State v. Folkes, 14330
| Decision Date | 15 June 1977 |
| Docket Number | No. 14330,14330 |
| Citation | 565 P.2d 1125 |
| Parties | The STATE of Utah, Plaintiff and Respondent, v. Willie FOLKES, Defendant and Appellant. |
| Court | Utah Supreme Court |
Jack W. Kunkler and Ronald J. Yengich of Salt Lake Legal Defender Assn., Salt Lake City, for defendant and appellant.
Vernon B. Romney, Atty. Gen., William W. Barrett, Asst. Atty. Gen., R. Paul VanDam, Salt Lake County Atty., Salt Lake City, for plaintiff and respondent.
Defendant Willie Folkes appeals from a conviction by a jury of the crime of unlawful possession of a controlled substance (heroin) with intent to distribute it for value. 1 In seeking reversal, he contends that he was convicted because of unlawfully obtained evidence in that (1), the surveillance by the police, which resulted in his warrantless arrest, was an unconstitutional invasion of his privacy; and (2), that the search and seizure of a bottle containing capsules of heroin was not justified as being incident to his arrest.
On May 26, 1974, at approximately 2:00 a. m. S.L.C. police officers D. B. Bell and Niels Niemann were, with the consent of the owners, stationed on the roof of the Rio Grande Products Building, near Fifth West and Second South in Salt Lake City for the purpose of observing prostitution activity on the street below. While walking along a ledge on the side of that building, Officer Bell overheard voices coming from a room on the second floor of the adjacent Baywood Hotel. After hearing talk about heroin and "shooting up" and twice seeing a hand holding a syringe reach from the kitchen window of that room and squirt a clear substance into the alley, Officer Bell signaled to Officer Niemann to join him.
They sat on the ledge, each positioned on one side of the kitchen window to watch the goings on inside. Officer Bell saw the defendant, Folkes, go into the bedroom, return with an amber-colored bottle, and take two gelatin capsules from it, which he handed to one of two women. The latter placed the contents of the capsules in a spoon, added water, heated it and then each used a syringe to inject the substance into the other's arm.
The officers continued watching and a little later saw a similar performance between the defendant and a man customer, one James Lee. He likewise injected the contents of a capsule obtained from the amber bottle into his arm; and defendant again replaced the bottle on top of the dresser in the adjoining bedroom. It was at this time, after the officers had been making their observations for about two hours, that Officer Niemann accidently made a noise which drew the attention of the defendant. The defendant opened the bedroom window to investigate the noise.
At that time, Officer Neimann identified himself and, with his revolver drawn, entered the apartment through the bedroom window, the defendant retreating back into the kitchen as he did so. While Officer Niemann detained the defendant and Mr. Lee in the kitchen, Officer Bell entered through the bedroom window and joined him in the kitchen. Officer Niemann arrested the defendant, handcuffed him and stepped into the bedroom and took the bottle from the top of the dresser containing the capsules of what was later determined to be heroin.
We are committed unreservedly to the protection of the right of privacy by guarding against any unwarranted intrusions upon the peace and dignity of persons in their homes, hotel rooms or wherever they are lawfully entitled to be in private. 2 There can be no doubt but that officers should not take it upon themselves to decide whether to enter such a sanctuary without a warrant when it is reasonably practical to obtain one. But the proper safeguarding of that important right is one thing, while it is quite another to attempt to distort it for the purpose of providing a cloak of secrecy for clandestine criminal activities. The other side of the coin is that it is also essential that law officers should have reasonable liberty to investigate crimes without undue impediment or restriction. 3
It is to be borne in mind that it is not all searches and seizures without a warrant which are proscribed by the constitutional provisions referred to. It is only of a search which is "unreasonable." 4 It is commonly and properly stated that the question as to whether a search is unreasonable depends upon the particular circumstances; and the question to be answered is whether reasonable and fair minded persons would judge the alleged search or seizure to be unreasonable or oppressive. 5
In addressing that question in this case, it is also appropriate to have in mind that dealing in narcotic drugs is of such a nature that those who engage therein devise many and devious ways of concealment and quick disposal. Therefore what is reasonable about getting a warrant to search for other property and in other circumstances is not necessarily a guide to what is reasonable in searching out and apprehending the trafficking in such drugs.
It is true that the officers here were investigating other criminal activity. But they are charged generally with the duty of searching out any crime, obtaining evidence and prosecuting those engaged therein. When a police officer sees or hears conduct which gives rise to suspicion of crime, he has not only the right but the duty to make observations and investigations to...
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State v. Leonard
...entitled, but probably required, to obtain more information when they reasonably suspected a crime had been committed. See State v. Folkes, 565 P.2d 1125, 1127 (Utah), cert. denied, 434 U.S. 971, 98 S.Ct. 523, 54 L.Ed.2d 461 (1977); Holmes, 774 P.2d at 508. We hold, therefore, that defendan......
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...88 S.Ct. 1868, 1879-1880, 20 L.Ed.2d 889 (1968); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); State v. Folkes, 565 P.2d 1125 (Utah), cert. denied, 434 U.S. 971, 98 S.Ct. 523, 54 L.Ed.2d 461 (1977); State v. Elliott, 626 P.2d 423 (Utah 1981); see Coleman v. State, 5......
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...whether the law is being violated; and if so, to take such measures as are necessary in the enforcement of the law." State v. Folkes, 565 P.2d 1125, 1127 (Utah 1977), cert. denied, 434 U.S. 971, 98 S.Ct. 523, 54 L.Ed.2d 461 (1977). We thus reject defendant's claim of improper With respect t......
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