State v. Davis

methamphetamine during prior week. BENCH, Before GREENWOOD and him placed The officers arrested Davis and ORME, JJ. hold, seventy-two-hour on a after which he was released. OPINION later, 20, 1994, days Five on November ORME, Judge: Gary Division of Wildlife Resources Officer Bradley appeals Defendant “Chick” Davis A. McKell was called to assist a Hurricane Officer, possession City stopped his convictions for a cocaine and Police who had vehi- distribute, methamphetamine Milby Kelly occupied with intent to cle Mark Black- felonies, degree drugs both second in of burn. violation The two were found with (1998);1 § posses- paraphernalia. Milby Utah Code Ann. 58-37-8 was arrested and distribute, marijuana sion of with intent to a Blackburn was cited and released. Officer degree felony, third in Hurricane violation of Utah Code McKell was called because the (1998); § possession drug Ann. 58-37-8 hair the back officer found deer blood and misdemeanor, paraphernalia, gloves. a B Milby’s class vehicle and on a knife and McKell, thinking poached violation of Ann. deer Utah Code 58-37a-5 Officer that a (1998); property, drug activity might just at the stolen a be found effect, reader, currently 1. As a convenience to the we cite to the most and because sions provisions statutory throughout in effect at the relevant times do recent codifications materially statutory opinion, provi- not differ unless otherwise noted. Summit, Utah, 21, 1994, Sey- contacted On November Eckman and Milby residence County mour, officers, Evans the Iron Sergeant joined Rick other conducted a him to watch Department and asked Sheriffs of the house warrantless search shed, the residence. Hyatt, nearby Davis and shared parked proper- and several vehicles on the following approximately At 2:00 a.m. the tan ty including van which shift, — morning, of his Ser- close end days searched four and which Ser- earlier Milby’s geant Evans drove house. Evans geant driving Evans saw Davis earlier that that all of were on and lights observed van, morning. addition there was a idling in front. that Blackburn’s truck was Escort, Camaro, Ford blue black Chevrolet to wait About ten Evans decided and watch. truck, Blazer, pickup red white Chevrolet later, he saw in a tan van minutes someone camper-trailer property. and a Milby’s if approach, veer as turn into registration officers did not check on driveway, upon change but then course see- registra- the vehicles or of otherwise obtain ing patrol pulling Evan’s car. of into Instead them, searching tion information before nor driveway, Milby off the van driver drove Hyatt ask Davis or or who owned Suspicious, Sergeant the street. Ev- down van, used the vehicles. In the the officers followed the van to ans for a short distance paraphernalia marijuana; discovered and Stop, parked Truck the Summit where he Escort, officers discovered a blue sufficiently the van but to its that behind side diaper bag methamphet- which contained could have the driver backed out without amine, cocaine, marijuana, parapherna- and patrol hitting Evans’s car. lia; house, in the and the officers discovered Both Evans and the of the van driver of a set double-beam scales under a bed. approached exited their vehicles Evans and house, Additionally, in the shed behind the the driver and asked who he was and what staple “Goer,” found a gun officers marked doing. van was driver of the identi- partial company, name of a local Goer fied himself as Chick Davis and told Ser- router, Manufacturing, alleged and a later to geant that he Evans drove around sometimes Timber, be stolen Middleton another night at to take his recent mind off his son’s local business. encounter, During this death. Evans had lights, not used his overhead not ordered subsequently charged The State Davis van, out of the Davis did not ask to see possession methamphetamine, with of co- registration, Davis’s driver’s license and caine, marijuana to and with intent distrib- touching never came within distance ute; possession drug paraphernalia; and Davis. possession property. of stolen The State Hyatt possession charged with of metham- hearing explanation, After Davis’s Ser- possession para- phetamine drug and geant Stop Evans left the Summit Truck and phernalia. The motions to defendants filed returning the way was he came when he arguing suppress, the search was not Blackburn, passed who was headed towards supported suspicion, and stop. the truck Evans and turned followed that, respect Hyatt, with the search was stop, Blackburn to the truck where he saw supported by probable not warrant or van, park next go Blackburn to Davis’s into suppression hearing A cause. was held on diner, and sit down with Davis. Later 2, 1995, September 5 and after October day, Sergeant proba- Evans contacted trial court which the denied the motions. Seymour tion officers Eckman and told trial, At the conclusion of on Decem- held upon them what he had seen. Based a jury ber 7 and convicted the de- information, discovery proba- their of Davis’s on all counts. fendants earlier, tion several days violations and their familiarity personal Milby his in- drugs, Seymour,

