State v. Newland, No. 20080977–CA.

CourtUtah Court of Appeals
Writing for the CourtBefore Judges THORNE, ROTH, and CHRISTIANSEN.
PartiesSTATE of Utah, Plaintiff and Appellee,v.Dale E. NEWLAND, Defendant and Appellant.
Docket NumberNo. 20080977–CA.
Decision Date23 December 2010

253 P.3d 71
672 Utah Adv. Rep. 8
2010 UT App 380

STATE of Utah, Plaintiff and Appellee,
v.
Dale E. NEWLAND, Defendant and Appellant.

No. 20080977–CA.

Court of Appeals of Utah.

Dec. 23, 2010.


[253 P.3d 72]

Randall T. Gaither, Salt Lake City, for Appellant.Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee.Before Judges THORNE, ROTH, and CHRISTIANSEN.

OPINION
ROTH, Judge:

¶ 1 Dale E. Newland appeals from the trial court's denial of his motion to suppress evidence of child pornography that police found on his laptop computer after he had ostensibly consented to the search. Newland asserts that the evidence should have been suppressed because his consent was tainted by a prior illegal search of the computer. The State argues that the motion was properly denied because Newland's consent was not obtained through exploitation of the initial illegal search. We affirm.

BACKGROUND

¶ 2 Search and seizure cases are highly fact dependent, so we recite the pertinent facts, none of which are disputed, in some detail. See State v. Brake, 2004 UT 95, ¶ 2, 103 P.3d 699. In May 2006, a Clearfield City police officer, responding to a reported trespass by two juveniles in a vacant apartment unit, recovered stolen property, including a laptop computer. The responding officer contacted Officer Kyle Jeffries, a property crimes investigator, to retrieve the stolen property from the location where it was found. When Officer Jeffries first saw the laptop, the lid was open and a text document was on the screen. Although he glanced at the document, Officer Jeffries did not review it closely. Instead, he closed the lid and flipped the laptop over to locate the serial number. The serial number corresponded with that of a laptop computer Newland had reported stolen, so Officer Jeffries notified Newland that his laptop had been recovered and could be retrieved at the police station.

¶ 3 While awaiting Newland's arrival at the station, Officer Jeffries decided to take another look at the text document to determine if it contained any evidence of the juveniles' activities. Although he did not recall closing the document prior to the laptop's transport to the police station, the text document was no longer on the screen when he reopened the computer's lid. For that reason, he began searching through the file folders appearing on the computer's desktop, the first screen that he saw. In the course of his search for the document, he opened a folder titled “My Pictures,” in which he saw thumbnail images 1 of naked females who appeared

[253 P.3d 73]

to him to be under the age of eighteen. He immediately discontinued his search.

¶ 4 Officer Jeffries then approached Newland, who had since arrived at the police station, and requested consent to search the computer for evidence that the juveniles may have placed on the computer. The officer did not inform Newland of his previous search or the nature of the evidence he was seeking. Newland gave his consent to the search.

¶ 5 Officer Jeffries returned to his office, opened the files, and confirmed that they did contain photographs of naked females who appeared to be under eighteen years of age. He then informed Newland that he had found evidence (which he did not describe) on the computer and that he was going to send the laptop to the state forensic laboratory for further examination. Newland made no protest and thanked the officer. At some point after he obtained Newland's consent to search the computer, Officer Jeffries also asked another police officer to assist him in locating the date and time that the photographs had been saved on the computer. Their investigation indicated that the photographs had been placed on the computer prior to the date that Newland had reported the laptop stolen. Officer Jeffries obtained a search warrant and sent the computer to the forensic laboratory where an investigator in the Internet Crimes Against Children Unit determined that twenty-one photographs saved on the computer prior to its theft appeared to be child pornography. The crime laboratory also determined that the photographs were stored in the “My Pictures” folder that was linked to Newland's computer profile, the only one of the four user profiles set up on the laptop that was not password-protected.

