State v. Topanotes
| Citation | 2003 UT 30,76 P.3d 1159 |
| Decision Date | 22 August 2003 |
| Docket Number | No. 20010127.,20010127. |
| Parties | STATE of Utah, Plaintiff, Respondent, and Cross-Petitioner, v. Pearl TOPANOTES, Defendant, Petitioner, and Cross-Respondent. |
| Court | Supreme Court of Utah |
Mark L. Shurtleff, Att'y Gen., Marian Decker, Asst. Att'y Gen., Salt Lake City, for plaintiff.
Linda M. Jones, Ralph W. Dellapiana, Salt Lake City, for defendant.
¶ 1 Pearl Topanotes ("Topanotes"), petitioner, seeks certiorari review of a court of appeals' decision wherein the trial court's denial of her motion to suppress evidence obtained after an unlawful detention was reversed and the case remanded for further proceedings. The remand order allowed new evidence on the issue of inevitable discovery, which was raised by the State as an alternative ground for affirmance for the first time on appeal. The State cross-petitions, arguing that remand is unnecessary because inevitable discovery is sustained by the record in this case. We vacate and remand for proceedings consistent with this opinion.
¶ 2 On October 7, 1998, two Salt Lake City police officers, Sergeant Kenneth Hansen and Officer Todd Mitchell, were visiting the home of a recently arrested prostitute in an attempt to confirm her actual residence. While they were there, the officers saw Topanotes walking toward the trailer. Since Topanotes fit the description of someone who allegedly lived in the home, the officers stopped her and asked for identification. At that moment, the officers did not have an articulable suspicion that Topanotes had or was about to commit a crime, or probable cause sufficient for an arrest. Topanotes gave Sergeant Hansen her identification, and Sergeant Hansen handed it directly to Officer Mitchell to perform a warrants check as part of "routine procedure" or "common practice." Officer Mitchell retained possession of Topanotes' identification during the warrants check.
¶ 3 While waiting for the results of the warrants check, Sergeant Hansen attempted to confirm with Topanotes the actual residence of the prostitute they had just arrested. Sergeant Hansen later testified that if Topanotes had refused to talk to him, he would have ended the encounter. The warrants check was completed within five minutes and revealed two outstanding warrants for Topanotes, who was immediately arrested. The officers discovered heroin on her person during the search incident to her arrest, and subsequently charged Topanotes with unlawful possession of a controlled substance, a third degree felony.
¶ 4 At trial, Topanotes moved to suppress the heroin on the basis that the substance was the fruit of an unlawful level-two detention. The trial court held two evidentiary hearings on the matter and ultimately denied the motion to suppress, ruling that the officers were engaged at all times in a consensual level-one investigatory encounter with Topanotes. After the denial of her motion to suppress, Topanotes entered a conditional guilty plea, reserving her right to appeal the trial court's ruling.
¶ 5 While the appeal was pending, the Utah Court of Appeals held in a separate case that retaining an individual's identification while conducting a warrants check, in the absence of an articulable suspicion or probable cause, is an unlawful level-two detention. Salt Lake City v. Ray, 2000 UT App 55, ¶ 17, 998 P.2d 274.
¶ 6 In light of Ray, the State in this case conceded on appeal that the trial court erred in its ruling. Instead, the State argued for the first time a new, alternative ground for affirmance: that the heroin was admissible under the inevitable discovery exception to the exclusionary rule. The court of appeals reversed the trial court's ruling and remanded for additional factual findings on the issue of inevitable discovery.
¶ 7 We granted Topanotes' petition for certiorari. On certiorari, Topanotes argues that the court of appeals erred when it remanded for further factual findings rather than resolving the alternative ground for affirmance based on the record before it. The State argues that remand was appropriate, and on cross-appeal asserts that remand would not be necessary because the record supports application of the inevitable discovery exception to the exclusionary rule in this case.
¶ 8 "On certiorari, we review the decision of the court of appeals, not the ... trial court." State v. James, 2000 UT 80, ¶ 8, 13 P.3d 576. We review for correctness, granting no deference to the court of appeals' conclusions of law. Id.
¶ 9 Topanotes' first argument is that the court of appeals was required to resolve the issue of inevitable discovery on the existing record because it was an alternative ground for affirmance raised first on appeal.
