State v. Romero

• Decision Date: 17 February 1983
• Docket Number: No. 16963,16963
• Citation: 660 P.2d 715
• Parties: The STATE of Utah, Plaintiff and Respondent, v. Lester Ralph ROMERO, Defendant and Appellant.
• Court: Utah Supreme Court

Page 715

660 P.2d 715

The STATE of Utah, Plaintiff and Respondent, v. Lester Ralph ROMERO, Defendant and Appellant.

No. 16963.

Supreme Court of Utah.

Feb. 17, 1983.

Bradley P. Rich, Salt Lake City, for defendant and appellant.

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

OAKS, Justice:

A jury convicted defendant of two counts of forgery and two counts of recording a false or forged instrument. U.C.A., 1953, §§ 76-6-501, 76-8-414. On appeal, he claims error in the district court's denial of his motion to suppress documentary evidence because: (1) the search and seizures were unreasonable; (2) probable cause was lacking; (3) an affidavit was not returned in a timely manner; (4) the magistrate was not "neutral and detached"; (5) police examined some of the documents before the warrant was issued; and (6) the affiant's deposition was not in writing and subscribed.

On October 8, 1978, Officer Collins procured a search warrant from Judge Eleanor Lewis (the "Lewis warrant") authorizing a search of defendant's residence for various business papers and related objects. The officer's affidavit described his extensive examination of several business organizations in which defendant was the principal through assumed names. The affidavit also contained a confidential informant's statement that the listed items of evidence were at defendant's residence. The police officers commenced their search under the warrant at about 8:30 a.m. the next day. They concentrated their efforts in one bedroom, where most of the listed items were located. A cursory examination was also made of other areas authorized in the warrant: all other rooms, the garage, the yard, and vehicles at the home.

While locating the listed items, the police also uncovered evidence pertaining to other criminal cases pending against defendant. By 10:00 a.m., they decided to seek another warrant to authorize the seizure of this evidence. They phoned Judge Raymond Uno, and he and a certified shorthand reporter arrived at defendant's home at about 3:00 p.m. The search under the Lewis warrant ended shortly thereafter.

After being placed under oath, Officer Collins gave a deposition before Judge Uno in which he reviewed each item of additional evidence and explained its relationship to other offenses. This deposition was recorded in shorthand and transcribed within seven days. Officer Collins also signed and submitted an affidavit in support of the motion for a search warrant. Judge Uno thereupon issued a warrant (the "Uno warrant"), and the evidence pertaining to both warrants was removed from the premises. The warrants, returns, and other papers were filed on October 11, 1978, but for some unexplained reason Officer Collins retained the affidavit for the Lewis warrant and did not file it until January 15, 1979.

Defendant's motion to suppress the evidence seized at his home was heard and denied in February, 1979. A four-count information was filed against defendant the following June. During the ensuing trial, items seized under both warrants were introduced into evidence over defendant's objection. A jury found defendant guilty of all four counts, and he was sentenced to concurrent terms of either one to five years or one to fifteen years on all counts.

1. Defendant contends that the search and accompanying seizures were unreasonable because the police seized items not listed in the Lewis warrant and searched in places where the listed items were unlikely to be found and after most of them had already been located. He argues that these violations transformed the entire search into a constitutionally invalid general search, and that this requires the suppression of all evidence, whether seized legally or not. This argument is unpersuasive. The exclusionary rule does not require the suppression of otherwise legally seized evidence merely because it was obtained in the same search as evidence illegally seized. United States v. Forsythe, 560 F.2d 1127, 1134 (3d Cir.1977); United States v. Daniels, 549 F.2d 665, 668 (9th Cir.1977). See also Andresen v. Maryland, 427 U.S. 463, 482 n. 11, 96 S.Ct. 2737, 2749 n. 11, 49 L.Ed.2d 627 (1976). Only the evidence that was illegally seized should be suppressed.

