STATE OF UTAH, Respondent, v. DOUGLAS DWAYNE EVANS, Petitioner.
No. 20190739
SUPREME COURT OF THE STATE OF UTAH
November 4, 2021
2021 UT 63
Heard April 21, 2021
On Certiorari to the Utah Court of Appeals
Third District, Salt Lake
The Honorable Ann Boyden
No. 141906586
Attorneys:
Sean D. Reyes, Att‘y Gen., Karen A. Klucznik, Asst. Solic. Gen., Salt Lake City, for respondent
Herschel Bullen, Salt Lake City, for petitioner
JUSTICE PETERSEN authored the opinion of the Court, in which CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE, JUSTICE PEARCE, and JUDGE DIREDA joined.
Having recused himself, JUSTICE HIMONAS does not participate herein; JUDGE MICHAEL D. DIREDA sat.
JUSTICE
INTRODUCTION
¶1 Two days after Ted Kelbach was shot in his home by an intruder, police arrested Douglas Evans for the murder. They got a search warrant to obtain a sample of Evans‘s DNA through a “buccal swab” of his cheek.1 But when a lab technician attempted to take the swab, Evans physically resisted. Officers had to restrain his limbs and force open his mouth so the technician could safely obtain the DNA sample. Testing showed that Evans was a genetic match for DNA found on a baseball cap left at the crime scene. And Evans was a possible contributor to DNA found on a broken piece of fence leading to Kelbach‘s back door, where Kelbach had been shot.
¶2 Prior to trial, Evans moved to suppress the DNA evidence on the grounds that the forcible collection of the sample had violated his Fourth Amendment rights. The district court denied the motion, and the evidence was admitted at trial. The jury convicted Evans of murder, aggravated burglary, and possession of a weapon by a restricted person.
¶3 Evans appealed. Relevant here, he asserted that the force used by officers was excessive and therefore unconstitutional, and that even if the force was reasonable, the officers were not statutorily authorized to use any force whatsoever in executing the warrant. The court of appeals rejected these and Evans‘s other claims and affirmed.
¶4 On certiorari, Evans argues that the court of appeals wrongly affirmed the district court‘s dismissal of his motion to suppress. We affirm.
BACKGROUND2
¶5 A few days prior to Kelbach‘s murder, Evans accused his fiancée of cheating on him with Kelbach and sent her a series of explicit text messages. In them, Evans wrote that he knew it was Kelbach‘s “old ass u been going to see sneaky” and that he was “going on ah ram page I know where dat old fuck live.” Evans also warned his fiancée, “I told u u cheat u die it was ur choice u chose.” His fiancée did not respond.
¶7 Upon returning from Wendover, Evans dropped off his friend at another friend‘s house. He then texted his fiancée a picture of a black handgun and a message asking her to “just please be honest wit me for once, please.”
¶8 Later that day, one of Kelbach‘s neighbors noticed a silver sedan with “really large” rims parked in front of Kelbach‘s house. The neighbor observed a man matching Evans‘s description and wearing jeans and a red t-shirt emerge from the vehicle and start walking toward Kelbach‘s house.
¶9 At the time, Kelbach was in his bedroom with a female guest. The guest and Kelbach heard several loud knocks at Kelbach‘s back door. Kelbach left the bedroom to answer the door and after a couple of minutes, the guest heard Kelbach say, “I haven‘t seen her, I swear.” Immediately thereafter, the guest heard a “loud crack,” followed by silence. She went to investigate and saw the backside of “a darker man with longer hair” wearing “jeans and a red tank top” walk down the driveway and get in a silver sedan and drive off. The guest found Kelbach lying face down next to the door with “blood everywhere.” Kelbach‘s face was swollen, and he did not appear to be breathing. The guest could smell gunpowder.
¶10 When detectives arrived at the crime scene, they discovered a red, “59FIFTY,” flat-brimmed L.A. Angels baseball cap on the ground next to Kelbach. Later that day, Evans picked up his friend in a Cadillac Escalade, and they drove back to Wendover. When Evans picked up his friend, he was no longer wearing his red L.A. Angels hat.
