State v. Velasquez

• Decision Date: 25 October 1983
• Docket Number: No. 17242,17242
• Citation: 672 P.2d 1254
• Parties: STATE of Utah, Plaintiff and Respondent, v. Ernest Joe VELASQUEZ, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1254

672 P.2d 1254

STATE of Utah, Plaintiff and Respondent, v. Ernest Joe VELASQUEZ, Defendant and Appellant.

No. 17242.

Supreme Court of Utah.

Oct. 25, 1983.

Lynn R. Brown of Salt Lake Legal Defender Assn., Salt Lake City, for defendant and appellant.

David L. Wilkinson, Atty. Gen., Robert N. Parrish, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.

STEWART, Justice:

Defendant was convicted of second degree murder. On this appeal he urges that the judgment of conviction must be set aside because the verdict was based on evidence obtained by a search and seizure in violation of the Fourth Amendment to the United States Constitution. Specifically, the contention is that the evidence seized by parole officers in defendant's apartment should have been suppressed because the parole officers had failed to obtain a search warrant. Defendant also asserts that other alleged errors in the trial of the case, whether viewed individually or together, deprived him of a fair trial.

The defendant, Ernest Velasquez, was a parolee. On September 10, 1979, he informed Agent Roger Harris of the Utah Adult Probation and Parole Department that he had moved to Utah, and requested that parole supervision be transferred from New Mexico to Utah. Harris apparently contacted New Mexico authorities, and in October a transfer agreement was entered into pursuant to an interstate compact, which transferred parole supervision over Velasquez to Utah. See generally U.C.A., 1953, § 77-62-39. Although the practice of Utah parole authorities is to require parolees transferred from other states to sign a Utah parole agreement, the record does not indicate that Velasquez did so.

On November 21, 1979, the victim of the murder, Richard Whitehead, was found dead by his brother Paul Whitehead in an apartment adjacent to the defendant's. Paul had been trying to contact Richard since November 19 when he had been notified by Richard's employer that Richard had failed to show up for work. When Paul gained entry into his brother's apartment, he found Richard lying on his bed, dead and covered with blood. He had a lamp cord around his neck and a gunshot wound through his eye. In addition, there were several abrasions on his forehead, which, according to the medical examiner, were probably caused by a blunt instrument. A piece of wood and a spent .22 caliber shell were found at the scene.

On November 26, in the usual course of an investigation of defendant pursuant to the transfer agreement, Parole Agent Harris visited the defendant at his apartment. Harris noticed that the defendant was violating parole rules by living with another parolee, Jessie Garcia; that neither parolee had a regular job; and that two juvenile females were living with Velasquez and Garcia.

Immediately after the visit, Harris told the police department that the defendant was a parolee. In the initial investigation of Whitehead's murder, the police were unaware of the parolee status of Velasquez and had ruled him out as a murder suspect. Harris also told Agent Robert Poulton, who was assigned to supervise Jessie Garcia, that the defendant and Garcia were living together. The next day, November 27, a police officer informed Poulton that a police informant had indicated that Garcia had offered to sell cocaine to the informant. Poulton had previously heard that Garcia was dealing in drugs. Poulton was also concerned because the prison psychiatrist and a psychologist treating Garcia had told Poulton that drug use by Garcia could be highly dangerous because of his mental instability. Harris discussed Garcia's situation with the director of the Parole Department, Larry Holm. They concluded that because Garcia was not regularly employed, he might be selling drugs to make a living. They were also concerned about Garcia living with the two juvenile females.

On November 28, Detective Voyles of the police department telephoned Larry Holm. Voyles told Holm that although the police did not have probable cause for a warrant to search Garcia's apartment, it would be "beneficial" to the police if the Parole Department would conduct a search. Holm replied that the Parole Department had already planned to conduct a search based on the possibility that drugs were being sold out of the apartment.

On November 29, Agents Holm, Poulton and Harris, accompanied by three other agents, Coombs, Kelly and Tonsi, went to Velasquez's apartment. After entering, Agents Poulton and Kelly went into Garcia's bedroom. Poulton noticed a hand axe by the bed (which may have been used in roofing work), immediately handcuffed Garcia, and told Garcia that he, Poulton, was going to look through Garcia's belongings, and asked if that were alright. After Garcia replied in the affirmative, Poulton searched Garcia's belongings and found nothing of any legal consequence.

