State v. South

• Decision Date: 01 November 1994
• Docket Number: No. 930362-CA,930362-CA
• Citation: 885 P.2d 795
• Parties: STATE of Utah, Plaintiff and Appellee, v. Jeffery Earl SOUTH and Dianna South, Defendants and Appellants.
• Court: Utah Court of Appeals

Page 795

885 P.2d 795

63 USLW 2367

STATE of Utah, Plaintiff and Appellee, v. Jeffery Earl SOUTH and Dianna South, Defendants and Appellants.

No. 930362-CA.

Court of Appeals of Utah.

Nov. 1, 1994.

Rehearing Denied Dec. 5, 1994.

Kathryn D. Kendell (Argued), American Civil Liberties Union of Utah Foundation, Inc., Salt Lake City, Nathan Hult, Logan, for appellant.

Gary O. McKean, Cache County Atty., Jeffrey "R" Burbank, Deputy Cache County Atty., Patrick B. Nolan (Argued), Deputy County Atty., Logan, for appellee.

Before BENCH, DAVIS and GREENWOOD, JJ.

OPINION

GREENWOOD, Judge:

Defendants Jeffery Earl South and Dianna South appeal their convictions of possession of a controlled substance and possession of drug paraphernalia within 1000 feet of a church, class A misdemeanors, in violation of Utah Code Ann. §§ 58-37-8 and 58-37a-5 (1994). Defendants argue that the search of their home violated their state and federal constitutional rights. Further, defendants argue that the proximity of an offense to a church is not a mere sentencing enhancement, but rather is an element of the crime and that their home is not within 1000 feet of a church structure. We reverse and remand on defendants' first argument regarding an illegal search and seizure. ¹

BACKGROUND

On March 15, 1992, Detective Dennis Simonson of the Logan City Police Department went to defendants' residence to investigate a reported theft of a cellular phone. Defendant Jeffery South met Detective Simonson at the door but refused to let him enter the premises. Detective Simonson detected a heavy odor of burnt marijuana coming from inside defendants' home and also on defendant Jeffery South's clothing.

Detective Simonson then obtained a search warrant and returned to defendants' home with three other police officers. Upon arrival, three of the officers, including Simonson, smelled burnt marijuana emanating from inside the house. The officers then served the search warrant upon defendants and proceeded to search the home. As a result of the search, the officers found controlled substances and drug paraphernalia, including one gram of marijuana, electrical clips, a book, and a scale. All the drug paraphernalia later tested positive for marijuana.

Defendants were charged with possession of a controlled substance and possession of drug paraphernalia within 1000 feet of a church. Prior to trial, defendants moved to suppress the evidence found in their home because the evidence was seized in an illegal search and seizure. Defendants argued that the search warrant was defective because it authorized only a search of the "persons of Jeffery Earl and Dianna South" and not a search of the premises. After a hearing, the trial court denied defendants' motion to suppress, ruling that although the search warrant was defective, the officers nevertheless had probable cause to conduct the search of the premises under the plain smell doctrine. ²

Defendants were subsequently convicted by a jury of possession of a controlled substance and possession of drug paraphernalia. At sentencing, the trial court found that the offenses were committed within 1000 feet of a church.

ISSUES ON APPEAL

On appeal, defendants argue that the search of their home was illegal because officers had neither a valid search warrant nor probable cause and exigent circumstances sufficient to conduct the search without a warrant. The State argues that the trial court erred in ruling that the search warrant did not permit a search of defendants' residence. Thus, we examine three issues: (1) Should we address the valid scope of the search warrant, and if so, did it authorize a search of defendants' residence? (2) Does the plain smell of marijuana provide officers with probable cause to conduct a search of a private residence? (3) If so, may the residence be searched without first obtaining a valid warrant, absent exigent circumstances?

STANDARD OF REVIEW

In reviewing a trial court's ruling on a motion to suppress, we accord no deference to the trial court's legal conclusions and review them for correctness. State v. Beavers, 859 P.2d 9, 12 (Utah App.1993). However, we will disturb the trial court's underlying factual findings "only if those findings are clearly erroneous." Id.

ANALYSIS

Search Warrant

Defendants argue that because the trial court ruled the search warrant defective, only a showing of probable cause and exigent circumstances would justify a warrantless search of their home. The State responds that the search warrant contained only minor technical deficiencies and therefore was valid.

