State v. Davis
| Decision Date | 06 August 1998 |
| Docket Number | No. 961271-CA,961271-CA |
| Parties | 349 Utah Adv. Rep. 26 STATE of Utah, Plaintiff and Appellee, v. Bradley C. DAVIS and Holly H. Hyatt, Defendants and Appellants. |
| Court | Utah Court of Appeals |
D. Bruce Oliver, Salt Lake City, for Defendants and Appellants.
Jan Graham, Atty. Gen., and Thomas B. Brunker, Asst. Atty. Gen., Criminal Appeals Div., Salt Lake City, for Plaintiff and Appellee.
Before BENCH, GREENWOOD and ORME, JJ.
Defendant Bradley "Chick" Davis appeals his convictions for possession of cocaine and methamphetamine with intent to distribute, both second degree felonies, in violation of Utah Code Ann. § 58-37-8 (1998); 1 possession of marijuana with intent to distribute, a third degree felony, in violation of Utah Code Ann. § 58-37-8 (1998); possession of drug paraphernalia, a class B misdemeanor, in violation of Utah Code Ann. § 58-37a-5 (1998); and possession of stolen property, a class B misdemeanor, in violation of Utah Code Ann. §§ 76-6-408 (1995) and 76-6-412 (Supp.1997). Defendant Holly H. Hyatt appeals her convictions for possession of methamphetamine, a third degree felony, in violation of Utah Code Ann. § 58-37-8 (1998), and possession of drug paraphernalia, a class B misdemeanor, in violation of Utah Code Ann. § 58-37a-5 (1998). We affirm in part and reverse in part.
The events which led to the convictions from which defendants appeal began on November 15, 1994. Defendant Davis was then on probation under the terms of an agreement which included the usual proscriptions against possessing firearms, possessing or using controlled substances, knowingly associating with persons involved in criminal activity, and engaging in criminal activity. On November 15, Utah Adult Probation and Parole Officers Robert Eckman and Rod Seymour visited Davis at his Cedar City home, where Davis lived with defendant Hyatt. The officers conducted a search which led to the discovery of drug paraphernalia and a firearm. The incriminating items were found in Davis's bedroom and in a tan van he had been driving. Also, Davis admitted to the officers that he had used both marijuana and methamphetamine during the prior week. The officers arrested Davis and placed him on a seventy-two-hour hold, after which he was released.
Five days later, on November 20, 1994, Division of Wildlife Resources Officer Gary A. McKell was called to assist a Hurricane City Police Officer, who had stopped a vehicle occupied by Mark Milby and Kelly Blackburn. The two were found with drugs and paraphernalia. Milby was arrested and Blackburn was cited and released. Officer McKell was called because the Hurricane officer found deer blood and hair in the back of Milby's vehicle and on a knife and gloves. Officer McKell, thinking that a poached deer and drug activity might just be found at the Milby residence in Summit, Utah, contacted Sergeant Rick Evans of the Iron County Sheriff's Department and asked him to watch the residence.
At approximately 2:00 a.m. the following morning, close to the end of his shift, Sergeant Evans drove to Milby's house. Evans observed that all of the lights were on and that Blackburn's truck was idling in front. Evans decided to wait and watch. About ten minutes later, he saw someone in a tan van approach, veer as if to turn into Milby's driveway, but then change course upon seeing Evan's patrol car. Instead of pulling into the Milby driveway, the van driver drove off down the street. Suspicious, Sergeant Evans followed the van for a short distance to the Summit Truck Stop, where he parked behind the van but sufficiently to its side that the driver could have backed out without hitting Evans's patrol car.
Both Evans and the driver of the van exited their vehicles and Evans approached and asked the driver who he was and what he was doing. The driver of the van identified himself as Chick Davis and told Sergeant Evans that he sometimes drove around at night to take his mind off his son's recent death. During this encounter, Evans had not used his overhead lights, had not ordered Davis out of the van, did not ask to see Davis's driver's license or registration, and never came within touching distance of Davis.
After hearing Davis's explanation, Sergeant Evans left the Summit Truck Stop and was returning the way he came when he passed Blackburn, who was headed towards the truck stop. Evans turned and followed Blackburn to the truck stop, where he saw Blackburn park next to Davis's van, go into the diner, and sit down with Davis. Later that day, Sergeant Evans contacted probation officers Eckman and Seymour and told them what he had seen. Based upon this information, their discovery of Davis's probation violations several days earlier, and their personal familiarity with Milby and his involvement with drugs, Eckman and Seymour, suspicious that Davis was again violating his probation, decided to again search the Davis and Hyatt residence.
