State v. Horton, 920245-CA

• Decision Date: 03 March 1993
• Docket Number: No. 920245-CA,920245-CA
• Citation: 848 P.2d 708
• Parties: STATE of Utah, Plaintiff and Appellee, v. William HORTON, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 708

848 P.2d 708

STATE of Utah, Plaintiff and Appellee, v. William HORTON, Defendant and Appellant.

No. 920245-CA.

Court of Appeals of Utah.

March 3, 1993.

Alan M. Williams (argued), Vernal, for appellant.

Jan Graham, Atty. Gen., and Todd A. Utzinger, Asst. Atty. Gen. (argued), Salt Lake City, for appellee.

Before BENCH, GARFF and JACKSON, JJ.

OPINION

JACKSON, Judge:

William Gene Horton appeals his convictions of four counts of theft, in violation of Utah Code Ann. § 76-6-404 (1990), and four counts of burglary, in violation of Utah Code Ann. § 76-6-202 (1990). We affirm.

I. FACTS

On the night of June 16, 1991, several businesses were burglarized in and around Vernal, Utah. On July 10, 1991, a magistrate issued a search warrant authorizing officers to search for stolen property at the residence of William Gene Horton in Salt Lake City, Utah. The warrant was issued based on information in Officer Boren's supporting affidavit provided by a confidential informant. ¹ Officer Boren omitted some detailed information from the affidavit concerning the connection of the stolen property with Horton's residence so that Horton would be unable to discern the informant's identity.

On July 10, 1991, Officer Boren, accompanied by other officers, executed the search at Horton's residence. The officers recovered several stolen items, along with tools believed to be burglary tools.

A hearing was held on November 7, 1991, on Horton's motion to quash the search warrant and to suppress all evidence seized pursuant to the warrant. The trial court ruled the warrant was invalid but refused to suppress the evidence seized, relying on the "good faith" exception to the exclusionary rule. Trial was set for December 19, 1991, but was continued when a defense alibi witness, Clara Meinhart, had surgery and was unavailable for trial. The trial was reset for January 2, 1992, and Clara Meinhart was still unavailable. The trial court refused a second continuance when Horton so requested, instead, ordering that a deposition be taken of Clara Meinhart's testimony for use at trial.

Following a guilty verdict by a jury, Horton was sentenced to serve one term of one to fifteen years and six terms of up to five years at the Utah State Prison along with a six month term at the Uintah County Jail, with all terms to be served consecutively. Horton challenges his conviction and sentence on appeal.

II. ISSUES

Horton makes the following claims on appeal: (1) the officer's reliance on the defective warrant was not in good faith; (2) the trial court improperly excluded the affidavit of Harmon Meinhart; (3) the trial court improperly excluded a photograph of the trunk of the vehicle allegedly used to transport the stolen property; (4) the trial court improperly denied Horton's motion to continue; and (5) the trial court improperly sentenced defendant to one concurrent and seven consecutive prison terms totaling more than thirty years.

III. ANALYSIS

A. Good Faith Reliance

Horton asserts the officer's reliance on the defective warrant was not in good faith, and therefore, his state and federal constitutional rights were violated. Although Horton asserts that his state constitutional rights have been violated, he failed to properly raise the issue below. "[T]he proper forum in which to commence thoughtful and probing analysis of state constitutional interpretation is before the trial court, not ... for the first time on appeal." State v. Bobo, 803 P.2d 1268, 1273 (Utah App.1990). See State v. Buford, 820 P.2d 1381, 1384 (Utah App.1991) ("[e]ven though the Utah Constitution is subject to independent analysis, argument for such interpretation generally should begin at the trial court").

Horton himself concedes that the applicability of the good faith exception under the Utah Constitution was not briefed at the trial court level. ² Even on appeal, Horton failed to develop any meaningful argument under the Utah Constitution; he never attempted to explain why a different standard should be adopted under the Utah Constitution than under the federal constitution. Rule 24(a)(9) of the Utah Rules of Appellate Procedure provides: "The argument shall contain the contentions and reasons of the appellant with respect to the issues presented, with citations to the authorities, statutes, and parts of the record relied on." Mere allusion to state constitutional claims, unsupported by meaningful analysis, does not permit appellate review. Bobo, 803 P.2d at 1269 (Utah App.1990); see State v. Yates, 834 P.2d 599, 602 (Utah App.1992); State v. Collard, 810 P.2d 884, 885 n. 2 (Utah App.), cert. denied, 817 P.2d 327 (Utah 1991) (appellate courts "will not engage in a state constitutional analysis unless a party briefs a different analysis under the state constitution than that which flows from the federal Constitution"); Christensen v. Munns, 812 P.2d 69, 72-73 (Utah App.1991); Koulis v. Standard Oil Co., 746 P.2d 1182, 1184-85 (Utah App.1987). Therefore, our analysis must proceed solely under federal constitutional law.

