State v. Potter

• Decision Date: 08 September 1993
• Docket Number: No. 920579-CA,920579-CA
• Citation: 860 P.2d 952
• Parties: STATE of Utah, Plaintiff and Appellee, v. Devon Boyd POTTER, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 952

860 P.2d 952

STATE of Utah, Plaintiff and Appellee, v. Devon Boyd POTTER, Defendant and Appellant.

No. 920579-CA.

Court of Appeals of Utah.

Sept. 8, 1993.

Jan Graham and J. Kevin Murphy, Salt Lake City, for defendant and appellant.

Mark T. Ethington, Murray, for plaintiff and appellee.

Before BENCH, GREENWOOD and RUSSON, JJ.

OPINION

RUSSON, Associate Presiding Judge:

The State of Utah appeals the trial court's order granting Devon Boyd Potter's motion to suppress evidence of possession of a controlled substance, a class B misdemeanor, in violation of Utah Code Ann. § 58-37-8(2)(a)(i) (Supp.1993), and possession of drug paraphernalia, a class B misdemeanor, in violation of Utah Code Ann. § 58-37a-5 (1990). We affirm.

FACTS

At about 10:30 p.m. on February 15, 1991, Leon Sandstrom left Devon Boyd Potter's trailer home in Huntington, Utah, and shortly thereafter, was stopped by Gayle Jensen, an Emery County sheriff's deputy, who suspected that he was driving under the influence. Deputy Jensen requested that Sandstrom exit his vehicle for field sobriety testing, at which time Sandstrom volunteered information that Jim Ward, a known drug user, and seven others were smoking marijuana inside Potter's home, and asked if giving this information to the deputy would "help him" regarding his likely DUI charge.

Deputy Jensen summoned Tom Harrison, an Emery County narcotics detective, and relayed to him the information given by Sandstrom. Detective Harrison spoke with Sandstrom, who repeated his account of the activities at Potter's home and further claimed that the individuals present in the trailer home had "about three fingers" of marijuana. Detective Harrison directed Deputy Jensen and other officers to watch Potter's home, while he obtained a search warrant. While watching Potter's home, and completing Sandstrom's arrest and vehicle impoundment, the officers observed individuals peering out of the trailer's window several times. The officers relayed their observations to Detective Harrison, who directed them to enter Potter's home and secure it, pending arrival of the search warrant.

Upon entering the trailer, the officers found Potter, Jim Ward and one other individual watching television. The officers did not observe anyone smoking marijuana, nor did they detect the odor of marijuana in the air. Shortly after the initial entry, Detective Harrison arrived at the home and explained to the occupants that the trailer was being secured until a search warrant could be processed.

Detective Harrison returned to the sheriff's office to complete the application for a search warrant. Detective Harrison based his warrant affidavit upon: (1) the fact that Potter was the subject of an ongoing drug investigation; (2) the presence of Jim Ward, a known drug user, at Potter's trailer home; (3) informant Sandstrom's claim that Ward and seven others were smoking marijuana inside Potter's home; and (4) police officers' observation that the occupants of the trailer repeatedly peered out of the window at the officers and appeared nervous. Detective Harrison completed the application and affidavit, and took them to Magistrate Stan Truman for review and signature. However, Detective Harrison did not tell the magistrate that police observations of the circumstances inside the Potter home did not coincide with Sandstrom's accusations. The magistrate signed the warrant.

Prior to searching Potter's trailer, Detective Harrison advised Potter to cooperate with the officers, and Potter surrendered approximately one-eighth of an ounce of marijuana. A further search of the trailer produced a set of scales and other drug paraphernalia. Potter was subsequently charged with possession of a controlled substance, in violation of Utah Code Ann. § 58-37-8(2)(a)(i) (Supp.1993), and possession of drug paraphernalia, in violation of Utah Code Ann. § 58-37a-5 (1990). Potter filed a motion to suppress, claiming that all the evidence was seized in violation of his rights under the Fourth Amendment to the United States Constitution. The said motion was granted.