volvement with Eckman and ISSUES suspicious violating that Davis again his probation, again principal arguments decided to Davis raise search the Defendants four First, appeal. residence. contend that defendants consin, 868, 874, denying motions the trial court erred their U.S. 107 S.Ct. (1987) (citation suppress during omitted; the evidence seized 97 L.Ed.2d 709 denied, original)), search November because alteration cert. supported by not reasonable sus- liberty search was This conditional picion, required necessarily under Davis’s as arises from the need to balance Second, agreement and Utah law. defen- probationers individual interests against government claim because the search society. dants needs any exception 873-75, 107 supported generally Griffin, a warrant nor to See 483 U.S. at 3168-69; requirement, warrant the trial court S.Ct. at State v. Velasquez, 672 1983); by failing suppress Wayne erred evidence P.2d 1258-59 R. LaFave, 10.10(c), nonprobationer Hyatt’s blue Escort. found Search and at Seizure (3d ed.1996) Third, argues there was insuffi- (discussing 766-775 “administra him of “balancing theory” parolee cient evidence convict tive search” or for searches). probationer stolen and therefore the trial court Searches direct failing charge. probationers erred in to dismiss the at exception ed are therefore an Fourth, argues the trial court probable to the usual warrant and cause improperly requirements two witnesses’ admitted under the state and federal testimony regarding prior drug purchases Griffin, constitutions. See U.S. 873- 74,107 Hyatt. from Davis and S.Ct. at 3168. Though probable a warrant based cause

REASONABLE SUSPICION search, required probation is not for a “the Fourth Amendment to the United States argue Defendants November 21 requires probation Constitution that a officer search of their home and was not suspicion have reasonable before commenc- supported by suspi- a reasonable articulable ing probationer’s a warrantless search of a probation cion that Davis violated his as Ham, 433, residence.” State v. 910 P.2d 438 required probation agreement Davis’s and (Utah Ct.App.1996).2 suspi- This reasonable They Utah law. therefore contend that the requirement cion provision is echoed a denying trial court erred in their motions to probation agreement, Davis’s wherein Davis suppress during the evidence seized the al- “person, consented to searches of his resi- legedly illegal search. dence, any or vehicle other under judge’s We a trial decision re review control, warrant, time, without a [his] garding particular whether facts of a case day upon night, suspicion or reasonable give suspicion rise to reasonable nondefer- compliance ensure [his] the conditions of Pena, entially, for correctness. See State v. Agreement.” Probation Defendants contend (Utah 1994). 932, 939 We must suspicion lacking that reasonable and judges trial nonetheless afford “a measure of that therefore the trial court its dis- abused applying suspi discretion” in the reasonable denying suppress cretion in their motions to cion standard. Id. during all evidence seized the search. abundantly probation apply two-part “It is clear that test to warrantless enjoy liberty probation ers ‘do not “the absolute searches: constitute a “[T]o valid every entitled, search, which citizen is but ... warrantless there must be evidence (1) liberty properly dependent [probation] conditional on ob that the officer has a reason- special [probation] suspicion [probationer] servance of restric able has Martinez, 205, crime, [probation] tions.’”” v. committed a violation or (Utah (2) Ct.App.) (quoting 209 v. Wis- that the search is related Griffin parolee probationer suspi 2. This court has that of a noted reasonable is constitution- proba applies cion standard tioners and to searches of both ally evaluating significant purposes for Martinez, parolees. See State v. 811 LaFave, search.”). generally, scope 4 of a (Utah denied, Ct.App.), P.2d P.2d 241 209-10 (Utah 1991). cert. 815 10.10(c), supra, (discussing at 767-69 searches See also States v. United noting probationers parolees Davis, (9th Cir.1991) ("We 932 F.2d 758 do generally apply groups). same concerns to both not believe distinction between status of 530 consid- drug and further activities. Officers duty.” State v. officer’s [probation] drug user and a Milby to be a known

