State v. Rowe
| Decision Date | 08 February 1991 |
| Docket Number | No. 890396-CA,890396-CA |
| Citation | 806 P.2d 730 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Keeley Laursen ROWE, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Shelden R. Carter (argued), Harris, Carter & Harrison, Provo, for defendant and appellant.
R. Paul Van Dam, Atty. Gen., Christine F. Soltis (argued), Asst. Atty. Gen., Salt Lake City, for plaintiff and appellee.
Before GARFF, JACKSON and ORME, JJ.
Defendant appeals her conviction of possession of a controlled substance, a third degree felony, in violation of Utah Code Ann. § 58-37-8(2)(a)(i), (b)(ii) (1989). We reverse.
On October 7, 1988, a search warrant was issued and executed which authorized police to search for narcotics in the residence of Stan Swickey in Leeds, Utah. The warrant contained provisions which allowed police to enter "day or night," and to effect the search without notice, i.e., on a "no-knock" basis. The warrant was issued based on information in the officer's supporting affidavit that a confidential informant had been contacted by Swickey, who told the informant that he, Swickey, had picked up a quantity of methamphetamine and marijuana that was being stored at his home in Leeds. The affidavit in support of the warrant contained preprinted language which stated that the affiant reasonably believed that the property sought could be easily destroyed or hidden or that harm to officers could result from notice. Following this language are two boxes that the affiant can check, and which were checked, to request nighttime and "no-knock" authority. No other factual information supports these requests.
The warrant was executed on a "no-knock" basis on October 7, 1988, 1 at approximately 11:30 p.m. When police entered Swickey's apartment, they found eight people, in addition to Swickey, in the home. Everyone except defendant was in the living room playing cards around a table. Defendant was in the kitchen. After securing the home, the officers had defendant join the other people in the living room, while Swickey was taken into the kitchen and placed under arrest, pursuant to an arrest warrant, and advised of the search warrant. Another individual was arrested when the officers saw drugs nearby, in plain view. The remaining individuals, including defendant, were told they could leave the premises. Defendant did not have her shoes, and asked if she could go to the bedroom to retrieve them. An officer accompanied her to the room, where she took the shoes from a pile of items. The officer asked her if she had everything that was hers from that room. Defendant replied that she did.
After defendant left, the officers conducted a search of the home. Narcotics were found throughout the house. A purse was seized from the pile in the bedroom from which defendant had retrieved her shoes. Inside the purse was a small brown vial which contained methamphetamine. Also in the purse were several documents that revealed that the purse belonged to defendant.
Police contacted defendant the next day and advised her that they had a purse that belonged to her. She came down to the station and was arrested. After being advised of her Miranda rights, defendant admitted that the purse and vial of drugs were hers. She told police that she had been "ripping off" drugs from Swickey.
Prior to trial, defendant filed a motion to suppress the vial and other contents seized from her purse. The motion was accompanied by a memorandum of points and authorities. The state filed a memorandum opposing defendant's motion to suppress, and requested a ruling on defendant's motion. On March 17, 1989, the court issued a written order denying defendant's motion.
Defendant waived her right to a jury trial, and a bench trial commenced on March 21, 1989. During the trial defendant again renewed her motion to suppress. The basis of her argument was that the search warrant was defective since the supporting affidavit did not support the nighttime or "no-knock" authorization. The state argued that "Mr. Swickey would be the only one to have standing to object to that," and also argued the merits of the claim. The court denied the renewed motion. Defendant was convicted as charged.
Defendant raises three issues on appeal, all of which challenge the district court's failure to suppress the items seized from defendant's purse: 1) Whether there was sufficient factual information in the supporting affidavit to authorize a nighttime search, 2) whether there was sufficient factual information in the supporting affidavit to authorize a "no-knock" search, and 3) whether the search was defective since the warrant was dated subsequent to the search. 2
"NO-KNOCK" SEARCH
Defendant argues there was insufficient factual information presented in the supporting affidavit to justify the inclusion of a "no-knock" provision in the search warrant. Utah Code Ann. § 77-23-10 (1990) provides, in pertinent part, as follows:
When a search warrant has been issued authorizing entry into any building, room, conveyance, compartment or other enclosure, the officer executing the warrant may use such force as is reasonably necessary to enter:
....
