State v. Rocha
600 P.2d 543
Utah
1979
Check Treatment

*1 convincing by evidente. overcome clear and meet;1

This was the defendant’s burden to reached that

and whether the evidence the trial court to

quantum proof was for

determine.2

It is further to be noted that a statement court, by had not

made that defendants requirement a lesser burden of

met e., evi-

proof, preponderance i. of the

dence, upon have no adverse effect would defendants, solidarity impair nor finding. in the

Upon survey our of the record

light law discussed here principles opinion

in it is our the trial court could

fairly reasonably remain unconvinced burden defendants had met their proving of stock certifi the issuance was a

cates the Lake Hills Golf Club reformed,

mutual mistake should be which plaintiffs engaged in con the defendants that which so misled

duct plaintiffs estopped should be to assert share, thus owned one more controlling corporation. interest in the (respon- plaintiffs

Affirmed. Costs to

dents). WILKINS,

MAUGHAN, HALL

STEWART, JJ., concur. Utah,

STATE of Plaintiff

Respondent,

v. ROCHA, Defendant

Rosendo C. Appellant.

No. 15869.

Supreme of Utah.

Sept. 1979. Child, Hodges, P.2d 981. 2. Child 261, 332 Naisbitt v. 8 Utah 2d 1. 2d 307 P.2d Utah *2 544 day Sciver, Brass, On the parked

Robert Van K. served at the house. Edward Salt City, arrest, appellant. Lake for preceding defendant the Ford automobile said 8:30 arrived at a. m. with two male Mexican Hansen, Gen., Robert B. Atty. William W. occupants, being one the defendant. Barrett, Gen., Atty. Asst. L. Can- Theodore thereafter, hour went inside and over a four non, Salt County Atty., Lake Lake Salt period, suspected or a number known City, plaintiff respondent. heroin users were to enter and observed HALL, through leave the house back On the door. Justice: following morning, the the defendant and appeals Defendant bench trial convic- his in Lopez one arrived the Ford automobile. possession tion of with intent to heroin through Lopez the house the back entered distribute it for value.1 parked the After door while defendant car. supports following The record ab- he parking the car but before was to able Sergeant stract facts: Detective Michael by enter the was Hanks of County the Salt Lake Sheriff’s As the arrest was in Sergeant Hanks. Office, specialist a enforcement, in narcotics a was progress, brown substance observed received separate information three from proved be pocket which to 65 in defendant’s informers being by that heroin was sold two (the percent equivalent 3.1 grams of heroin “Mexicans” on Lincoln in Lake Street Salt area). this Also as of 260 “doses” in City. The first informant indicated that he in came out progress, Lopez arrest was purchased had heroin and that two Mexican iden- advised as to the house and when people were “dealing of a out house” on officers, ran tity of law he enforcement Lincoln Street close to Thirteenth South Deputy back inside. Randel Ander- Sheriff The Street. second informer also indicated Lopez son followed and arrested inside purchased that he had heroin at the Lincoln Lopez deputy back door. testified Street location and stated that the two appeared nearby cup- be headed for Mexicans: board where a was located. loaded revolver bring heroin in morning in view weapon plain There was also a during deal heroin refrigerator. Lopez was then behind then leave at approximately 5:00 in required accompany handcuffed and afternoon, 5:30 and that don’t deputy throughout the house to look for live at that address. persons who weapons further have pointed third informant out bedrooms, In been in house. one of question house located 1361 Lincoln sight, Deputy Anderson observed Street, purchased advised he had her- drug-associated consisting paraphernalia oin there previously, and that there were alcohol, balls, tie-off, syringes, cotton two buyers Mexicans who entering sold straight-edge, lighter, spoons. through the back door. receiving warning, de- After Miranda All three supplied informants had similar Lopez fendant stated that was not involved past information in the regarding criminal “operation” in the “business” or and that it activities always proven which had to be (defendant’s). He was all also stated accurate. house, stayed there that he rented Beginning 13,1977, surveil- November during day, slept but elsewhere. lance of the house was initiated and the The trial court ar- determined rear entrance days was observed for several rest, person search of defendant’s incident from trailer nearby. Both known thereto, and the search of the house and suspected heroin users were seen enter- proper. ing and leaving the house after brief inter- vals of time. Each day, appeal auto- Defendant’s asserts two Ford mobile, registered defendant, points (1) was ob- of error: arrest U.C.A., 1953, 58-37-8(l)(a)(ii). In violation of cause, appears probable clearly without heroin it error. hence the he was in found on his added, was inadmissible at [Emphasis citations omitted.] trial, (2) that the from evidence taken This pre standard is accord with that the house was the fruit unlawful of an viously declared the United States Su and, hence, also inadmissible at trial. *3 preme for warrantless in arrests provides Our statute2 that when offi- an Wong United States.5 Sun v. cer has reasonable cause to believe case, In the instant the information person offense, has public committed a al- Sergeant possessed by Hanks at of the time though in presence, may not he arrest was arrest sufficient to warrant his belief person if there is cause to reasonable had that defendant committed the crime person might believe that such destroy charged. independent, corroborating conceal evidence before a could be warrant received from information informants obtained. been past to reliable in was known have “Reasonable cause” was in State defined by an duly extended verified surveillance. Hatcher,3 v. as follows: properly req The trial court ruled that be determination should probable for cause existed uisite standards made an objective on standard: whether the arrest. to make officer, from facts and known to the