¶11 Two days later, police arrested Evans. Evans denied any involvement in the shooting and claimed to have been in Wendover at the time. In a subsequent police interview, Evans told several lies, including denying having access to his Infiniti on the day of the murder and denying owning a red L.A. Angels hat. Police eventually recovered the Infiniti, finding a cell phone inside and blood on the driver‘s side door. Police also recovered four more cell phones from Evans‘s Escalade. They later obtained cell-site location information for all five phones, which placed Evans within 200 meters of Kelbach‘s home at the time of the shooting.
The Buccal Swab
¶12 The day after Evans‘s arrest, a judge signed a search warrant authorizing investigating officers to take a sample of Evans‘s DNA using a buccal swab. Officers first asked Evans if he would submit voluntarily to the swab. Evans refused, stating he wanted his attorney present before giving a DNA sample. Officers then advised Evans that they had a warrant and “it was up to [Evans] on how that process went,” but they “preferred it went voluntar[il]y.” Evans again refused to comply and asked for his attorney, so officers showed Evans the warrant, read it to him, and let him look at it.
¶13 Despite being presented with the warrant, Evans forcibly resisted having his cheek swabbed. He refused to open his mouth and thrashed and kicked at the officers. In response, officers called in additional law enforcement to help. They handcuffed Evans and placed him in leg irons and a belly chain. The officers applied “control holds”4 to control Evans‘s thrashing. One officer placed his foot over Evans‘s foot to prevent Evans from kicking the technician who was attempting to administer the swab. Another officer
¶14 The results of the DNA test showed that the odds of the recovered baseball cap having been worn by someone other than Evans were 1 in 227,000. The results also showed that Evans was a possible contributor to DNA found on a broken piece of fence leading to Kelbach‘s back door.
The Trial
¶15 The State charged Evans with murder, aggravated burglary, and possession of a weapon by a restricted person. Prior to trial, Evans moved to suppress the DNA evidence obtained from the buccal swab on the grounds that the officers had used unreasonable force in obtaining it. He did not contest the validity of the search warrant itself. The district court denied Evans‘s motion, concluding that the force used by the officers “was reasonable because it was no more than was necessary” to counter Evans‘s resistance.
¶16 The case proceeded to trial. In addition to the DNA evidence, the State‘s evidence included, among other things, surveillance videos and cell-site location information confirming Evans had driven from Wendover to Salt Lake City on the day of the murder; testimony from two witnesses placing a man matching Evans‘s description at Kelbach‘s home around the time of the murder; testimony from two of Evans‘s cellmates that Evans had confessed to the murder; the presence of the red baseball cap—in Evans‘s size and matching one he wore in a photograph—at the crime scene; and the text messages and other communications about Kelbach that Evans sent to his fiancée. After a five-day trial, a jury found Evans guilty on all charges.
The Appeal
¶17 Evans appealed. Alongside multiple other claims, Evans argued that the district court erred in denying his motion to suppress the DNA evidence. Specifically, Evans contended that the search warrant did not—either expressly or implicitly—give police officers the authority to obtain his DNA by means of force, and that even if it did, the force that police officers used to collect the sample was excessive and in violation of his rights under the Fourth Amendment of the United States Constitution and Article I, section 14 of the Utah Constitution. Evans also made a statutory claim, arguing that the Utah Legislature did not intend for any force to be used to obtain a DNA sample under these circumstances because no applicable rule or statute explicitly authorized its use.
¶18 The court of appeals found Evans‘s arguments unpersuasive and affirmed. State v. Evans, 2019 UT App 145, ¶¶ 39-40, 449 P.3d 958. It held that the district court had not erred in denying Evans‘s motion to suppress the DNA evidence because a search warrant implicitly authorizes executing officers to use reasonable force if necessary, and the force used here was reasonable. Id. ¶¶ 13-29. The court of appeals also rejected Evans‘s contention that the officers’ use of force was unlawful because it was not expressly authorized by statute, noting that any alleged lack of statutory authority had no bearing on whether the officers’ actions were constitutionally permissible. Id. ¶ 17 n.6.
