State v. Blevins

Utah, Appellee, Plaintiff STATE BLEVINS, Defendant

Donald Appellant. No. 971419-CA. P. Margaret Lindsay, Aldrich Nelson Provo, Esplín, for Defendant and Weight & Appeals Court Utah. Appellant.

Oct. Graham, Gen., Atty. and Kenneth A. Jan

Bronston, Gen., Atty. Appeals Asst. Criminal Div., City, Appel- Plaintiff and Salt Lake lee. GREENWOOD, BILLINGS,

Before ORME, JJ.

OPINION BILLINGS, Judge: appeals Donald his con- Appellant Blevins methamphetamine, viction substance, zone, drug-free controlled degree Ann. felony under Utah Code second 58-37-9(2)(a)(i) asserting (Supp.1997), § denying erred his Motion to trial court Suppress. We affirm.

FACTS light most recite favor- “We findings lower when re- able to the court’s viewing denying defendant’s its decision mo- Montoya, suppress.” tion to Ct.App.1997) (citing P.2d Anderson, 1996)). September law enforcement

On County from the Utah Narcotics En- officers (NET) Team forcement executed City private on a Provo residence) (the of controlled sub- language The search warrant’s stances. “[residence], mitted the to search outbuildings curtilage, persons of indi- present or to this location viduals related and vehicles location.” executing the police were up to residence and Blevins drove nearby public street. As on a his vehicle vehicle, ap- NET officers Blevins exited him, questioning he told proached occupant he was there to visit the officers App.1995), cursorily approved practice of the residence. The officers we of strict- weapons, ly scrutinizing searched Blevins for handcuffed an affidavit “all supporting an him, persons and led him into the residence where warrant.” performed they thorough search for both Covington, In this court first dealt with an substances;

weapons and controlled neither warrant,” and framed the issue found on The NET officers as follows: also searched Blevins’ vehicle where The remains whether a warrant syringe baggie methamphet- found and a that authorizes the search of unnamed amine. at a location is if lawful guilty plea Blevins entered a conditional supported by probable cause to believe charge of a controlled sub- the time drug-free stance zone. He then filed a the search will be involved in the criminal Suppress Motion activity upon which the warrant issued.... vehicle. The wjhether, [And based on the affidavit judge trial denied Blevins’ motion and he issued, search warrant th§ appeals. now authorities had cause to believe person found at the basement

ANALYSIS apartment involved in would be narcotics Blevins asserts the at” trafficking.

which allowed to search the vehicle he Id. Covington at 211-12. In we reviewed impermissible drove to the anwas both federal agreed and state caselaw and “general supported by probable warrant” not with approves view that of “all cause. situations, in limited warrants” consequently upheld a warrant allowing the great “We ‘accord deference to the search of all at a basement magistrate’s regarding probable decision’ apartment. holding, 211-13. In See id. at so 141, cause.” State v. 918 P.2d agreed Jersey New Supreme (Utah denied, Ct.App.), cert. 925 P.2d 963 Court physical that there sufficient nex- (Utah 1996) (quoting City Lake Salt v. Tru general us to of a overcome the vice (Utah 603, jillo, Ct.App.1993)). DeSimone, (citing See id. at 211 standard of “The cause is described (N.J.1972)). N.J. 288 A.2d being ‘only probability, as and not a ” DeSimone court stated: prima showing, facie activity.’ of criminal Brown, [Wjith regard the Fourth Amendment Gates, Ct.App.1990) (quoting Illinois specificity subject for as to demand 213, 235, 103 S.Ct. searched, be is none of there the vice of (1983)) (additional L.Ed.2d citations general if the individual is thus- omitted). Further, by physical ongoing identified nexus to the setting, criminal event itself. appellate have adopted Utah courts executing the officer the warrant has nei- totality of the circumstances test ... authority opportunity ther the nor the

determining whether there is everywhere anyone violating the issuance of a search long good law. So as there reason warrant.... suspect anyone present or believe that must consider all the circumstances set anticipated scene “practical, forth affidavit and make participant, presence descrip- becomes the common-sense decision whether ... satisfying tive fact the aim of the Fourth probability” fair is a Amendment. The evil of the war- place. be found in the described thereby negated. rant is Gates, (quoting 285-86

