State Ex Rel. Ra

2010 UT App 71, 231 P.3d 808, 2010 WL 1076643
CourtCourt of Appeals of Utah
DecidedMarch 25, 2010
Docket20090017-CA
StatusPublished

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Bluebook
State Ex Rel. Ra, 2010 UT App 71, 231 P.3d 808, 2010 WL 1076643 (Utah Ct. App. 2010).

Opinion

231 P.3d 808 (2010)
2010 UT App 71

STATE of Utah, in the interest of R.A., a person under eighteen years of age.
R.A., Appellant,
v.
State of Utah, Appellee.

No. 20090017-CA.

Court of Appeals of Utah.

March 25, 2010.

*810 William L. Schultz, Moab, for Appellant.

Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee.

Before Judges DAVIS, McHUGH, and ORME.

MEMORANDUM DECISION

McHUGH, Associate Presiding Judge:

¶ 1 R.A. appeals his convictions for various drug-related charges.[1] R.A. claims that the trial court erred in denying his motion to suppress the evidence because the evidence was obtained in violation of his constitutional rights. We affirm.

¶ 2 R.A. argues that the State violated his privilege against self-incrimination, see U.S. Const. amend. V,[2] when the police officer investigating the incident questioned R.A. without first giving him the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In addition, R.A. contends that his Fourth Amendment rights, see U.S. Const. amend. IV,[3] were violated when the police officer conducted a warrantless search of R.A.'s home because R.A.'s consent to the search was not voluntary. "In an appeal from a trial court's denial of a motion to suppress evidence, we review the trial court's factual findings for clear error[,] and we review its conclusions of law for correctness." State v. Perkins, 2009 UT App 390, ¶ 8, 222 P.3d 1198 (alteration in original) (internal quotation marks omitted).

¶ 3 At oral argument, R.A.'s attorney conceded that if R.A.'s consent to the search was voluntary, R.A. was not prejudiced by the admission of his statements allegedly obtained in violation of Miranda. Accordingly, we first address R.A.'s argument that the illegal drugs and other materials obtained during the search of the home should be suppressed because his consent was not voluntary.

¶ 4 The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures absent a warrant supported by probable cause. See U.S. Const. amend. IV. "Warrantless searches are per se unconstitutional under the Fourth Amendment unless conducted pursuant to a recognized exception to the warrant requirement. One such exception includes searches conducted pursuant to consent." State v. Bisner, 2001 UT 99, ¶ 43, 37 P.3d 1073 (citations omitted). Whether a defendant actually gave his consent to a search is a question of fact, but whether that consent was voluntary is a legal conclusion that we review for correctness. See State v. *811 Hansen, 2002 UT 125, ¶ 51, 63 P.3d 650. We grant no deference to the trial court's application of the law to the facts and review the decision regarding voluntariness for correctness. See Perkins, 2009 UT App 390, ¶ 8, 222 P.3d 1198.

¶ 5 The basic facts surrounding the search are as follows. In August 2008, a juvenile became ill after ingesting two psilocybin mushrooms and marijuana. Moab City Police Officer Shawn Hansen interviewed the juvenile, who refused to provide the name of the supplier, but did say that he was given the drugs by "a person who works with him at Pizza Hut." Upon examination of the juvenile's cell phone, Officer Hansen saw several recent calls from "Rocky" and wrote down the phone number. Other individuals questioned by Officer Hansen identified a Rocky who worked at Pizza Hut and sold marijuana and mushrooms. The individuals also told Officer Hansen what kind of car Rocky drove and where he lived.

¶ 6 Officer Hansen drove to the address the individuals had identified as Rocky's, which turned out to be R.A.'s home. Upon arrival at the home, Officer Hansen knocked on the front door, but there was no answer. He then peered through the front window but did not see anyone inside. Finding nobody home, Officer Hansen called the telephone number for Rocky.[4] The number was for R.A.'s cell phone. Officer Hansen reached R.A. at work, identified himself, and indicated that he was investigating the circumstance concerning the juvenile who ingested the mushrooms and marijuana. Officer Hansen told R.A. that he needed the drugs to complete his report and that he would "not take [R.A.] to juvenile detention" if R.A. came home and gave the drugs to Officer Hansen. After R.A. agreed to leave work and come home, Officer Hansen asked R.A. to clarify whether he was going to turn over the items or if Officer Hansen should "try for a warrant." R.A. responded that "he didn't want [Officer Hansen] to try for a warrant."

