Utah Bar Journal

Search of Residence – Who May Give Consent?
In Georgia v. Randolph, 547 U.S. 103 (2006) defendant Randolph was charged with possession of a controlled substance. His attorney moved to suppress the cocaine discovered in a search of the marital residence based upon Mr. Randolph’s wife’s consent to the search. The U.S. Supreme Court ruled that police may not search a residence without a warrant when a physically present resident refuses consent, but another resident grants consent. The ability to consent exceeds a person’s property rights.

Along the same lines, in State v. Udell, 2006 UT App. 292, 141 P.3d 612, police were dispatched to defendant Udell’s home to conduct a welfare check on his son. As Udell spoke with officers outside his house, his live-in girlfriend also stepped outside. The officers noticed that the girlfriend smelled of marijuana and exhibited other signs of recent drug use. They therefore asked to speak with her in private; in the meantime, Udell reentered his home. When the officers told Udell’s girlfriend they suspected drug use, she admitted to recently using drugs and informed officers that drugs and drug paraphernalia were in the home. She also consented to a search of Udell’s house. When the police entered the home to begin their search, Udell immediately objected to their presence in the residence and demanded that they leave and get a search warrant. The officers ignored Udell’s demands and searched his home, inevitably finding drugs and drug paraphernalia. Udell was charged with Unlawful Possession of a Controlled Substance and Unlawful Possession of Drug Paraphernalia. His motion to suppress was denied, and he entered a conditional plea.

Applying Randolph, the Utah Court of Appeals reasoned that, because Udell was physically present and expressly refused to consent to a search of his home, a warrantless search of Udell’s home, absent any exigent circumstances, could not be justified as reasonable on the basis that consent was given by Udell’s live-in girlfriend. Id. at 613.

(However, a physically present resident such as that in Randolph is to be distinguished from the situation in United States v. Matlock, 415 U.S. 164 (1974), where the Court upheld a warrantless search when the police failed to give the defendant/resident an opportunity to object to another resident’s consent even though the defendant was sitting nearby, detained in a police car).

The Odor of Burning Marijuana does not an Emergency Make
Another recent case refining and preserving Fourth Amendment protection is State v. Duran, 2007 UT 23, 156 P.3d 795 in which the defendant Bernadette Duran entered a conditional guilty plea in Seventh District Court to two counts of Unlawful Possession of a Controlled Substance and appealed.

The Utah Court of Appeals ruled that the evidence did not show that the trailer owner had common authority over the trailer in which defendant was present at the time of search; thus, the owner could not give valid consent to the search of trailer; officers could not reasonably believe that the owner had the authority to consent to a search of the trailer; the odor of burning marijuana emanating from the trailer did not create exigent circumstances that would allow the warrantless entry of the trailer by the officers; and the odor of burning marijuana provided officers with probable cause that a crime was being committed. State v. Duran, 2005 UT App 409, ¶23, 131 P.3d 246.

On certiorari, the Utah Supreme Court affirmed the Court of Appeals, holding that police officers who smelled an odor of burning marijuana emanating from a residence were not justified in searching the residence under the evidence-destruction aspect of the exigent circumstances exception to the warrant requirement.

The mere possibility that evidence may be destroyed is not enough to justify a warrantless entry based on exigent circumstances; rather, “police officers must have a reasonable belief that the destruction of evidence is sufficiently certain as to justify a warrantless entry based on exigent circumstances.” 2007 UT 23, ¶8, 156 P.3d 795.

Moreover, “the detectable odor of burning marijuana is inadequate, standing alone, to support [a] reasonable belief” that “the destruction of evidence is sufficiently certain as to justify a warrantless entry based on exigent circumstances. “ Id. That is to say, “the odor must be accompanied by some evidence that the suspects are disposing of the evidence, as opposed to casually consuming it, before law enforcement officials may be lawfully justified in claiming the benefit of the exigent-circumstances exception [to the warrant requirement].” Id.