Id. at U.S. at 2332) (omission (addi- original) ap- Id. at 850 We also omitted). However, Supreme proved tional citations in State of the Massachusetts Ju- approach in eval- Ct. dicial Court’s three-factor expressly all vehicles did include validity of uating the these does, the arriving to the residence ours warrants”: small, confined area private; to be ^[2] exceeding upheld the warrant’s search of the truck nor as not pro- scription against general warrants. See activity is such that nature of the criminal (in constantly at 253. general) participants the

N.E.2d (footnote Commonwealth the items rant as the likely size or impossible any specific person shift 944, 97 omitted). kind the be concealed change specifically S.Ct. which renders them target the (Mass.), Smith, so that any given of police described on the the L.Ed.2d 370 Mass. cert. is, practically, time; predict denied, in the war will be on easily and are of 335, 348 (1976) that ^[3] a persons. rant” case cert applies Superior Court well-grounded suspicion or belief merous sales of CDS were The evidence was sufficient In 584 A.2d 199 State ex rel. warrant, A.2d explained in an a (N.J.1990), rationale we think L.Q., vehicles” “arriving persons the rationale . denied, 122 N.J. being conducted the New N.J.Super. carrying these to create that nu- (N.J.Super.Ct.App.Div.1989), allowing equally Jersey war a Subsequently, the denied, Ct.App.), P.2d 963 possibility cert. the of other did not exclude

(Utah 1996), suffi description held that an affidavit activities on the the ciently actually provided to issue an a established observed suspicion warrant” the or belief firm foundation for in a private premises trailer home whose resident was person “conducting a suspected of retail sales in the overt unlawful was involved Id. at 144. operation from residence.” Such possession [the] of sale cocaine. that “an war

Doyle further held ‘all is not limited to suspicion or belief arrive, applies equally to all who police rant’ when already the after who reasonably within a reasonable time the extends to a including those execution of the the the search. enters the supplier, arrive the while who present.” criminality legitimately Id. at are still subdealer or a customer. (emphasis supplier obvious. and subdealer are already carry- be Even customer argues this case Defendant least, ing paraphernalia. At CDS “arriving persons an pushes there is by extending search to too far warrant” laws attempting to customer is violate disagree. persons’ vehicles. We con- prohibiting possession and use of Alva, 250, 252- States v. 885 F.2d United dangerous substances. (5th Cir.1989), upheld Fifth Circuit added) (citations omit- Id. at al for cocaine under warrant ted). likely If it is more that evi- anything, and all “motor lowed a search of house activity will found of criminal dence premises” under

vehicles found on the bringing the vehicle to our ease. the search similar While will be that such evidence than it underway, Alva arrived his house was himself. fifteen feet pickup truck and about extension of the search id. at 251. We conclude the from the and entered. See house house, arriving at a resi- the vehicles of officers detained Alva re- Covington’s nexus dence does not exceed the house and searched the other officers left does violate quirement, and thus weapon. found a See id. truck where case, the provision. discovery, weapon’s Based he Blevins as arrived charged being officers saw later felon residence. The officers though street front of the of a firearm. See Even purchased approached questioned as to his informant over Blevins two ounces of as he exited the Blevins destination vehicle. from the residence located Provo, told the officers that he was there to see an approximately 1148 west 100 north living individual at the residence then Utah. drugs, him-

searched after which Blevins self was and led into the house. 4. That the confidential informant was Later, the officers searched Blevins’ unwitting taken to the residence and ac- and located marijuana. informant paraphernalia. companying That from N.E.T. followed the The fact Blevins vehicle on unwitting fidential informant and infor- street, curtilage rather than within the mant to the residence [described above]. suspected house is not determinative.1 the NET Blev- Because officers determined unwitting 6. That the informant stated residence, “arriving ins to be to” the the female, living apartment that a in the west particularity requirements and nexus duplex of the at the above loca- mentioned met. It was clear that the vehicle tions, selling large amounts of mari- belonged Blevins, other juana, sell amounts person, and that he had driven it to the bags. unwitting ounce or less The infor- visiting with the residence intention of its mant stated that the sell female would occupants. day bags night long. ounce all and all I monitoring 7. That also this while the We conclude that ease buy, I observed numerous an “all there was residence, stay period arrive at the warrant.” The short of time then leave. specifically the of the issuance warrant dis the to”

cussed likelihood vehicles containing the residence controlled sub marijuana being 9. That amounts of the paraphernalia. or stances The sought large are amounts for distribution search directing issued a the officers use, personal amounts for and and small typically packaged sale. amounts are residence, person’s conduct a search of the baggies in one or ounce less and can arriving individuals [sic] of at or easily quickly hidden. and along

residence associat- the vehicles my experience I It is person’s arriving the ed with [sic] at or with the unlawful encountered residence, outbuildings curtilage, and para- and use/distribution arriving of individuals phernalia, keep out- these items in often to this location and related to vehicles buildings and vehicles. Failure to search the [res- individuals curtilage of and idence]. located or related to the individu- added). location at the time of the (Emphasis NET officer Richard als this affidavit, this result executed an stated in execution of Case which missing important part: officers evidence. myself your past training

