State v. Romero

Plaintiff The STATE Respondent, ROMERO, Defendant

Lester Appellant.

No. 16638. of Utah.

Supreme Court

Jan. & Yen-

John D. O’Connell of O’Connell Lake gich, City, Salt for and appellant. Gen., Olga Hansen, Ag-

Robert B. Atty. Gen., Clark, John nello-Raspa, Atty. Asst. Lake Lake Deputy Atty., City, Salt Salt Co. and plaintiff respondent. for STEWART, Justice: Defendant seeks reversal second-de- felony by receiving. of theft gree conviction legality The issues raised involve admissibility motor vehicle search and the evidence, the subsequently ade- derived warrant, for a search quacy affidavit refusal the correctness of the court’s identi- compel disclosure of an informant’s constitutionality relying ty, privi- allegedly leged attorney-client communication. 25, 1979, defendant August On stopped driving pickup while issue arrested on a matter not in here Investigator Charles Collins Salt County Attorney’s Lake Office. the vehicle informed the belonged to Investment Cor- Golden Circle He neither a poration. ‍​​​‌‌‌​‌‌‌​‌‌‌​​​​​‌‌‌​‌‌‌​‌‌​‌‌​​‌​​​‌​‌​​‌‌​‌‌‍claimed in the truck or its possessory nor interest registered Although contents. Lester Rome- Golden Circle Investment defendant, ro, explained the the defendant a result merely use of his name compa- for the man status maintenance contact Bill Collins was ny. unable Hamilton, said was the who defendаnt Investment Circle spokesman Golden the truck im- had Corporation, so he its inventoried. The contents pounded description in gen- list included tools, fishing eral terms of “miscellaneous etc., which connected inextricably equipment,” gear, mechanical Papers, truck. from the seized envelope. were not removed motion and se- cards removed enveloрes, was also unsuc- was overruled. Defendant described cured objection in his made at trial cessful stated: report fully report. of that evidence. use for further items were all secured “These Following his conviction defendant At possible and as evidence.” investigation upon in arrest based judgment a motion of and the con- envelope opened least оne effect newly discovered evidence to the tents viewed. had obtained the confidential informant in- search, Two months after the a confiden- privileged attorney-client formation himself, tial on his presented that the conversation. court found in- initiative, photocopy A of Collins. was obtained the informant formation ABC, an Woods envelope addressed to a source other an from than Cross, Utah, was shown the informant motion. and denied the conversation his told request. Thereafter the informant first issue defendant is raised that he had been Collins told and seizure whether the warrantless search stored at there was a stolen truck of precluded the use of the ABC. information, which re- subsequently derived from Collins then obtained information mattеr, subject the same an lated to who was a sentence at serving of a search affidavit to the issuance apparently Prison an Utah State for of offense. Collins unrelated informed war- his involvement in the theft of The law well established actual of vehicles for gave description impounded truck and rantless searches detailed police personal knоwledge benign purpose protecting truck. He claimed of of avoiding police the Woods from presence public danger, truck at storage yard property, Cross of December lost or and liability for stolen His description permit corroborated are property, the owner’s protecting the confidential information. State v. the Fourth Amendment. ted (1980); Crаbtree, South P.2d A Police investi- City Department Provo 364, 96 S.Ct. Opperman, Dakota v. gator report informed Collins Cady v. Dom (1976); stolen Kenworth truck. This information browski, many corroborated of the details obtained contends that The state connecting the stolen Lyle, except from for the conclusion in this the facts case units. Collins storage truck with the ABC simply genuinely and police were investi- obtained information from another an search of im care-taking in a engaged gator Attorney’s Lake County for the Salt taking purpose vehicle for the pounded who had one of the own- Office interviewed in a warrantless inventory and not an being ers the “ABC” Upon of ABC. shown uncovering crim purpose search with truck, envelope found in the impounded Opper Dаkota inal evidence. See South to the one in owner described it identical man, supra. in the mail which he received order money 25,1978, on rent- for the continued October however, that the “se- argues, al of units in “3” of the ABC Building two in this case which occurred lective” seizure knowledge had no of what complex, but he investigatory the reference made to being stored in thе units. inventory list estab- in the officer’s purpose investigatory pur- strong lish a clear Collins set forth the above information that even further claims pose. Defendant cause to establish a routine in- only action filed a if the initial units. Defendant the sealed ventory, the search intrusion into suppress motion to fruits of extent of an proper scope and exceeded thе ground and, In Ceccolini the search, although the seizure Court considered the period elapsed car safekeeping of the contents of a time since the time, manner justified place, search and after a search is lawful questioning determining the initial safekeeping the need ensure the product contents, whether the statements were justification those be coop- detached reflection and a desire to opening shown in for the of an this case found evi- erative. In that case Court security ac- purpose when no was obtain- though dence admissible even complished thereby. Defendant concludes been ap- ed an informant who had extenuating there no circum- officers as a proached questioned by intrusion, justifying stances the further result of information obtained therefore it not fall within the routine did willingness search. Amend- inventory exception per- eagerness cooperate mant and her requirements.1 ment warrant the to find the informa- suaded Court Although the facts of this case indicate any tion attenuated initial taint. pos- the may that defendant not have had right needed to as- sessory The of the instant case indicate facts claim, sert a Fourth that issue Amendment that the statements of the confidential in is not us. properly before We therefore sufficiently formant were attenuated assume, deciding, without that the officer’s envelope taint the of the contents of the so conduct violated defendant’s causality. break the chain of against Amendment an unrea- protection police not intend arresting officer did sonable search and seizure. anticipate the informant would come as a provide forward and information result illegality argues the envelope.” of the the seizure of “ABC the search rendered the information informant, Rather, the confidential poi- thereby secured “fruit initiative, presented to the in himself States, sonous tree.” v. Wong Sun United initial vestigator ‍​​​‌‌‌​‌‌‌​‌‌‌​​​​​‌‌‌​‌‌‌​‌‌​‌‌​​‌​​​‌​‌​​‌‌​‌‌‍two months after the sei 471, 407, 83 S.Ct. 9 envelope, zure of the to see an ad asked (1963); Silverthorne Lumber Co. United gen dressed which he described States, 385, 182, 251 40 64 U.S. S.Ct. L.Ed. terms, eral and volunteered information (1920). 