Johnson, 1072 ered P.2d A short hours after possible dealer. few test, part of this applying the first arrest, morning, Milby’s at two o’clockin the “ suspicion requires ‘reasonable we note that idling Blackburn’s truck Sergeant Evans saw authority acting be than that no more Milby’s ap- house and saw outside articulable facts point specific able to pull Milby’s into proach. Davis started to inferences together with rational taken Sergeant he saw driveway, but aborted when facts, reasonably a belief warrant from those later, patrol A few minutes Evans’s car. has been [probation] ... that a condition Blackburn meet at the Evans saw Davis and ” Velasquez, 672 P.2d being or is violated.’ Stop. Truck Summit Scott, (quoting n. States at 1260 United (5th Cir.1982)). Accord F.2d totality of the facts known to Based on the However, Johnson, pro 748 P.2d at 1072. legitimate in- probation officers—and the “ upon a mere ‘cannot be based bation search they ap- ferences drawn from those facts — basis, upon factual nor “casual hunch without suspicion propriately harbored reasonable ’ ” rumor, reputation, or mere whim.” general probation. violated his The that Davis had (citations Velasquez, P.2d at 1262 omit part first of the reasonable test is ted). the facts known To whether determine therefore satisfied.3 gave rise to a legitimately to the officers part second suspicion, we not address each do requires that the search be rea isolation, search test view them in fact in but instead sonably related to the officers’ Strickling, totality. their See State requirement police “deters offi duties. This Ct.App.1992). P.2d using [probation] agents to evade cers probation agreement included Davis’s prior necessity procuring a warrant firearms, against possessing proscriptions Lewis, 71 a search.” United States v. F.3d substances, possessing using controlled Cir.1995) (10th (applying 362 n. 3 Utah criminals, associating en knowingly and parolee’s test to search of warrantless search activity. in gaging criminal Violation residence). Johnson, at See also pro a proscriptions constituted one of these (“A parole is invalid if the 1072 n. search they searched the bation violation. When parole merely agent acts as an or tool officer residence, Hyatt the officers knew Davis and Here, Sey police.”). of the Eckman and search, days following: Six before the Hyatt of the Davis and home mour’s search probation of his Davis violated the terms clearly officers’ was related to the paraphernalia a firearm possessing drug and duties. by using marijuana methamphet and and Lewis, search, found that a Hur In the Tenth Circuit evening amine. The before by parole agents parolee’s of a home Milby possessing for search police ricane arrested reasonably agents’ was related to the duties methamphetamine and cited Blackburn for “ oper- of the Milby’s ‘legitimate ar and to the demands possessing drug paraphernalia. ” parol process’ because the triggered citation an ation of the rest and Blackburn’s pa- poaching agents properly were concerned that the Milby possible for investigation questions, promptly Sergeant argues swered Evans’s two Evans 3. also Evans " Stop "stopped” may approach at the Summit Truck and him officer a citizen at '[A]n left. upon alleged stop premised a was not questions long that the [any pose as the time] and so ” State, disagree. suspicion. At the truck reasonable stop, against not his will.' citizen is detained pulled in behind Davis but sufficient- Evans Deitman, (Utah 1987) (per out; ly that Davis could back Evans side Merritt, curiam) (quoting United States siren; lights did not activate or he did not his Cir.1984)). (5th Because Evans F.2d van; he did ask to see order Davis out of the way only briefly questioned and in no registration; and he never Davis’s license or approached Rather, will, against events at the him his detained touching within distance of Davis. stop encounter constituted a level one truck merely who he was Evans asked Davis implicate Fourth Amend- which did not Davis's doing, no and what and Davis raised rights. id. at 618. ment Cf. objection After Davis an- to Evans's actions. to, drug activity violat- was involved dants had access and control over.” Fur- rolee ther, parole. Hyatt at the trial ing the terms of his F.3d court concluded that had 1263). ‘expectation privacy’” a Velasquez, 672 P.2d at The “reduced (quoting residence and the explained: adequately “To deter mis- vehicles located within court appealing common areas. In the trial protect public, parole agents court’s conduct and suppress, denial of their motions to the de- permitted expeditiously upon to act must be challenge very findings fendants these parole of a violation.” Moreover, trial, conclusions. substantial Id. The same is true here: The warrantless testimony addressed whether the officers Hyatt search of the Davis and home was reason authority had to believe Davis had related to the officers’ Escort, over or access to the as evidenced public protect prevent duties to the several officers who concerning testified Thus, violating probation. Davis from his footprints leading to car. first, part proba- like the the second satisfied, tion-search test is and we therefore parties dropped impor- have not these court conclude trial did not err questions appeal. tant The defendants denying suppress the defendants’ motions argue Hyatt in their brief that because on this basis. probation, not on search of her supported by probable had to be cause SEARCH OF HYATT’S ESCORT response, In warrant. the State and/or argues Hyatt pro- that because lived with Escort, Defendants contend that the blue bationer, expectation she had a reduced registered Hyatt’s only, which was name privacy impliedly she consented to was not over which Davis had com- searches of within areas Davis’s common au- control, authority mon and therefore the thority suspicion. based on a reasonable than a officers needed more reasonable sus- The State further contends that failed picion response, to search it. the State fully protected expectation to show she argues proba- because she lived with privacy in the Escort because she failed to Davis, Hyatt tioner shared his reduced ex- show that it was within her exclusive control. pectation privacy impliedly and that she parties spent Both substantial time at oral consented to searches of areas over which argument addressing the defendants’ author- authority including Davis had common — ity control over Escort. Given these blue Escort. arguments, propose differing which search turning to the Before merits of these con- standards, it is difficult see how one could tentions, pause briefly we to address the addressing avoid the issue of Davis’s authori- suggestion dissent’s this issue is not ty and control over the Escort. The issue is outset, properly appeal. us on At the before key propriety to consideration of the of authority we note that Davis’s common over search, the Escort in which much of the arguments the Escort was to central incriminating evidence was found. below, suppression hearing both at the at Thus, respectfully disagree we with the suppression hearing, trial. At the end of the dissent’s assertion that Davis’s common au- judge the trial ruled from the bench that the thority or control over the not Escort regarding Hyatt’s central issue search properly only before us. Not was the com- car was whether Davis had “access and con- authority primary mon issue concern be- trol over” the car. The trial court concluded low, inescapable appeal. but it is on Accord- that Davis had such access and control. appropriately turn ingly, we our attention to Moreover, Findings in the trial court’s arguments. competing these Law, Fact, Conclusions of on de- Order suppress, parties, pivotal ques- fendants’ motions to the trial court framed As found that Davis “access to control tion is whether Davis had “common authori- ty” of the blue Ford Escort” and that much of the blue Escort such that the offi- over only during the contraband found the search was cers a reasonable needed justify “in discovered common areas” of the home the warrantless search. “We findings trial the two vehicles that “both course defer to the court’s [defen- 532 relationship facts, clearly thority over or other sufficient applying a erro- underlying standard, sought long findings premises to the or effects to be so as