2. That within the from affiant’s 48 hours That persons arriving resi- and other officers from made a at the N.E.T. buy marijuana using a

controlled confi- dence to and related items dential informant. That this these confidential often Here, cases, 1. Defendant directs us to two Freeman v. case at bar. nexus is not that State, (Ala.Crim.App.1994), 681 So.2d 242 vehicle is but that State, (Fla.Dist.Ct. brought he is who admits Henderson 685 So.2d 970 has drugs alleg- proposition going App.1996), for the a vehicle to the residence where the public edly being behind a Thus the vehicle's location street in front of or sold. curtilage residence is not within the residence relation to the is not critical because misap exit cannot be defendant his vehicle and thus searched. Defendant officers saw prehends physical destination. nature of the nexus in determined his Ct.App. Fail- person or in vehicles. 1995) Ayala, (quoting vehicles of ure to search the sup Ct.App.1988)), arriving to the warrant in this case failed porting result in of the warrant will the execution requisite to establish the nexus between the missing valuable evidence. per all criminal (Emphasis sons—and their vehicles— failed argues The dissent criminal the nexus between the to establish forefathers, consulting after “[T]he drugs from a sale of involved—the designed history, Constitution lessons our house —and way of a too obstacles disagree. arriving to the residence. We surveillance, meating police First, requires high a stan- dissent too greater danger to a to think was a seemed dard for execution escape people of some crimi- free than claiming “every person the orbit within punishment.” nals from United States Di sought possess items must Re, 332 U.S. warrant,” citing case. Kansas (1948). Thus, applying L.Ed. 210 a fair in Utah is rather whether “there is law specificity require- Fourth Amendment’s probability will be ment, “the line between what is and what is place.” in State v. the described sufficiently particular drawn must be Brown, 284, Ct.App.1990) accomplishment with a view of the consti- (citations omitted). We conclude that danger purpose” “minimizing tutional sufficiently prob- a “fair established of privacy.” of unwarranted invasion State persons arriving ability” that at the residence (Utah 1985). 207, Gallegos, v. activity in have evidence of criminal determining “all whether Further, holding our is con- their vehicles. comport specific- persons” warrants with the dealing “all prior sistent with our cases with ity requirement, closely must we examine case, In our persons warrants.” most recent supporting probable “the cause 145, that v. P.2d at we held State Covington, their 904 P.2d at issuance.” requisite nexus to an affidavit established persons arriving” at the residence specifically referring arriving per- without closely particularly, More we must “look sons, only on but where the warrant focused judge the facts known to the at the time the “any present.” whether warrant issued” determine “justify these facts a belief that the here, conclude Based we ongoing activity illegal are confined to probable cause existed search the every within the orbit “persons arriving at” the residence. possesses sought the items found, easily magistrate consider- Horn, 365, Kan.App.2d warrant.” State circumstances, ing all the that it was more (Kan.Ct.App.1991). See likely than not that controlled substances Clarke, Marks also F.3d would be found (9th Cir.1996) (“[A] ‘all warrant to search arriving individuals or in the present’ crime for evidence of a Thus, bringing them to the residence. there is reason to be obtained when probable cause for conclude there was present participants issued, that it was the search warrant as activity.”), de suspected cert. impermissible general not an nied, Gypsy sub nom. Allen v. Church of — Northwest, U.S.-, 118 S.Ct. GREENWOOD, J., concurs (1997); LaFave, Wayne R. 139 L.Ed.2d 190 ORME, (dissenting): Judge A Treatise on the Search Seizure: “ (“[T]he 4.5(e) (1996) § I ‘the standard Fourth Amendment dissent. sup ... the information particularized to ev- whether