It is well settled that an appellate court may affirm the judgment appealed from "if it is sustainable on any legal ground or theory apparent on the record, even though such ground or theory differs from that stated by the trial court to be the basis of its ruling or action, and this is true even though such ground or theory is not urged or argued on appeal by appellee, was not raised in the lower court, and was not considered or passed on by the lower court."
Bailey v. Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158 (quoting Dipoma v. McPhie, 2001 UT 61, ¶ 18, 29 P.3d 1225) (additional citations omitted); see also Orton v. Carter, 970 P.2d 1254, 1260 (Utah 1998)
; Limb v. Federated Milk Producers Ass'n, 23 Utah 2d 222, 225-26 n. 2, 461 P.2d 290, 293 n. 2 (1969); 5 C.J.S. Appeal & Error § 714 (1993). However, not only must the alternative ground be apparent on the record, it must also be sustainable by the factual findings of the trial court. "[T]he court of appeals must then determine whether the facts as found by the trial court are sufficient to sustain the decision of the trial court on the alternate ground." Bailey, 2002 UT 58 at ¶ 20, 52 P.3d 1158; see also Hill v. Seattle First Nat'l Bank, 827 P.2d 241, 246 (Utah 1992) ().
¶ 10 The State argues that there is an "alternative grounds continuum," marked at one end by cases readily affirmed as a matter of law based on the record, and at the other end by cases where "neither affirmance or remand for further fact-finding is justified because the alternative grounds for affirmance are (1) inadequately briefed or (2) clearly rebutted in the record." According to the State, this case falls into a middle ground, where the alternative ground for affirmance, while apparent on the record, requires further development by the trial court before it may be sustained. When the issue is highly fact sensitive, argues the State, it is appropriate for an appellate court to remand for further factual findings.
¶ 11 However, none of the cases cited by the State deal with an alternative ground for affirmance, raised for the first time on appeal, after a trial court has entered a judgment and sentence in a criminal case. Nor could we find any authority for the proposition that the State, after having had one opportunity to establish the admissibility of evidence in the face of a Fourth Amendment challenge, is entitled to a remand to put on new evidence under a new theory of admissibility. In fact, we have previously held that when the State has the burden of proof and the record on appeal fails to sustain any theory of admissibility, the State "is not entitled to a remand to put on new evidence." State v. Hodson, 907 P.2d 1155, 1159 (Utah 1995); see also State v. Case, 884 P.2d 1274, 1278-79 (Utah Ct.App.1994)
; State v. Gutierrez, 864 P.2d 894, 897, 903 (Utah Ct.App. 1993). We note that it is not uncommon for Utah's appellate courts to take such a position. There are a number of criminal cases in Utah where the denial of a motion to suppress is challenged on appeal, the State presents an alternative ground for affirmance, and the appellate court refuses to remand and instead decides the case on the record before it. Hodson, 907 P.2d at 1159-60; State v. Montoya, 937 P.2d 145, 149-50 (Utah Ct.App.1997); State v. Wells, 928 P.2d 386, 391-92 (Utah Ct.App.1996); Case, 884 P.2d at 1278-79; Gutierrez, 864 P.2d at 903. We believe this to be the proper approach in such cases, and we conclude that the court of appeals erred in remanding for what could potentially result in factual findings based on new evidence.
¶ 12 On cross-petition, the State argues that remand is unnecessary in this case because there is compelling evidence in the record that the heroin inevitably would have been discovered even without the illegal detention. Therefore, the trial court's denial of the motion to suppress should be affirmed on the alternative ground that the inevitable discovery exception to the exclusionary rule applies.
¶ 13 The exclusionary rule prohibits the use at trial of evidence, both primary and derivative (the "fruit of unlawful police conduct"), obtained in violation of an individual's constitutional and statutory rights. Nix v. Williams, 467 U.S. 431, 442-43, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). Courts view the exclusionary rule as a necessary deterrent to unlawful police behavior, one which prevents the police from benefitting from their illegalities. However, the harsh consequences of this rule—excluding relevant evidence of illegal activity at trial—are tempered somewhat by the exceptions to the exclusionary rule. The exceptions allow prosecutors to use the challenged evidence at trial when the "taint" of illegality is sufficiently cleansed. See 5 Wayne R. LaFave, Search & Seizure § 11.4 (3d ed.1996). For example, the independent source doctrine admits challenged evidence at trial if it was discovered through independent and lawful activity—if there is, in essence, an untainted version of the evidence. This exception "teaches us that the...
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