¶19 Evans petitioned for certiorari, which we granted. We exercise jurisdiction under
STANDARDS OF REVIEW
¶20 “On certiorari, this court reviews the decision of the court of appeals for correctness, giving no deference to its conclusions of law.” State v. Marquina, 2020 UT 66, ¶ 24, 478 P.3d 37 (citation omitted). “The correctness of the court of appeals’ decision turns, in part, on whether it accurately reviewed the trial court‘s decision under the appropriate standard of review.” State v. Levin, 2006 UT 50, ¶ 15, 144 P.3d 1096. “[A] trial court‘s decision to grant or deny a motion to suppress for an alleged Fourth
ANALYSIS
¶21 We granted certiorari to consider the following issues: (1) whether the court of appeals erred in affirming the district court‘s denial of Evans‘s motion to suppress evidence based on his Fourth Amendment argument that the police officers lacked authority to use force,6 and used unreasonable force, in obtaining a DNA sample pursuant to a warrant; and (2) whether the court of appeals erred in rejecting Evans‘s argument that police officers must have statutory authorization to use force to obtain a DNA sample pursuant to a warrant.
¶22 We address Evans‘s constitutional argument first.
I. FOURTH AMENDMENT
¶23 Because Evans no longer challenges the court of appeals’ holding that a validly issued search warrant implicitly authorizes officers to use reasonable force when necessary to execute it, see supra ¶ 21 n.6, the sole constitutional question before us is whether the use of force here was reasonable. We conclude that Evans has not met his burden of showing the force used here was unreasonable and affirm the court of appeals.
¶24 Evans argues that the detectives employed “excessive and unreasonable” force to obtain his DNA in contravention of his rights under the Fourth Amendment of the United States Constitution and Article I, section 14 of the Utah Constitution. The Fourth Amendment guarantees the “right of the people to be secure in their persons ... against unreasonable searches and seizures.”
¶25 It is axiomatic that “the touchstone of the Fourth Amendment is reasonableness.” Ohio v. Robinette, 519 U.S. 33, 39 (1996) (quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991)). “Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances,” id., and depends “on a balance between the public interest and the individual‘s right to personal security free from arbitrary interference by law officers,” State v. Warren, 2003 UT 36, ¶ 31, 78 P.3d 590 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)).
¶26 To be reasonable, a search must be (1) “lawful at its inception,” and (2) “executed in a reasonable manner.” Illinois v. Caballes, 543 U.S. 405, 407–08 (2005). When challenged, the government “bears the burden of proving that its warrantless actions were justified.” United States v. Carhee, 27 F.3d 1493, 1496 (10th Cir. 1994). But a “search pursuant to a warrant ... is presumed reasonable because such warrants may issue
¶27 Accordingly, in instances like the one here, where the challenged search was lawful at its inception, the burden of proof shifts to the defendant to show its execution was unreasonable. See Rakas v. Illinois, 439 U.S. 128, 130 n.1 (1978) (“The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.“); Carhee, 27 F.3d at 1496 (“[I]f the search or seizure was pursuant to a warrant, the defendant has the burden of proof.” (citation omitted)).
¶28 While “it is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant,” Dalia v. United States, 441 U.S. 238, 257 (1979), a lawful search may become unreasonable if the force used to conduct it is excessive, see Caballes, 543 U.S. at 407 (“[A search] lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution.“); Dalia, 441 U.S. at 258 (“[T]he manner in which a warrant is executed is subject to later judicial review as to its reasonableness.“). And although “officers may take reasonable action to secure the premises and to ensure their own safety and the efficacy of the search” when executing a warrant, “the use of excessive force or restraints that cause unnecessary pain or are imposed for a prolonged and unnecessary period of time” are unreasonable. Los Angeles Cnty., California v. Rettele, 550 U.S. 609, 614 (2007).