probable cause must be ” searched,’ supports the conclusion plied ery person to be probable anyone in the described Amendment affidavits an “all per- place when the warrant in- executed is sons” particularize must volved the criminal way probable respect every person, as to have evidence person.”). thereof on his and, necessary, vehicles, if within the whether, determining justi- such a belief is orbit of the search. fied, person’s “a propinquity mere to others example, For independently suspected of criminal activity P.2d 209 Ct.App.1995), we concluded not, more, does without give rise to there was a sufficient nexus per between all Ybarra v. person.” search that and the criminal under Illinois, 85, 91, 444 U.S. investigation based on an showing (1979). Instead, 62 L.Ed.2d 238 basement, that all apartment, [wjhere cause, the standard is occupied by several adults with criminal his search or seizure of a must be tories and narcotics supported by probable particularized to have evidence relevant to investigation respect to that require- This See id. at 213. person.2 Likewise, ment cannot be undercut or avoided Simone, State v. De 60 N.J. 288 A.2d simply pointing to the fact that coinciden- (N.J.1972), approved the court tally there exists cause to search particular because or seize another or to search “good suspect reason to or believe person may where the happen to be. anyone present at the anticipated scene Re, Id. See also Di 587, 593-95, participant.” Id. at 850 be a 68 S.Ct. at (rejecting 228-29 claim that proximity mere activity provides unlawful search).1 necessary case, concludes there

Because Ybarra prohibits equating near- was cause to search the vehicles of probable cause, ness with to establish arriving at the house based on offi- necessary nexus satisfy the Fourth cer Richard Case’s affidavit conclusorily instance, Jackson, People 1. For 180 Mich. Id. at 893. App. (Mich.Ct.App.1989) 446 N.W.2d 891 curiam), (per In State v. Ct.App. the court examined the constitu 1996), heavily tionality majority, so relied on authorizing of a search " adjudged persons present" court during a ‘the of other individuals on search to include all present were coming premises during into the the execution who. ” any during at just time the search rather than of the search warrant.' Id. at 892. The war police at the moment arrived. See supported by police rant was officer's affidavit Doyle id. at 145. But at least the defendant was stating my personal experi "[i]t has been sense, meaningful in some see id. at 142 people premises ence that ("Doyle exited the car and entered the trailer execution of a search warrant ... often will subject [home which of the search war- attempt very to hide the items which the Search rant].”) added), opposed to the de- provides may Warrant be seized.” Id. In revers case, fendant stopped this who was and ing the trial suppress court’s refusal to premises searched as he headed to the and person arriving obtained premises from a at the whose vehicle was searched while on a search, during the the court found the Ybarra public street. The erosion of Fourth Amendment reasoning controlling and ruled: protections by majority countenanced in this language expressly permitting typified by case is argument the State’s concession at oral persons may the search of unnamed not be that, long so as the ascertained instance, constitutionally every infirm in heading premises Blevins was to the identified in language go cited here does not even theory the search under the State’s particularize so far as to nature searching Fourth Amendment would be bar to no illegal allegedly peo- conduct committed him and his vehicle several blocks from the ple specific who visit or reside at the address yet, Worse if the officer here had question. Plainly, any particular that, time stated in his affidavit in his private may prem- even residence have on its "persons arriving purchase at the residence to residents, invitees, any ises censees, combination of marijuana li- paraphernalia and related will often trespassers, any or even keep number of these items on their or in their may any alleged residence],” whom wrong- be innocent of majori- [or their own doing ty's logic readily and for whom no permit would the search of search exists. Blevins’s residence as as his well vehicle. question] may that, ar- ticular residence experience, “persons [the time

claiming any have on its combination of resi- riving residence at the dents, licensees, invitees, trespassers, or even and related often any be innocent of person or in their vehi- number of whom these items on their alleged in the affidavit [wrongdoing thus] no Suggesting, cles.”3 factual whatsoever, cause to search ex- at this for whom no Jackson, Mich.App. keep drugs People ists.” per- tend to (Mich.Ct.App.1989) hardly (per 446 N.W.2d particularizes in their vehicles curiam). Simone, 288 A.2d at 851 respect every person De See Indeed, permissible “all (distinguishing this within the orbit of this search. allowing the search of assumption stands in stark con- warrant from one

unsupported building “some commendably specific upon where innocent trast to the bases call happen rested other the occu- pant property”). of such portions the affidavit.4 The absence of real people specificity regarding such and vehicles assuming forth facts Even it set establish- arriving at the residence demonstrates ing at the that all underlying principle actually subdealer, cus- probably supplier, very component sons” of the warrant is the tomer, explain fails to Officer Case’s affidavit guilt-by-assoeiation inference un- forbidden why every arriving person der Ybarra. possess evidence within entering resi- Particularly troubling majority’s is the ca- this search warrant before parapherna- assumption coming