Defendant also argues that the police illegally seized items not listed in the warrant. The Lewis warrant listed ten categories of evidence for seizure. ¹ The return recorded a seizure of at least 510 items of evidence. Our review of the record shows that while many of these items were covered by the Lewis warrant, some were not. ²

Warrantless seizures are unreasonable per se unless the exigencies of the situation justify an exception. State v. Lee, Utah, 633 P.2d 48, 50, cert. denied, 454 U.S. 1057, 102 S.Ct. 606, 70 L.Ed.2d 595 (1981). One such exception arises when police, while searching pursuant to a warrant, discover evidence in "plain view" that is not listed in the warrant. In this situation, a warrantless seizure is justified if: (1) the officer is lawfully present where the search and seizure occur; (2) the evidence is in plain view; and (3) the evidence is clearly incriminating. ³ Washington v. Chrisman, 455 U.S. 1, 102 S.Ct. 812, 70 L.Ed.2d 778 (1982); Coolidge v. New Hampshire, 403 U.S. 443, 464-68, 91 S.Ct. 2022, 2037-2039, 29 L.Ed.2d 564 (plurality opinion), 505-22 (concurring and dissenting opinions) (1971); State v. Ballenberger, Utah, 652 P.2d 927, 930 (1982); State v. Austin, Utah, 584 P.2d 853, 856 (1978). It should be noted that these are not necessarily the same requirements that determine whether an officer observing items in "open view" has committed an illegal search. State v. Lee, 633 P.2d at 50-51; State v. Echevarrieta, Utah, 621 P.2d 709, 710-11 (1980).

In this case, the first condition of the exception is satisfied with respect to the seized evidence not listed in the warrant because the police were at defendant's residence pursuant to a valid search warrant and limited their search to the geographical areas delineated therein. The second condition was satisfied since each item of evidence came in plain view while the officers were executing the search prescribed in the warrant. The third condition was satisfied in that nearly every item not specifically listed in the Lewis warrant had either an assumed name of defendant upon it or the name of one of the business organizations through which defendant acted under an assumed name in transactions involving falsified documents. ⁴ As to the few remaining items that were seized, reversal is not required since the record contains no indication that they were introduced into evidence. See Lowery v. United States, 258 F.2d 194, 196 (9th Cir.1958); Stephens v. State, 119 Ga.App. 674, 168 S.E.2d 333 (1969).

Defendant argues that the search was unreasonable because the police searched the bedroom, garage, vehicles, and grounds, places where the business papers listed in the Lewis warrant were unlikely to be found. By taking this position, defendant would have us limit police searches to areas where most people would place the listed items of evidence. We reject this position because legal searches must not be vulnerable to being thwarted simply by the expedient of concealment in unusual locations. Rather, the limitation on the scope of a search pursuant to a warrant is drawn in terms of those areas where it is reasonable to believe that the listed evidence could be located. United States v. Chadwell, 427 F.Supp. 692, 696 (D.Del.1977). That limitation was not exceeded in this search.

Finally, defendant argues that the search was unreasonable because the police examined several rooms, the garage, the grounds, and several vehicles after most of the listed items had already been found in a bedroom. Among the few items not found in the bedroom, however, was a notary seal in the name of Robert Dolan. This was expressly listed in the Lewis warrant, and its presence in defendant's home would have significant evidentiary value. Consequently, when it could not be found with the other listed items, the police expanded their search into the above areas until the seal and several documents bearing its imprint were finally located in a closet. Such a search was reasonable.

2. Defendant argues that probable cause was lacking for the Lewis warrant because it was supported by inadequate statements of an informant regarding the location of the evidence. He relies on Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

In Aguilar, a search warrant was issued based upon an affidavit of police officers who swore only that they had "received reliable information from a credible person and ... believe[d]" that narcotics were being illegally stored on the described premises. 378 U.S. at 109, 84 S.Ct. at 1511. Similarly, in Spinelli, the affidavit merely recited with respect to the informant "that the FBI 'has been informed by a confidential reliable informant that William Spinelli is operating a handbook and accepting wagers and disseminating wagering information ...' " by means of certain telephones. 393 U.S. at 414, 89 S.Ct. at 588. The Supreme Court held both of these affidavits inadequate because they failed to set forth (1) "any of the 'underlying circumstances' necessary to enable the magistrate independently to judge of the validity of the informant's conclusion" and (2) "the underlying circumstances from which the officer concluded that the informant ... was 'credible' or his information 'reliable.' " Id. at 413-19, 89 S.Ct. at 587-590-591; Aguilar v. Texas, 378 U.S. at 114-16, 84 S.Ct. at 1514-1515.

The affidavit supporting the Lewis warrant differed substantially from those in Aguilar and Spinelli. Besides containing the informant's statement that "he believed Mr. Romero kept all of his business papers at his (Romero's) home," it stated that the informant had...