¶29 In their briefing to the court of appeals, both parties applied factors articulated by the United States Supreme Court in Winston v. Lee, 470 U.S. 753 (1985), to assess whether the search here was executed reasonably. In Winston, the Supreme Court evaluated the reasonableness of a search warrant application seeking to surgically remove a bullet from a suspect‘s body. Id. at 755-58. But the court of appeals held that the Winston “test,” which focuses primarily on the search procedure itself, “is more properly used to assess the reasonableness of a search procedure that is either proposed to be used pursuant to a requested warrant or that has been used already, without judicial pre-approval, in an exigent situation.” State v. Evans, 2019 UT App 145, ¶ 22 n.7, 449 P.3d 958.
¶30 The court of appeals then relied on factors articulated in Graham v. Connor, 490 U.S. 386 (1989), in which the Supreme Court evaluated a claim that officers had used excessive force during an investigatory stop, to assess the reasonableness of the force used here. See Evans, 2019 UT App 145, ¶¶ 22–29. In doing so, the court of appeals concluded that Graham is “the better test” with which to evaluate circumstances where “a warrant has already been properly obtained, and the propriety of the search procedure (e.g., a buccal swab) authorized by that warrant is uncontested.” Id. ¶ 22 n.7.
¶31 On certiorari, Evans argues that the court of appeals applied the wrong standard. He urges us to employ instead the factors enumerated in Winston and find the force used to obtain his DNA unreasonable. We therefore begin by analyzing which standard should be applied to the use of force in this case, before turning to whether such force violated Evans‘s Fourth Amendment rights.
A. Reasonableness Standard
¶32 Evans argues that the court of appeals’ reliance on Graham was improper because that case involved the use of force during an investigative stop (a seizure) without an arrest warrant, and the force at issue in this case was used to obtain DNA (a search) pursuant to a warrant. The circumstances
¶33 In Winston, the Supreme Court evaluated the reasonableness of a proposed surgical intrusion into a suspect‘s body to recover likely evidence of a crime. 470 U.S. at 755–58; see supra ¶ 29. In doing so, the Court emphasized that “[t]he overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.” Winston, 470 U.S. at 760 (alteration in original) (quoting Schmerber v. California, 384 U.S. 757, 767 (1966)). And it stated that “[the] reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual‘s interests in privacy and security are weighed against society‘s interests in conducting the procedure.” Id. The Winston Court then identified as relevant to “analyzing the magnitude of the intrusion“: (1) “the extent to which the procedure may threaten the safety or health of the individual” and (2) “the extent of intrusion upon the individual‘s dignitary interests in personal privacy and bodily integrity,” to be weighed against (3) “the community‘s interest in fairly and accurately determining guilt or innocence.” Id. at 761–62.8
¶34 Because Winston involved a novel kind of search, the Supreme Court‘s focus in that case was the reasonableness of the search procedure itself. And in this regard, we agree with our court of appeals that some of the factors highlighted by the Winston Court make more sense when determining whether a proposed search procedure is reasonable, and do not precisely fit the circumstances here, where we are asked to evaluate only the reasonableness of the force used in executing the search.
¶35 In Graham, on the other hand, the Supreme Court assessed whether law enforcement officers had used excessive force during an investigative stop. 490 U.S. at 388–89; see supra ¶ 30. The Court held that “all claims that law enforcement officers have used excessive force ... in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” Id. at 395. The Court then stated that an assessment of reasonableness requires a balancing of “the nature and quality of the intrusion on the individual‘s Fourth Amendment interests against the countervailing governmental interests at stake.” Id. at 396 (citation omitted) (internal quotation marks omitted). And it went on to explain that because Fourth Amendment reasonableness “is not capable of precise definition or mechanical application,” a proper reasonableness determination “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he [or she] is actively resisting arrest or attempting to evade arrest by flight.” Id. (citation omitted).
