State v. Doyle

• Decision Date: 23 May 1996
• Docket Number: No. 950383-CA,950383-CA
• Citation: 918 P.2d 141
• Parties: STATE of Utah, Plaintiff and Appellee, v. Shane DOYLE, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 141

918 P.2d 141

STATE of Utah, Plaintiff and Appellee, v. Shane DOYLE, Defendant and Appellant.

No. 950383-CA.

Court of Appeals of Utah.

May 23, 1996.

Certiorari Denied Oct. 16, 1996.

142 Margaret P. Lindsay and Michael Jewell, Utah County Public Defender Association, Provo, for Appellant.

Jan Graham, Attorney General, Kenneth A. Bronston, Assistant Attorney General, Criminal Appeals Division, Salt Lake City, for Appellee.

Before ORME, BENCH, and GREENWOOD, JJ.

GREENWOOD, Judge:

Shane Doyle appeals the trial court's refusal to suppress evidence obtained during the execution of an "all persons present" search warrant, contending that the warrant was unconstitutional both as issued and as executed. We affirm.

BACKGROUND

On November 8, 1994, the Provo City Police obtained a warrant authorizing them to search the mobile home trailer of Steven and Angela Hundley, located at 255 North 1600 West, number 121, in Provo, Utah. This warrant also authorized the search of "any outbuildings, curtilage, vehicles and the person of any individuals present at the time of the execution of this warrant." (emphasis added). The affidavit in support of the warrant stated the search was appropriate based upon the following information:

(1) a tip from an anonymous caller stating that both Steven and Angela Hundley were using and selling cocaine and that Steven Hundley was "dealing heavily" from his place of employment;

(2) corroboration by a reliable police informant that Steven Hundley was dealing cocaine, and

(3) independent corroboration by the Provo Police through a search of the Hundleys' trash receptacle which yielded both drug paraphernalia coated with trace amounts of drug residue and items such as baggies and marijuana debris which potentially indicated the existence of a retail drug sales operation.

On November 11, 1994, at approximately 5:00 p.m., officers of the Provo Police Department's Narcotics Enforcement Team executed the warrant. When the officers arrived at the trailer, the only persons present were Steven and Angela Hundley and a child. Upon searching the trailer, the police found evidence incriminating both the Hundleys and placed them under arrest. The child was taken into protective custody.

Forty to seventy-five minutes after the police had arrived and after the Hundleys had been arrested and both they and the child has been transported from the scene, a white Ford Escort, driven by Teri Olsen with Doyle as passenger, drove up and parked near the Hundleys' trailer. Doyle exited the car and entered the trailer. The officers searched Doyle, found drug paraphernalia on his person, and placed him under arrest. The officers then proceeded to search Olsen's car and found three baggies containing methamphetamines which, upon interrogation, Doyle admitted belonged to him.

Pursuant to a plea agreement, Doyle pleaded no contest to a charge of possession of methamphetamine in a drug-free zone, a second degree felony, conditional upon his right to appeal the trial court's denial of his motion to suppress. See generally State v. Sery, 758 P.2d 935, 937-40 (Utah App.1988).

ISSUES ON APPEAL

(1) Was there probable cause to issue a warrant authorizing the search of "all persons present" at the Hundleys' trailer?

(2) Did the search of Doyle exceed the scope of the warrant?

STANDARDS OF REVIEW

We "accord great deference to the magistrate's decision" regarding probable cause. Salt Lake City v. Trujillo, 854 P.2d 603, 606 (Utah App.1993). We will invalidate a search pursuant to a warrant "only if the magistrate, given the totality of the circumstances, lacked a 'substantial basis' for determining that probable cause existed." Id. (quoting State v. Thurman, 846 P.2d 1256, 1260 (Utah 1993)).

ANALYSIS

Constitutionality of the "All Persons Present" Warrant

Doyle urges us to conclude that warrants authorizing the search of "all persons present" at a particular location are facially unconstitutional because they violate the particularity requirement of both the United States and Utah Constitutions. See U.S. Const. amend. IV; Utah Const. art. I, § 14. ¹ However, during the pendency of this appeal, this court issued State v. Covington, 904 P.2d 209 (Utah App.1995). In Covington, this court determined that a warrant authorizing the search of "all persons present" does not violate the Fourth Amendment if it is based upon "probable cause to believe that any person found [at the location in question] would be involved in narcotics trafficking." Id. at 212. Thus, it is no longer an open question whether "all persons" warrants are categorically valid; the only remaining questions are whether this particular warrant was supported by sufficient probable cause and whether it was valid as executed.