Thus, police officers who smelled the odor of burning marijuana emanating from a residence were not justified in searching the residence under the evidence-destruction aspect of exigent circumstances exception to the warrant requirement because the defendant did not know that officers were aware of the presence of marijuana in the residence until they broke through the door, and, most significantly, nothing indicated that the police officers “engaged in any effort, much less a reasonable one, to reconcile their law enforcement needs with the demands of personal privacy.” Id. ¶17.

Scope of Traffic Stops – Passengers
Moving from Fourth Amendment cases pertaining to residents at their homes, Tenth Circuit cases have provided guidance in 2006 as to the law pertaining to passengers in vehicles. Specifically, United States v. Ladeaux, 454 F.3d 1107 (10th Cir. 2006) and United States v. Guerrero-Espinoza, 462 F.3d 1302 (10th Cir. 2006) relate to the scope of traffic stops for passengers.

In Ladeaux, police officers ordered a passenger to exit a car and to roll up the car windows and open the air vents to facilitate the drug-sniffing dog. The Court remanded the case and opined that although passengers lack an ownership interest in a vehicle, they may seek the exclusion of evidence based on their illegal detention. However, to suppress this evidence, the passenger must show 1) an illegal detention, and 2) a factual nexus between the illegality and the discovery of the evidence. This nexus requires passengers to show that the police would not have uncovered this evidence but for the illegal detention. Id. at 1111.

In Guerrero-Espinoza, the Court concluded that a police officer unlawfully seized a passenger in a vehicle after a traffic stop had ended. After pulling over the vehicle, the officer escorted the driver to the patrol car, issued the driver a citation inside the patrol car, and then opened the car door and allowed the driver to leave. At that point, the traffic stop ended as to the driver. Although the driver validly consented to additional questioning about his travel plans and relationship to the passenger, the passenger who remained inside the vehicle had no knowledge of these events. Thus, even though the officer and the driver both knew the traffic stop was over, the passenger did not. Furthermore, it was the passenger who owned the vehicle and was unable to locate the registration or insurance information. Under these circumstances, a reasonable person in the passenger’s shoes would have believed that he was not free to leave the scene. The officer’s failure to inform the passenger that the traffic stop was over and the passenger was free to leave, in essence, unlawfully detained the passenger. 462 F.3d at 1310.

Preliminary Hearings – Sufficiency for Bindover
Defense attorneys recognize that preliminary hearings at which witnesses appear generally result in the defendant being bound over for arraignment. However, there are those cases that are so lacking in evidence and testimony from the prosecution that bindover is inappropriate. Every now and again, a motion to quash the bindover is warranted to ask the assigned judge to reconsider the magistrate’s decision.

State v. Virgin, 2006 UT 29, 137 P.3d 787, is a recent case that helps define a judge’s role at a preliminary hearing; i.e., to weed out groundless and improvident prosecutions rather than simply rubber-stamping the prosecutor’s case. In Virgin, the defendant was charged with one count of aggravated sexual abuse of a child. Following a preliminary hearing, the Second District Court dismissed the case for lack of probable cause. The Utah Court of Appeals reversed and remanded, State v. Virgin, 2004 UT App 251, 96 P.3d 379. In particular, the Court of Appeals expressed concern that “[w]hile [the Utah Supreme Court] has held that ‘the magistrate’s role in this process ... is not that of a rubber stamp for the prosecution,’ the very limited discretion afforded a magistrate under existing case law suggests otherwise.” State v. Virgin, 2004 UT App 251, ¶ 20 n. 5, 96 P.3d 379 (quoting State v. Clark, 2001 UT 9, ¶ 10, 20 P.3d 300)

The Utah Supreme Court was asked to “revisit the narrow discretion afforded magistrates in determining whether to bind a defendant over for trial.” Id.

On certiorari, the Utah Supreme Court reversed the Court of Appeals, holding that the trial court judge acted within his discretion in refusing to bind the defendant over for trial on charge of aggravated sexual abuse of a child. The Court reasoned that the only evidence that the defendant committed this crime came from the victim’s statements, which were “inconsistent and contained a significant portion that was uniformly disbelieved,” and further, testimony by witnesses established that the victim did not appear “disturbed or distraught at any time throughout the night” during which this incident of abuse allegedly took place. Id. ¶37.