¶ 7 When R.A. arrived, Officer Hansen briefly questioned him in front of the home. Officer Hansen testified that R.A. probably felt "a little bit scared or possibly intimidated" during the interview. A neighbor from across the street also testified that R.A. looked "distressed" during the conversation. Shortly after R.A. arrived, Officer Hansen asked if he could search R.A.'s car. R.A. does not dispute that he agreed to that search. When the search of the car yielded nothing, R.A. and Officer Hansen walked up the front steps of the home, and R.A. led Officer Hansen inside the house and upstairs to his bedroom.[5] Once there, R.A. retrieved several baggies containing illegal drugs, as well as other drug paraphernalia and an envelope that R.A. admitted contained "drug money," and gave the items to Officer Hansen.

¶ 8 R.A. argues that these facts demonstrate that his consent to the search was the product of coercion.[6] "[T]o be valid, consent must have been given voluntarily and not have been obtained by police exploitation of ... prior illegality,"[7]Bisner, 2001 UT 99, *812 ¶ 43, 37 P.3d 1073 (omission in original) (internal quotation marks omitted), or "as `the product of duress or coercion, express or implied,'" id. ¶ 47 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). The burden is on the State to show, by a preponderance of the evidence, that consent was voluntarily given when viewed in light of the totality of the circumstances. See State v. Tripp, 2010 UT 9, ¶ 36, 650 Utah Adv. Rep. 18, 227 P.3d 1251; see also Hansen, 2002 UT 125, ¶ 56, 63 P.3d 650. "The totality of the circumstances requires careful scrutiny of `the details of the [search and] detention, and the characteristics of the defendant.' And `[t]he totality of the circumstances must show consent was given without duress or coercion.'" Tripp, 2010 UT 9, ¶ 37, 227 P.3d 1251 (quoting Hansen, 2002 UT 125, ¶ 56, 63 P.3d 650). "In other words, a person's will cannot be overborne, nor may `his capacity for self-determination [be] critically impaired.'" Hansen, 2002 UT 125, ¶ 57, 63 P.3d 650 (alteration in original) (quoting Schneckloth, 412 U.S. at 225, 93 S.Ct. 2041).

¶ 9 In determining whether consent was voluntary, courts are guided by the following factors (the Whittenback factors) which may establish that duress or coercion are lacking: "`1) the absence of a claim of authority to search by the officers; 2) the absence of an exhibition of force by the officers; 3) a mere request to search; 4) cooperation by the [defendant]; and 5) the absence of deception or trick on the part of the officer.'" State v. Hansen,

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Related

Miranda v. Arizona
384 U.S. 436 (Supreme Court, 1966)
Schneckloth v. Bustamonte
412 U.S. 218 (Supreme Court, 1973)
State v. Pena
869 P.2d 932 (Utah Supreme Court, 1994)
State v. Thurman
846 P.2d 1256 (Utah Supreme Court, 1993)
State v. Harmon
910 P.2d 1196 (Utah Supreme Court, 1995)
State v. Tripp
2010 UT 9 (Utah Supreme Court, 2010)
State v. Perkins
2009 UT App 390 (Court of Appeals of Utah, 2009)
State v. Bisner
2001 UT 99 (Utah Supreme Court, 2001)
State v. Whittenback
621 P.2d 103 (Utah Supreme Court, 1980)
State v. Hansen
2002 UT 125 (Utah Supreme Court, 2002)
State v. Hales
2007 UT 14 (Utah Supreme Court, 2007)
State Ex Rel. R.A.
2010 UT App 71 (Court of Appeals of Utah, 2010)

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Bluebook (online)
2010 UT App 71, 231 P.3d 808, 2010 WL 1076643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-ra-utahctapp-2010.