Probable Cause

In Covington, this court referred to what has come to be known as the "nexus" requirement for the issuance of an "all persons present" search warrant. State v. Covington, 904 P.2d 209, 211 (Utah App.1995). The nexus test derives from the opinion of Chief Justice Weintraub of the New Jersey Supreme Court in State v. De Simone, 60 N.J. 319, 288 A.2d 849 (1972). In De Simone, the court found that warrants authorizing the search of "all persons present" pass constitutional muster if they are supported by probable cause to believe that anyone present at the location will likely be involved in the suspected criminal activity. The court reasoned as follows:

[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. To insist nonetheless that the individual be otherwise described when circumstances will not permit it, would simply deny government a needed power to deal with crime, without advancing the interest the Amendment was meant to serve.

Id. 288 A.2d at 850-51 (emphasis added). The nexus requirement has been employed by courts with varying results. E.g., People v. Johnson, 805 P.2d 1156, 1159-60 (Colo.Ct.App.1990); Commonwealth v. Smith, 370 Mass. 335, 348 N.E.2d 101, 105-06 (1976), cert. denied sub nom., Smith v. Massachusetts, 429 U.S. 944, 97 S.Ct. 364, 50 L.Ed.2d 314 (1976); State v. Anderson, 415 N.W.2d 57, 60-61 (Minn.Ct.App.1987); State v. Hinkel The Covington opinion also refers to three relevant factors identified by the Massachusetts Supreme Court in Smith, 348 N.E.2d at 107, as appropriate in determining whether probable cause exists for an "all persons" warrant. Covington, 904 P.2d at 212. The Smith court stated:

353 N.W.2d 617, 620-21 (Minn.Ct.App.1984), rev'd on other grounds, 365 N.W.2d 774 (Minn.1985); State v. Sims, 75 N.J. 337, 382 A.2d 638, 643-44 (1978); State in Interest of L.Q., 236 N.J.Super. 464, 566 A.2d 223, 226 (1989), cert. denied, 122 N.J. 121, 584 A.2d 199 (1990); Covington, 904 P.2d at 211-13; Morton v. Commonwealth, 16 Va.App. 946, 434 S.E.2d 890, 892-93 (1993); State v. Carter, 79 Wash.App. 154, 901 P.2d 335, 339 (1995); see also 2 Wayne R. LaFave, Search & Seizure § 4.5(e), 546 (3d ed. 1996) ("Unquestionably, the De Simone rationale is correct.").

[S]everal facts are of particular relevance: 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.

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

Each of these factors is present in this case. The Hundleys' trailer is a "small, confined and private" dwelling. This factor is important because an "all persons" search of such a dwelling is far less likely to entrap the innocent than one of a public or semi-public establishment. See, e.g., Ybarra v. Illinois, 444 U.S. 85, 97, 100 S.Ct. 338, 345, 62 L.Ed.2d 238 (1979) (holding warrant to search bar did not allow search of patron). With respect to the second and third factors, the nature of drug dealing is such that it often creates a constant stream of unknown persons, while the subject of the search, drugs, are usually easily hidden or disposed. Accordingly, a small, private residence, such as the Hundley trailer, may be a permissible locale for an "all persons" search warrant, when drug dealing is alleged, if the requisite degree of probable cause can be shown.

Having determined that the situation in question potentially warranted the issuance of an "all persons" warrant, we must now examine the affidavit submitted in support of the "all persons" warrant to determine if it provided the requisite degree of probable cause. We believe the affidavit in this case supports a reasonable inference that the Hundleys were conducting a retail drug sales operation from their residence such as would justify the issuance of a warrant to search all persons who might be present therein. The affidavit was based upon three primary factors: First, an anonymous tip that the Hundleys were using and selling drugs and that Steven Hundley was "dealing heavily" from his workplace; second, a reliable police informant's confirmation that Steven Hundley was selling drugs; and third, the results of the police search of the Hundleys' trash receptacle.

While the anonymous tip, in and of itself, may not...