State v. Evans, 20190739

CourtSupreme Court of Utah
Writing for the CourtPetersen Justice
Citation2021 UT 63
PartiesState of Utah, Respondent, v. Douglas Dwayne Evans, Petitioner.
Docket Number20190739
Decision Date04 November 2021

2021 UT 63

State of Utah, Respondent,
v.

Douglas Dwayne Evans, Petitioner.

No. 20190739

Supreme Court of Utah

November 4, 2021


Heard April 21, 2021

On Certiorari to the Utah Court of Appeals

Third District, Salt Lake The Honorable Ann Boyden No. 141906586

Attorneys:

Sean D. Reyes, Att'y Gen., Karen A. Klucznik, Asst. Solic. Gen., Salt Lake City, for respondent

Herschel Bullen, Salt Lake City, for petitioner

Justice Petersen authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Pearce, and Judge DiReda joined.

Having recused himself, JUSTICE HIMONAS does not participate herein; JUDGE MICHAEL D. DIREDA sat.

OPINION

Petersen Justice

INTRODUCTION

¶1 Two days after Ted Kelbach was shot in his home by an intruder, police arrested Douglas Evans for the murder. They got a search warrant to obtain a sample of Evans's DNA through a

1

"buccal swab" of his cheek.[1] But when a lab technician attempted to take the swab, Evans physically resisted. Officers had to restrain his limbs and force open his mouth so the technician could safely obtain the DNA sample. Testing showed that Evans was a genetic match for DNA found on a baseball cap left at the crime scene. And Evans was a possible contributor to DNA found on a broken piece of fence leading to Kelbach's back door, where Kelbach had been shot.

¶2 Prior to trial, Evans moved to suppress the DNA evidence on the grounds that the forcible collection of the sample had violated his Fourth Amendment rights. The district court denied the motion, and the evidence was admitted at trial. The jury convicted Evans of murder, aggravated burglary, and possession of a weapon by a restricted person.

¶3 Evans appealed. Relevant here, he asserted that the force used by officers was excessive and therefore unconstitutional, and that even if the force was reasonable, the officers were not statutorily authorized to use any force whatsoever in executing the warrant. The court of appeals rejected these and Evans's other claims and affirmed.

¶4 On certiorari, Evans argues that the court of appeals wrongly affirmed the district court's dismissal of his motion to suppress. We affirm.

2

BACKGROUND[2]

¶5 A few days prior to Kelbach's murder, Evans accused his fiancée of cheating on him with Kelbach and sent her a series of explicit text messages. In them, Evans wrote that he knew it was Kelbach's "old ass u been going to see sneaky" and that he was "going on ah ram page I know where dat old fuck live." Evans also warned his fiancée, "I told u u cheat u die it was ur choice u chose." His fiancée did not respond.

¶6 On the day of Kelbach's murder, Evans returned to Salt Lake City from an overnight trip to Wendover, Nevada with a female friend. Evans and the friend traveled to and from Wendover in Evans's silver Infiniti sedan, notable for its oversized rims. During the trip, Evans wore a red, "59FIFTY, "[3] flat-brimmed L.A. Angels baseball cap.

¶7 Upon returning from Wendover, Evans dropped off his friend at another friend's house. He then texted his fiancée a picture of a black handgun and a message asking her to "just please be honest wit me for once, please."

¶8 Later that day, one of Kelbach's neighbors noticed a silver sedan with "really large" rims parked in front of Kelbach's house. The neighbor observed a man matching Evans's description and wearing jeans and a red t-shirt emerge from the vehicle and start walking toward Kelbach's house.

3

¶9 At the time, Kelbach was in his bedroom with a female guest. The guest and Kelbach heard several loud knocks at Kelbach's back door. Kelbach left the bedroom to answer the door and after a couple of minutes, the guest heard Kelbach say, "I haven't seen her, I swear." Immediately thereafter, the guest heard a "loud crack," followed by silence. She went to investigate and saw the backside of "a darker man with longer hair" wearing "jeans and a red tank top" walk down the driveway and get in a silver sedan and drive off. The guest found Kelbach lying face down next to the door with "blood everywhere." Kelbach's face was swollen, and he did not appear to be breathing. The guest could smell gunpowder.

