State v. Genovesi

• Decision Date: 29 December 1995
• Docket Number: No. 940708-CA,940708-CA
• Parties: STATE of Utah, Plaintiff and Appellee, v. Jason Thomas GENOVESI, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 916

909 P.2d 916

STATE of Utah, Plaintiff and Appellee, v. Jason Thomas GENOVESI, Defendant and Appellant.

No. 940708-CA.

Court of Appeals of Utah.

Dec. 29, 1995.

Bradley P. Rich (Argued), Hakeem Ishola Yengich, Rich & Xaiz, Salt Lake City, for Appellant.

J. Kevin Murphy (Argued), Assistant Attorney General, Jan Graham, State Attorney General, Salt Lake City, for Appellee.

Before ORME, P.J., and GREENWOOD and WILKINS, JJ.

ORME, Presiding Judge:

This case is before us for a second time. See State v. Genovesi, 871 P.2d 547 (Utah App.1994). Following remand and the entry of more detailed findings, Jason Thomas Genovesi again appeals his conviction for manslaughter in the death of his two-year old stepson. He raises a number of Fourth Amendment issues. We affirm.

FACTS

On the afternoon of March 20, 1992, paramedics responded to a "911" call from a home shared by defendant Jason Genovesi, his spouse, Lisa, and her two children from a prior marriage. Defendant, who had been at home tending the children while his wife was at work, made the call to report an injury to one of the children, a two-year-old boy. Upon arriving at the residence, the paramedics found defendant kneeling over the child on the living room floor. The child appeared to have suffered a broken neck. Resuscitation efforts ensued but were unavailing, and the child was pronounced dead shortly after his arrival at a nearby hospital.

Law enforcement officers also responded to the emergency call, arriving while medical personnel were working on the child. Officer Kendra Herlin, among the first to arrive, observed the resuscitation efforts and spoke briefly to defendant and to medical personnel. Based on the information she obtained, Officer Herlin secured the area as a possible crime scene.

Soon after the paramedics took the victim to the hospital, Officer Kenneth R. Patrick arrived at defendant's residence. Officer Patrick made a cursory search of the residence, seized a wash cloth that had apparently been used in attending to the child's injuries, and took some photographs of the home's interior. Officer Patrick spoke briefly with defendant and then requested that defendant accompany him to the police station for further questioning. Upon completing his questioning of defendant, Officer Patrick arrested him for child abuse. The next day, March 21, Officer Patrick telephoned Lisa Genovesi and requested permission to re-enter the Genovesi home to "take measurements and search for evidence." Lisa Genovesi agreed. Because Lisa Genovesi was staying elsewhere in the aftermath of her son's death, she made arrangements to have one of her friends meet Officer Patrick at her home with a key.

During this search, Officer Patrick, assisted by another officer, took measurements and additional photographs, particularly of a bunk bed from which, according to defendant, the child had fallen the previous day, causing his fatal injuries. In the children's bedroom in which the bunk bed was located, the officers observed what they took to be a head-shaped dent in the wall, with a piece of hair in it. The officers seized and preserved the strand of hair and cut away and removed the dented section of the wall, as well as a section of carpet and padding from the bedroom floor. The officers conducted this Based on the officers' investigation, defendant was charged with first degree murder, in violation of Utah Code Ann. § 76-5-203 (1990). Prior to trial, defendant moved to suppress all evidence obtained as a result of the above searches of his home on the grounds that those searches violated his rights under the Fourth Amendment to the United States Constitution and Article I, section 14, of the Utah Constitution. Following an evidentiary hearing, the trial court denied defendant's motion. Defendant was subsequently tried by a jury. Apparently not satisfied that the State had proven the elements of murder beyond a reasonable doubt, the jury convicted defendant of manslaughter, a second degree felony, in violation of Utah Code Ann. § 76-5-205 (1992).

search, as well as the search on the previous day, without first procuring a search warrant.

Defendant appealed, arguing, inter alia, that the findings of fact and conclusions of law supporting the trial court's order denying his motion to suppress were insufficient to permit adequate appellate review and, therefore, required remand. State v. Genovesi, 871 P.2d 547, 549 (Utah App.1994). In a divided opinion, this court granted defendant's request for remand and directed the trial court to enter more detailed findings of fact and conclusions of law supporting its denial of defendant's motion to suppress the evidence obtained pursuant to the searches of his home. Id. at 552. On remand, the trial court reviewed the existing record, plus the transcript of defendant's preliminary hearing, and entered detailed findings of fact and conclusions of law addressing the searches of the Genovesi home. The court again denied defendant's motion to suppress and defendant appealed for a second time.

