State v. Hoffmann

• Decision Date: 12 December 2013
• Docket Number: No. 20111039–CA.,20111039–CA.
• Citation: 749 Utah Adv. Rep. 10,318 P.3d 225
• Parties: STATE of Utah, Plaintiff and Appellee, v. Samuel Joseph HOFFMANN, Defendant and Appellant.
• Court: Utah Court of Appeals

318 P.3d 225

749 Utah Adv. Rep. 10

STATE of Utah, Plaintiff and Appellee,

v.Samuel Joseph HOFFMANN, Defendant and Appellant.

No. 20111039–CA.

Court of Appeals of Utah.

Dec. 12, 2013.

Samuel P. Newton, Attorney for Appellant.

Brian L. Tarbet and Jeffrey S. Gray, Salt Lake City, Attorneys for Appellee.

Judge J. FREDERIC VOROS JR. authored this Opinion, in which Judges CAROLYN B. McHUGH and STEPHEN L. ROTH concurred.

Opinion

VOROS, Judge:

¶ 1 Samuel Joseph Hoffmann appeals from a district court order denying his motion to suppress drugs, drug paraphernalia, and a handgun seized during a warrant search of his apartment. We affirm.

BACKGROUND ¹

¶ 2 This case began, like many others, with an informant's tip. The informant told police about drug sales “in exchange for a possible reduction of his or her own charges.” The informant reported that two males, “Sam” and “Rocky,” distributed high-grade marijuana from their apartment. According to the informant, Sam and Rocky usually had “between 4 and 5 pounds of ‘chronic’ ” in their apartment at any given time. The informant led officers to the apartment where the informant believed Sam and Rocky lived. The informant told the officers that they had a better chance of getting somebody to open the door if they covered the peephole, because the apartment's occupants usually looked out the peephole when someone knocked at the door. The informant also stated that the occupants would open the door only if they recognized the person outside.

¶ 3 When the Weber Morgan Narcotics Strike Force arrived at the apartment, Officer Jared Francom detected the faint smell of burnt marijuana “coming from what [he] believed to be inside the apartment.” Officer Francom knocked and, following the informant's advice, covered the peephole with his finger “to try and prevent [the occupants from] seeing it was law enforcement at the door.” Someone inside the apartment asked, “Who is it?” and demanded that whoever was knocking uncover the peephole. The officers did not respond. Officer Francom then heard the sound of a security-latch chain being secured.

¶ 4 Over the next few minutes Officer Francom knocked several more times. The occupants later characterized the knocks as unusually forceful: aggressive knocking lasting two or three minutes. One of the occupants, Reyes “Rocky” Cimina, finally opened the door, turned around, walked back into the apartment, and “sat down next to two other males on the couch without saying a word,” leaving the door open behind him. With the door open, Officer Francom confirmed that the smell of burnt marijuana was coming from inside the apartment. In fact, he was “overwhelmed by the odor of burnt marijuana coming from inside.”

¶ 5 Officer Francom asked, “Can I come in?” In response, one of the men on the couch said, “Yeah, come in.” When the officers entered the apartment, they asked the three men on the couch if they lived there. Hoffmann, who was standing just out of sight in the kitchen, answered that he did. Hoffmann also gave the officers his name. When Officer Francom asked for permission to search the apartment for drugs and paraphernalia, Hoffmann asked if he had a search warrant. Officer Francom said that he did not but that he “could obtain one if that was the way [Hoffmann] wanted to proceed.” Hoffmann told Officer Francom that he wanted to speak to an attorney. Officer Francom “took that to mean that [Hoffmann] was not going to authorize consent.” The officers proceeded to secure the premises by searching and handcuffing the four occupants and conducting a protective sweep of the apartment. During the sweep, they found a bong in a bedroom.

¶ 6 Officer Francom left to obtain a search warrant. While drafting his affidavit, he received a call from the officers still at Hoffmann's apartment reporting that two potential buyers had arrived at the apartment. Officer Francom had previously investigated the first buyer in a case “involving a lot of ecstasy tablets”; the second buyer was carrying $700 in cash. Officer Francom also “did a check of Mr. Hoffmann's background” and “learned that there was a [previous] complaint made regarding ... the odor of marijuana coming from [Hoffmann's] apartment.” Officers had tried to investigate at that time by knocking at the apartment door, but no one had answered. Officer Francom's search warrant affidavit included information about the bong, Hoffmann's statement that he lived in the apartment, the two potential buyers, and the prior marijuana complaint. When Officer Francom returned with a warrant, the officers searched the apartment and found five bags of marijuana, several items of drug paraphernalia, and a handgun.

