State v. Johnson

• Decision Date: 31 December 1987
• Docket Number: No. 20814,20814
• Citation: 748 P.2d 1069
• Parties: The STATE of Utah, Plaintiff and Respondent, v. Patrick D. JOHNSON, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1069

748 P.2d 1069

The STATE of Utah, Plaintiff and Respondent, v. Patrick D. JOHNSON, Defendant and Appellant.

No. 20814.

Supreme Court of Utah.

Dec. 31, 1987.

David L. Wilkinson, Earl F. Dorius, Salt Lake City, for plaintiff and respondent.

Frances M. Palacios, Salt Lake City, for defendant and appellant.

STEWART, Associate Chief Justice:

Patrick Johnson, a parolee who resided with his mother in her apartment, was convicted of burglary and forgery. Johnson appeals both convictions on the ground that two checks admitted against him at trial were obtained from his mother's apartment in violation of the Fourth Amendment. He also argues that the trial court erred in admitting evidence of other crimes and in giving a jury instruction which he contends contained a mandatory rebuttable presumption on the burglary conviction.

I. THE FACTS

The case arises out of the burglary of the Four Square Church. Among the items taken in the burglary were two books of blank checks from the church's checking accounts. On the same day that the burglary was discovered, a church check was forged and cashed at Macey's Sack N' Save by a person claiming to be Cary Montoya, the payee named on the check. Later that same day, a second check, not belonging to the church, was cashed at Stimson's Market on the personal account of Cary Montoya by a person who identified himself as Cary Montoya. These checks had been reported stolen by Montoya months earlier, and the account was closed. The store clerks who cashed the two checks identified, with varying degrees of certainty, Patrick Johnson as the person who presented himself as Cary Montoya.

Sometime after the identification, Salt Lake City Police Detective Kyle Jones informed Johnson's parole officers, John Shepard and Rick Acevedo, that the police had obtained a warrant to arrest Johnson for forgery of the checks drawn on the two accounts. The next day, Detective Jones and Officer Shepard went to the apartment of Johnson's mother, Connie Morashita, to arrest Johnson. It is unclear whether the parole officer was asked by Detective Jones to accompany him to the apartment, or whether the officer decided on his own initiative to do so. It is also unclear whether Mrs. Morashita gave her consent to the search. In any event, Jones and Shepard, without a search warrant, searched Mrs. Morashita's residence and found a check from the Four Square Church and identification belonging to Cary Montoya. They also found Johnson hiding behind a shower curtain and arrested him.

The State filed charges against Johnson both for burglary of the church and for forgeries of a church check and a check drawn on Cary Montoya's personal account. The trial court severed the burglary and forgery charges involving the church's check from the forgery charge relating to the check drawn on Montoya's account. The instant case concerns only the burglary and forgery charges involving the church's check.

Prior to trial, Johnson moved to suppress the items seized in the apartment by the parole officer on the ground that the parole officer acted as an agent of the police in conducting a warrantless search of the apartment in violation of his rights under the Fourth Amendment to the United States Constitution. The trial court denied the motion on the ground that a warrantless search by a parole officer of a parolee's residence "is not unlawful just because it is also beneficial to the police." State v. Velasquez, 672 P.2d 1254, 1262 (Utah 1983).

At trial, the store clerk who cashed the church check was unable to identify Johnson. However, the clerk from another store who had cashed the Montoya check testified over Johnson's objection, that Johnson had identified himself as Cary Montoya when cashing that check. Also, a police handwriting expert testified that he was ninety to ninety-five percent certain that both the church and Montoya checks had been signed by the same person.

II. FOURTH AMENDMENT RIGHTS OF PAROLEES

Johnson contends that the search violated his Fourth Amendment rights against unreasonable searches and seizures and that it also violated the same rights of Mrs. Morashita, a nonparolee, because the search was performed over her objection.

A. Motion to Suppress and Failure to Object

Johnson moved to suppress the checks at a pretrial hearing, but did not renew his objection when the checks were offered and admitted at trial. The prosecution argues that under State v. Lesley, 672 P.2d 79 (Utah 1983), Johnson waived his objection to the admissibility of the checks and, therefore, may not raise the issue on appeal.