¶ 6 Newland was charged by information with three counts of sexual exploitation of a minor, each a second degree felony, see Utah Code Ann. § 76–5a–3(1)(a), (2) (Supp.2010).2 Newland moved to suppress the child pornography found on his laptop as the fruit of an illegal search. Following a hearing, the trial court denied the motion, holding that although the initial search was illegal, Newland's consent cured the illegality because the consent was voluntary and was not obtained through exploitation of the prior illegality. Newland was later convicted on all three counts. He now challenges the trial court's denial of his motion to suppress.

ISSUE AND STANDARD OF REVIEW

¶ 7 We review the trial court's denial of a motion to suppress evidence based on undisputed facts for correctness. See State v. Tripp, 2010 UT 9, ¶ 23, 227 P.3d 1251. “In search and seizure cases, no deference is granted to ... the district court regarding the application of law to underlying factual findings.” State v. Alverez, 2006 UT 61, ¶ 8, 147 P.3d 425 (citing State v. Brake, 2004 UT 95, ¶ 15, 103 P.3d 699).

ANALYSIS

¶ 8 The State does not contest the trial court's determination that the initial search of Newland's computer without a warrant or consent constituted an illegal search in violation of the Fourth Amendment of the United States Constitution. See U.S. Const. amend. IV (protecting citizens from unreasonable searches of personal effects).3 For purposes of this appeal, therefore, we assume, without deciding, that the initial search violated Newland's constitutional rights. Thus, the only issue presented for appeal is whether the child pornography evidence discovered during the course of the ensuing consent search should have been suppressed as a fruit of the initial illegality.

¶ 9 An illegal search does not inevitably result in the suppression of all evidence that would not have been discovered had the wrongful search not happened:

[253 P.3d 74]

We need not hold that all evidence is fruit of the poisonous tree simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is whether granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of the illegality or instead by means sufficiently distinguishable to be purged of the primary taint.

Wong Sun v. United States, 371 U.S. 471, 487–88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (internal quotation marks omitted); see also State v. Arroyo, 796 P.2d 684, 688 (Utah 1990) (rejecting a pure “but for” test in favor of the Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), exploitation test). The State contends that the trial court correctly ruled that Newland's subsequent voluntary consent to search the computer removed any taint from the initial illegal search.4

¶ 10 “Two factors determine whether consent to a search is lawfully obtained following initial police misconduct[:] ... whether the consent was voluntary and whether the consent was obtained by police exploitation of the prior illegality.” Arroyo, 796 P.2d at 688.5 Newland does not dispute that his consent was voluntarily given. Rather, he contends the consent was tainted by the illegal search.

¶ 11 Our inquiry therefore focuses on whether Newland's consent was obtained through exploitation of the illegal initial search or if his consent was sufficiently separate from the initial search to remove any resulting taint. The primary purpose of the exploitation analysis is to identify situations where, even given a defendant's voluntary consent, the only way “ ‘to compel respect for the constitutional guaranty [against unlawful searches and seizures is to] ... remov[e] the incentive to disregard it.’ ” State v. Hansen, 2002 UT 125, ¶ 62, 63 P.3d 650 (quoting Brown v. Illinois, 422 U.S. 590, 599–600, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)). Thus, “[w]hen conducting an exploitation analysis, a court ‘evaluates the relationship between official

[253 P.3d 75]

misconduct and subsequently discovered evidence to determine if excluding the evidence will effectively deter future illegalities.’ ” Id. (quoting State v. Shoulderblade, 905 P.2d 289, 292 (Utah 1995)). In State v. Arroyo, 796 P.2d 684 (Utah 1990), the Utah Supreme Court identified “ ‘temporal proximity of the [illegality] and the [consent], the presence of intervening circumstances [and] the purpose and flagrancy of the official misconduct’ ” as factors that courts should consider in making this determination. See id. at 691 n. 4 (third alteration in original) (quoting Brown, 422 U.S. at 603–04, 95 S.Ct. 2254).6

