that person is present on the premises." State v. Ayala, 762 P.2d 1107, 1111 (Utah App.1988), cert. denied, 773 P.2d 45 (Utah 1989).

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. This issue is one of first impression in Utah.

The majority of courts that have addressed the validity of "all persons present" search warrants have held that, depending on the evidence supporting the probable cause for their issuance, they may pass constitutional muster. ¹ In State v. De Simone, 60 N.J. 319, 288 A.2d 849 (1972), the New Jersey Supreme Court set forth the following rationale for upholding such a warrant:

On principle, the sufficiency of a warrant to search persons identified only by their presence at a specified place should depend upon the facts. A showing that lottery slips are sold in a department store or an industrial plant obviously would not justify a warrant to search every person on the premises, for there would be no probable cause to believe that everyone there was participating in the illegal operation. On the other hand, a showing that a dice game is operated in a manhole or in a barn should suffice, for the reason that the place is so limited and the illegal operation so overt that it is likely that everyone present is a party to the offense. Such a setting furnishes not only probable cause but also a designation of the persons to be searched which functionally is as precise as a dimensional portrait of them.

... [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.

Id., 288 A.2d at 850.

In Commonwealth v. Smith, 370 Mass. 335, 348 N.E.2d 101, cert. denied, 429 U.S 944, 97 S.Ct. 364, 50 L.Ed.2d 314 (1976), the Massachusetts Supreme Court applied similar reasoning to uphold a warrant commanding the police to search an apartment and the person of one Jane Doe and any person present. Id., 348 N.E.2d at 102. The court emphasized that an affidavit in support of a warrant seeking to authorize a search of any person present must be strictly scrutinized. The court elucidated three factors it deemed of particular relevance in reviewing the affidavits:

the premises or area to be searched are small, confined and private [as opposed to a public or quasi-public place where casual presence of persons for myriad of noncriminal reasons is to be expected]; 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.

Id., 348 N.E.2d at 107 (footnote omitted).

The court in Smith concluded that the affidavit supporting the search warrant at issue in that case provided "probable cause to believe that any person present on the premises described in the search warrant was involved in illegal trafficking in heroin." Id. at 103. The affidavit relied upon information received from an informant who had been inside the apartment named in the warrant and had seen, on two occasions, the person named in the warrant selling heroin to other persons present in the apartment. Id. at 106. The affidavit also indicated that police surveillance of the apartment had revealed persons known to...