neous However, we evidentiary support. inspected.” adequate of error standard to apply a correction will Matlock, 171, 415 U.S. at (quoting Id. at 1073 conclusion,” legal ultimate the trial court’s 993). State, at Accord Milton v. 879 94 S.Ct. Elder, 1341, 1343 v. (Alaska 1031, 1035-36 Ct.App.1994). P.2d (citations omitted), ac- Ct.App.1991) while to the trial cording “a measure of discretion” Thus, by accepting the terms of his Pena, 932, 939 court. State v. to searches of probation, Davis consented over which he had any areas of the residence Hyatt, authority and the offi common Matlock, 415 v. U.S. United States premise their of these ar cers could search 988, (1974), 164, 242 39 L.Ed.2d 94 S.Ct. suspicion that Davis had eas on reasonable explained that Supreme Court United States probation. This violated a condition of his only by a given can be consent to search Hyatt by living with was a risk assumed defendant, party “a who but also third Davis, probationer. The risk as authority over or other possesse[s] common sumed, however, was not unlimited. relationship premises or ef sufficient 171, sought inspected.” Id. at 94 fects to be can be based Because searches authority to consent S.Ct. at 993. Common suspicion, on a reasonable to a search probationer lives with a searches where a property by ... mutual use of the rests peril nonprobationer present considerable having joint persons generally access nonprobationer’s Fourth Amendment purposes, it is control for most so rights. authority “Inasmuch as to search the recognize any of the co- reasonable to parolee probationer] of a ex- [or residence right permit inhabitants has jointly controlled tends to areas which are inspection right in his own and that the residence, occupants with other that one others have assumed the risk premises authority to search these necessari- might permit the common their number priva- ly portends a massive intrusion on the area to be searched. persons solely cy interests of third because 7, n. Id. 415 U.S. at 171 n. 94 S.Ct. 7. probationer].” parolee reside with a [or Elder, Thus, 815 P.2d at 1343. a show 505, People Burgener, 41 Cal.3d Cal. authority requires “persua ing of common (Cal.1986) (en Rptr. P.2d joint of both shared use and sive evidence banc) (citation omitted). State v. Velas- Cf. or control.” States v. access United Sali (Utah 1983) n. quez, 672 P.2d Cir.1992) (10th nas-Cano, 959 F.2d (“Caution certainly suggest that a war- would (emphasis original). Accord United States rights non-parolees rant be obtained if the Whitfield, 939 F.2d 1074-75 search].”). [by parole might be affected (D.C.Cir.1991). probationer lives with a non- When authority pro probationer, the common rule ap- Supreme States Court has United permissible in Matlock nounced defines plied police a reasonableness standard scope probation of a search. See State v. cases —a stan- conduct search and seizure (Utah 1987) Johnson, applies equal pro- dard which with force (“[T]he applies equal with Matlock doctrine satisfy the ‘rea- search cases. “[T]o bation cases.”). Johnson, parole the force requirement of the Fourth sonableness’ Supreme explained: Court Utah Amendment, generally what is demanded of many that must parolee nonparolee, the factual determinations When a lives with by agents govern- of the generally cotenancy regularly that be made courts hold correct, restricts, they always ... degree, to some the extent of a ment is not scope they always be reasonable.” Illi- permissible consent search. The of but 177, 185-86, 110 Rodriguez, is 497 U.S. impliedly given consent a cotenant nois (1990). 2793, 2800, 111 parts premises S.Ct. L.Ed.2d limited to those Moreover, possess “common au- where the tenants 188-89, (emphasis at 110 S.Ct. at 2801 other factual determinations U.S. with [a]s added)). seizure, Here, determi- the State has failed to meet bearing upon search and judged ... its nation of consent must “be burden. objective against an standard: would shortly The record shows that after officer at the moment facts available to the residence, the search team arrived at the ... ‘warrant a man of reasonable caution City Stapley Police Cedar Officer Kenneth ” consenting party in the belief Hyatt took from the house to his vehicle authority premises? had over questioned Stapley where he her. testified 188-89, (quoting