¶36 The court of appeals found the factors identified in Graham to be more relevant to the facts here. Evans, 2019 UT App 145, ¶¶ 22–29. And its reliance on Graham was not erroneous. Graham provides helpful guidance on how to assess claims of excessive force under the Fourth Amendment. Indeed, the Supreme Court has looked to Graham when evaluating whether law enforcement officers executed a search warrant in an unreasonable manner. See, e.g., Rettele, 550 U.S. at 614.
¶37 We conclude that both Winston and Graham provide insight to the extent that they shed light on the general Fourth Amendment reasonableness standard. But
¶38 The Supreme Court has “consistently eschewed bright-line rules” when assessing the reasonableness of official conduct under the Fourth Amendment, “instead emphasizing the fact-specific nature of the reasonableness inquiry.” Robinette, 519 U.S. at 39. And we have likewise emphasized that “[i]n defining the scope of Fourth Amendment rights, there is no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails.” State v. Harmon, 910 P.2d 1196, 1202 (1995) (citations omitted) (internal quotation marks omitted).
¶39 Fundamentally, any determination of reasonableness hinges on a balancing of the public interest on one hand and personal liberty on the other. This balance necessarily depends on context. New Jersey v. T.L.O., 469 U.S. 325, 337 (1985). And a variety of factors—including at times those articulated in Graham and Winston—may be relevant to a reasonableness assessment.
¶40 Here, because the propriety of the search procedure itself is not at issue, the only question before us is whether the search was “executed in a reasonable manner.” Caballes, 543 U.S. at 408. Considerations that are relevant under these circumstances include:
- the nature and extent of the resistance officers faced, see Graham, 490 U.S. at 396;
- whether the resistance jeopardized the safety of the officers or others, see id.; Rettele, 550 U.S. at 614;
- whether the resistance prevented the officers from conducting the search, see Rettele, 550 U.S. at 614 (officers may take action necessary to “ensure ... the efficacy of the search“);
- whether the force used endangered the suspect‘s health or safety or physically injured him or her, see Winston, 470 U.S. at 761; State v. Alverez, 2006 UT 61, ¶ 31, 147 P.3d 425; and
- whether the force used inflicted unnecessary pain, was unnecessarily prolonged, or was otherwise out of proportion to the resistance the officers faced, see Rettele, 550 U.S. at 614.
¶41 But we emphasize that these considerations constitute neither an exhaustive list nor a multi-pronged test. We simply find them to be relevant to determining whether the officers used reasonable force under these specific circumstances. The ultimate barometer of Fourth Amendment reasonableness remains a careful and objective weighing of the public interest on one hand and the individual‘s Fourth Amendment rights on the other, in light of the totality of the circumstances. Warren, 2003 UT 36, ¶ 31.
B. Application
¶42 Because it is undisputed that the search in this case was supported by a valid warrant and thus lawful at its inception, the burden of proof falls on Evans. See supra ¶¶ 15, 27. Evans contends that the officers’ use of force to obtain his DNA was excessive and therefore unreasonable under the Fourth Amendment. He points out that he was placed in handcuffs, leg irons, and a belly chain; and that five or six “pretty large” detectives held him down, pried his mouth open, and applied a “control hold.” As the court of appeals observed, Evans “asserts, no doubt accurately, that these actions caused him pain.” Evans, 2019 UT App 145, ¶ 21.
¶43 But the record also indicates that Evans‘s active and physical resistance both preceded and compelled the use of some force to obtain his DNA. The record shows that when the officers attempted to execute the warrant, Evans thrashed, kicked, and clenched his mouth shut. And the testimony of one of the officers indicates that Evans‘s resistance posed a threat to the safety of others in the
Q: And you indicated that the physical fight, at least, that he put up was the worst you‘ve ever experienced; is that correct?