¶ 7 Hoffmann was charged with possession of a controlled substance with the intent to distribute and possession of a firearm by a restricted person. SeeUtah Code § 58–37–8(1)(a)(iii) (LexisNexis Supp.2010); id. § 76–10–503(3) (2008). Hoffmann moved to suppress the evidence the officers obtained during the initial warrantless entry and during the later warrant search.

¶ 8 The district court denied the motion. The court agreed with Hoffmann that the officers entered his apartment without lawful consent. But it ruled that the evidence obtained before entry supplied probable cause to support a warrant. The court explained that it had adopted the method Hoffmann's attorney recommended: it deleted from the search warrant affidavit all references to evidence found after the entry, including the “discussions with the people that were there, all of the observations that were made there, the bong, [and] everything else that was the result of the warrantless [search].” The court then “looked at what was left and ... was of the opinion that [it] would have issued that search warrant.” It pointed to three pieces of information it believed justified the issuance of a search warrant: (1) the faint odor of marijuana the officers detected before the door opened, (2) the overwhelming odor of burnt marijuana emanating from the apartment after the door opened, and (3) the tip provided by the informant, corroborated in part by Officer Francom's “testing” of the tip by using the peephole-covering maneuver the informant had recommended.

¶ 9 Following the district court's denial of his motion to suppress, Hoffmann entered a conditional no-contest plea to the two charges, reserving his right to appeal the court's suppression decision. Hoffmann now appeals the order denying his motion to suppress.

ISSUES AND STANDARDS OF REVIEW

¶ 10 Hoffmann first contends that by covering the apartment door peephole, the officers employed “trickery and deception, which negates voluntary consent to open a door to police.” “Whether consent was given presents a question of fact reviewed for clear error; whether consent was voluntary presents a question of law reviewed for correctness.” State v. Gomez, 2012 UT App 102, ¶ 6, 275 P.3d 1073.

¶ 11 Hoffmann next contends that the officers would not have sought a warrant—and the magistrate would not have granted one—without the evidence discovered after the warrantless entry. Therefore, in Hoffmann's view, any information gathered during the warrant search must be suppressed. The district court's denial of the motion to suppress is a legal determination, reviewed for correctness. See State v. Brake, 2004 UT 95, ¶¶ 11–15, 103 P.3d 699.

¶ 12 Finally, Hoffmann contends that the district court should have excluded all the challenged evidence as a remedy for a violation of the Utah Constitution, which, he asserts, does not recognize the independent-source doctrine. This contention presents a question of law. See Chen v. Stewart, 2004 UT 82, ¶ 25, 100 P.3d 1177.

ANALYSIS

¶ 13 The challenged evidence was obtained in a search conducted pursuant to a warrant. Relying on the Fourth Amendment to the United States Constitution and article I, section 14 of the Utah Constitution, Hoffmann maintains that the warrant search was unlawful for two reasons. First, he argues that the search warrant affidavit was based on evidence obtained through an unlawful warrantless search, that is, by tricking the apartment occupants into opening their door. Second, he argues that the warrant search should be suppressed because, but for evidence acquired in the warrantless entry (including the opening of the door), the officers would not have sought a warrant and the magistrate would not have issued one.

I. The Warrantless Entry

¶ 14 The district court ruled that the eventual warrant search of Hoffmann's apartment was supported by probable cause. The probable cause finding rested on three key pieces of evidence, all obtained without a warrant: (1) the confidential informant's tip, (2) the faint odor of marijuana Officer Francom detected before the door to Hoffmann's apartment opened, and (3) the overwhelming odor of burnt marijuana emanating from the apartment after the door opened.

¶ 15 Hoffmann maintains that the third piece of evidence should not have been included in the probable cause calculus, because it was obtained unlawfully. In Hoffmann's view, by covering the peephole and knocking loudly but intermittently for several minutes Officer Francom coerced the occupants into opening the front door. We conclude that Officer Francom did not coerce the occupants into opening the apartment door. He thus acted lawfully in perceiving the overwhelming smell of burnt marijuana and in including that fact in the search warrant affidavit.

A. The Occupants' Consent to Open the Door

¶ 16 Hoffmann contends that by covering the apartment door peephole, the officers employed “trickery and deception, which negates voluntary consent to open a door to police.” To guard against deception, he proposes a rule that “officers seeking to engage people in the home or observe the home's interior” be required to “identify themselves as police so as to allow those inside to decide whether to expose themselves and the residence to police.” Because the...