Case Information
*1 2013 _________________________________________________________
T HE U TAH C OURT OF A PPEALS
S TATE OF U TAH , Plaintiff Appellee, v.
B ENJAMIN C RAIG N IELSEN , Appellant.
Memorandum Decision No. 20110962 ‐ Filed July
Second District, Ogden Department Honorable Michael D. DiReda
No.
H. Don Sharp, Attorney for Appellant
John E. Swallow Jeanne B. Inouye, Attorneys Appellee
J UDGE W ILLIAM A. T HORNE J R . authored Memorandum Decision, which J UDGES C AROLYN B. M C H UGH and J. F REDERIC V OROS J R concurred.
THORNE, Judge: Benjamin Craig Nielsen appeals from his
convictions production marijuana, see Utah Code Ann. § 58 ‐ 37 ‐ 8(1)(a)(i) (LexisNexis 2012); [1] possession intent distribute, see id § ‐ ‐ 8(1)(a)(iii); unlawful possession a handgun, see id. § 503(3)(a); possession drug paraphernalia, see id § 37a 5(1). district court erred denying motion suppress evidence Because various amendments Utah Code since substantively change relevant provisions code, cite current version reader’s convenience.
State v. because the affidavit supporting the search warrant was insufficient establish probable cause.
¶2 In particular, argues the confidential source was an unreliable anonymous source the affidavit contained misleading statements unlawfully obtained information. the affidavit is problematic, we disturb the district court’s suppression order because agree with the court’s alternate ruling even if the affidavit properly establish probable cause, evidence seized during search is admissible “good faith reliance” exception set forth in United States v. Leon , U.S. 897, 918–21 (1984). “A trial court’s finding an officer relied defective warrant in good faith subject de novo review by court.” Horton , P.2d (Utah Ct. App. 1993).
¶3 In Leon , Supreme Court held exclusionary rule, which aimed at deterring unlawful police conduct, does bar evidence obtained by acting in good faith reliance a defective warrant. U.S. at 918–21. Suppression, however, remains appropriate remedy if magistrate or judge issuing warrant misled by affidavit affiant knew or would known false except for or her reckless disregard truth. Id. 923. officer who executed affidavit
(Affiant) misled magistrate through two misstatements factual allegations were asserted either intentionally misinform reckless disregard truth. following statements are misleading:
On Your watched location . Your observed two vehicles during time showed [the location] there only few minutes before leaving. Your viewed this behavior being possible illegal drug [sales]. Your Affiant has witnessed this behavior several occasions where vehicle stopped away from location and illegal drugs found. One two vehicles Your Affiant saw Beige Chevy S pickup . . . . Your Affiant ran history check registered owner found owner to have criminal history Distribution of Methamphetamine. .
Your Affiant has attempted to trash run this address in hopes suspect throws away anything would indicate illegal [sales] or use. The suspects living this address never placed their garbage out normal pick up. Your Affiant has seen this behavior in past investigations where suspect has knowledge it legal law enforcement take trash they also know evidence illegal narcotics [sales] or use are found garbage collected.
(Emphasis added.) first included language two vehicles “showed up” recklessly
mislead into inferring occupant each two vehicles went into house, bought drugs, left when never actually saw occupant either car go into house. sentence question could been more clear, phrase “showed up” necessarily misleading. To show means arrive appear, see Merriam Webster Online , http://www.merriam webster.com/dictionary/show%20up (last visited April 2013). use phrase accurately represents observed two vehicles arrive stay only a few minutes before leaving. The phrase show up does not by itself, Defendant asserts, reflect intent by Affiant mislead the magistrate into inferring the vehicle’s occupants went into the house. Instead, the sentence indicates only what Affiant observed, i.e., the short term visits by each occupant of the two vehicles. next Affiant recklessly misled
magistrate when he attested affidavit, “The suspects living this address never place their garbage out normal pickup.” (Second emphasis added.) Defendant misquotes Affiant’s statement regarding the attempted “trash run.” Affiant averred he “attempted trash run” the suspects living this address “never placed their garbage out normal pick up.” (Emphasis added.) exact duration attempted trash run is readily apparent from statement, read in context rest affidavit, short term duration trash run understood.
¶7 reveals Affiant received that Defendant had been growing from confidential source September 2008. That same day, began his observation Defendant’s house attempted trash run between September October 2008. noted he has seen other suspects refrain from placing their garbage out for normal pick past investigations. Based entirety affidavit, Defendant has made allegations Affiant intentionally recklessly misled magistrate into believing that Defendant put trash out over long period time, but Defendant has adequately supported those allegations. ¶8 Neither statements averred to mislead actually misinformed magistrate about Affiant’s observations. Nor does allege any other support demonstrate misled magistrate. Accordingly, affirm district court’s ruling evidence seized during admissible “good faith
State v. reliance” exception set forth United States v. Leon , 468 U.S. 897 (1984). [2]
[2] argues United States v. Charles , F. Supp. 2d 610, 614 (D. V.I. 1999), Affiant’s swab of front doorknob and submission of Ionscan test results of the swab without a search warrant was itself an unconstitutional seizure and therefore not permissible in affidavit. Affiant’s swab of Defendant’s front doorknob was constitutional cites a United States District Court decision stating an officer’s swabbing front door of house residue running an Ionscan test on residue was constitutionally permissible. See United States v. Daybell , 2:04 CR TC (D. Utah July 2004). We note law was settled time Affiant’s “search” of door ‐ knob. See Florida v. Jardines , S. Ct. (2013) (holding that officers’ use sniffing dog front porch home, to investigate an unverified tip was being grown in home, trespassory invasion curtilage, which constituted “search” Fourth Amendment purposes, and implied license physical invasion curtilage). On state law, warrant “so lacking indicia probable cause render official belief its existence entirely unreasonable.” United States Leon , U.S. (1984) (citation internal quotation marks omitted).