Id. at 110 S.Ct. at 2801 Hyatt any that he if there con asked were Ohio, 1, 21-22, Terry v. 892 U.S. 88 S.Ct. house, trolled substances in the (1968)). 1868, 1880, 20L.Ed.2d 889 was, Hyatt’s response “I don’t believe so. couple days Chick cleaned the house out a nonprobationers’ risk ago. anything There shouldn’t be left.” rights Fourth Amendment demands Stapley took this statement to mean that when officers conduct a search Davis, believing the residence would be nonproba- probationer where a lives with a searched, removed narcotics from the home tioner, the facts available to the officers must “possibly hide them another location.” proba support a reasonable belief that the Stapley Hyatt’s also somehow took statement' authority tioner has at least common over merely drugs to mean that moved standard, the area searched. Under parts property from the home to other of the searching the Davis resi officers destroying moving rather than them or them search, upon were entitled to based dence property altogether. Stapley off the there violation, of a help fore called additional officers to search property they reasonably those areas of the outbuildings the cars and believed were under Davis’s exclusive or and instructed the officers to we “make sure However, authority common or control. con any buildings don’t miss of the or cars.” trary argument appeal, to the State’s searching That this was the instruction to the Hyatt does not bear the burden of establish officers was corroborated one officer who ing her exclusive control over the Ford Es “they testified that wanted us to search all Rather, cort. “[t]he State bears the burden the vehicles in the area outside sheds proving authority, common and it must do and around house.” preponderance so of the evidence.” Brown, State v. Thus, despite his failure to ascertain 1992). Rodriguez, 497 at Accord U.S. scope authority in of Davis’s his discussion Elders, People at 110 S.Ct. 2797. See also Hyatt, Stapley told the officers to Ill.App.3d 20 Ill.Dec. 380 N.E.2d everywhere, cau- search and he included no (“It 10, 14 (Ill.App.Ct.1978) where the tionary instruction that should beware affirmatively ‘joint record establishes occu appeared of areas that outside of Davis’s pancy1 ‘equal rights possession’ that one Further, authority. one officer was asked spouse’s binding consent to a search is anybody controlling trial: “And was the[] other.”) added). against (emphasis approximately eight movement to ten [of Moreover, scene], here; saying, go officers at the ‘Don’t met if [State’s] burden cannot be [t]he here; go you go go don’t there. You can can situation, agents, ambiguous faced with an there,’ they say, place’?” or did ‘Search the proceed making nevertheless without fur- replied: any “I con- The officer don’t recall agents If inquiry. ther do not learn movement, Additionally, though trol of no.” enough, if the circumstances make it un- questioned Hyatt, Stapley not ask if clear whether the about to be present belonged vehicles several subject by searched is to “mutual use” the her parties, to her or to third never asked for consent, person giving “then warrantless any consent to search the home or of the entry inquiry.” is unlawful without vehicles, further surrounding and otherwise made no Whitfield, attempt out- United States v. 939 F.2d to determine if areas were (D.C.Cir.1991) (quoting Rodriguez, authority Davis’s and conse- 497 side of common prints leading to the multiple were sets of scope of the quently beyond the Further, fact, testifying every one of the the fact that vehicle In Escort. search. attempted pursuant who owned to property to determine was searched officers them, searching before Stapley’s the vehicles instruction reinforces the used Officer only officers knew though footprints several presence even the conclusion that to the tan van. determining drive was not the factor which led the Finally, the Escort. even officers to search foregoing that It is clear from the footprints going if it Davis’s were search of officers conducted their Escort, this fact alone would not establish any particular without Hyatt property authority” over the vehicle. “common Hyatt may have for areas over which concern privac expectation of possessed a reasonable conclude that the State failed show can faced with what y.4 The officers were reasonably facts which that the officers knew “ambiguous” an situa only be described as supported that Davis had common belief concerning whether Davis had common tion authority Escort. The officers did over the authority the Escort. See United over enough information to determine not have Salinas-Cano, 959 F.2d States v. Davis’s common that the Escort was within (10th Cir.1992); Whitfield, at 1075. 939 F.2d subject authority to search. and therefore (Okla. State, 495, 503 Reeves Cf. Whitfield, (holding at 1074 that 939 F.2d See Crim.App.1991) (concluding that defendant’s reasonably have believed agents could not authority to consent to apparent had ex-wife party authority to third had consent knowledge by officer’s search of ear as shown agents simply did not “[t]he search because police, keys, gave keys to she had she enough judg- to make that have information just them told her she told defendant ment”). Salinas-Cano, also 959 F.2d car, in front of her parked and car was hide (stating information known to officer apartment). support reasonable belief was insufficient of the argues The the search party that third had mutual use of searched premised on the officers’ reason- Escort and, therefore, authority to consent it, evi- using that Davis was as able belief Rather, property). to search of by allegedly footprints male in the denced by supported conclusion the record is that fact, leading to car. Offi- snow found the authorities undertook a search of the “footprints leading cer Eckman testified that premises, entire uncireumscribed the con- prompted him to to the door of the car” nonprobationer sideration that a also lived argument search the Escort. State’s expectation likely had a reasonable there and unpersuasive. “ privacy parts property. ‘Nei- First, support offers no for the the record authority support propo- ther reason nor footprints Davis’s. were contention police may general sition that conduct trial, many people At witnesses testified private belongings of one who (cid:127)search of the residence; frequented eight the Davis to ten ” [probationer].’ People v. lives with a Vero- at the for about an hour officers were scene nica, Cal.App.3d Cal.Rptr. searched; no one was before the Escort was (citation omitted). (Cal.Ct.App.1980) controlling the officers’ movements around suggested, the previously As officers could property; footprints could have been easily steps intruding to avoid made have taken male or female and could been officers, Davis; upon Hyatt’s rights. Fourth Amendment rather than and there authority they Davis's common 4. The unlimited extent of the search is shown —demonstrates Hyatt’s handbag, hanging simply proper legal found the search did not have criteria searching officer from a bedroom door. The conducting involving mind in this search it, "thought it testified that when he searched rights nonprobationer. of a Had been While, Holly's” handbag. was testimony, based on standards, Hyatt applicable mindful of the would suppressed evi- the trial court many who owned the cars and have been asked willing- handbag, dence found in the the officers’ keys to them. The officers could who had the property clearly belonging to ness to search vehicle records for also have checked motor may well which otherwise as —as ownership information. scope believed to be outside