On November 21, 1994, Eckman and Seymour, joined by other officers, conducted a warrantless probation search of the house shared by Davis and Hyatt, a nearby shed, and several vehicles parked on the property--including the tan van which they had searched four days earlier and which Sergeant Evans saw Davis driving earlier that morning. In addition to the van, there was a blue Ford Escort, a black Chevrolet Camaro, a red pickup truck, a white Chevrolet Blazer, and a camper-trailer on the property. The officers did not check the registration on any of the vehicles or otherwise obtain registration information before searching them, nor did they ask Davis or Hyatt who owned or used the vehicles. In the van, the officers discovered paraphernalia and marijuana; in the Escort, the officers discovered a blue diaper bag which contained methamphetamine, marijuana, cocaine, and paraphernalia; and in the house, the officers discovered a set of double-beam scales under a bed. Additionally, in the shed behind the house, officers found a staple gun marked "Goer," the partial name of a local company, Goer Manufacturing, and a router, later alleged to be stolen from Middleton Timber, another local business.
The State subsequently charged Davis with possession of methamphetamine, cocaine, and marijuana with intent to distribute; possession of drug paraphernalia; and possession of stolen property. The State charged Hyatt with possession of methamphetamine and possession of drug paraphernalia. The defendants filed motions to suppress, arguing that the search was not supported by reasonable suspicion, and that, with respect to Hyatt, the search was not supported by a warrant or probable cause. A suppression hearing was held on September 5 and October 2, 1995, after which the trial court denied the motions. At the conclusion of trial, held on December 7 and 8, 1995, a jury convicted the defendants on all counts.
Defendants raise four principal arguments on appeal. First, defendants contend that the trial court erred in denying their motions to suppress the evidence seized during the November 21 probation search because the search was not supported by reasonable suspicion, as required under Davis's probation agreement and Utah law. Second, defendants claim that, because the search was not supported by a warrant nor any exception to the warrant requirement, the trial court erred by failing to suppress the evidence found in nonprobationer Hyatt's blue Escort. Third, Davis argues that there was insufficient evidence to convict him of possession of stolen property and therefore the trial court erred in failing to dismiss the charge. Fourth, Davis argues that the trial court improperly admitted two State witnesses' testimony regarding prior drug purchases from Davis and Hyatt.
Defendants argue that the November 21 search of their home and property was not supported by a reasonable articulable suspicion that Davis had violated his probation as required by Davis's probation agreement and Utah law. They therefore contend that the trial court erred in denying their motions to suppress the evidence seized during the allegedly illegal search.
We review a trial judge's decision regarding whether the facts of a particular case give rise to a reasonable suspicion nondeferentially, for correctness. See State v. Pena, 869 P.2d 932, 939 (Utah 1994). We must nonetheless afford trial judges "a measure of discretion" in applying the reasonable suspicion standard. Id.
"It is abundantly clear that probationers 'do not enjoy "the absolute liberty to which every citizen is entitled, but only ... conditional liberty properly dependent on observance of special [probation] restrictions." ' " State v. Martinez, 811 P.2d 205, 209 (Utah Ct.App.) (quoting Griffin v. Wisconsin, 483 U.S. 868, 874, 107 S.Ct. 3164, 3168, 97 L.Ed.2d 709 (1987) (citation omitted; alteration in original)), cert. denied, 815 P.2d 241 (Utah 1991). This conditional liberty necessarily arises from the need to balance the individual interests of probationers against the needs of government and society. See generally Griffin, 483 U.S. at 873-75, 107 S.Ct. at 3168-69; State v. Velasquez, 672 P.2d 1254, 1258-59 (Utah 1983); 4 Wayne R. LaFave, Search and Seizure § 10.10(c), at 766-775 (3d ed.1996) (). Searches directed at probationers are therefore an exception to the usual warrant and probable cause requirements under the state and federal constitutions. See Griffin, 483 U.S. at 873-74, 107 S.Ct. at 3168.
Though a warrant based on probable cause is not required for a probation search, "the Fourth Amendment to the United States Constitution requires that a probation officer have reasonable suspicion before commencing a warrantless search of a probationer's residence." State v. Ham, 910 P.2d 433, 438 (Utah Ct.App.1996). 2 This reasonable suspicion requirement is echoed by a provision of Davis's...
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