the inferences be fairly which As to the warrantless search of therefrom, pru- drawn and reasonable required was none since the search justi- dent position in his be would drug was and the paraphernalia reasonable suspect fied in believing that plain seized was observed in view.6 committed the omit- offense. [Citations The Constitution only prohibits ted.] unreasonable, searches that are un following additionally This Court noted the of reasonableness the search is to deter be in State Eastmond:4 mined from attendant circumstances. In performing his duties as authorized per A to a search incident lawful arrest is by this statute officer [77-13-3] necessary missible reasonable to when and required is not standard any to meet such protect officer prevent and to perfection absolutely of as to demand an of the destruction evidence.7 judgment may certain act. before he Lopez concedes initial search The test to which is applied be is one the loaded which disclosed revolver and the cir- practical reasonable and under was lawful. He chal- other firearm cumstances: and whether a reasonable walk-through lenges legality of the prudent man would be position in his para- search the house wherein the drug justified in would believing facts which observed in on a phernalia sight ruling making warrant on the arrest. In open closet. table and on shelves an obtained, admissibility of evidence so necessary chase validity deputy It was for the to questions as to the justification any Lopez apprehend into the house order to

arrest and the search for time appeared him at which it that he was primar- made in connection therewith are determine; obtain the ily attempting loaded revolver. for trial court fact, and in the further appeal respect light on we In prerogative personal safety the safe- upset not unless interest of his do his determination 471, 407, U.C.A., 1953, 77-13-3; also, 441 83 9 5. S.Ct. L.Ed.2d v. Aus 371 U.S. see State 2. Utah, tin, (1963). (1978) 584 the cases P.2d 853 cited therein. Austin, supra, 6. See State v. footnote 2. 318, (1972). 3. 27 2d Utah 495 P.2d 1259 also, California, U.S. 7. Ibid. See Chimel v. 2034, (1969). (1972). 23 L.Ed.2d 685 28 Utah 2d 89 S.Ct. 499 P.2d 276 ty others,8 analysis, for the an it was most reasonable Under such unconfined deputy to assure himself that there were no protection Fourth in this Amendment persons premises additional on with ac- approach evaporation area would cess to firearms. It was also reasonable for point. explain easy why, It is not him to be apprehensive of the destruction instance, it subjectively is less “reasona- persons evidence such before ble” to search a is man’s house when he Hence, warrant could be obtained. his front lawn —or down walk-through wholly search was reasonable happens the street —than it is he when proper. be in the house at the time of arrest. The defendant was afforded fair trial my In holding view the in Chimel v. properly convicted on evidence re- id., California, should be dispositive ceived. issue unlawful seizure of items seized