319 incorporated which was into affida later Although help an unlawful seizure and cause for vit establish subsequent Indeed, thе sub testimony dealing with search the connection be warrant. ject of the may seizure have some facial tween seizure of the connection, necessarily not follow does information from the confidential obtained preclusion required. testimony informant was less than in where Ceccolini be testimony illegally of a witness so led the offi seized information attenuаted from the taint of evidence questioning cer to initiate of the informant. obtained that the evi search The information obtained from second poisonous informant, dence is not “fruit of within also falls Ceccolini, tree.” exception United U.S. in States carved out Ceccolini. 268, later, 55 L.Ed.2d 268 months formation was obtained two admissible, But for such part plan, evidence to bе de not preconceived spite its connection with the freely submitted the informant even evidence, basically it must spring though against his own interest. Further more, from an wit the seized appear it does not ness to make Lyle. the disclosure. officer to letter directed the State, Crabtree, Ind.App., 1. See sufficient. But Bradford v. 401 N.E.2d see State (1980), (1980), purse where intrusion into a P.2d 484 rounding where sur circumstances initially, sealing, placing unwarranted since the routine warranted the opening it in a locked room would have been a suitcase. the en- or his Spinelli to whom ble” information “reliable.” The third individual States, owner of ABC was shown was an velope v. United two (1969), pro- This encounter occurred established that Storage. seizure of the en- after the initial viding allegеd months sufficient detail of criminal being and resulted in velope reliability serves activity to validate by the voluntarily given allows authenticity of the information and investigation, At this point owner. magistrate something “on more rely evidence obtained from there was sufficient circulating casual rumor substantial than a con- and the based in the underworld or an accusation Storage dеfendant with necting general merely reputa- on an individual’s interview with the ABC units to at 589. tion.” 393 clearly owner, investigation and the al- corroborating Spinelli further held resulting a link in the of events not chain can legations hearsay report contained in But even if from an seizure. evaluating be considered in owner’s connection between the Harris, States v. of an affidavit. United too tо attenu- close 29 L.Ed.2d the error would prior illegality, ate a credibility may held that sufficient light adequacy harmless given was be established if the information is- remaining information to penal interest. against suance case sets affidavit in instant The claim reject We therefore defendant’s to meet forth sufficient information relied the information on to in the above-cited guidelines established the search warrant in The details the manner cases. affidavit claim and turn second of error —the gathered the information and which of affidavit to establish inadequacy Lyle spoke establishes the fact probable cause to issue a search warrant. Detailed information personal knowledge. issue, addressing In this we note criminal given Lyle concеrning governs a more standard relaxed of the ve appearance activity, physical may to estab type of used hicle, storage. well of Fur place as its finding of cause in an affi probable lish a thermore, information, containing Lyle’s governs admissibility davit than of evi its activity, of carried admissions criminal trial, Illinois, McCray dence at credibility, indicia of United States 1056, 18 (1967), аnd Harris, supra. are confined strict evi- magistrates not information informant’s use of dentiary rules or restrictions on the out in the affidavit corroborated as set finding probable sense cause common in of the vehicle at presence validated the States v. Ven within affidavit. United underlying location included the same 741, 13 tresca, L.Ed.2d which the confidential circumstances from drew his conclusions. informant sup of an affidavit provided Further corroboration depends on indicia porting a search warrant Goodfellow, given by Riley reliability to assure a neutral of sufficient Storage of the owners of probable Aguilar cause. v. one magistrate en- the seized Texas, Company, who identified he one to that in which velope held that it was necеs identical two of his magis money that an inform the received to rent sary included in the affi- underlying of some circum The information trate of ‍​​​‌‌‌​‌‌‌​‌‌‌​​​​​‌‌‌​‌‌‌​‌‌​‌‌​​‌​​​‌​‌​​‌‌​‌‌‍“the units. Provo in given by relied an informant davit Lt. Gillman upon stances” many corroborated drawing City Department his and those circum Police conclusions hearsay specific Lyle’s officer details investigative stances from which the provid- Tоgether, this information concluded that the informant was “credi- account. any to whether information the confidential magistrate a and detached ed the neutral privi- have heard finding may informant basis to substantial direct- of a search communication leged attorney-client for the issuance cause evi- any of the ly indirectly produced or The mere fact dence at trial. contention We next address defendant’s with defendant have met failing erred in lower court level of not rise to the and his counsel does of the confidential the disclosure require violation if the a constitutional Rule 36 of the Utah identity. was neither at trial given by the informant provides: Rules of Evidence participa- prompted by product nor the A wit- IDENTITY OF INFORMER. any privileged tion in communications. to refuse to disclose privilege ness has a Bursey, Weatherford who has fur- identity person (1977). The trial to disclose purporting nished information information obtained court found that of the laws of provision a violation of a informant did not from the confidential to a this state or of the United States from a confidential and come or the United reрresentative of the state The trier of conversation. thereof, governmental division States this factual determination fact made enforcing that duty with the charged supports the conclu- light of a record is inad- and evidence thereof provision, sion. missible, (a) judge finds that unless court is af- judgment of the trial furnishing the person firmed. been otherwise already information has (b) disclosure disclosed HALL, J., concurs. fair determination of