¶10 When detectives arrived at the crime scene, they discovered a red, "59FIFTY," flat-brimmed L.A. Angels baseball cap on the ground next to Kelbach. Later that day, Evans picked up his friend in a Cadillac Escalade, and they drove back to Wendover. When Evans picked up his friend, he was no longer wearing his red L.A. Angels hat.

¶11 Two days later, police arrested Evans. Evans denied any involvement in the shooting and claimed to have been in Wendover at the time. In a subsequent police interview, Evans told several lies, including denying having access to his Infiniti on the day of the murder and denying owning a red L.A. Angels hat. Police eventually recovered the Infiniti, finding a cell phone inside and blood on the driver's side door. Police also recovered four more cell phones from Evans's Escalade. They later obtained cell-site location information for all five phones, which placed Evans within 200 meters of Kelbach's home at the time of the shooting.

The Buccal Swab

¶12 The day after Evans's arrest, a judge signed a search warrant authorizing investigating officers to take a sample of Evans's DNA using a buccal swab. Officers first asked Evans if he would submit voluntarily to the swab. Evans refused, stating he wanted his attorney present before giving a DNA sample. Officers then advised Evans that they had a warrant and "it was up to [Evans] on how that process went," but they "preferred it went voluntar[il]y." Evans again refused to comply and asked for his attorney, so officers showed Evans the warrant, read it to him, and let him look at it.

¶13 Despite being presented with the warrant, Evans forcibly resisted having his cheek swabbed. He refused to open his mouth and thrashed and kicked at the officers. In response, officers called

4

in additional law enforcement to help. They handcuffed Evans and placed him in leg irons and a belly chain. The officers applied "control holds"[4] to control Evans's thrashing. One officer placed his foot over Evans's foot to prevent Evans from kicking the technician who was attempting to administer the swab. Another officer pried open Evans's mouth. It ultimately took "four or five pretty large detectives"[5] to hold Evans still so that the technician could reach into his mouth to perform the swab.

¶14 The results of the DNA test showed that the odds of the recovered baseball cap having been worn by someone other than Evans were 1 in 227, 000. The results also showed that Evans was a possible contributor to DNA found on a broken piece of fence leading to Kelbach's back door.

The Trial

¶15 The State charged Evans with murder, aggravated burglary, and possession of a weapon by a restricted person. Prior to trial, Evans moved to suppress the DNA evidence obtained from the buccal swab on the grounds that the officers had used unreasonable force in obtaining it. He did not contest the validity of the search warrant itself. The district court denied Evans's motion, concluding that the force used by the officers "was reasonable because it was no more than was necessary" to counter Evans's resistance.

¶16 The case proceeded to trial. In addition to the DNA evidence, the State's evidence included, among other things, surveillance videos and cell-site location information confirming Evans had driven from Wendover to Salt Lake City on the day of the murder; testimony from two witnesses placing a man matching Evans's description at Kelbach's home around the time of the murder; testimony from two of Evans's cellmates that Evans had confessed to the murder; the presence of the red baseball cap-in Evans's size and matching one he wore in a

5

photograph-at the crime scene; and the text messages and other communications about Kelbach that Evans sent to his fiancée. After a five-day trial, a jury found Evans guilty on all charges.

The Appeal

¶17 Evans appealed. Alongside multiple other claims, Evans argued that the district court erred in denying his motion to suppress the DNA evidence. Specifically, Evans contended that the search warrant did not-either expressly or implicitly-give police officers the authority to obtain his DNA by means of force, and that even if it did, the force that police officers used to collect the sample was excessive and in violation of his rights under the Fourth Amendment of the United States Constitution and Article I, section 14 of the Utah Constitution. Evans also made a statutory claim, arguing that the Utah Legislature did not intend for any force to be used to obtain a DNA sample under these circumstances because no applicable rule or statute explicitly authorized its use.

