State v. Womack

• Decision Date: 22 October 1998
• Docket Number: No. 971539-CA,971539-CA
• Citation: 967 P.2d 536
• Parties: 354 Utah Adv. Rep. 46 STATE of Utah, Plaintiff and Appellee, v. Roy WOMACK, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 536

967 P.2d 536

354 Utah Adv. Rep. 46

STATE of Utah, Plaintiff and Appellee, v. Roy WOMACK, Defendant and Appellant.

No. 971539-CA.

Court of Appeals of Utah.

Oct. 22, 1998.

Michael D. Esplin, Aldrich, Nelson, Weight & Esplin, Provo, for Defendant and Appellant.

C. Kay Bryson, Utah County Attorney and Laura Cabanilla, Utah Deputy County Attorney, Provo, for Plaintiff and Appellee.

Before WILKINS, Associate P.J., and BILLINGS and JACKSON, JJ.

OPINION

JACKSON, Judge:

Roy Womack challenges the trial court's denial of his motion to suppress evidence and his consequent conviction for possession of a controlled substance in a drug-free zone, in violation of Utah Code Ann. §§ 58-37-8(2)(a)(i) and 58-37-8(5)(a) (1996), following a conditional guilty plea under State v. Sery, 758 P.2d 935, 939 (Utah Ct.App.1988) (holding conditional plea valid when court and prosecutor accept agreed-upon condition). We affirm.

BACKGROUND

On February 21, 1996, United Parcel Service (UPS) tried to deliver a package sent from California to Roy Womack at 120 West 1200 North in Orem, Utah, which turned out to be a wrong address. UPS employees then searched for Womack in the telephone book and found a Womack family listed in Orem. Although the listing did not show a "Roy Womack," UPS delivered the package to the listed Womack family. That family opened the package and found about an ounce of marijuana among its contents. They gave the package to the Orem City Police Department.

Six days later, UPS received a telephone call from Eileen O'Hara, the return addressee on the package. O'Hara was told the package had been delivered to another address, and she gave a corrected address of 127 West 1200 North in Orem. Also on that day, Roy Womack visited the Womack family and was told the package was not there.

The Orem police determined that a couple named the Greens lived at the new address given by O'Hara. The police planned a controlled delivery of the package to the home at that address and sought a search warrant allowing them to search the home after the delivery. Based on the affidavit of Sergeant Jerry Harper, the magistrate signed the search warrant.

Police officers then took the package to the home and had a UPS employee deliver it. The person who answered the door said he was Roy Womack and signed for the package. The UPS employee told the police, who then executed their warrant. The police searched the home and arrested Roy Womack, who had the package and marijuana.

After the trial court denied Womack's motion to suppress the evidence seized under the search warrant, Womack pleaded no contest to possession of a controlled substance in a drug-free zone with the condition that he could appeal the trial court's denial of his motion. On appeal, Womack argues that "anticipatory warrants," like the warrant in this case, violate Utah Code Ann. § 77-23-202 (1995). Alternatively, he contends the search warrant was not supported by probable cause.

ANALYSIS

"Anticipatory search warrants are peculiar to property in transit." United States v. Leidner, 99 F.3d 1423, 1425 (7th Cir.1996), cert. denied, 520 U.S. 1169, 117 S.Ct. 1434, 137 L.Ed.2d 542 (1997). Such warrants are "based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place." 2 Wayne H. LaFave, Search and Seizure § 3.7(c), at 362 (3d ed.1996). The validity of anticipatory warrants is a matter of first impression in Utah, one which we must address before we reach Womack's arguments.