In the instant appeal, defendant argues that the trial court erred in denying his motion to suppress because (1) his wife's consent to the second search of the home was invalid under the Fourth Amendment to the United States Constitution and Article I, section 14, of the Utah Constitution and (2) there were no exigent circumstances justifying the warrantless search of the Genovesi home in the first instance. The State responds that (1) defendant waived his right to contest the first search by not specifically objecting to it; (2) both searches were valid under the Fourth Amendment to the United States Constitution and Article I, section 14, of the Utah Constitution, although the extent of the second search exceeded the scope of Lisa Genovesi's consent; and (3) any error in refusing to suppress the evidence obtained in the searches was harmless.

LEGALITY OF SEARCHES

Subject to very few exceptions, ¹ if a violation of the Fourth Amendment has occurred and the fruits of that violation are subsequently offered into evidence against a defendant who has standing to object and who properly objects, ² the trial court must suppress the evidence at trial. Moreover, if the tainted evidence is not excluded and the defendant is thereafter convicted, his or her conviction must be overturned and a new trial ordered unless the erroneous admission of evidence was harmless. Accordingly, we must first examine the two challenged searches and determine whether they fall within the recognized limited exceptions to the Fourth Amendment warrant requirement. If we determine that these searches did indeed violate the Fourth Amendment, ³

we must then determine whether the admission of the illegally seized evidence was harmless.

A. March 21 Search

1. Voluntary Consent

The trial court upheld the March 21 search based on Lisa Genovesi's voluntary consent. Defendant contends that his wife's consent was not voluntary because she was unaware of her right to refuse consent. He argues that, on the strength of Article I, section 14, of the Utah Constitution, we should mandate Miranda-type disclosures about one's rights when police ask for permission to conduct a search. Cf. State v. Bobo, 803 P.2d 1268, 1272 n. 3 (Utah App.1990) (setting forth possible standardized Miranda-type disclosure in consent-to-search context). We recently rejected this contention and held that proving voluntary consent under the Utah Constitution, as well as its federal counterpart, does not include proving that the defendant knew of his or her right to refuse to consent to a search. State v. Contrel, 886 P.2d 107, 111-12 (Utah App.1994), cert. denied, 899 P.2d 1231 (Utah 1995). Instead, we evaluate whether Lisa Genovesi's consent was "freely and intelligently" given based on the "totality of the circumstances," with actual knowledge of the right to refuse being but one factor in the analysis. See id.; State v. Whittenback, 621 P.2d 103, 106 (Utah 1980); State v. Webb, 790 P.2d 65, 82-83 (Utah App.1990).

In the instant case, Officer Patrick made no "claim of authority," he did not exhibit force, nor did he secure permission to search through "deception or trick." Whittenback, 621 P.2d at 106. Instead, the record indicates the police merely requested to search and received Lisa Genovesi's complete cooperation. Because the record demonstrates that Lisa Genovesi's consent was "unequivocal, specific, and freely and intelligently given," and was obtained "without duress or coercion, express or implied," the presumption against waiver of her constitutional right to refuse the search was overcome. See Webb, 790 P.2d at 82. Under the totality of the circumstances, the State has met its burden of proving that Lisa Genovesi's consent to search her home was voluntarily given.

2. Scope Of Consent

The parties agree on several key concepts. First, consent can legitimize what would otherwise be an illegal and unreasonable search. Second, the scope of a consent search is limited by the bounds, and determined by the breadth, of the actual consent itself. Finally, although the search in question was conducted with Lisa Genovesi's voluntary consent, the State concedes that the trial court correctly determined that removal of the piece of wall and carpeting was beyond the scope of her consent. ⁴ We agree.

As a matter of law, Lisa Genovesi's general consent to search the house does not include consent to tear out part of a wall or cut away a piece of carpet. See State v. Koucoules, 343 A.2d 860, 867 (Me.1974). See also Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.1(c), at 161 (2d ed. 1987) (general unqualified consent to search premises does not include consent to destroy property). Because the March 21 search exceeded the scope of Lisa Genovesi's consent, the court should not have admitted into evidence the sections of the wall and carpet that were illegally seized. ⁵

B...