State v. Taylor

• Decision Date: 12 September 1991
• Docket Number: No. 900501-CA,900501-CA
• Citation: 818 P.2d 561
• Parties: STATE of Utah, Plaintiff and Appellee, v. Rex Paul TAYLOR, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 561

818 P.2d 561

STATE of Utah, Plaintiff and Appellee, v. Rex Paul TAYLOR, Defendant and Appellant.

No. 900501-CA.

Court of Appeals of Utah.

Sept. 12, 1991.

Michael D. Esplin and Gary H. Weight (argued), Aldrich, Nelson, Weight & Esplin, Provo, for defendant and appellant.

R. Paul Van Dam, State Atty. Gen. and Christine F. Soltis, Asst. Atty. Gen. (argued), Salt Lake City, for plaintiff and appellee.

Before BILLINGS, ORME and RUSSON, JJ.

OPINION

BILLINGS, Associate Presiding Judge:

Defendant Rex P. Taylor appeals his conviction by a jury for possession of a controlled substance with the intent to distribute, a third degree felony, in violation of Utah Code Ann. § 58-37-8(1)(a)(iv) (1990), and possession of marijuana without a tax stamp affixed, a third degree felony, in violation of Utah Code Ann. § 59-19-106(2) (Supp.1990). We affirm.

FACTS

In 1988, Gil Marchbanks purchased mountain property in the Timberlakes area of Wasatch County. Defendant was the contractor for a multilevel cabin erected on the property in the fall of 1988. The cabin was isolated and did not have year-round access. Despite the cabin's isolation, two of the area's year-round residents, the Oteros, were familiar with defendant and Gil Marchbanks and believed the two were friends in addition to their business dealings. In late March or early April 1989, defendant telephoned the Oteros to inquire as to the passability of the road, indicating he wanted to retrieve his "jet ski."

On April 29, 1989, Provo police conducted a surveillance of defendant, observing defendant as he drove to various locations and met briefly with individuals. Throughout the surveillance, defendant drove a small truck with an attached trailer carrying a jet ski which matched the description of the one he had stored at the cabin. Ultimately, defendant was arrested in Utah County for distribution of marijuana. At the time of his Utah County arrest, defendant had fourteen pounds of marijuana packaged in one pound amounts in two-gallon sized Ziploc brand bags. Defendant also had in his possession additional two-gallon Ziploc bags, a ledger notebook containing entries consistent with distribution of marijuana in pound amounts including one pound sales to "Gil," and about $25,000 in small bills.

Following his arrest, defendant pled guilty to distribution and the State dismissed charges of possession with the intent to distribute and possession without a tax stamp. Thereafter, defendant apparently went to Las Vegas, where he resided with his girlfriend Vickie Tooke, and returned to Utah during the first week of May.

In May 1989, the Provo City Police Department obtained a search warrant for the Timberlakes cabin after receiving information that marijuana was located at the cabin. The officers conducted a search of the cabin on May 11, 1989. Upon searching the basement, the officers located two large gun safes. In one safe, the officers found thirty-six pounds of marijuana, in two large bales in trash compactor bags with the remainder packaged in one pound amounts in two-gallon sized Ziploc brand bags. The other safe contained only marijuana residue.

In their search of the premises, the officers also found one opened and thirteen unopened boxes of two-gallon sized Ziploc brand bags, identical to those found in the safe and those seized in defendant's prior Utah County arrest, a triple beam scale, and small amounts of marijuana throughout the cabin. In addition, the officers found numerous documents in the cabin including various receipts made out to defendant for the purchase of furniture, propane gas for the cabin, and construction materials. Officers also found defendant's 1988 hunting license and 1989 registration materials for two 1988 Yamaha snowmobiles issued to defendant and matching the snowmobiles found in the basement of the cabin.

Defendant was arrested and charged with possession with intent to distribute and possession of marijuana without a tax stamp affixed in connection with the marijuana discovered at the Timberlakes cabin. Prior to trial, defendant moved to suppress the evidence found at the cabin. The court denied the motion determining defendant had no expectation of privacy in the contents of the cabin and therefore no standing to object to the search. Defendant also made a pretrial motion in limine to exclude evidence of the facts surrounding his previous arrest and conviction for distribution of marijuana in Utah County in April 1989. The court denied defendant's motion.