(2) Without notice of his authority and purpose, if the magistrate issuing the warrant directs in the warrant that the officer need not give notice. The magistrate shall so direct only upon proof, under oath, that the object of the search may be quickly destroyed, disposed of, or secreted, or that physical harm may result to any person if notice were given.
The affiant in this case requested a warrant to search for narcotics believed located in a residence, by checking a preprinted provision on the affidavit form. A "no-knock" warrant was requested based on the affiant's statement that such narcotics could be easily destroyed. Defendant argues that this statement alone is insufficient to justify issuance of a "no-knock" warrant. However, reading the affidavit "in a common sense manner and as a whole," State v. Paul, 225 Neb. 432, 405 N.W.2d 608, 610 (1987) (quoting People v. Mardian, 47 Cal.App.3d 16, 35, 121 Cal.Rptr. 269, 281 (1975)), we conclude that the magistrate had sufficient basis to issue a "no-knock" warrant.
Although the affidavit is sparse, it is clear that the object of the search was drugs located in a residence. The small amount of drugs ordinarily found in a residential setting can be easily and quickly destroyed with even the briefest notice. Therefore, issuance of a "no-knock" warrant is justified if the affidavit suggests that a small, readily disposable, quantity of drugs in a residence is the object of the search. 3 The magistrate can readily and properly infer that such drugs could be quickly destroyed if notice is given. State v. Spisak, 520 P.2d 561 (Utah 1974); State v. Miller, 740 P.2d 1363 (Utah Ct.App.1987). While a detailed and factually specific affidavit is commendable and may facilitate subsequent review by an appellate court, it is not strictly necessary for the officer to elaborate on the obvious in the affidavit.
Defendant also argues that the supporting affidavit lacked sufficient factual information to support a nighttime search. Utah Code Ann. § 77-23-5(1) (1990) provides in pertinent part:
The magistrate must insert a direction in the warrant that it be served in the daytime, unless the affidavits or oral testimony state a reasonable cause to believe a search is necessary in the night to seize the property prior to it being concealed, destroyed, damaged or altered, or for other good reason; in which case he may insert a direction that it be served any time of the day or night.
Previous Utah case law on this issue construed a different code provision which required that a warrant be served in the daytime "unless the affidavits are positive that the property is on the person or in the place to searched." Utah Code Ann. § 77-54-11 (1953). See, e.g., State v. Treadway, 28 Utah 2d 160, 499 P.2d 846, 848-49 (1972). No Utah cases are drawn to our attention which have addressed the present code provision.
The showing required by the present statute focuses not upon a positive showing that the property is at the place to be searched, but upon whether there are special circumstances which would justify a search at night. The statute does not specify how elaborate or detailed this showing must be, but merely requires that the "affidavits or oral testimony" must support a "reasonable cause" determination that a nighttime search is necessary. The precise quantum of information which would support this determination is not defined in the statute or in Utah case law and, as has been observed elsewhere, it is difficult "to anticipate all of the numerous factors that may justify the authorization of a nighttime search." People v. Kimble, 44 Cal.3d 480, 749 P.2d 803, 810, 244 Cal.Rptr. 148, 155, cert. denied, 488 U.S. 871, 109 S.Ct. 188, 102 L.Ed.2d 157 (1988). Nonetheless, the statute clearly requires a particularized showing either that 1) a search is required in the night because the property is on the verge of being "concealed, destroyed, damaged, or altered," or 2) "for other good reason." Utah Code Ann. § 77-23-5(1) (1990).
Defendant argues that this particularized showing was not made in this case. We agree. Nothing in the supporting affidavit supported the inclusion of the nighttime service authority other than the preprinted language referred to above and the information received from the confidential informant. Contrary to our view that little more is required to justify a "no-knock" warrant than that the search is for narcotics at a residence, we see nothing inherent in a narcotics search which would necessitate a search at night, even though circumstances can easily be imagined which would suggest the propriety of such a search being made at night. 4
In interpreting a similar statutory provision which allows a magistrate to authorize a nighttime search upon a showing...
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