State v. Earl

• Decision Date: 13 May 2004
• Docket Number: No. 20020821-CA.,20020821-CA.
• Citation: 92 P.3d 167,2004 UT App 163
• Parties: STATE of Utah, Plaintiff and Appellee, v. Joshua EARL, Defendant and Appellant.
• Court: Utah Court of Appeals

92 P.3d 167

2004 UT App 163

STATE of Utah, Plaintiff and Appellee, v. Joshua EARL, Defendant and Appellant.

No. 20020821-CA.

Court of Appeals of Utah.

May 13, 2004.

Rehearing Denied July 27, 2004.

Catherine E. Lilly, Lori J. Seppi, and Ralph W. Dellapiana, Salt Lake Legal Defender Association, Salt Lake City, for Appellant.

Mark L. Shurtleff, Attorney General, Jeffrey S. Gray, and Colleen K. Coebergh, Assistant Attorneys General, Salt Lake City, for Appellee.

Before BILLINGS, P.J., and BENCH, Associate P.J., and THORNE, J.

OPINION

THORNE, Judge:

¶ 1 Defendant Joshua Earl appeals from his conviction of one count of possession of clandestine laboratory precursors and/or equipment, a second degree felony, in violation of Utah Code Annotated section 58-37d-4(1) (1998).

BACKGROUND¹

¶ 2 On November 4, 2001, Earl was sitting in the rented home of his stepbrother, Jeremy Allen. Allen's tenancy in the home began in May 2001, when he entered into an oral contract with Sheila Gledhill, his mother. His contract required him to pay a monthly rental fee of $350 and to properly maintain the interior and exterior of the home. By November, however, Allen had fallen behind in his payments and Gledhill decided that his efforts at maintaining the interior were insufficient. Consequently, Gledhill decided that her only recourse was to evict her son from the property. However, prior to November 4, 2001, Gledhill did not inform her son of her decision to evict him. Instead, on the morning of November 4, 2002, she drove to the home intent on telling him in person.

¶ 3 Prior to talking to her son, however, Gledhill twice contacted the South Salt Lake Police Department. Although the department declined to assist her with the first matter, removal of a vehicle from her husband's neighboring business, following her second call, the department dispatched an officer. During the second call, Gledhill apparently explained that she desired to evict her son from the home and that the home might be housing a methamphetamine lab, as well as operators of the lab. Consequently, South Salt Lake Police Officer Dean Brimley was dispatched to investigate.² When Brimley arrived, Gledhill explained her concerns more fully. In sum, Gledhill explained to Brimley that a clerk at a local convenience store had told her that she had heard that the house was being used as a methamphetamine laboratory and that the lab was being run by "a skinhead named Marvin."³ Gledhill also informed Brimley that her son had a drug problem involving both marijuana and methamphetamine. Gledhill asked Brimley to "stand by [and] keep the peace, while she evicted her son from the residence."

¶ 4 Brimley agreed to "keep the peace" and accompanied Gledhill to the door. Using a key she had in her possession, and without knocking or gaining Allen's permission, Gledhill opened the door and entered the home. Brimley followed closely on her heels. To his right, approximately fifteen feet away, Brimley saw four men sitting around a table in the kitchen. At least one of the men was playing a computer game. Directly in front of Brimley, in the living room area, he saw drug paraphernalia, a "bong," and, sitting on the floor near a backpack, material that suggested possible methamphetamine production. This material included a row of glass bottles, later determined to be iodine bottles, and several boxes of pseudoephedrine.

¶ 5 Because each of the men was larger than he, and believing that the kitchen created a dangerous environment, Brimley asked each man to identify himself, and then to walk over to Brimley. With the exception of Earl, each man produced picture identification and calmly walked over to Brimley where he frisked them for weapons, discovering nothing. In contrast, after he claimed that he did not have identification, Earl told Brimley that his name was "Justin Gannon" and provided Brimley with a birth date. He then approached Brimley and, when asked, admitted that he was carrying two knives. Brimley patted Earl down and found both a pocket knife and a knife with a ten-inch fixed blade strapped to the small of Earl's back. Brimley also located something that felt like a wallet in Earl's pocket, which he then asked Earl to retrieve. Earl complied. In the wallet, Brimley found Earl's identification, which clearly indicated that Earl had lied to Brimley. Consequently, Brimley arrested Earl for providing false information. Earl was then handcuffed and placed on a couch located some ten feet from the contraband Brimley had seen upon entry, and some twenty feet from Earl's location prior to being ordered to approach Brimley.