535 run num- The officers could have the license all inferences that can be drawn it, bers on the vehicles to be searched from we conclude that some ex evidence and/or questioned regarding defendants the vehi- jury ists from which a reasonable could find ownership police cles’ and use. the elements “[W]here of the crime had been possesses proven beyond officers do not know who owns or a a reasonable doubt.” State v. Dibello, 1221, (Utah 1989). residence or item and such information can 780 P.2d 1225 ascertained, Hill, easily upon 221, (Utah it be is incumbent Accord State v. 222 1986); attempt ownership Gray, them to ascertain State v. protect privacy denied, Ct.App.),

order to interest of both cert. 860 P.2d 943 probationer nonprobationer.” People Tidalgo, Cal.App.3d Cal.Rptr. The elements of receiving the crime of (citations (Cal.Ct.App.1981) omit- property stolen are as follows: ted). person receives, A commits theft if he re- has failed meet its burden of tains, disposes property or of anoth- establishing that the Ford Escort was within er knowing stolen, it has been or scope authority.5 of Davis’s common believing stolen, probably that it has been therefore conclude that the trial court erred conceals, sells, or who withholds or aids in failing suppress the evidence found in concealing, selling, withholding the Escort. property owner, knowing stolen, property intending to be deprive

POSSESSION OF STOLEN PROPERTY owner it. search, During 76-6-408(1) (1995). the November 21 officers Utah Ann. Code staple gun seized a a Hill, and router from Davis’s also (discussing P.2d at 223 ele- shed, believing they were stolen. Based on possession ments of property). of stolen evidence, charged pos- Davis was Thus, possession intent, in addition to a property. session of stolen argues Davis necessary element of the crime—and the there was insufficient evidence to convict him only one at issue here —is that the defendant property of stolen under Utah knew the was stolen or believed the (1995) §§ Code Ann. 76-6-408 76-6-412 probably stolen. and, therefore, (Supp.1997) the trial argues presented Davis that the State no court when it erred refused to dismiss the staple gun evidence that he knew the charge and instead submitted the matter to stolen, router were and therefore there was jury. insufficient jury evidence for the to convict him, doubt,

We will affirm a trial beyond court’s denial of a a receiving upon motion to dismiss based property. particular, insufficient stolen argues Davis “if, upon reviewing evidence reported evidence and that the router was never stolen suppression hearing, Hyatt testify 5. At the determining scope did is not decisive when under cross-examination that had “access the authorized search.... If the law allowed Escort, to” the fact neither side called to our officer to search area or item Nonetheless, Hyatt's unexplained attention. probationer tes- might gained that the have access timony to, does not show that Davis had “common practically everything within the house authority" Hyatt over the vehicle. While subject would be to search. Such result is Escort, testify area, that Davis had "access to” the contrary to the established law in this testimony was offered in the context of crossex- requires which officer concerning bag drugs got amination how the a reasonable the area or item' to into Escort. also testified that the “ownership, posses- be searched is within the hers, diaper bag place sion, but that she did not it probationer.” or control of the anybody in the Escort could have had Davis, (quoting 879 P.2d at 1036 United States v. bag access to the and to the Escort. (9th 1991)). Taken Accordingly, 932 F.2d Cir. context, Hyatt’s access, statement does not therefore es- authority requires in addition to common requisite tablish that common au- showing by persons "generally of "mutual use” thority over the Escort. As the Milton court having joint pur access or control for most explained: Matlock, poses.” 415 U.S. at 171 n. S.Ct. Salinas-Cano, probationer may physically The fact that the at 993 n. 7. Accord 959 F.2d at capable gaining access to areas or ... 864. items 536 matter, if the attendant practical a inter- “[A]s time that a substantial