Evidence obtained by officers acting in good faith, objectively and reasonably relying on a search warrant issued by a neutral and detached magistrate, need not be excluded even if the warrant is subsequently invalidated by a lack of probable cause. United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984). There is a presumption that when an officer relies upon a warrant, the officer is acting in good faith. United States v. Cardall, 773 F.2d 1128, 1133 (10th Cir.1985). It is only when the officer's reliance on the warrant is "wholly unwarranted" that good faith is absent. United States v. Corral-Corral, 899 F.2d 927, 939 (10th Cir.1990) (quoting Cardall, 773 F.2d at 1133); accord United States v. Williams, 897 F.2d 1034, 1039 (10th Cir.1990), cert. denied, 500 U.S. 937, 111 S.Ct. 2064, 114 L.Ed.2d 469 (1991). A trial court's finding that an officer relied on a defective search warrant in good faith is subject to a de novo review by this court. State v. Rowe, 806 P.2d 730, 738 (Utah App.1991), rev'd on other grounds, --- P.2d ----, 196 Utah Adv.Rep. 14 (Utah 1992).

Leon describes four scenarios in which the exclusionary rule applies and good faith cannot be found: (1) the issuing magistrate is misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth; (2) the issuing magistrate wholly abandons his judicial role and fails to perform his neutral and detached function; (3) the warrant is based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; (4) the warrant is so facially deficient that it failed to particularize the place to be searched or the things to be seized, that the executing officer cannot presume it to be valid. Leon, 468 U.S. at 923, 104 S.Ct. at 3421.

Horton asserts the officer could not have acted in good faith in requesting or executing the warrant because he intentionally omitted information provided by the confidential informant that would tie the property sought to Horton's residence. However, we find that none of the scenarios described in Leon are present in this case to the degree that they would negate objective good faith. Horton has made no showing that the magistrate was misled by the omitted information. Further, the record below clearly establishes that Officer Boren was not attempting to mislead the magistrate by withholding the information. The mere omission of information that could have been included in an affidavit does not necessarily amount to an intent to mislead. This is also not a case where the magistrate wholly abandoned his role as a neutral and detached judicial officer or where the warrant was so facially deficient that it failed to particularize the place to be searched or the items to be seized.

Further, we hold that the affidavit was not so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. The affidavit was not a "bare bones" affidavit, nor was it "devoid of facts." See Leon, 468 U.S. at 926, 104 S.Ct. at 3422 (where warrant was supported by much more than a "bare bones" affidavit, providing sufficient evidence to create disagreement as to existence of probable cause, an officer's reliance upon the warrant is objectively reasonable); United States v. Cook, 854 F.2d 371 (10th Cir.1988), cert. denied, 488 U.S. 1006, 109 S.Ct. 788, 102 L.Ed.2d 779 (1989) (affidavit was not so "devoid of facts" so as to negate good faith, even though it failed to establish probable cause). The affidavit supporting the search warrant recites numerous detailed facts, provided by a confidential informant, showing that Horton was involved in the burglaries. It also provides Horton's current address and describes in detail the items of evidence to be seized. All of these items described by the informant match the descriptions of items stolen in the burglaries.

Based on the above information, the magistrate concluded that sufficient probable cause existed to believe evidence linking Horton to the burglaries would likely be present in his home, even though the affidavit did not specifically state that the confidential informant had seen the items at Horton's residence. ³ See United States v. Reyes, 798 F.2d 380, 382 (10th Cir.1986) ("[i]t is reasonable to assume that certain types of evidence would be kept at a defendant's residence and an affidavit need not contain personal observations that a defendant did keep such evidence at his residence") (citations omitted). ⁴

In this case, when the magistrate made the determination that sufficient probable cause existed to believe the items would be present at Horton's residence, the officers conducting the search were entitled to rely upon that determination. See Corral-Corral, 899 F.2d at 939 (an officer should be entitled to rely...