State v. Limb, 15438
| Decision Date | 12 June 1978 |
| Docket Number | No. 15438,15438 |
| Citation | 581 P.2d 142 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Michael Jeffrey LIMB, Defendant and Appellant. |
| Court | Utah Supreme Court |
Shelden R. Carter, Utah County Legal Defender Ass'n, Provo, for defendant and appellant.
Robert Hansen, Atty. Gen., Earl T. Dorius, Asst. Atty. Gen., Salt Lake City, Noall T. Wootton, Utah County Atty., Provo, for plaintiff and respondent.
Defendant was convicted on July 5, 1977, by the District Court, sitting without a jury, of exercising unauthorized control over stolen property having a value in excess of $100, a Class A Misdemeanor, under Utah Code Ann., 1953, Sections 76-6-404 and 76-6-412 (Supp.1977). Defendant appeals therefrom claiming two prejudicial errors, viz., that (1) evidence of the stolen property was seized pursuant to an unconstitutional search and (2) inadmissible evidence was received concerning value of the subject property.
On or about the 29th day of April, 1977, two tires and two "mag" type wheels were stolen from the residence of Carl McClellan. Mr. McClellan had become the owner of these wheels and tires when he purchased a 1968 Chevrolet truck equipped with them. He had no use for these deluxe wheels and tires and therefore replaced them with two regular truck tires and rims, and attempted to sell the former ones by chaining them to the front porch railing of his home with a "for sale" sign next to them.
Late in the evening on the 29th of April, 1977, Officer William Curl of the Payson City Police Department received a report that there had been a prowler in the area of Mr. McClellan's neighborhood. A neighbor had reported seeing a man wheeling two tires down the street, described the car in which the individual drove away, and furnished the police with the car's license number. Officer Curl discovered at the victim's home, that these two tires and wheels were missing from the front of McClellan's home and that the cable holding them to the front porch railing had been cut.
Officer Curl ran a license plate check on the suspect vehicle, discovering an address in Santaquin, Utah. Deputy Sheriff Robert Eyre of the Utah County Sheriff's Office was called to assist Officer Curl in locating the vehicle in the Santaquin area. The officers drove to the address in Santaquin and waited for the suspect vehicle to arrive.
Approximately two or three minutes after their arrival, a man, identified at trial by Officer Curl as the Defendant drove up in the suspect vehicle and parked on the side of the road near his house. Officer Curl approached the driver's side of defendant's car and observed a pair of bolt cutters on the front seat. Deputy Eyre joined Officer Curl and defendant. Officer Curl asked defendant if he would consent to the officers searching the trunk of his car, and defendant hesitated for a minute without answering after which Deputy Eyre again asked him if he would open the trunk. Defendant asked Deputy Eyre why he and Officer Curl wanted to search his car, to which Deputy Eyre stated that they had probable cause to believe that a theft had been committed, and that defendant had been involved.
Deputy Eyre then explained that defendant could answer "yes" allowing the officers to look into the trunk or "no" and refuse to allow them to open the trunk; he further informed defendant that he had the right to give either answer. Again, defendant said nothing. Officer Curl, then explained that if defendant consented to the search of the trunk, the officers would open the trunk and search it, and if he refused, they had sufficient probable cause to impound the vehicle and obtain a search warrant. Defendant then consented to the search of the trunk and walked to the trunk of the car and opened it where the officers discovered the stolen property.
At the trial, the State moved for the admission of the subject wheels and tires and defendant objected on the ground that they were the fruits of an illegal search and seizure, moving to have the evidence suppressed. The Court denied defendant's motion, ruling that the evidence taken from his automobile without a search warrant was admissible under the exigent circumstances doctrine. Defendant also objected to the State's evidence concerning the value of the stolen property on the grounds that the victim's testimony was hearsay evidence and sufficient foundation had not been laid for it. The Court overruled defendant's motion and Mr. McClellan testified that he believed the wheels and tires to be worth $125 to $150.
Concerning the defendant's claimed error of seizing the stolen property pursuant to a warrantless search, we hold that the District Court properly received the evidence of the stolen property under the exigent circumstances doctrine.
Here as is constitutionally required there was probable cause for a search, and also sufficient exigent circumstances for immediately searching without a warrant....
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