Accordingly, we join the overwhelming majority of jurisdictions in recognizing that anticipatory search warrants are not per se unconstitutional. ¹ See United States v Rowland, 145 F.3d 1194, 1200 (10th Cir.1998); Leidner, 99 F.3d at 1426; United States v. Ricciardelli, 998 F.2d 8, 11 (1st Cir.1993); United States v. Tagbering, 985 F.2d 946, 950 (8th Cir.1993); United States v. Wylie, 919 F.2d 969, 975 (5th Cir.1990); United States v. Garcia, 882 F.2d 699, 702-04 (2d Cir.), cert. denied, 493 U.S. 943, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989); United States v. Goodwin, 854 F.2d 33, 36 (4th Cir.1988); United States v. Goff, 681 F.2d 1238, 1240 (9th Cir.1982); United States v. Lowe, 575 F.2d 1193, 1194 (6th Cir.1978); United States v. Garnett, 951 F.Supp. 657, 662 n. 7 (E.D.Mich.1996); In re Oswalt, 686 So.2d 368, 369-70 (Ala.1996); Johnson v. State, 617 P.2d 1117, 1124 (Alaska 1980); State v. Cox, 110 Ariz. 603, 522 P.2d 29, 31 (Ariz.1974); Alvidres v. Superior Court, 12 Cal.App.3d 575, 90 Cal.Rptr. 682, 686 (Ct.App.1970); Bernie v. State, 524 So.2d 988, 991 (Fla.1988); Danford v. State, 133 Ga.App. 890, 212 S.E.2d 501, 501-02 (Ga.1975); State v. Wright, 115 Idaho 1043, 772 P.2d 250, 256-57, 258 (Idaho Ct.App.1989) (main opinion, Swanstrom, J., specially concurring, Burnett, J., specially concurring); Commonwealth v. Soares, 384 Mass. 149, 424 N.E.2d 221, 224 (Mass.1981); State v. Morrison, 243 Neb. 469, 500 N.W.2d 547, 556 (Neb.1993); State v. Parent, 110 Nev. 114, 867 P.2d 1143, 1145 (Nev.1994); State v. Canelo, 139 N.H. 376, 653 A.2d 1097, 1100 (N.H.1995); State v. Mier, 147 N.J.Super. 17, 370 A.2d 515, 517 (N.J.Super.Ct.App.Div.1977); People v. Glen, 30 N.Y.2d 252, 331 N.Y.S.2d 656, 282 N.E.2d 614, 615 (N.Y.), cert. denied, 409 U.S. 849, 93 S.Ct. 58, 34 L.Ed.2d 91 (1972); State v. Smith, 124 N.C.App. 565, 478 S.E.2d 237, 241 (N.C.Ct.App.1996); State v. Folk, 74 Ohio App.3d 468, 599 N.E.2d 334, 337-38 (Ohio Ct.App.1991); Commonwealth v. Reviera, 387 Pa.Super. 196, 563 A.2d 1252, 1254-55 (Pa.Super.Ct.1989); State v. Engel, 465 N.W.2d 787, 789 (S.D.1991); State v. Coker, 746 S.W.2d 167, 172 (Tenn.1987), cert. denied, 488 U.S. 871, 109 S.Ct. 180, 102 L.Ed.2d 149 (1988); McNeill v. Commonwealth, 10 Va.App. 674, 395 S.E.2d 460, 463 (Va.Ct.App.1990); State v. Meyer, 216 Wis.2d 729, 576 N.W.2d 260, 266 (Wis.1998); see also 2 LaFave, supra, § 3.7(c), at 364 ("The better view ... is ... and the recent cases have consistently held that anticipatory warrants are not inherently beyond the warrant process permitted by the Fourth Amendment.").

Along with these jurisdictions, we embrace the important policy considerations underlying anticipatory warrants: They "balance the need to protect the subjects of searches from the abuses of warrantless searches (under the exigent circumstances exception) and the practical needs of law enforcement personnel." United States v. Dennis, 115 F.3d 524, 529 (7th Cir.1997). The California Court of Appeals articulated this balance well when it said:

The speed with which law enforcement is often required to act, especially when dealing with the furtive and transitory activities of persons who traffic in narcotics, demands that the courts make every effort to assist law enforcement in complying with the edicts that the courts themselves have issued.

We must ask ourselves whether the objective of the rule is better served by permitting officers under circumstances similar to the case at bar to obtain a warrant in advance of the delivery of the narcotic or by forcing them to go to the scene without a warrant and there make a decision at the risk of being second-guessed by the judiciary if they are successful in recovering evidence or contraband. We believe that achievement of the goals which our high court had in mind in adopting the exclusionary evidence rule is best attained by permitting officers to seek warrants in advance when they can clearly demonstrate that their right to search will exist within a reasonable time in the future.

Alvidres, 90 Cal.Rptr. at 686; see also State v. Collard, 810 P.2d 884, 886 (Utah Ct.App.1991) (stating " '[a] grudging or negative attitude by reviewing courts toward warrants,' is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant" (quoting Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983))).

Further, the facts set forth to support an anticipatory warrant are generally more apt to show that there will be probable cause when the search occurs than the usual warrant grounded exclusively on the knowledge that the objects to be searched for were previously at the search site. See 2 LaFave, supra, § 3.7(c), at 366. For example, searched-for contraband is more likely to be in place at the time of a search when police plan to deliver contraband to a certain place than when an informant simply reports to police that he or she has seen contraband in a certain place sometime in the past few days.

I. STATUTORY VALIDITY OF ANTICIPATORY WARRANTS

Womack contends that, even if anticipatory warrants are not per se unconstitutional, they are forbidden by Utah Code Ann. § 77-23-202 (1995), which reads:

Property or evidence may be seized pursuant to a search warrant if there is probable cause to believe it:

(1) was unlawfully acquired or is unlawfully possessed;

(2) has been used or is possessed for the purpose of being used to commit or conceal the commission of an offense; or

(3) is evidence of illegal conduct.

(Emphasis added.) Focusing on the past and present tense language, Womack asks us to construe this section to require that property or evidence be located at the place to be searched when the search warrant is signed, thus banning anticipatory warrants.

Statutory interpretation presents a question of law which we review for correctness. See State v. Powell, 957 P.2d 595, 596 (Utah 1998). "When interpreting a section of the Utah Code, we are guided by the principle that a statute is generally construed according to its plain language." State v. Thurman, 911 P.2d 371, 373 (Utah 1996).

We do not read the plain language of Utah Code Ann. § 77-23-202 (1995) to thwart the anticipatory warrant in this case. We first note Utah's definition of "probable cause," which is "a 'fair probability' that evidence of the crime will be found in the place or places named in the...