essential to assure a the issues. CROCKETT, J., in result concurred case re The record in the instant his retirement. this case before the iden was aware of veals that defendant WILKINS, (dissenting):* Justice informant. v. tity of the confidential State disagree I dissent. respectfully I (1980), Forshee, P.2d 1222 is thus 611 of several of disposition by majority case, here, dispositive. In that as defend appeal. by issues raised this knowledge ant’s of the informant’s exception privilege invoked the first to the ba- proceeds on the majority opinion “very in Rule 36. It is that nondisclosure assumed, deciding, without that sis that it is knowledge of the informer’s that was question of the truck in the search any prejudice served to vitiate further prop- in that the search exceeded illegal which have otherwise resulted my In of an search. er limits require disclo the lower court’s failure to was view, is no doubt that the search there Forshee, supra sure.” v. State procedure. This not a bona fide good position ‍​​​‌‌‌​‌‌‌​‌‌‌​​​​​‌‌‌​‌‌‌​‌‌​‌‌​​‌​​​‌​‌​​‌‌​‌‌‍Defendant was in as the fact that strongly by evidenced is most produce plaintiff, the informant as was opened a sealed investigating offiсer Forshee, yet failed to do so. v. See State in truck and thereafter envelope found prejudi was no supra. Accordingly, there contents of the extensive use of the made cial error as a result of the nondisclosure itself in his as well as the identity. the confidential informant’s continuing investigation. agree majority’s I with the Neither can Finally, defendant contends assertion, deciding, without so “that some of the information used to obtain the possessory may not have had the search warrant and admitted at trial came needed to assert right communi (Emphasis in this case as Amendment claim.” cation. A factual issue exists * WILKINS, Justice, dissenting opinion wrote his prior resignation. to his I is no on the seizure. submit that the situation appeared name