its owner and reasonably cau- suggest that a circumstances of tools alleged theft both the vened between known person would have perceptive tious or discovery in his shed. later and their stolen, property was the that the or believed infer, plausible a jury may choose to absent upon the based conclude req- had the explanation, that the defendant jury could reason presented, the evidence E. knowledge 3 Charles or belief.” uisite “Goer,” marked ably staple-gun, that the find Torcía, Law Wharton’s Criminal would probably and that Davis was stolen (15th ed.1995). We conclude 600-01 probably was stolen. it have believed “ evidence to the presented sufficient State character ‘Knowledge or belief of the stolen reasonably jury it could conclude from which directly proved and is goods is seldom staple gun probably believed the that Davis circum usually from the facts and inferred Davis’s con- We therefore affirm was stolen. Sales, v. 857 State stances evidence.’” gun. respect staple to the viction with (citation (Mo.Ct.App.1993) 5.W.2d omitted). Neel, Or.App. Accord State hand, router, other is on The on the (Or.Ct.App.1972). Cf. evi footing. The substantial a different P.2d Murphy, testimony at trial was the presented dence 1980) (“[P]roof of a defen- (plurality opinion) Timber, who of Middleton testified the owner rarely susceptible of direct dant’s intent is someone stole the in December 1993 prosecution usually proof the and therefore router, replace the which he identified rely on a combination direct must shortly he installed on the tool ment chord establish this ele- circumstantial evidence to staple gun, bought it. Unlike the after he ment.”). distinguishing characteris router had no the placed on notice would have tics that following evidence presented The State Moreover, probably that the tool was stolen. staple gun had the name jury: period time —about one a substantial it; Manufacturing “Goer” etched into Goer alleged between the theft year —intervened nearby company; employee Goer discovery in Davis’s the router and its staple gun at trial as one be- identified no evidence con shed.6 The State offered em- company; and the longing to the Goer posses into cerning or how Davis came when give not sell or ployee testified that Goer did of the router. While Balduck offered sion that, therefore, if Davis away its tools and testimony he stolen tools to had traded staple gun, it must have been stolen. had the Bent exchange drugs, for Blake defendant Thus, that Davis ample there was evidence State, ley, for the testified that also witness purchase or otherwise obtain personal his tools to Davis he had traded directly Goer'—-at least not staple gun drugs. exchange for by any State also offered legal means. The Thus, Balduck, quite likely it that Davis obtained stated testimony from Daniel who put by means that would not have prior to Davis’s the router that on several occasions arrest, probably it was stolen. tools to him on notice he traded stolen November evi- that there was insufficient drugs. Although We conclude exchange Davis in for trial, jury con- right, to enable the testify at as was his dence Davis did not probably Davis knew or believed any plausible expla- clude that wholly failed to offer trial court stolen. While the through testimony of other the router was nation —either failing charge as it why to dismiss arguments of counsel—for erred witnesses or router, pertained given our affirmance staple gun. he had the staple gun presence on the intervening of the name “Goer" between the theft and 6. The time any intervening significance discovery significantly undermines undercuts router's staple gun’s theft its dis- time between that Davis’s mere inference many Regardless covery of how in Davis's shed. suggests that he would have had reason- router hands, gun may changed staple probably stolen. The situa- times able belief it was if, jury example, could have inferred that the owner’s the router would different for tion placed day the tool would have before name etched into from Middleton the had been stolen contrast, likely stolen. on notice that the tool discovery its in Davis’s shed. “ 103(a)(1). Moreover, staple gun, sufficient Evid. regarding ‘[t]he evidence burden is parties to sustain Davis’s class-B misde- to make certain that the rec remains they compile preserve will adequately for of stolen ord meanor conviction ” arguments their for 76-6-408 and -412.7 review.’ Olson v. property under sections Inc., 1356, 1359

Park-Craig-Olson, 815 P.2d (Utah Ct.App.1991) (quoting Franklin Fin. v. IMPROPER TESTIMONY ALLEGEDLY Co., Empire New 659 P.2d Dev. trial, At testified that he had trad- Balduek (Utah 1983)). “One who fails to make a property exchange to defendants in ed stolen necessary objection or who fails to insure drugs purchased drugs that he had for and that it is on the record is deemed to have on occasions. The from defendants several Lamb, waived the issue.” 869 P.2d at 931. Bentley, who testified that State next called Defendants have failed to ensure that the bought methamphetamine from Davis on objection testimony, to Balduck’s if in fact specific in March 1995 and had one occasion made, preserved in was the record. previously also traded some of his tools to drugs. Davis for objected If defendants to Balduck’s testimony objection appear and that failed to Defendants contend that Balduek and record, appropriate the course of action Bentley’s testimony improperly was admitted supplement was to seek to 404(b) the record via by 403 and the trial court under Rules 11(h). Appellate Rule of Utah Procedure of the Utah Rules of Evidence. The State Moosman, v. State 794 P.2d 478-79 n. 17 testimony properly argues that the was ad- (Utah 1990) (“[Utah Supreme Court Rule Moreover, mitted. the State contends that 11(h), substantially predecessor the similar to object defense counsel failed to to Balduck’s 11(h),] R.App. current Utah P. envisions ... Bentley’s testimony, and even if testi- actually clarification of what in the occurred admitted, mony improperly error lower court that was excluded or omitted given pre- was harmless the other evidence Olson, record.”); the 815 P.2d at 1359. respond sented. Defendants that defense 11(h) “provides Rule a reliable method for object testimony, counsel to did Balduck’s the reconstruction of events when the record objection but that the is not of record be- Olson, respect.” has failed some limited electronically cause the record was made 815 P.2d at 1359. The defendants have not judge the trial used the “mute” button while record, sought supplement objection made and discussed pro “[c]ounsel’s recollection of the course of objec- bench. Defendants also contend the ceedings is no substitute for a record of those by tion is later statements on the evidenced proceedings.” Id.8 record. Thus, preserve appeal, party preserve “To an issue for defense counsel on failed claiming any objection error in the admission of evidence record Balduck’s testi- object timely mony, pre- must in a fash argument record defendants’ was not Corp., appeal, ion.” Lamb v. B B& Amusements served for and we therefore decline Olsen, 869 P.2d Accord to address it. See State (Utah Ross, Ct.App. Ct.App.1994) (concluding 1989). 24(a)(5); R.App. rely alleged See Utah P. Utah R. “cannot défendant on an punishable transcript appears 7. “Theft of ... shall ... of Balduck’s examination un- as a class B misdemeanor if the value of the interrupted, attorneys requests made no bench, $300.” stolen is less than Utah Code approach there is otherwise no 76-6-412(l)(d) (Supp.1997). Ann. Given our indication of either a bench conference or the respect staple gun affirmance with given testimony to the objection allegedly made defense counsel. staple gun at trial claim that a later statement Defendants value, there is sufficient evidence to sustain prosecutor alleged objection to the made refers possession-of-stolen-property Davis’s conviction. during prosecutor's Balduck’s examination. The brief, statement, quoted in their defendants supplement 8. Even if had tried to defendants entirely way taken out of context and can in no record, attempt it is far from clear that such an alleged objection. be construed to refer to the simply would have been well received. There is objection. no hint in the record of the Moreover, even if the properly before us. a bench conference objection raised record”). Bentley’s admitting trial court did err preserved on was not given testimony, the error was harmless Moreover, although counsel defense presented.9 other evidence relevancy prejudice of object charges of the number of and their view if that even testimony, we conclude Bentley’s defendants; nature; presence multiple taken, Bentley’s some objection is well case; complexity of the and the the factual testimony alone does cumulative what briefs, parties in or other- failure of the their given in the outcome confidence undermine any preci- appeal, to delineate with wise damaging testimo far more the similar —and partial suppression on impact the of sion v. by State ny already offered Balduek. Cf. — counts, to the trial particular we remand (Utah) Seale, 862, (holding P.2d 874-75 853 modify judgments, may be court to as improperly admit even if evidence was that govern- in with the appropriate, accordance denied, harmless), ted, cert. any error was principles pronounced herein —most ing legal 126 L.Ed.2d 114 S.Ct. U.S. suppression all particularly our evidence Hamilton, (1993); 827 P.2d State v. recovered from the Escort. 1992) (Utah (same). even if Consequently, admitting Bentley’s err in the trial court did GREENWOOD, J., concurs. light testimony, harmless in the error was against other evidence offered defen BENCH, Judge (concurring and dants. dissenting): fully opinion except I concur the main