In Lesley, the Court held, "[U]nder Rule 4 of the Utah Rules of Evidence, a specific objection is required even where a pretrial motion to suppress has been made." 672 P.2d at 82. The Court reasoned that even though a pretrial motion to suppress evidence had been made and denied, an objection to the admissibility of the evidence at trial should have been made because the trial judge was not the same judge who had ruled on the motion to suppress and there was no indication in the record that an evidentiary hearing on the motion had been conducted. However, the rule in Lesley does not require a defendant to object or to renew his motion to suppress at trial where the trial judge is also the judge who ruled on the pretrial motion and where the record or transcript indicates that an evidentiary hearing was held. Since the trial judge in this case was also the judge who presided at the suppression hearing, the defendant's failure to object at trial did not constitute a waiver of his Fourth Amendment claim.

B. The Warrantless Search of the Defendant's Apartment

State v. Velasquez, 672 P.2d 1254 (Utah 1983), defined a parolee's Fourth Amendment rights. It held that a parole officer may conduct a lawful search of a parolee's apartment without a search warrant if the parole officer has "reasonable grounds for investigating whether a parolee has violated the terms of his parole or committed a crime." Id. at 1260. It is necessary that a parole officer have an articulable "reasonable suspicion," which "requires no more than that the authority acting be able to point to specific and articulable facts that, taken together with rational inferences from those facts, reasonably warrant a belief in the conclusion mooted--in this instance, that a condition of parole has been or is being violated." Id. at 1260 n. 5 quoting United States v. Scott, 678 F.2d 32, 35 (5th Cir.1982). Thus, to constitute a valid warrantless search, there must be evidence (1) that the parole officer has a reasonable suspicion that the parolee has committed a parole violation or crime, and (2) that the search is reasonably related to the parole officer's duty. Id. at 1260.

In the instant case, Officer Shepard was aware that Johnson had committed a parole violation by pawning a stereo. But more significant is the fact that Shepard knew that a warrant had been issued based on probable cause that authorized the arrest of Johnson for the forgery of checks. Those facts provided the basis for an articulable suspicion that Johnson had both committed a crime and violated the terms of his parole. In this case, it is of no consequence that Officer Shepard took no action to search Johnson's quarters until Detective Jones told Officer Shepard of the arrest warrant. Furthermore, Shepard told Mrs. Morashita that he was searching for stolen checks.

Johnson claims that the police used Officer Shepard to evade the necessity of obtaining a warrant. Although we have warned that police officers may not use parole officers simply as a means of avoiding the warrant requirements to conduct random searches, ¹ that does not mean that police officers and parole officers are precluded from cooperating when the police have obtained an arrest warrant for the parolee. A parole officer has a legitimate parole interest to pursue in conducting a search when he becomes aware that an arrest warrant has issued for a parolee whom he supervises. In Velasquez, this Court stated that a parole officer's search of a parolee's premises "is not unlawful just because it is also beneficial to the police." Id. at 1262. That does not, however, sanction unlimited complicity between parole officers and police. ²

The parole officer had a reasonable and articulable basis for conducting a parole search when he learned that probable cause existed to believe that Johnson had committed forgery. The parole search was supervised and conducted by the parole officer, not by Detective Jones. See, e.g., United States ex rel Santos v. New York State Bd. of Parole, 441 F.2d 1216, 1218 (2nd Cir.1971), cert. denied, 404 U.S. 1025, 92 S.Ct. 692, 30 L.Ed.2d 676 (1972) ("The mere fact that the police officer was the first to suspect that appellant was engaged in criminal activity and related this fact to the parole officer and was present at the subsequent investigation in no way alters the legality of the parole officer's presence.") The testimony of Jones and Shepard support the trial judge's finding that there was no evidence of bad faith on the part of the police and the parole officers. Consequently, there was nothing improper either in the decision to conduct the warrantless search or in the joint effort between Shepard and Jones.

C. Search of Jointly Occupied Premises

Johnson also contends that because Mrs. Morashita did not consent to the search, a warrant should have been obtained because they lived together and she was not a parolee and therefore not subject to the lesser protection afforded parolees. This issue was specifically left open in Velasquez, 672 P.2d at 1260 n. 3.

It is well established that consent provides an exception to the general rule prohibiting warrantless searches. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); State v. Harris, 671 P.2d 175, 179 (Utah 1983). W. LaFave, Search and Seizure § 8.1 (1987); In the instant case,...