City of Orem v. Henrie

868 P.2d 1384, 232 Utah Adv. Rep. 9, 1994 Utah App. LEXIS 8, 1994 WL 37939
CourtCourt of Appeals of Utah
DecidedFebruary 4, 1994
Docket930411-CA
StatusPublished
Cited by28 cases

This text of 868 P.2d 1384 (City of Orem v. Henrie) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Orem v. Henrie, 868 P.2d 1384, 232 Utah Adv. Rep. 9, 1994 Utah App. LEXIS 8, 1994 WL 37939 (Utah Ct. App. 1994).

Opinion

OPINION

BILLINGS, Presiding Judge:

Defendant/appellant Kari Henrie appeals her convictions for leaving the scene of an accident, in violation of Utah Code Ann. § 41-6-30 (1993), and driving under the influence of alcohol, in violation of Utah Code Ann. § 41-6-44 (1993). 1 She claims the trial court erred in denying her motion to suppress evidence gathered at her home. We affirm.

FACTS

At approximately 6:00 p.m. on January 1, 1993, a two-ear accident occurred in Orem, Utah. One of the cars, a full-size, older-model, brown Buick, was observed leaving the scene of the accident. An officer dispatched to the scene obtained a description of the car, including the license plate number, and radioed a request for other units to search for the missing automobile. At approximately 6:15 p.m., Officer Steele located a car matching the description at a fourplex apartment near the scene of the accident. The ear had front-end damage consistent with the accident. In addition, it was parked at an extreme angle, and the door on the driver’s side was ajar. A strong odor of alcohol emanated from the car.

Officer Steele attempted to locate the owner of the car. As he approached the four-plex, he noticed that “the door on the bottom left [apartment] that had the lights out was closing slowly.” He then went upstairs to an illuminated apartment, where he learned from its occupant that defendant owned the ear and lived in the darkened apartment where he had seen the door closing. He knocked several times on the outer screen door of defendant’s apartment but received no response. As he was turning away from the door, Officer Steele found defendant’s purse on the stairs.

Officer Steele was then joined by Officer Jackson, and together they returned to defendant’s front door. Officer Jackson reached through a hole in the screen and knocked hard on the inner wooden door, hoping to elicit a response. Instead, the door swung open one to two feet, and the officers observed keys in the doorknob. Both officers testified they had not previously noticed that the door was ajar or that the keys were in the doorknob.

At this point, the testimony of the officers varies. Officer Steele testified that he shined his flashlight into the apartment when the door swung open. However, on cross-examination he admitted that he might have first pushed the door open further. Officer Jackson testified that Officer Steele pushed the door open further and then shined his flashlight into the darkened apartment. 2

The officers noticed defendant on her bed in the rear of the apartment. Officer Steele called out “Kari” and defendant stood up and said, “Yes.” He asked if they could talk to *1386 her. She said “okay” and approached them, staggering as she walked. The officers opened the screen door and entered one to three feet into the apartment. All three then went outside, where the officers described the car accident to defendant and administered field sobriety tests to her. A third officer joined them and observed the administration of the tests; he then took defendant to the police station, advised her of her Miranda rights, and attempted to administer an intoxilyzer test. After three unsuccessful attempts, defendant’s inability to complete the test was recorded as a refusal.

Defendant was charged with driving under the influence of alcohol and leaving the scene of an accident. She moved to suppress all evidence obtained as a result of the warrant-less entry into her home. 3 The trial court denied the motion, and' the case then proceeded to a bench trial, where defendant was found guilty on both counts. The trial court sentenced her to the statutory maximum for each offense. Subsequently, the court granted a certificate of probable cause and stayed imposition of defendant’s sentence pending appeal to this court.

Defendant appeals from her convictions, claiming the trial court erred in denying her motion to suppress because an unlawful search occurred when the police entered her home without a warrant and without exigent circumstances to support the entry. The City responds that there was no search, that defendant consented to the officers’ entry into her home, and that even if a search occurred, it was justified by exigent circumstances. We address in detail only the issue of exigent circumstances as we affirm on that basis.

STANDARD OF REVIEW

This court previously characterized the determination of exigent circumstances as a question of fact, “which should not be disturbed on appeal unless clearly erroneous.” State v. Monk, 821 P.2d 1190, 1194 (Utah App.1991). However, in State v. Thurman, 846 P.2d 1256 (Utah 1993), the supreme court undertook a rigorous analysis of the standard of review applicable to determinations of vol-untariness of consent and attenuation. Id. at 1262-72. The court adopted a bifurcated standard for both determinations, concluding that the “ultimate conclusion that a consent was voluntary or involuntary is to be reviewed for correctness ... [and the] underlying factual findings will not be set aside unless they are found to be clearly erroneous.” Id. at 1271 (citation omitted). That standard also applies to determinations of exploitation and attenuation. Id. at 1271-72.

Since Thurman, we have applied the bifurcated approach to a determination of exigent circumstances. State v. Beavers, 859 P.2d 9, 12 (Utah App.1993). In Beavers, because the underlying facts were undisputed, we employed the second prong of Thurman, applying a nondeferential correction of error standard to “the [trial] court’s application of Fourth Amendment principles to the undisputed facts of [that] case.” Id. 4 ,

In the instant case, the facts relevant to the exigent circumstances determination are undisputed. We thus review for correctness the trial court’s conclusion that exigent circumstances justified the warrantless search.

I. EXISTENCE OF SEARCH

As a threshold matter, the City argues that no search occurred. Our review of the record, however, reveals that at the suppression hearing, the City expressly conceded that a search occurred. The following colloquy illustrates this concession:

*1387 THE COURT: And shining the light was a search? -
MR. PETRO [counsel for defendant]: Yes. THE COURT: Do you disagree?
MR. STEPHENS [counsel for the City]: We’d at least concede that shining the light
would be a search_

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Bluebook (online)
868 P.2d 1384, 232 Utah Adv. Rep. 9, 1994 Utah App. LEXIS 8, 1994 WL 37939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-orem-v-henrie-utahctapp-1994.