State v. Geer, 880055-CA

• Decision Date: 29 November 1988
• Docket Number: No. 880055-CA,880055-CA
• Citation: 765 P.2d 1
• Parties: STATE of Utah, Plaintiff and Respondent, v. David Bruce GEER, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 1

765 P.2d 1

STATE of Utah, Plaintiff and Respondent, v. David Bruce GEER, Defendant and Appellant.

No. 880055-CA.

Court of Appeals of Utah.

Nov. 29, 1988.

Martin V. Gravis (argued), Ogden, for defendant and appellant.

David L. Wilkinson, Atty. Gen., Barbara Berenson, Asst. Atty. Gen. (argued), for the State.

Before GARFF, BILLINGS and GREENWOOD, JJ.

OPINION

GREENWOOD, Judge:

David Bruce Geer appeals from his conviction of bigamy, a third degree felony, in violation of Utah Code Ann. § 76-7-101 (1978), claiming that he was selectively prosecuted and that an inventory search of his luggage violated his fourth amendment rights. We affirm.

On about November 2, 1987, Geer's wife, Colleen Edwards, contacted the Organized Crime Bureau and spoke to Sergeant Mann. She reported that Geer possessed a number of credit cards that bore the names of other women and did not appear to be his, that he had been making calls to dating services, and that he traveled extensively but had no obvious source of income. Sergeant Mann discovered, through the National Crime Information computer, that Geer was wanted in Missouri on an outstanding felony warrant for fraud. The fraud charges stemmed from returned checks, written on the account of David Bruce Geer and Deborah Syverson Geer. Colleen Edwards informed Sergeant Mann that Geer was scheduled to arrive at the Salt Lake International Airport on the night of November 14.

On November 14, 1987, Sergeant Mann met Geer at the airport and arrested him on the Missouri felony warrant. Sergeant Mann advised Geer that the luggage he was carrying at the time of arrest, including a briefcase, camera bag and garment bag, would have to be inventoried and stored in the Organized Crime Bureau's office, rather than the Salt Lake County jail, because of a jail policy prohibiting storage of large items belonging to an arrested person. Geer asked to be present during the inventory search and, consequently, was taken to the Organized Crime Bureau's office where his luggage was inventoried. During the search of Geer's briefcase, Sergeant Mann found a checkbook with the names David Bruce Geer and Deborah Syversen Geer printed on the checks. Sergeant Mann asked Geer how to contact Deborah Syverson Geer. Geer showed Mann his address book containing her name and address. After the inventory search, Geer's luggage was stored, and Geer was booked into the Salt Lake County jail.

Subsequently, Sergeant Mann contacted Deborah Syversen Geer and learned that Geer was married to her at the time he married Colleen Edwards. On November 16, Sergeant Mann received two telephone messages from Geer and, in response, went to the jail to talk to him. Geer told Mann that he had been married thirteen times and was not certain if he was married at the time he married Colleen Edwards in September 1987. Geer also told Mann he was not involved in any divorce proceedings.

On November 17, 1987, Geer was charged with one count of bigamy in violation of Utah Code Ann. § 76-7-101 (1978) and one count of falsification of government records. Geer filed a motion to dismiss, claiming that he was selectively prosecuted, and a motion to suppress all his statements and all physical evidence discovered after he was stopped at the airport. The court denied both the motion to dismiss and the motion to exclude Geer's confession. The court further found that the initial stop was valid and that the inventory and storage of Geer's luggage was proper. Geer entered a guilty plea on the bigamy charge, conditional upon his right to appeal the denial of the motion to dismiss and the motion to suppress. This appeal ensued.

CONDITIONAL PLEA

Preliminarily, we address the State's claim that Geer waived his right to appeal the trial court's denial of his motion to suppress and motion to dismiss by entering a conditional guilty plea. In State v. Sery, 758 P.2d 935, 938 (Utah Ct.App.1988), this Court held that entry of a conditional no-contest plea, which the prosecution and the defendant agreed to and the trial court accepted, did not preclude the defendant from raising fourth amendment issues on appeal. Sery further noted that conditional guilty pleas should be treated the same as conditional no-contest pleas, to allow preservation of the ability to appeal. Id. at 939. In this case, as in Sery, the prosecution and Geer agreed to the guilty plea and the court accepted the plea. In addition, like Sery, the guilty plea expressly reserved the right to appeal the denial of the motion to suppress and the motion to dismiss. Therefore, we hold that Geer's conditional guilty plea preserved his ability to appeal the trial court's denial of his motions.

SELECTIVE PROSECUTION

We next consider Geer's allegation that the prosecutor selectively enforced the bigamy statute and thereby violated Geer's constitutional rights under the equal protection clause of the United States Constitution. ¹ Prosecutors are given broad discretion in determining whether to prosecute. Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 1530, 84 L.Ed.2d 547 (1985). As long as the prosecutor has probable cause to believe that an offense has been committed, the decision regarding whether to prosecute "generally rests entirely in [the prosecutor's] discretion." Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). Although selective prosecution claims are assessed according to "ordinary equal protection standards," the decision to prosecute may not be "deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification." Wayte, 470 U.S. at 608, 105 S.Ct. at 1531.

The elements of a prima facie case under an equal protection claim were discussed in Castaneda v. Partida, 430 U.S. 482, 494-95, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977). In Castaneda, the defendant claimed that the Texas grand jury selection process resulted in a disproportionately low number of Mexican-Americans serving on such juries. The United States Supreme Court found that a prima facie case had been made by the defendant, thus requiring the State to rebut the defendant's showing of discrimination. The prima facie case consisted of identifying the group to which the defendant belonged and demonstrating that the identified group was treated disparately under the laws as written or applied. Id. at 495, 97 S.Ct. at 1280. In the context of selective prosecution claims, in order to establish a prima facie case, thus shifting the burden to the State, the defendant must demonstrate that a prosecutorial policy results in a discriminatory effect, based on an unlawful classification. Wayte, 470 U.S. at 608, 105 S.Ct. at 1531.

Geer claims that the State selectively prosecutes only those bigamists who practice bigamy for other than religious reasons. Having so claimed, Geer had the burden of establishing that the State has a prosecutorial policy in regard to bigamists which produces an unlawful discriminatory effect. The only competent evidence Geer submitted to support his claim was an affidavit of Robert W. Adkins, county attorney in Summit County, Utah. Adkins' affidavit states that he has never been requested by law enforcement officers or others to file bigamy charges, except against Geer. Adkins further states that at the time the criminal charges were filed against Geer, he did not know...