The judgment of the portions conviction is affirmed. of house other where the than appellant’s associate arrested. The CROCKETT, J., WILKINS, J., C. and applicable language Chime1 BALLIF, Judge, District concur. 768, here, at stated 395 U.S. 89 S.Ct. at 2043: STEWART, (dissenting part): Justice Application of sound Fourth Amend- I respectfully that portion dissent from of principles to the facts this ment case the opinion Court’s which holds that the produces a clear result. The search here warrantless search the entire house in beyond petitioner’s person went far the question legitimate. was constitutionally area from within which he Appellant was arrested outside his house. weapon have obtained either or some- His associate was arrested in a room thing that could have been used as evi-

inside door. Without warrant and with against dence him. There was no consti- legal justification, no other pro- officer justification, tutional in the absence of a ceeded from that room to other rooms in warrant, extending search the search the house where were seizures made. The beyond scope that area. The opinion Court’s justify seeks to that search was, therefore, “unreasonable” un- seizures made without a on warrant der Fourth and Fourteenth Amend- ground that “none was needed for the ments, petitioner’s conviction reason that all the evidence obtained was in cannot stand. However, view.” that statement is majority opinion also bases its hold- police accurate may pro- if officer ing “a ground on search incident to ceed from the room of an arrest and contin- a lawful arrest is permissible when reasona- through ue on all the rooms of a house necessary protect arresting ble and without search warrant seize whatev- to prevent officer and the destruction of er he finds in those rooms. The law does However, support evidence.” the facts of this ease not such a proposition. show that the search was neither reasonable Supreme Court of the United States necessary protect arresting nor offi- California, 752, 764, in Chimel v. 395 U.S. prevent cer nor to the destruction of evi- 765, 2034, 2041, 89 S.Ct. 23 L.Ed.2d 685 dence. (1965), responded to a contention that it is reasonable to search a man’s house when he At least one of the told the informants by stating: is in it police that two “Mexicans” were bringing argument morning,

But that heroin to the house in is founded little subjective more during day, than a regarding view sold heroin and that the acceptability approximately left five certain sorts at o’clock in conduct, and not on the afternoon. The informants considerations rele- said that vant to Fourth Amendment interests. the two men did not live at address. Ohio, Terry 1868, 1, (1968). 392 U.S. 88 S.Ct. 20 L.Ed.2d 889 running, arresting One of the with the motor and within a cou- officers testified that surveillance of the ple house conduct- curtains in the minutes the kitchen a period per- ed over He days. of several approximately raised four were inches. sonally 13, watched the house on November signal, Seeing this 14, 16, being the 18th prior The two men who had car. arrived the arrest. At first the surveillance oc- no the defendant remained outside and at hours; period curred over a of a few then go morning time that did into the on November arresting 16 an officer con- As go house. the defendant started to in- ducted the surveillance eleven from about up side the officers ran o’clock in morning shortly until after to him and arrested him. also arrest- four o’clock that afternoon. He returned to waiting ed the other two men who were the house night approximately elev- go point inside the house. At this it was en o’clock and he saw that the house was except that no one the defendant’s clear completely dark and that it had no vehicles into the passenger ever went house. up in front He of it. went to the front door replete The record is with evidence that knocked, getting no answer. He the informant’s information was correct in walked around the house and knocked on solely place as a that the house was used door, getting the back also no answer. On during day people could come where November surveillance was started at purchase heroin. No one resided at the eight o’clock in morning. The same *5 house, police clearly surveillance officer testified that at 8:30 the defendant prior no one was in the house showed that and another up “Mexican” drove in the 1969 of the defendant and his to the arrival Ford, with the driving. pas- therefore, clear, passenger. record is senger got vehicle, out of the went to the any had no reason to believe that the back door and into the house. The driver of inside house at the other car, the vehicle waited in the its motor still compan- time arrested the defendant’s running, approximately and after two min- of the house. ion inside door utes, the curtains in the rear of the house were approximately raised four inches. At was, therefore, justifiable no rea- There that time the defendant drove the car into arresting officers not to have son for the parking Only area. after the two men obtained a search warrant to search those entered the people begin house did other the one in which the rooms other than arrive and leave. The officer con- majority opinion, arrest was made. The ducted the surveillance shortly until after view, long-established constitu- my ignores noon. The officer testified that he re- require the issuance of a tional rules that time, turned to the night house at a second the authorization of search warrant under again finding that the house was dark and magistrate. had no vehicles around it. On the morning day of November MAUGHAN, J., him- having disqualified arrest, the arresting officers arrived self, participate does not herein. approximately 7:45 a. m. saw no

lights on in the no cars it,

front of signs activity. and no At m.,

approximately a. 8:45 two men—not arrived,

two but did not “Mexicans”— go talking into the house. Instead sat

with one another in one car until about 9:15

a. m. when the passenger defendant and his

drove his driveway. car into the Just as before, passenger got the defendant’s

out of the vehicle went into the house. stayed

The defendant in the automobile