sual that a dence where the sought by lia warrant were to be “supplier, a sub- the search terms, “Plainly, possible how is it any par- simple found.5 In dealer or a customer.” majority, relying upon paraphernalia on their He makes United States and/or a (5th Cir.1989), Alva, "training passing experi- F.2d 250 denies that its to his reference ence,” ruling governing expands wholly explain the law warrants what it fails to is in his coming supports to a which is training experience aimed at however, reliance, subject of a search. This Accepting such conclusions on blind conclusion. entirely misplaced. Alva addressed differ- with Fourth Amendment faith not consistent ent than that now before this court. The issue jurisprudence. merely interpreted particu- whether a Would the find warrant, authorizing "any lar the search of if, more, without affiant at 223 on that, experience training, mari- stated Burcham,” encompassed the vehicle of own- juana being sold at the residence? Of was voluntarily er of the who and lessor They want to know what facts course not. and then entered the drove onto per- The reference to that conclusion. knocking. Id. at 252. The residence without coming and their is to the residence probable pass did not on cause footing: precisely No set forth same required supporting per- an affidavit an "all probable affidavit demonstrate ("It disputed is sons" warrant. See not requisite particularity. warrant....”). supported the inapposite. isAlva showing say impos- 5.This that such a is not to suppliers, regarding example, if the to search the sible. For Probable cause that, upon supported by specific affidavit demonstrated based the offi- account of a recent con- experience light drug of his purchase at the residence and an cer's observations training, drug-sale suppliers arrive at enterprise’s tended to the resi- account of the informant’s time, contrast, particular given operation. By dence at cles, or drive vehi- hours and method probable marijuana to person with them be resold and vehicle have cause to search residence, may been persons coming have was based time cause to search all officer's unsubstantiated claim that Regarding "persons arriving vehicles described. sub- at the residence and/or dealers and established, customers, might marijuana related will often instance, bring that subdealers in their these items on or compare marijuana before no to the residence recounts observation of vehicles." The officer typical purchasing, concerning persons, customer such much or information sample qual- marijuana, leave to obtain some any prior to search their less occasion ity return opinion product, of the and then as to form about vehicles so (if buy marijuana marijuana unsmoked either more visitors will have likelihood such persons coming by to the residence —as the Fourth Amendment to the United States Constitution. opposed persons already to all at the resi- persons leaving dence or all the residence— particularized Without such a showing of

will have on their or in their vehicle probable cause, persons” an “all activity being evidence of the criminal an unconstitutional that al- ducted within the residence?6 lows the unbridled discretion to search car, person, any home of who theory implicitly embraced the ma- happens by the residence searched. jority indeed guilt by seems to be one of Allowing searches such warrants ex- association: If there is pands the limited use of “all war- marijuana occurring sales are in a beyond rants that which the Fourth Amend- house, it is reasonable to believe that permits. ment coming coming buy to the house are mari- ease, juana. persons obviously do not warrant’s issuance failed to establish a nexus least, yet any have —at not — alleged between the deal- being sold from the sought by house and thus ing, belonging and the vehicles and all Nonetheless, they are most persons arriving at the residence. Conse- likely coming buy marijuana, it fair quently, supported the warrant such, assume are ne’er-do-wells. As arriving persons cause to search all there could be who-knows-what on their vehicles, and the search of defen- son or in their vehicle down the dant’s vehicle violated the Fourth Amend- weapons; illegal street: concealed drugs pur- ment. sources;

chased from other open containers alcohol; checks; money; counterfeit bad pornography; stereos, etc.,

child stolen car approach,

etc. This appealing however level, be at an intuitive rejected must be simple

for the reason that such theoretical

possibilities are no particu- substitute for the showing

larized required (if pleased) dissatisfied). or to seek a refund investigation marijuana dence relevant to the sufficiently What facts would to the is, tie visitors sales from the residence. That marijuana sought entirely in this search is describes the residence as a distribu- speculative setting since we have an methamphet- tion center and fails to mention forth no such facts at all. any way, amine in while the search of Blevins’s vehicle revealed but no mari- evidence, incriminating it revealed juana. the search of Blevins’s vehicle revealed no evi-

Case Details

Case Name: State v. Blevins

Court Name: Court of Appeals of Utah

Date Published: Oct 29, 1998

Citation: 968 P.2d 402

Docket Number: 971419-CA

Court Abbreviation: Utah Ct. App.