¶18 The court of appeals found Evans's arguments unpersuasive and affirmed. State v. Evans, 2019 UT App 145, ¶¶ 39-40, 449 P.3d 958. It held that the district court had not erred in denying Evans's motion to suppress the DNA evidence because a search warrant implicitly authorizes executing officers to use reasonable force if necessary, and the force used here was reasonable. Id. ¶¶ 13-29. The court of appeals also rejected Evans's contention that the officers' use of force was unlawful because it was not expressly authorized by statute, noting that any alleged lack of statutory authority had no bearing on whether the officers' actions were constitutionally permissible. Id. ¶ 17 n.6.

¶19 Evans petitioned for certiorari, which we granted. We exercise jurisdiction under Utah Code section 78A-3-102(3)(a).

STANDARDS OF REVIEW

¶20 "On certiorari, this court reviews the decision of the court of appeals for correctness, giving no deference to its conclusions of law." State v. Marquina, 2020 UT 66, ¶ 24, 478 P.3d 37 (citation omitted). "The correctness of...

To continue reading

Request your trial
3 practice notes
  • State v. Smith, 20190550
    • United States
    • Supreme Court of Utah
    • March 1, 2022
    ...of a search or seizure that render it "unreasonable as to scope [or] length of time." Id. (emphasis added); see also State v. Evans, 2021 UT 63, ¶ 26, 500 P.3d 811 (noting that a search may be challenged as either unlawful "at its inception" or as "executed in a[n] [unreasonable manner" (qu......
  • ICS Corr. v. The Utah Procurement Policy Bd., 20200930
    • United States
    • Supreme Court of Utah
    • June 23, 2022
    ...in part, on whether it accurately reviewed the [lower tribunal's] decision under the appropriate standard of review." State v. Evans, 2021 UT 63, ¶ 20, 500 P.3d 811 (citation omitted). "In other words, [i]n reviewing the court of appeals' decision[,] we apply the same standard of review tha......
  • Utah Law Developments, 0222 UTBJ, Vol. 35, No. 1. 27
    • United States
    • Utah Bar Journal Nbr. 35-1, January 2022
    • February 1, 2022
    ...applied to minors, and clarified that both content and context are relevant to whether material qualifies as obscene. State v. Evans 2021 UT 63 (Nov. 4, The Utah Supreme Court held that the court of appeals did not err in affirming the district court’s denial of the defendant’s motion to su......
2 cases
  • State v. Smith, 20190550
    • United States
    • Supreme Court of Utah
    • March 1, 2022
    ...of a search or seizure that render it "unreasonable as to scope [or] length of time." Id. (emphasis added); see also State v. Evans, 2021 UT 63, ¶ 26, 500 P.3d 811 (noting that a search may be challenged as either unlawful "at its inception" or as "executed in a[n] [unreasonable manner" (qu......
  • ICS Corr. v. The Utah Procurement Policy Bd., 20200930
    • United States
    • Supreme Court of Utah
    • June 23, 2022
    ...in part, on whether it accurately reviewed the [lower tribunal's] decision under the appropriate standard of review." State v. Evans, 2021 UT 63, ¶ 20, 500 P.3d 811 (citation omitted). "In other words, [i]n reviewing the court of appeals' decision[,] we apply the same standard of review tha......
1 books & journal articles
  • Utah Law Developments, 0222 UTBJ, Vol. 35, No. 1. 27
    • United States
    • Utah Bar Journal Nbr. 35-1, January 2022
    • February 1, 2022
    ...applied to minors, and clarified that both content and context are relevant to whether material qualifies as obscene. State v. Evans 2021 UT 63 (Nov. 4, The Utah Supreme Court held that the court of appeals did not err in affirming the district court’s denial of the defendant’s motion to su......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT