State v. Vit, 20100710–CA.

• Decision Date: 09 August 2012
• Docket Number: No. 20100710–CA.,20100710–CA.
• Citation: 2012 UT App 219,714 Utah Adv. Rep. 30,285 P.3d 17
• Parties: STATE of Utah, Plaintiff and Appellee, v. Lloyd Franklin VIT, Defendant and Appellant.
• Court: Utah Court of Appeals

285 P.3d 17

714 Utah Adv. Rep. 30

2012 UT App 219

STATE of Utah, Plaintiff and Appellee,

v.Lloyd Franklin VIT, Defendant and Appellant.

No. 20100710–CA.

Court of Appeals of Utah.

Aug. 9, 2012.

Randall W. Richards and Brittany R. Brown, Ogden, for Appellant.

Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee.

Before Judges THORNE, ROTH, and CHRISTIANSEN.

MEMORANDUM DECISION

THORNE, Judge:

¶ 1 Lloyd Franklin Vit appeals his convictions of possession of a dangerous weapon by a restricted person, see generallyUtah Code Ann. § 76–10–503 (2008), and possession of a controlled substance, see generallyUtah Code Ann. § 58–37–8 (Supp.2011). We affirm.

¶ 2 In 2004, Weber County Sheriff's Deputy Haney and other agents from the Weber/Morgan Narcotics Strike Force began investigating Vit on suspicion of narcotics and illegal firearm activity. Deputy Haney wanted to obtain enough evidence to get a search warrant for Vit's property and had asked other deputies “to keep an eye on the property.” On August 29, 2005, Deputy Haney received a call from one of his fellow deputies, informing him that there were police officers at Vit's property. Deputy Haney and his team quickly drove to the property, hoping to find evidence for their own investigation.

¶ 3 When they arrived, Deputy Haney spoke with Officer Thomas of the Ogden City Police Department, who was there investigating a report of a stolen backhoe on the property. Officer Thomas informed Deputy Haney that Vit, who himself had just arrived at the property, had agreed to let Officer Thomas look around the property. Deputy Haney then spoke with Vit, who reconfirmed that all of the officers could “look around” the property. At this time, Deputy Haney and Vit were both unaware that, shortly prior to their arrival at the property, Officer Thomas had climbed over a locked gate to access the property, inspect the backhoe, and conclusively determine that it was stolen.

¶ 4 Vit, Deputy Haney, Officer Thomas, and the other officers drove onto the five-acre property to where some trailers and the backhoe were located. Vit indicated that he lived in one of the trailers and unlocked it. Vit and Officer Thomas entered the trailer together as Deputy Haney and the other officers began looking around outside. Shortly thereafter, someone inside the trailer called to Deputy Haney, and Deputy Haney went to the open doorway where he observed guns and drug paraphernalia in plain view inside the trailer.

¶ 5 Deputy Haney immediately told the other officers on site to stop their search while he went to get a search warrant in order to keep everything “aboveboard.” Once Deputy Haney obtained a warrant, officers resumed their search and found multiple firearms, methamphetamine, and paraphernalia. This evidence led to Vit's convictions by jury for possession of a controlled substance and possession of a dangerous weapon by a restricted person.¹

¶ 6 On appeal, Vit claims that Officer Thomas's initial warrantless entry onto his property to inspect the backhoe constituted an illegal search and that the later-discovered gun and drug evidence should therefore have been suppressed as “ ‘fruit of the poisonoustree.’ ” See State v. Deherrera, 965 P.2d 501, 505 (Utah Ct.App.1998) (quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). However, Vit never sought to suppress the evidence in the district court, and his suppression argument is therefore not preserved for appeal. See generally State v. Maese, 2010 UT App 106, ¶ 13, 236 P.3d 155 (“[I]n order to preserve an issue for appeal the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue.” (internal quotation marks omitted)). Recognizing this preservation problem, Vit argues that his counsel provided ineffective assistance by failing to file a motion to suppress and that the district court committed plain error by failing to suppress the evidence sua sponte. See generally State v. Cram, 2002 UT 37, ¶ 4, 46 P.3d 230 (identifying plain error and ineffective assistance of counsel as exceptions to the preservation rule).

¶ 7 In order to demonstrate ineffective assistance of counsel, Vit must show that “ ‘(1) trial counsel rendered deficient performance which fell below an objective standard of reasonable professional judgment, and (2) counsel's deficient performance prejudiced [the defendant].’ ” State v. Brooks, 2012 UT App 34, ¶ 14, 271 P.3d 831 (alteration in original) (quoting State v. Chacon, 962 P.2d 48, 50 (Utah 1998)); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish that the district court committed plain error, Vit must show “that (i) [a]n error exists; (ii) the error should have been obvious to the [district] court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant.” State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346 (first alteration in original) (internal quotation marks omitted). In the context of this case, both of Vit's arguments require a showing that the gun and drug evidence would properly have been suppressed under the Fourth Amendment. See Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986) (“Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious ... in order to demonstrate actual prejudice.”); State v. Bradley, 2002 UT App 348, ¶ 41, 57 P.3d 1139 (“To establish plain error, a defendant must show [that] an error did in fact occur.”).

¶ 8 Vit's appellate brief does little to establish that the gun and drug evidence should have been suppressed. His entire argument, summarized, is that this evidence was illegally obtained because it would not have been discovered “but for” Officer Thomas's illegal entry onto Vit's property to inspect the backhoe.² Assuming that Officer Thomas's initial entry onto Vit's property was in fact illegal,³ Vit fails to acknowledge or account for what very much appear to be his independent acts of consent in allowing the officers to “look around” his property and enter his trailer. See generally State v. Arroyo, 796 P.2d 684, 688 (Utah 1990) (rejecting a pure “but for” test in suppression cases in favor of the exploitation test enunciated in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)); State v. Newland, 2010 UT App 380, ¶ 27, 253 P.3d 71 (concluding that police did not exploit an illegal search to obtain consent where ...