A: I‘ve never had nobody so uncooperative in the 27 years. There‘s been some that have said they want an attorney. There‘s some that have said, you know, they don‘t want to cooperate. But to the point of moving out tables and bringing in four or five pretty large detectives to physically hold him down to obtain that, I‘ve never had that in my career before, no.
¶44 Evans does not deny that the force used here was deployed to keep him still in order to protect those around him and permit the technician to perform the swab. Likewise, Evans does not deny that the handcuffs, leg irons, and belly chain placed on him were designed to restrain his limbs and body. And the district court found that “[t]he control hold itself was used to control the thrashing of [Evans] as he resisted the buccal swab. The officer placing his foot on [Evans‘s] foot did so specifically to prevent [Evans] from kicking the technician who was trying to obtain the swab.”
¶45 We also note that the officers gave Evans a chance to voluntarily comply. When he initially refused to do so, the officers showed him the warrant and read it to him. And they did not use force until Evans actively resisted.
¶46 Evans has offered no evidence that the officers’ use of force posed any concrete risk to his health or safety. He admits that the control hold “is unfortunately not described [on the record] either in the manner of its use or its effect.” And he offers only speculation that the control hold could possibly “injure the person‘s wrist if it were continued with sufficient force for a sufficient amount of time.” Cf. Winston, 470 U.S. at 761. But Evans provides no supporting evidence for this statement, nor does he indicate that the officers employed the hold for any longer than necessary—much less for a “sufficient amount of time” or with “sufficient force” to pose a risk of injury. Evans also concedes that the officers did not, in fact, injure him.
¶47 Evans has similarly failed to demonstrate that any pain caused by the officers’ efforts to restrain him was more painful or prolonged than necessary to subdue him in order to perform a minimally-intrusive and judicially-sanctioned buccal swab. Cf. Rettele, 550 U.S. at 614; King, 569 U.S. at 465–66. Evans makes speculative statements about the likely pain inflicted on him by the officers’ use of force—the “handcuffs [were] no doubt tight and painful“; “the whole reason for [the control hold] is to inflict extreme pain“; he “could only have been in a state of extreme discomfort” when the control hold was implemented, because he was already handcuffed with his feet restrained and in a belly chain. But he fails to provide any record evidence supporting these claims. And he has provided no evidence that the officers restrained him for any longer than was necessary to perform the buccal swab.10
¶48 Again, the touchstone of the Fourth Amendment is reasonableness. See Robinette, 519 U.S. at 39. And Evans—as the proponent of the claim that a Fourth Amendment violation occurred—has failed to provide sufficient information to show that the force used to counter his physical resistance was unreasonable. Accordingly, Evans has not met his burden of demonstrating that the execution of the search in this instance amounted to a constitutional violation.
¶50 Because, on the face of the record before us, we lack the information to find that a constitutional violation occurred in this case, we do not reach the question of whether any error would require reversal.
II. STATUTORY AUTHORIZATION
¶51 We next turn to Evans‘s argument that the officers executing the search warrant here required statutory authorization to use any force to obtain a buccal swab, and that the Utah Legislature has chosen to prohibit even reasonable force in this context.
¶52 In the court of appeals, Evans argued that any use of force to obtain the DNA sample in this case “would have to have been authorized by an applicable rule or statute,” because “the search warrant itself did not authorize the detectives to use physical force.” He then directed that court‘s attention to rule 40 of our rules of criminal procedure (governing the issuance of search warrants) and two statutory provisions (authorizing reasonable force under certain circumstances) and argued that because “no such rule or statute” explicitly sanctioned the use of force when performing a buccal swab pursuant to a warrant, any force used here was necessarily unlawful.