The trial court ruled that the search warrant was invalid because it described a search of only the "persons of Jeffery Earl and Dianna South" and not a search of the premises. The State argues that the trial court erred in its ruling because the warrant contained only minor technical deficiencies. However, the State did not raise this issue on cross appeal, but chose instead to wait and argue the point in its appellate brief filed after the opening brief of defendants. The State concedes that it failed to cross appeal the issue, but asserts that we may consider it because of the rule that an appellate court may affirm the trial court's ruling on any legitimate basis. See State v. Elder, 815 P.2d 1341, 1344 n. 4 (Utah App.1991) (stating that "we may affirm trial court decisions on any proper ground even though the trial court assigned another reason for its decision"). See also Buehner Block Co. v. UWC Assoc., 752 P.2d 892, 895 (Utah 1988) (stating that appellate courts may affirm trial court decisions "on any proper ground[s], despite the trial court's having assigned another reason for its ruling"). Thus, the State contends that it was not required to cross appeal the issue and that by holding the warrant valid on appeal, we can affirm the trial court's ultimate ruling that the search of defendants' home was legal.

We find the State's argument to be too sweeping. First, we believe that the principle of allowing affirmance of a trial court's decision on alternate grounds should generally be limited to examining issues related to the ruling being appealed. For example, in this case, if the trial court had erroneously found the warrant to be valid, we could then examine an alternate basis to affirm its admission of the seized evidence. See Buehner, 752 P.2d at 895. However, defendants in this case are challenging the legality of the warrantless search--a question quite different than the validity of the warrant. In addition, it is significant that the trial court explicitly ruled on the issue of the warrant's scope, thus providing scant excuse for the State's failure to cross appeal that ruling. When an issue is squarely presented to and ruled on by the trial court, a party should raise the issue either on direct or cross appeal and not wait until the briefing stage of the appeal to raise the issue. See American Coal Co. v. Sandstrom, 689 P.2d 1, 4 (Utah 1984) (stating that where party failed to raise issue on cross appeal, court would not consider issue raised for first time in party's brief); ³ accord Henretty v. Manti City Corp., 791 P.2d 506, 511 (Utah 1990). In addition, consistent with notions of fairness, parties are generally entitled to notice of the issues being appealed before briefing. See Cerritos Trucking Co. v. Utah Venture No. 1, 645 P.2d 608, 613 (Utah 1982).

Because the State did not take issue with the trial court's ruling on the validity of the search warrant by filing a cross appeal, we decline to consider the issue.

Probable Cause Under Plain Smell Doctrine

In State v. Naisbitt, 827 P.2d 969 (Utah App.1992) this court held that the odor of marijuana emanating from an automobile gave an officer probable cause to conduct a warrantless search of that automobile. Id. at 973. In Naisbitt we stated that "[t]he constitutional basis for this rule is that '[a] strong, emanating odor of marijuana comes within the "plain view" doctrine and need not be ignored by officers.' " Id. at 972 (quoting United States v. Manbeck, 744 F.2d 360, 380 n. 34 (4th Cir.1984)). Further, we noted that "[o]bjects in 'plain view' constitute one ... exception [to the warrant requirement], and may be seized without a warrant if the police officer is lawfully present and the evidence is clearly incriminating. This exception encompasses evidence within 'plain smell.' " Id. at 973 (quoting State v. Bartley, 784 P.2d 1231, 1235 (Utah App.1989)). Thus, we must determine if, based upon the plain smell doctrine, the odor of marijuana also establishes probable cause if it comes from a private residence.

Probable cause is defined as a "fair probability that contraband or evidence of a crime will be found." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). Thus, in determining the existence of probable cause we focus on the suspicious nature of the circumstances involved. In examining this issue under the plain smell doctrine, we see no significant difference whether an odor of marijuana emanates from an automobile or from a private residence. In both situations an officer who is lawfully present could reasonably conclude that contraband or evidence of a crime may be discovered. Thus, we hold that the plain smell of marijuana emanating from a private residence provides law enforcement officials with probable cause to conduct a search of the premises. See People v. Cohen, 146 Ill.App.3d 618, 100 Ill.Dec. 166, 169, 496 N.E.2d 1231, 1234 (1986) (trained officer detecting odor of burnt marijuana establishes probable cause of substance's presence).

Warrant Requirement Under Plain Smell Doctrine

We must next determine if the plain smell doctrine alone justifies a warrantless search of a private residence.

We must first clarify that the plain view doctrine and its corollary "plain smell" theory, do not in and of themselves provide an exception to the requirement of obtaining a valid...