¶ 12 In this case, the trial court determined that Newland gave his consent soon after the initial search and the events were therefore temporally proximate. With respect to intervening circumstances between the illegal search and the consensual one, the court found none. But, it also decided that Officer Jeffries's conduct was not purposeful or flagrant. After weighing and balancing these three Arroyo factors, the trial court concluded that Newland's consent was not the result of exploitation of the prior illegal search and that “ ‘whatever deterrent value may result from suppression in this case is greatly outweighed by society's interest in placing all relevant evidence before the jury.’ ” (Quoting State v. Thurman, 846 P.2d 1256, 1274 (Utah 1993).) On that basis, the court denied the motion to suppress. We now examine each of the factors to determine whether the trial court correctly concluded that the evidence was not obtained through exploitation of the prior search.

I. Temporal Proximity

¶ 13...

To continue reading

Request your trial
8 practice notes
  • State v. Strieff, No. 20100541–CA.
    • United States
    • Utah Court of Appeals
    • August 30, 2012
    ...there must be some ‘independent basis for discovery’ ” (citation omitted)), with State v. Newland, 2010 UT App 380, ¶¶ 9, 11, 253 P.3d 71 (requiring a causal connection between the initial illegality and the challenged evidence for application of the attenuation doctrine and focusing on whe......
  • Cope v. Utah Valley State Coll., No. 20110147–CA.
    • United States
    • Court of Appeals of Utah
    • November 8, 2012
    ...our own contradictory interpretation of language in another of its decisions. See generally State v. Newland, 2010 UT App 380, ¶ 10 n. 5, 253 P.3d 71 (“[U]nder principles of vertical stare decisis, we are prohibited from departing from the precedent established by our supreme court.”). In a......
  • State v. Case, No. 20180361-CA
    • United States
    • Utah Court of Appeals
    • May 29, 2020
    ...contents. A thumbnail of a photograph file is a miniature version of the saved image." State v. Newland , 2010 UT App 380, ¶ 3 n.1, 253 P.3d 71 (quotation simplified).2 A Tor browser "is primarily used to gain access to the dark web and help maintain the user's anonymity while browsing on t......
  • State v. Vit, No. 20100710–CA.
    • United States
    • Court of Appeals of Utah
    • August 9, 2012
    ...test enunciated in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)); State v. Newland, 2010 UT App 380, ¶ 27, 253 P.3d 71 (concluding that police did not exploit an illegal search to obtain consent where the defendant was unaware of the prior search when he conse......
  • Request a trial to view additional results
8 cases
  • State v. Strieff, No. 20100541–CA.
    • United States
    • Utah Court of Appeals
    • August 30, 2012
    ...there must be some ‘independent basis for discovery’ ” (citation omitted)), with State v. Newland, 2010 UT App 380, ¶¶ 9, 11, 253 P.3d 71 (requiring a causal connection between the initial illegality and the challenged evidence for application of the attenuation doctrine and focusing on whe......
  • Cope v. Utah Valley State Coll., No. 20110147–CA.
    • United States
    • Court of Appeals of Utah
    • November 8, 2012
    ...our own contradictory interpretation of language in another of its decisions. See generally State v. Newland, 2010 UT App 380, ¶ 10 n. 5, 253 P.3d 71 (“[U]nder principles of vertical stare decisis, we are prohibited from departing from the precedent established by our supreme court.”). In a......
  • State v. Case, No. 20180361-CA
    • United States
    • Utah Court of Appeals
    • May 29, 2020
    ...contents. A thumbnail of a photograph file is a miniature version of the saved image." State v. Newland , 2010 UT App 380, ¶ 3 n.1, 253 P.3d 71 (quotation simplified).2 A Tor browser "is primarily used to gain access to the dark web and help maintain the user's anonymity while browsing on t......
  • State v. Vit, No. 20100710–CA.
    • United States
    • Court of Appeals of Utah
    • August 9, 2012
    ...test enunciated in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)); State v. Newland, 2010 UT App 380, ¶ 27, 253 P.3d 71 (concluding that police did not exploit an illegal search to obtain consent where the defendant was unaware of the prior search when he conse......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT