State v. Wells

• Decision Date: 21 November 1996
• Docket Number: No. 950773-CA,950773-CA
• Parties: 304 Utah Adv. Rep. 6 STATE of Utah, Plaintiff and Appellee, v. Stephen Laine WELLS, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 386

928 P.2d 386

304 Utah Adv. Rep. 6

STATE of Utah, Plaintiff and Appellee, v. Stephen Laine WELLS, Defendant and Appellant.

No. 950773-CA.

Court of Appeals of Utah.

Nov. 21, 1996.

Elizabeth A. Bowman and Linda M. Jones, Salt Lake Legal Defender Association, Salt Lake City, for Defendant and Appellant.

Jan Graham, Attorney General, and Marian Decker, Assistant Attorney General, Salt Lake City, for Plaintiff and Appellee.

Before ORME, P.J., and BENCH and BILLINGS, JJ.

OPINION

BILLINGS, Judge:

Stephen Wells appeals his conviction of attempted possession of a controlled substance, a class A misdemeanor, in violation of Utah Code Ann. § 58-37-8(2)(a)(i) (1994). Wells claims the trial court erred when it denied his motion to suppress evidence. We reverse and remand.

FACTS

Because search and seizure issues are fact sensitive, "we recite the facts in detail." State v. Naisbitt, 827 P.2d 969, 970 (Utah App.1992).

On December 27, 1993, four Salt Lake County police officers went to appellant's home to execute drug-related arrest warrants for appellant and his girlfriend, Kelly Jensen. One of the officers, Detective Russo, knew appellant. While Detective Russo stood out of view, another officer knocked on a rear sliding glass door. When appellant appeared at the door, the officer asked if "he were Steve Wells, or if he lived there." Appellant replied that "no Steve is here." Detective Russo then made a positive identification of appellant. Appellant also recognized Detective Russo and immediately ran downstairs.

Detective Russo announced that the officers had arrest warrants, but appellant refused to open the door. Thus, to gain entry, Detective Russo picked up a nearby shovel and shattered the sliding glass door. Deputy Sterner entered the home first and ran downstairs, where he was bitten by appellant's dog. Deputy Sterner testified he arrested appellant at the bottom of the stairs immediately after the officers had subdued the dog. Jensen was found hiding in a downstairs closet and was also placed under arrest.

While sitting with Jensen in a bedroom adjacent to where she was arrested, Deputy Sterner observed a baggie containing a substance he believed to be marijuana. As he went to retrieve the baggie, Deputy Sterner also noticed two marijuana pipes on the floor. Deputy Sterner testified that he then asked Jensen "where the cocaine was." In response, Jensen explained that appellant had hidden marijuana in a vacuum cleaner and cocaine in the lining of a leather jacket lying on a bed. Detective Russo recognized the jacket as belonging to appellant. Subsequently, the officers retrieved the cocaine from the lining of the jacket.

Detective Russo testified that "the basement ... is divided into about three rooms, but they all adjoin," and that appellant "was down in the basement just several feet from us" when the cocaine seizure occurred. Both Detective Russo and Deputy Sterner testified that sometime after arresting the suspects, the officers determined there was no one else in the house.

An amended information was filed charging appellant with unlawful possession of controlled substances (cocaine and marijuana). Appellant pleaded not guilty to the charges. Appellant then filed a motion to suppress the marijuana and cocaine as evidence obtained in an illegal, warrantless search. The trial court denied the motion to suppress, concluding exigent circumstances justified the search and seizure.

After the denial of his motion to suppress, appellant withdrew his not guilty plea, and the State dismissed the second count dealing with the marijuana possession. Appellant then pleaded guilty to the charge of attempted possession of a controlled substance (cocaine), conditioned upon his right to appeal the trial court's denial of the motion to suppress and to withdraw the guilty plea if successful on appeal. See Utah R.Crim. P. 11(i); State v. Sery, 758 P.2d 935 (Utah App.1988).

On appeal, appellant contends the trial court erred in denying his motion to suppress this warrantless seizure of contraband.

STANDARD OF REVIEW

"The factual findings of a trial court that underlie its decision to grant or deny a motion to suppress will not be disturbed on appeal unless clearly erroneous." State v. Davis, 821 P.2d 9, 11 (Utah App.1991); accord State v. Smith, 781 P.2d 879, 880 (Utah App.1989). The trial court's "legal conclusions are reviewed for correctness, with a measure of discretion given to the trial judge's application of the legal standard to the facts." State v. Moreno, 910 P.2d 1245, 1247 (Utah App.), cert. denied, 916 P.2d 909 (Utah 1996).

ANALYSIS

Scope of Review

At the outset, we must determine the proper scope of our inquiry in this case. Although appellant asks us to review the issues underlying the marijuana seizure, the State argues that, because the marijuana charge was dismissed pursuant to the plea agreement, the legality of the seizure underlying that charge is not properly before this court.

We agree with the State and therefore do not address the marijuana seizure. See State v. Rivera, 906 P.2d 318, 320 (Utah App.1995), cert. granted, 917 P.2d 556 (Utah 1996). In Rivera, this court interpreted Utah R. Crim P. 11(i) to "permit the review of the denial of pretrial motions which were made in connection with the charge to which the defendant entered a plea." Id. We concluded, however, that the rule "does not allow review of the denial of pretrial motions relating to charges which were dismissed and to which the defendant did not enter a plea." Id. Because the State dismissed the marijuana charge, and appellant pleaded guilty only to the cocaine charge, "[w]e deem it unnecessary and, in fact, improper to analyze" appellant's challenge to the trial court's ruling on the marijuana seizure. Id. Therefore, we limit our analysis to the trial court's denial of appellant's motion to suppress the cocaine. ¹Motion to Suppress

"Warrantless searches are per se unreasonable unless undertaken pursuant to a recognized exception to the warrant requirement." State v. Brown, 853 P.2d 851, 855 (Utah 1992) (citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967)). The State must demonstrate "that the circumstances of the seizure constitute an exception to the warrant requirement." State v. Strickling, 844 P.2d 979, 985 (Utah App.1992); see also State v. Christensen, 676 P.2d 408, 411 (Utah 1984) ("Since the officers had no warrant, it was the burden of the State to show that the search was lawful.").

A. Exigent Circumstances

Appellant argues the trial court erroneously upheld the search under the exigent circumstances exception to the warrant requirement. ² Exigent circumstances exist "only when the inevitable delay incident to obtaining a warrant must give way to an urgent need for immediate action." United States v. Satterfield, 743 F.2d 827, 844 (11th Cir.1984). Utah courts have identified several exigent circumstances that may justify a warrantless search, including the immediate need to prevent harm to the officers, destruction of evidence, or escape of the suspect. State v. Ashe, 745 P.2d 1255, 1258 (Utah 1987); City of Orem v. Henrie, 868 P.2d 1384, 1388 (Utah App.1994); State v. Belgard, 840 P.2d 819, 823 (Utah App.1992); State v. Palmer, 803 P.2d 1249, 1252 (Utah App.1990), cert. denied, 815 P.2d 241 (Utah 1991). "The determination of exigency is based on the totality of the circumstances." Henrie, 868 P.2d at 1388.

In State v. Beavers, 859 P.2d 9 (Utah App.1993), this court concluded "[t]he existence of exigent circumstances must be based on the reasonable belief of the police officer." Id. at 18. The mere possibility that a suspect may have a weapon, id. at 19, or that evidence might be destroyed, Palmer, 803 P.2d at 1253, is insufficient. See also United States v. Tarazon, 989 F.2d 1045, 1049 (9th Cir.1993) (stating police must have "reasonable belief" that exigent circumstances exist); United States v. Roark, 36 F.3d 14, 17 (6th Cir.1994) (rejecting exigent circumstances claim based solely on "unsubstantiated suspicions" of police officer who feared removal of marijuana).

The record reflects that both suspects were handcuffed and in custody when the cocaine was seized. Detective Russo testified that, although appellant attempted to elude the officers before their entry, the officers handcuffed him soon after entering the home. Detective Russo further testified that Jensen was "[p]robably handcuffed" when she directed the officers to appellant's jacket. The officers had controlled the initially chaotic situation by the time they searched the jacket. Therefore, the initial exigencies, which had dissipated by the time of the search, could not have justified the cocaine seizure.

The State argues the officers did not determine whether third persons were in the home until after the arrests were made. The officers, however, never indicated any belief that others in or outside the home were likely to seize the contraband. See United States v. Napue, 834 F.2d 1311, 1327 (7th Cir.1987) (recognizing possibility that officers "suspected, or had reason to suspect," that hotel room was occupied, but concluding "the government did not offer evidence at the suppression hearing to support such a suspicion"). Because "[t]here is almost always a partisan who might destroy or conceal evidence," United States v. Davis, 423 F.2d 974, 979 (5th Cir.1970), the State must show more than "a mere possibility that evidence might be removed," People v. Blasius, 435 Mich. 573, 459 N.W.2d 906, 916 (1990). The State failed to present evidence "that even intimated that the officers reasonably believed that destruction, removal or concealment of contraband material was imminent or threatened." State v. Peterson, 525 S.W.2d 599, 607 (Mo.Ct.App.1975).

Considering the "mosaic of evidence" before us, Ashe, 745 P.2d at 1258, we cannot conclude that exigent circumstances justified the officers'...