It is noteworthy to focus on the language of the Virgin case in which the Court reiterated that, in order to bind a defendant over for trial, the State must show probable cause at a preliminary hearing by presenting sufficient evidence to support a reasonable belief that the defendant committed the charged crime. Id. ¶17. Probable cause is the same standard as the probable cause that the prosecution must show to obtain an arrest warrant. Id. ¶18. The probable cause standard does not constitute a “rubber stamp for the prosectution, but, rather, provides a meaningful opportunity for magistrates to ferret out groundless and improvident prosecutions.” Id. ¶6.

Under the probable cause standard required to bind the defendant over for trial, the prosecution has the burden of producing at the preliminary hearing “believable evidence of all the elements of the crime charged,” but this evidence does not need to be “capable of supporting a finding of guilt beyond a reasonable doubt.” Id., quoting Clark.

Magistrates may decline to bind a defendant over for trial “if the prosecution fails to present sufficiently credible evidence [at the preliminary hearing] on at least one element of the crime.” Id. ¶21. They are free to decline binding a defendant over for trial where the facts presented by the prosecution provide “no more than a basis for speculation – as opposed to providing a basis for a reasonable belief.” Id.

The key word is “reasonable.” The prosecution is required to show a basis for a reasonable belief, rather a than mere belief. Id. ¶22. If, at some level of inconsistency or incredibility, evidence becomes “incapable of satisfying the probable cause standard,” magistrates may deny bindover. Id.

They may also make “some limited credibility determinations” at the preliminary hearing. Id. ¶23. The extent of those determinations is limited to determining that evidence is “wholly lacking and incapable of” creating a reasonable inference regarding a portion of the prosecutor’s claim. Id. ¶24. Magistrates may not weigh “credible but conflicting evidence” at a preliminary hearing, because that hearing is not a trial on the merits, but a “gateway” to the finder of fact (the jury, or, in a bench trial, the judge). Id.

When evidence becomes so “contradictory, inconsistent, or incredible” that it is unreasonable to base belief of an element of the prosecutor’s claim on that evidence, judges need not give credence to that evidence. Id. at ¶39. The magistrate must view the evidence in a light most favorable to the prosecution, resolving all inferences in favor of the prosecution.

In a recent motion to quash filed in Third District Court, the charges of unlawful possession of a controlled substance and unlawful possession of a drug paraphernalia were dismissed following the defense’s motion to quash the bindover, despite having been bound over at the preliminary hearing.

In this case, the defendant was a passenger in her boyfriend’s car. The vehicle was pulled over by the police. The vehicle was registered to the boyfriend; the boyfriend admitted that the drugs and paraphernalia were his, and told the officer where the drugs were located in his vehicle (on the driver’s side door panel and the behind the center console); and, most importantly, no drugs or paraphernalia were found on the defendant or in her personal belongings. There was no testimony or evidence provided at the preliminary hearing to show the defendant was in possession, constructive or otherwise, and not a scintilla of evidence was shown that the defendant had any intent or knowledge of the drugs in the vehicle. The prosecution asked the judge to “infer intent” to the defendant. However, the trial court ruled that the evidence could not pass muster when State v. Virgin was applied. To be sure, although the State could establish that an offense had been committed, it failed to satisfy the trial court that the defendant was the one who committed the offense. Accordingly, the motion to quash was granted and the possession charges were dismissed.

The above article is part of an oral presentation to the Utah Association of Criminal Defense Lawyers at the 2007 Annual Seminar at the Sundance Resort. A summary of criminal cases prepared for this presentation by Kent Hart at the Federal Defenders Office, and Ann Marie Taliaferro at the law firm of Brown & Moffat, may be requested by contacting Adria Swindle, UACDL Executive Director, P.O. Box 510846, Salt Lake City, Utah 84151; P: 801.363.2976 F: 801.363.2978, or www.uacdl.org.