added). Defеndant’s when, here, in clearly egregious and he was the entire to the vehicle less title un including I believe that of the truck. possession investigation, framework of the 128, Illinois, 99 S.Ct. witnesses, v. 439 U.S. der Rakas finds its foun- by disclosures here 421, (1978), defendant 58 L.Ed.2d 387 connected with intimately dation in and is interest possessory had a sufficient search and seizure. claims to assert Fourth Amendment of the affi- sufficiency I now discuss the of the truck and relating to the search warrant davit of the search Further found therein. seizure of items the basic was issued. I believe that more, expectation ‍​​​‌‌‌​‌‌‌​‌‌‌​​​​​‌‌‌​‌‌‌​‌‌​‌‌​​‌​​​‌​‌​​‌‌​‌‌‍had an this defendant of an affidavit as to the test with the truck and its in connection privacy Texas, 108, Aguilar v. laid down result in his clearly would contents which 1509, (1964), 12 L.Ed.2d Katz having standing to assert his claims. States, 410, 89 393 U.S. Spinelli United 507, States, v. United S.Ct. (1969), and reaf- 19 L.Ed.2d 576 Harris, 403 firmed United States ma- the substance of the Moving now to that, in agree I am unable to jority opinion, here to be defective. shows the affidavit case, live witness- this an affidavit show require cases Those attenuated from the taint es “so to demon- (1) underlying circumstances conclu- of an informant’s validity strate the tree.’ poisonous is not the ‘fruit of the [it] and, (2) a basis illegal aсtivity sion of Ceccolini, United States reliability of credibility and relying on the (1978).” Apply- informant. us, the facts before I be- ing Ceccolini to respect With was no such attenuation lieve that there here, of the test is met. prong neither mant here. supplied by As to the majority impressed Ceccolini reliabil- showing credibility by the fact that there circum- many underlying ity, great but a disclose the witness thеre to However, prob- forth. stances are set Here, had. with re- the information she it was is that Lyle’s information lem with informant, the dis- spect to the confidential lapse old. I believe year over inextricably informant was closure any conclusion great permit time was too papers and other connected to was, time the at the the information Likewise, seized. that had been for, reliable. applied warrant information disclosed respect record to nothing there is majori- Finally, I am unconvinced indepen- suggest his disclosures issues of the refusal ty’s treatment or somehow insulated dently motivated require the disclosure Court to the District seized documents. illegally from the same informant identity of the independent Finally, provided informant whеther that the owner of for the disclosure attor- privileged which came from a mation Storage because that disclosure is- These two ney-client communication. request made at in that dis- interconnected actually sues are showing papers after seized of the confidential closure of the owner. crucial to a determination informant was provid- whеther requires a appears majority It I believe investigators. ed to the plan part on the showing preconceived fair determina- assure a “essential bootstrap illegally seized investigators issues” tion of disclosure evidence into [these] disclosed. the confidential those disclosures will be witnesses before Evidence. Rules of search or Utah considered tainted Rule remand for a new I would reverse and

trial. J.,

MAUGHAN, with the dis- concurs C. WILKINS, J.

senting opinion of CORPORATION,

CENTURIAN Appellant,

Plaintiff and Cripps, L. Walter

A. CRIPPS Respondents.

Defendants LEASE, INC.,

PETTY Plaintiff MOTOR Respondent,

in Intervention and CORPORATION,

CENTURIAN Richard Margaret Nickles, K.

Nickles and De Appellants.

fendants in Intervention

No. 16971.

Supreme Court of Utah. 29, 1981.

Jan.

Case Details

Case Name: State v. Romero

Court Name: Utah Supreme Court

Date Published: Jan 29, 1981

Citation: 624 P.2d 699

Docket Number: 16638

Court Abbreviation: Utah