The State filed this interlocutory appeal, asserting that the trial court erred in: (1) determining that the search warrant was invalid; and (2) failing to address the State's "good faith reliance" argument, made pursuant to United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). ¹

STANDARD OF REVIEW

We review the factual findings underlying a grant of a motion to suppress evidence under a "clearly erroneous" standard, and review the trial court's conclusions of law based thereon for correctness. State v. Brown, 853 P.2d 851, 854-55 (Utah 1992) (citing State v. Ramirez, 817 P.2d 774, 781-82 (Utah 1991)); accord State v. Thurman, 846 P.2d 1256, 1271 (Utah 1993).

SEARCH WARRANT

The State argues that the trial court erred in granting Potter's motion to suppress, assailing the court's determination that "[t]he Search Warrant was defective in that it did not 'particularly' describe the place to be searched." Potter responds that the trial court correctly determined that the search warrant was invalid due to its lack of particularity. He further asserts that even if the search warrant is sufficiently particular, he should nonetheless prevail on the motion because the affidavit submitted by Detective Harrison in support of his request for a search warrant was insufficient to establish probable cause. While we agree with the State that the search warrant was not void for lack of particularity, ² since we may affirm on any proper ground, ³ we address Potter's claim that Detective Harrison's affidavit was insufficient to establish probable cause. ⁴

It is well settled that "[b]efore issuing a search warrant, a neutral magistrate must review an affidavit containing specific facts sufficient to support a finding of probable cause." State v. Purser, 828 P.2d 515, 517 (Utah App.1992) (citing State v. Babbell, 770 P.2d 987, 990 (Utah 1989)). In determining whether probable cause exists, the magistrate must "make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983).

On appeal, we do not conduct a de novo review of the magistrate's probable cause determination, State v. Collard, 810 P.2d 884, 885 (Utah App.) (citations omitted), cert. denied, 817 P.2d 327 (Utah 1991), but only "determine whether the issuing magistrate had a substantial basis for concluding that there were enough facts within the affidavit to find that probable cause existed." Id. (citing Babbell, 770 P.2d at 991). Moreover, we must consider the affidavit "in its entirety." State v. Anderson, 701 P.2d 1099, 1102 (Utah 1985).

In the case at bar, the evidence submitted by Detective Harrison in his affidavit in support of his request for a search warrant included: (1) the fact that Potter was the subject of an ongoing drug investigation; (2) the presence of Jim Ward, a known drug user, at the Potter home; (3) informant Sandstrom's claim that Ward and seven others were smoking marijuana inside Potter's trailer home; and (4) police officers' observation that the occupants of the trailer repeatedly peered out of the window at the officers and appeared nervous.

Because a probable cause determination focuses on the probability that evidence of a crime will currently be found in a particular place, Gates, 462 U.S. at 238, 103 S.Ct. at 2332, the first two of the above grounds are not properly part of that determination. First, the fact that Potter was under investigation for drug distribution does not indicate that controlled substances will currently be found in his trailer. See State v. Brooks, 849 P.2d 640, 644 (Utah App.) (holding that information that defendant had been a target of investigations by local drug agencies during the past several years does not indicate that controlled substances will currently be found at his residence), cert. denied, 860 P.2d 943 (Utah 1993). Second, the presence of Jim Ward, a convicted drug user, does not establish that controlled substances would presently be found in the Potter trailer. See id. (holding that an individual's criminal record does not establish that he is currently dealing in controlled substances).

Thus, we examine the remaining two grounds, Sandstrom's information and the nervous peering out of the window, to determine if such grounds are sufficient to establish that "the issuing magistrate had a substantial basis for concluding that there were enough facts within the affidavit to find that probable cause existed." Id. (quoting Collard, 810 P.2d at 885). As to the use of information provided by informants, we have previously stated:

In some cases, the circumstances may require the supporting affidavit to set forth in detail the basis of knowledge, veracity and reliability of a person supplying information in order to establish probable cause. In other cases, if circumstances as a whole demonstrate the truthfulness of the informant's report, a less strong showing is required. For example, reliability and veracity are generally assumed when the informant is a citizen who receives nothing from the police in exchange for the information. Courts have also consistently approved the issuance of search warrants where the informant's knowledge is based on personal observation. Further buttressing reliability is the detail with which an informant describes the facts set forth in the affidavit and independent corroboration of the significant facts by the police.

State v. Purser, 828 P.2d at 517 (citations omitted).

In the case at bar, because circumstances as a whole did not plainly demonstrate the truthfulness of Sandstrom's...