At trial, the State introduced substantial evidence regarding defendant's prior Utah County conviction over the objection of defendant. Further, the State called as a witness Vickie Tooke, defendant's live-in girlfriend, and subsequently introduced for impeachment purposes, over defendant's objection, a transcript of a previously taped statement of Vickie Tooke including a statement that defendant told her on the day of his Utah County arrest he had picked up the thirty-six pounds of marijuana from an individual in the Park City area.

At the conclusion of the State's case, defendant moved for a dismissal based on insufficient evidence, but the trial court denied the motion.

Defendant in this appeal claims the trial court erred in (1) denying defendant's motion to suppress evidence; (2) admitting evidence of prior crimes or bad acts of defendant; (3) admitting Vickie Tooke's prior written statements where the statements contained irrelevant prejudicial matters; and (4) denying defendant's motion to dismiss.

I. MOTION TO SUPPRESS EVIDENCE

Defendant argues the trial court improperly denied his motion to suppress evidence gathered as a result of the execution of a search warrant on the Timberlakes cabin as there was not probable cause to support the issuance of the search warrant. The State responds that, as a threshold matter, defendant cannot challenge the propriety of the search because he had no expectation of privacy in the cabin. ¹

A. Standard of Review

The trial court concluded defendant had no reasonable expectation of privacy in the Timberlakes cabin under the facts presented. Generally, we review a trial court's factual findings regarding a motion to suppress evidence under a "clearly erroneous" standard. State v. Cayer, 814 P.2d 604, 610 (Utah App.1991). However, we review the ultimate conclusions drawn from those findings as a matter of law, under a correction of error standard, affording no deference to the trial court. Id.; see also State v. Ramirez, 817 P.2d 774, 781 n. 3 (Utah 1991) (trial court's decision to admit evidence reviewed for correctness but underlying factual and credibility determinations upheld unless clearly erroneous).

Although this court in Cayer set out the bifurcated standard of review in a case involving an expectation of privacy, we did not specify exactly how the standard was to be applied. In State v. Rowe, 806 P.2d 730, 735 (Utah App.), cert. granted, 817 P.2d 327 (Utah 1991), this court recognized that a "subjective expectation of privacy is legitimate if it is 'one that society is prepared to recognize as reasonable.' " Id. (quoting Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 1687, 109 L.Ed.2d 85 (1990)). Thus, a trial court's determination as to whether a defendant has an expectation of privacy is a two-step process, as is the review by this court. The first step involves a determination of whether the individual has demonstrated "a subjective expectation of privacy in the object of the challenged search." We review the pertinent findings under a clearly erroneous standard. See United States v. Hastamorir, 881 F.2d 1551, 1560 (11th Cir.1989); United States v. McBean, 861 F.2d 1570, 1573 (11th Cir.1988). The second step is a conclusion of law as to whether society is "willing to recognize the individual's expectation of privacy as legitimate." See id. The second inquiry is reviewed under a correction of error standard and is only necessary where the first inquiry is satisfied. See id.

B. Expectation of Privacy

Generally, fourth amendment rights are personal in nature and a defendant must establish an expectation of privacy in the area or item searched in order to challenge the constitutional propriety of the search. See State v. Constantino, 732 P.2d 125, 126-27 (Utah 1987); Cayer, 814 P.2d at 609-11 (citing Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 427-34, 58 L.Ed.2d 387 (1978)); State v. Grueber, 776 P.2d 70, 73-74 (Utah App.), cert. denied, 783 P.2d 53 (Utah 1989). In order to be sufficient for fourth amendment purposes, a subjective expectation of privacy must be "one society is prepared to recognize as reasonable." Olson, 110 S.Ct. at 1687 (quoting Rakas, 99 S.Ct. at 430-31 n. 12); Rowe, 806 P.2d at 735.

The determination of whether an individual has a legitimate expectation of privacy in an item or an area is a fact sensitive inquiry. Grueber, 776 P.2d at 74. In Rakas, the Supreme Court noted that one who "owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy." Rakas, 99 S.Ct. at 430 n. 12. We note that a legitimate expectation of privacy may arise where a defendant either owns or controls certain property regardless of whether or not he or she is actually present at the time of the search. See generally Cayer, 814 P.2d at 609-11.

An expectation of privacy also arises where defendant is personally present at or in possession of property with the authority or permission of the owner. Courts have recognized a legitimate expectation of privacy where a defendant resided at the searched premises as a co-tenant. See, e.g., Cayer, 814 P.2d at 609-11 (defendant had privacy expectation in trailer from which incriminating evidence was seized as defendant lived in the trailer with three other defendants). Some courts have also recognized a legitimate expectation of privacy where there is evidence that a defendant routinely used an automobile or lodging...