CONCLUSION Hyatt’s for the section entitled “Search of First, argue never that the search of the Escort.” Defendants we conclude not have the Escort Hyatt property supported officers should searched Davis and not have common authori- articulable that Davis because Second, argue ty con- or over it. Defendants sim- probation. violated his we control Hyatt’s ply, “The fact that Davis was on is that the search of Escort was clude enough in which to establish not cause search either unlawful because the State failed to any belongings of their facts to the officers Davis or that there were known I including vehicles and residence.” believe supported which a reasonable belief departs opinion inappropriately authority over the car. that the main Davis had common principles appellate review sup- therefore from basic The trial court should have grounds when it decides the issue on never pressed the evidence found the Escort. Third, that, appeal. regarding staple urged by defendants their brief on we conclude See, e.g., Ass’n v. gun, presented sufficient evidence American Towers Onmers the State Mechanical, Inc., reasonably 930 P.2d 1185 n. jury from which it could CCI to the 1996) (“Issues (Utah an guilty receiving Davis was stolen briefed conclude However, router, appellant waived and aban- property. regarding the are deemed DeLand, doned.”); 732, 741 presented insuffi- Bott v. conclude that the State we (Utah (“Where 1996) receiving appellant an fails to to convict cient evidence point appeal, an on is stolen Fourth we conclude that brief issue property. waived.”); Vigil, object counsel failed to on the record defense (“It testimony Ct.App.1996) is well settled to Balduck’s and therefore defen- ‘ depository not “a argument appellate is not an court is improper-testimony dants’ object argue prosecutor defense counsel failed to 9. Defendants also com- because testimony, testimony by misrepre- prosecutorial record to Balduck’s his misconduct mitted Any prosecutorial introducing properly admitted. mo- senting court his reasons for testimony’s support, are Bentley testimony. tives related to the introduction and Balduck's In Second, point post-trial or not. statement therefore irrelevant —ulterior defendants alleg- prosecutor's alleged made prosecutor newspaper reporter statement was to a which newspaper reporter, part edly post-trial is not introduc- evidenced his ulterior motives for consequently argument appeal, ing testimony. record on is not Defendants’ is First, already we concluded before us. without merit. may dump the party appealing which the (cita- argument and research.’””

burden of omitted)).

tions event, presented, on the facts that Davis had

officers believed authority or control over the Escort.

common 177, 185, Rodriguez, 497 U.S. Illinois v. (1990) 2793, 2800, 111 L.Ed.2d

110 S.Ct.

(“[W]hat many generally demanded of regularly must be

factual determinations that government ... is not by agents of the

made correct, they always but that reasonable.”); Brinegar also

always be see 160, 176, States, 69 S.Ct.

United 338 U.S. (1949) (“Because

1302, 1311, 93 L.Ed. 1879

many which officers in the situations confront executing their duties are more or

course of ambiguous, room must be allowed for

less part. But the mis-

some mistakes on their men, act-

takes must be those leading sensibly to their conclu-

ing on facts probability”).

sions of

I the convictions would therefore affirm by the trial court.

entered Utah, Appellee,

STATE of Plaintiff Jr., BRYANT,

Wilbert Defendant Appellant.

No. 971170-CA. Appeals of Utah.

Court

Aug. 1998.

Case Details

Case Name: State v. Davis

Court Name: Court of Appeals of Utah

Date Published: Aug 6, 1998

Citation: 965 P.2d 525

Docket Number: 961271-CA

Court Abbreviation: Utah Ct. App.