¶53 The court of appeals rejected this argument, observing that the United States Supreme Court has “made clear that search warrants need not specify the ‘precise manner in which they are to be executed‘” and has “generally left to the discretion of the executing officers ... the details of how best to proceed with the performance of a search authorized by warrant.” State v. Evans, 2019 UT App 145, ¶ 16, 449 P.3d 958 (quoting Dalia v. United States, 441 U.S. 238, 257 (1979)). It then concluded that although the statutes cited by Evans “do not provide independent authorization for the officers’ use of force in collecting the DNA sample” in this case, “winning this point does not help Evans in the long run, because it does not follow from the officers’ lack of statutory authority to use reasonable force that their actions were constitutionally impermissible.” Id. ¶ 17 n.6.
¶54 Evans reiterates his statutory arguments here. He references criminal rule 40 and the two statutes providing for the use of reasonable force in specific contexts. And he again asserts that this rule and these statutes do not permit law enforcement officers to use any force when obtaining a buccal swab pursuant to a warrant. He then invokes the inclusio unius est exclusio alterius11 canon of statutory construction to argue that, because the two statutes he references authorize reasonable force in certain contexts, the negative implication holds that these statutes prohibit any use of force in other, unmentioned contexts—such as the collection of a buccal swab pursuant to a warrant.
¶55 Like the court of appeals, we find Evans‘s statutory arguments unpersuasive. He gives no legal authority or analysis supporting his premise that statutory authority is required before officers may use reasonable force in executing a search warrant. And the language of the two statutes he identifies does not support a negative inference that they implicitly prohibit the use of reasonable force under the circumstances here.
A. Explicit Statutory Authority
¶56 We first address Evans‘s argument that criminal rule 40 and
¶57
¶58 Evans next references
¶59 Lastly, Evans cites to
¶60 While we agree with Evans‘s observation that criminal rule 40 and
B. Negative Implication
¶61 Evans next relies on the expressio unius canon of statutory construction to argue that the legislature‘s explicit authorization of reasonable force in the two specific contexts laid out in
¶62 The expressio unius canon holds that “the statutory expression of one term or limitation is understood as an exclusion of others.” Nevares v. M.L.S., 2015 UT 34, ¶ 31, 345 P.3d 719. This canon “does not apply to every statutory listing or grouping.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003). Rather, “it has force only when the items expressed are members of an associated group or series, justifying the inference that items not mentioned were excluded by deliberate choice [and] not inadvertence.” Id. (citation omitted) (internal quotation marks omitted). In this regard, expressio unius
depends on identifying a series of two or more terms or things that should be understood to go hand in hand, which is abridged in circumstances supporting a sensible inference that the term left out must have been meant to be excluded ... [and] properly applies only when in the natural association of ideas in the mind of the reader that which is expressed is so set over by way of strong contrast to that which is omitted that the contrast enforces the affirmative inference.
Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 81 (2002) (citations omitted) (internal quotation marks omitted).
¶63 In other words, inferences from statutory silence necessarily depend on context. Marx v. Gen. Revenue Corp., 568 U.S. 371, 381 (2013). And
¶64 As discussed,
¶65 Evans provides no argument as to why the statutory language here should be read to infer that by establishing an administrative procedure for a search that does not require a warrant, the legislature implicitly intended to reach and regulate searches conducted pursuant to warrants. See N.L.R.B. v. SW Gen., Inc., 137 S. Ct. 929, 940 (2017) (“The expressio unius canon applies only when circumstances support[] a sensible inference that the term left out must have been meant to be excluded.” (alteration in original) (citation omitted) (internal quotation marks omitted)). Nowhere does
¶66 The other statute Evans relies upon,
¶67 And again, Evans has provided no textual basis to sensibly infer that the legislature intended this statute‘s regulation of the search of a building to implicitly limit the search of a person. Like
¶68 As the Supreme Court has made clear, expressio unius “does not apply unless it is fair to suppose that [the legislature] considered the unnamed possibility and meant to say no to it.” Marx, 568 U.S. at 381 (citation omitted) (internal quotation marks omitted).
¶69 Accordingly, we affirm the court of appeals’ rejection of Evans‘s statutory arguments.
CONCLUSION
¶70 We hold that the court of appeals did not err in affirming the district court‘s denial
¶71 We affirm.