State v. Rocha
| Decision Date | 06 September 1979 |
| Docket Number | No. 15869,15869 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Rosendo C. ROCHA, Defendant and Appellant. |
| Court | Utah Supreme Court |
Robert Van Sciver, Edward K. Brass, Salt Lake City, for defendant and appellant.
Robert B. Hansen, Atty. Gen., William W. Barrett, Asst. Atty. Gen., Theodore L. Cannon, Salt Lake County Atty., Salt Lake City, for plaintiff and respondent.
Defendant appeals his bench trial conviction of possession of heroin with intent to distribute it for value. 1
The record supports the following abstract of facts: Detective Sergeant Michael Hanks of the Salt Lake County Sheriff's Office, a specialist in narcotics enforcement, received information from three separate informers that heroin was being sold by two "Mexicans" on Lincoln Street in Salt Lake City. The first informant indicated that he had purchased heroin and that two Mexican people were "dealing out of a house" on Lincoln Street close to Thirteenth South Street. The second informer also indicated that he had purchased heroin at the Lincoln Street location and stated that the two Mexicans:
. . . bring heroin in the morning and they deal heroin during the day and then they leave at approximately 5:00 in the afternoon, 5:30 and that they don't live at that address.
The third informant pointed out the house in question located at 1361 Lincoln Street, advised that he had purchased heroin there previously, and that there were two Mexicans who sold to buyers entering through the back door.
All three informants had supplied similar information in the past regarding criminal activities which had always proven to be accurate.
Beginning on November 13, 1977, surveillance of the house was initiated and the rear entrance was observed for several days from a trailer parked nearby. Both known and suspected heroin users were seen entering and leaving the house after brief intervals of time. Each day, a 1969 Ford automobile, registered to defendant, was observed parked at the house. On the day preceding the arrest, said Ford automobile arrived at 8:30 a. m. with two male Mexican occupants, one being the defendant. They went inside and thereafter, over a four hour period, a number of known or suspected heroin users were observed to enter and leave the house through the back door. On the following morning, the defendant and one Lopez arrived in the Ford automobile. Lopez entered the house through the back door while defendant parked the car. After parking the car but before he was able to enter the house, defendant was arrested by Sergeant Hanks. As the arrest was in progress, a brown substance was observed in defendant's pocket which proved to be 65 grams of 3.1 percent heroin (the equivalent of 260 "doses" in this area). Also as the arrest was in progress, Lopez came out of the house and when advised as to the identity of the law enforcement officers, he ran back inside. Deputy Sheriff Randel Anderson followed and arrested Lopez inside the back door. The deputy testified that Lopez appeared to be headed for a nearby cupboard where a loaded revolver was located. There was also a weapon in plain view behind the refrigerator. Lopez was then handcuffed and required to accompany the deputy throughout the house to look for further weapons or persons who might have been in the house. In one of the bedrooms, in plain sight, Deputy Anderson observed drug-associated paraphernalia consisting of alcohol, cotton balls, syringes, a tie-off, straight-edge, lighter, and spoons.
After receiving a Miranda warning, defendant stated that Lopez was not involved in the "business" or "operation" and that it was all his (defendant's). He also stated that he had rented the house, stayed there during the day, but slept elsewhere.
The trial court determined that the arrest, search of defendant's person incident thereto, and the search of the house was proper.
Defendant's appeal asserts only two points of error: (1) that the arrest was without probable cause, hence the heroin found on his person was inadmissible at trial, and (2) that the evidence taken from the house was the fruit of an unlawful search and, hence, also inadmissible at trial.
Our statute 2 provides that when an officer has reasonable cause to believe that a person has committed a public offense, although not in his presence, he may arrest that person if there is reasonable cause to believe that such person might destroy or conceal evidence before a warrant could be obtained.
"Reasonable cause" was defined in State v. Hatcher, 3 as follows:
. . . The determination should be made on an objective standard: whether from the facts known to the officer, and the inferences which fairly might be drawn therefrom, a reasonable and prudent person in his position would be justified in believing that the suspect had committed the offense. (Citations omitted.)
This Court additionally noted the following in State v. Eastmond : 4
In performing his duties as authorized by this statute (77-13-3) a police officer is not required to meet any such standard of perfection as to demand an absolutely certain judgment before he may act. The test to be applied is one which is reasonable and practical under the circumstances: whether a reasonable and prudent man in his position would be justified in believing facts which would warrant making the arrest. In ruling on the admissibility of evidence so obtained, the questions as to the validity of the arrest and the justification for any search made in connection therewith are primarily for the trial court to determine; and on appeal we respect that prerogative and do not upset his determination unless it clearly appears that he was in error. (Emphasis added, citations omitted.)
This standard is in accord with that previously declared by the United States Supreme Court for warrantless arrests in Wong Sun v. United States. 5
In the instant case, the information possessed by Sergeant Hanks at the time of arrest was sufficient to warrant his belief that defendant had committed the crime charged. The independent, corroborating information received from informants known to have been reliable in the past was duly verified by an extended surveillance. The trial court properly ruled that the requisite standards for probable cause existed to make the arrest.
As to the warrantless search of the house, none was required since the search was reasonable and the drug paraphernalia seized was observed in plain view. 6
The Constitution only prohibits searches that are unreasonable, and the unreasonableness of the search is to be determined from the attendant circumstances. A search incident to a lawful arrest is permissible when reasonable and necessary to protect the arresting officer and to prevent the destruction of evidence. 7
Lopez concedes that the initial search which disclosed the loaded revolver and the other firearm was lawful. He only challenges the legality of the walk-through search of the house wherein the drug paraphernalia was observed in plain sight on a table and on shelves in an open closet.
It was necessary for the deputy to chase Lopez into the house in order to apprehend him at which time it appeared that he was attempting to obtain the loaded revolver. In light of that fact, and in the further interest of his personal safety and the safety of others, 8 it was most reasonable for the deputy to assure himself that there were no additional persons on the premises with access to firearms. It was also reasonable for him to be apprehensive of the destruction of evidence by such persons before a search warrant could be obtained. Hence, the walk-through search was wholly reasonable and proper.
The defendant was afforded a fair trial and was convicted on evidence properly received.
The judgment of conviction is affirmed.
I respectfully dissent from that portion of the Court's opinion which holds that the warrantless search of the entire house in question was constitutionally legitimate.
Appellant was arrested outside his house. His associate was arrested in a room just inside a door. Without a warrant and with no other legal justification, the officer proceeded from that room to other rooms in the house where seizures were made. The Court's opinion seeks to justify that...
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