At the same time that Agents Poulton and Kelly were confronting Garcia, Agents Harris and Coombs directed their attention to Velasquez. They first went to the living room where Velasquez had been watching television. At the request of Harris, the trio then went to Velasquez's bedroom where Coombs looked into an open closet and noticed on the closet shelf a box containing .22 shells. When Harris asked Velasquez if the officers could look around, Velasquez did not respond. The officers then handcuffed Velasquez and started to search. After some twenty minutes had passed, Agent Kelly searched a closet in the living room where he found a pistol and an ammunition clip. The next day November 29 Holm gave these items to the police.

The striation markings on a spent casing which had been found in the decedent's apartment were subsequently compared to markings on the casings of shells test fired from the pistol found in the defendant's apartment. The striations were similar. Fingerprints on the walls of the decedent's apartment matched the defendant's fingerprints.

The police brought charges for the murder of Richard Whitehead against Velasquez and against Brenda Valentine, who lived with Velasquez and Garcia. The charges against Valentine were ultimately dismissed. In a statement given to the police on December 6, 1979, Valentine disclaimed any involvement in the crime. She stated that on November 17 or 18, the defendant had stated that he wanted to fight someone and left the apartment. He returned a short time later, took something from the apartment, and left again. When he returned a second time, he was covered with blood and told Valentine that he had just "dusted" someone.

Prior to trial defendant moved to suppress the items seized in his apartment by the parole officers on the ground that they had been obtained in the course of a warrantless search. The trial court denied the motion on the basis of the rule enunciated in Latta v. Fitzharris, 521 F.2d 246 (9th Cir.1975), that a warrantless search by a parole officer of a parolee's apartment is not in violation of the Fourth Amendment to the United States Constitution "when the [parole] officer reasonably believes that such search is necessary in the performance of his duties." Id. at 250.

At trial, Valentine changed her story, claiming that she had lied to the police in her story of December 6. She testified that she had been assaulted by Whitehead and that when the defendant intervened, a fight ensued. Whitehead, according to her trial testimony, was knocked unconscious and was subsequently accidentally shot by Valentine--not the defendant. The State, over objection, adduced evidence of Valentine's December 6 statements concerning the homicide.

I. FOURTH AMENDMENT RIGHTS OF PAROLEES

Defendant contends that the trial court erred in not suppressing the gun, clip, and .22 shells seized in his apartment by the parole officers. In essence he argues that the constitutional protections afforded individuals under the constitutional prohibitions against unreasonable searches and seizures apply to all individuals and that parolees are not excluded from those protections. Under both the Utah and federal constitutions, U.S. Const. amend. IV; Utah Const. art. I, § 14, warrantless searches and seizures are unreasonable and therefore prohibited subject only to a few specifically established exceptions. E.g., Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Lee, Utah, 633 P.2d 48 (1981).

This Court has in the past relied on the theory that parolees have no greater Fourth Amendment rights than they had in prison because they are in custodia legis or "constructive custody," i.e., they have no Fourth Amendment rights. Reeves v. Turner, 28 Utah 2d 310, 501 P.2d 1212 (1972). ¹ That theory has been discredited by the United States Supreme Court and a number of other courts. E.g., Morrissey v. Brewer, 408 U.S. 471, 481-82, 92 S.Ct. 2593, 2600-01, 33 L.Ed.2d 484 (1972); State v. Pinson, 104 Idaho 227, 657 P.2d 1095, 1098-99 (App.1983); Roman v. State, Alaska, 570 P.2d 1235(1977); and 3 W. LaFave, Search and Seizure, § 10.10 at 423-26 (1978). Clearly, parolees do have constitutional rights greater than do prisoners. E.g., Morrissey v. Brewer, supra.

Nevertheless, a number of courts, perhaps a majority, have held that a parolee's rights against searches and seizures by parole officers are not governed by the same standards that govern the privacy rights of individuals not subject to the supervisory control of the state. ² Although some courts have ruled to the contrary, it has generally been held that parolees have "a diminished expectation of privacy." Roman v. State, supra, 570 P.2d at 1242. Accord State v. Kent, Utah, 665 P.2d 1317 (1983); United States v. Scott, 678 F.2d 32, 35 (5th Cir.1982); Latta v. Fitzharris, 521 F.2d 246, 250 (9th Cir.1975); United States ex rel. Santos v. New York State Board of Parole, 441 F.2d 1216, 1218 (2nd Cir.1971); State v. Earnest, Minn., 293 N.W.2d 365,...