¶ 6 Soon thereafter, Brimley escorted everyone outside where he asked Allen to sign a consent to search form. Allen complied. Although there is some confusion as to the timing, it is clear that after Earl was arrested Brimley searched the backpack that he had seen upon entering the home. In the backpack, Brimley discovered documents linking the backpack to Earl, several rubber stoppers, additional glass iodine bottles, plastic scales, a plastic bag filled with a "red substance," a two ounce container filled with "red sludge," a one ounce container filled with "red sludge," and a book detailing the manufacturing process for methamphetamine. The "red sludge" and "red substance" were later determined to be phosphorus, a key ingredient in methamphetamine production. Brimley then called in the South Salt Lake City methamphetamine investigation team to search the residence. The team arrived and searched the house, but no additional evidence of criminal activity was found.

¶ 7 Following the search, Earl was charged with possession of clandestine drug lab precursors and/or equipment, with enhancements, a first degree felony; possession of a dangerous weapon by a restricted person, a third degree felony; and unlawful possession of drug paraphernalia, a class B misdemeanor.⁴ Earl, however, moved to suppress the evidence that supported the charges arguing that Brimley's entry into Allen's home violated Earl's Fourth Amendment rights and that everything discovered after entry was "fruit of the poisonous tree." After fully considering the issues presented, the trial court denied Earl's motion, prompting Earl to accept the State's proffered plea bargain. Earl pleaded guilty to felony possession of clandestine laboratory precursors and/or equipment as a second degree felony, and the State dismissed all remaining charges and enhancements. Earl's plea was conditioned on the outcome of the instant appeal, pursuant to State v. Sery, 758 P.2d 935 (Utah Ct.App.1988).

ISSUE AND STANDARD OF REVIEW

¶ 8 Earl argues that the trial court erred in denying his motion to suppress. When reviewing a trial court's suppression order, we review its factual findings for clear error, and its legal conclusions for correctness. See State v. Rynhart, 2003 UT App 410, ¶ 9, 81 P.3d 814

.

ANALYSIS

I. Reasonable Expectation of Privacy

¶ 9 As a threshold matter, the State argues that Earl is in no position to argue for the suppression of the evidence because he had no legitimate expectation of privacy in Allen's home. We disagree.

¶ 10 "`[R]ights such as those conferred by the Fourth Amendment are personal in nature, and cannot bestow vicarious protection on those who do not have a reasonable expectation of privacy in the place to be searched.'" Minnesota v. Carter, 525 U.S. 83, 101, 119 S.Ct. 469, 479, 142 L.Ed.2d 373 (1998) (Kennedy, J., concurring) (quoting Steagald v. United States, 451 U.S. 204, 219, 101 S.Ct. 1642, 1651, 68 L.Ed.2d 38 (1981)). Consequently, Earl must demonstrate that he possessed a subjective expectation of privacy "`in the premises searched and that society is prepared to recognize that expectation as reasonable.'" United States v. Rhiger, 315 F.3d 1283, 1285 (10th Cir.2003) (quoting United States v. Higgins, 282 F.3d 1261, 1270 (10th Cir.2002)), cert. denied, ___ U.S. ___, 124 S.Ct. 90, 157 L.Ed.2d 65 (2003); see also State v. Loya, 2001 UT App 3, ¶ 10, 18 P.3d 1116

. "An expectation of privacy is reasonable if it arises from a source `outside the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.'" United States v. Gordon, 168 F.3d 1222, 1225-26 (10th Cir.1999) (quoting Rakas v. Illinois, 439 U.S. 128, 144 n. 12, 99 S.Ct. 421, 431 n. 12, 58 L.Ed.2d 387 (1978)). A failure to so demonstrate will result in a conclusion that no legitimate expectation exists. See Carter, 525 U.S. at 101,

119 S.Ct. at 479 (Kennedy J., concurring).

¶ 11 Earl's principal argument is that his status as a resident of Allen's home vested him with a legitimate expectation of privacy. The trial court was unwilling to accord Earl status as a resident. "A trial court's factual findings will not be overturned unless they are clearly erroneous." State v. Lafferty, 2001 UT 19, ¶ 45, 20 P.3d 342. We defer to the trial court's judgment in large part because it is in a far superior position to assess the credibility of the witnesses. See id. Accordingly, to succeed in challenging a trial court's ruling, Earl must "`marshal the evidence in a light most favorable to the findings of the trial court and show that evidence to be insufficient'" to support the finding. Id. Here, the trial court specifically found that Earl was not a resident of the home. Earl, however, does not marshal the evidence that supports this finding, choosing instead to reiterate his own testimony. Although it is true that Earl testified that he resided in the home, the landlord testified that he did not, and that she was in a position to know. The trial court, apparently believing the landlord over Earl, thus made a credibility determination. Earl makes no showing that the trial court's reliance on the landlord's testimony was clearly erroneous; consequently, we affirm the trial court's finding as to Earl's status as a visitor...