State v. Ashe

745 P.2d 1255, 69 Utah Adv. Rep. 18, 1987 Utah LEXIS 807

• Court: Utah Supreme Court
• Decided: November 12, 1987
• Docket: 19809
• Status: Published

Opinions

HALL, Chief Justice:

Following a nonjury trial, Gregory Ashe was convicted of knowingly and intentionally distributing a controlled substance and of possessing a controlled substance with intent to distribute the same in violation of Utah Code Ann. § 58-37-8 (Supp.1983) (amended 1985 & 1987). Ashe contends on appeal that since there were no exigent circumstances to justify the warrantless entry of his residence, evidence seized as a result thereof should have been suppressed.

I

On March 14, 1983, codefendant Molly Glaser phoned Police Officer Brown, who was working as a narcotics agent on the Metro Narcotics Strike Force, and arranged to meet him at the Mount Aire Cafe in Park City, Utah, to complete a sale of four ounces of cocaine. After briefing surveillance officers about the transaction, Brown and several other officers left for Park City. Shortly after Brown arrived at the cafe, Glaser arrived with codefendant Kenneth Cricks. Cricks parked the car, and Glaser entered the cafe, leaving Cricks behind. Once inside the cafe, Brown and Glaser began negotiating the particulars of the drug transaction. Initially, Glaser requested that Brown give her the entire purchase price of $8,400, promising that she would later return with all of the cocaine. The two eventually agreed that Brown would give Glaser $500 and that she would return with one of the four ounces for him to test. Then, if the cocaine was acceptable, they would complete the remainder of the sale.

After Brown gave Glaser the $500, she left the cafe and spoke to Cricks in the vehicle outside. Thereafter, she returned to the cafe and instructed Brown to wait five minutes after she left and then to meet her in a nearby parking lot.

In the meantime, while Glaser was meeting with Brown, Cricks, under police surveillance, drove twice to Ashe’s house. On each occasion, Cricks exited Ashe’s house after several minutes and returned to meet with Glaser at or near the cafe parking lot.

After her final meeting with Cricks, Glaser walked to Brown’s car, whereupon she produced an envelope containing a white powdery substance. Brown performed a “wintergreen” test on the substance and determined that it was probably cocaine. He then began counting out the rest of the money, signaling surveillance officers to approach the car and assist in Glaser’s arrest. Other officers arrested Cricks, who was parked out of sight nearby-

Prior to her arrest and during the time she was in Brown’s car, Glaser voluntarily explained that her supplier was in the vicinity, that he expected the rest of the purchase money to be delivered “quickly,” and that the final transaction for the remaining three ounces of cocaine was to take place at the door of her supplier’s house in a “few minutes.” Based upon this information, the officers decided moments after Glaser’s arrest to “secure” Ashe’s house and detain anyone inside it. The officers testified they became concerned that if the transaction did not take place almost immediately as planned, someone in Ashe’s house would become suspicious and destroy evidence before the officers could obtain a warrant.

Thereafter, upon arriving at and approaching Ashe’s residence, one of the officers observed Ashe look out of an upstairs window and then move away. After knocking, identifying himself as a police officer, and briefly waiting for a response, Brown kicked open the front door. As several officers entered, they heard a toilet flush. Brown then kicked open the bathroom door and discovered Ashe, completely dressed and standing away from the toilet. He also noticed two bags containing a white residue in the nearby wastebasket. After taking Ashe into custody, the officers performed a cursory security search of the premises. During this search, some of the evidence later introduced at trial was in plain view. Several of the officers then remained at Ashe’s house while Brown and the Park City Police Chief left to obtain a search warrant.¹ When they returned, the officers conducted a thorough search of the house. All the evidence viewed and discovered, both before and after receipt of the search warrant, was seized and later admitted at trial.

Ashe contended that since exigent circumstances for the warrantless entry did not exist, he was entitled to a new trial and suppression of the evidence which was in plain view.² The trial court denied Ashe’s motion to suppress, and we affirm.

II

When faced with a motion to suppress, the trial court must determine whether proffered evidence is constitutionally defective.³ In making this determination, the court is often required to resolve preliminary factual disputes.⁴ Because of the trial court’s position of advantage to observe witnesses’ demeanor and other factors bearing on credibility, we will not disturb its factual assessment underlying a decision to grant or deny a suppression motion unless it clearly appears that the lower court was in error.⁵ In applying this test to the case before us, the trial court’s assessment is not against the clear weight of the evidence and we are not left with a “definite and firm conviction that a mistake has been committed.”⁶

We begin our analysis with the understanding that searches conducted without a warrant “are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.”⁷ The exceptions are “ ‘jealously and carefully drawn,’ and there must be a ‘showing by those who seek exemption ... that the exigencies of the situation made [the search] imperative.’ ” ⁸ Generally, exigency does not evolve from one individual fact. Instead, there is often a mosaic of evidence, no single part of which is itself sufficient. Our task is to review the totality of the facts and circumstances of the particular case to determine if the finding of exigency was proper.⁹ Under the facts of this case, it is clear that exigency existed sufficient to meet the appellate test.

Numerous cases have sustained warrantless entries where the circumstances indicated that evidence might be destroyed or removed if entry was delayed until a warrant could be obtained.¹⁰ In the instant case, evidence of the urgent need to secure Ashe’s house to prevent escape and possible destruction of contraband is clearly manifest. Glaser had delivered an ounce of cocaine to Brown and together with Cricks was expected to receive and immediately return $7,900 to their source. This would be followed by the exchange of the remaining three ounces of cocaine. The police had maintained surveillance on Glaser and Cricks and had probable cause to believe that they were middlemen, that at least Glaser’s compensation was to be cocaine, and that the money for the purchase of the cocaine was to be paid to someone else. The delivery point and Ashe’s house were only two to five minutes apart. The details of the next exchange had already been discussed. Glaser voluntarily explained that her supplier was in the vicinity, that the “money was expected back within just a few minutes,” and that the final transaction was to take place “at the door” of his house in a “few minutes.” There was no reason to anticipate delay. Upon hearing Glaser’s volunteered information, the officers could reasonably believe that at least the remaining three ounces of contraband were at the source’s residence and that Glaser and Cricks would be expected to return there promptly with the money. Their failure to quickly return could be expected to alarm the waiting participants). In turn, this alarm would likely lead to the speedy removal or destruction of contraband, as well as escape or retaliation against the officers.¹¹ Therefore, once the officers took Cricks and Glaser into custody, they faced the serious risk that the source (Ashe) would escape or destroy contraband during the time needed to obtain a warrant. The conspirators’ failure to return in the length of time necessary to complete the transaction might have tipped Ashe that Glaser and Cricks had been arrested and that his own arrest was imminent.¹²

The urgency of the situation escalated with the subsequent events at Ashe’s residence. Upon arriving at and approaching Ashe’s house, one of the officers observed Ashe look out of an upstairs window and then move away. Given the situation, the officers could logically and reasonably conclude that an interested party was inside the house and was aware that police were surrounding and approaching the residence.¹³ These facts, taken as a whole, gave the officers probable cause to believe that Ashe had participated in the sale of cocaine and was present in the house. This information also constituted probable cause to arrest Ashe. Accordingly, exigent circumstances existed to enter the residence and make the arrest.¹⁴

This conclusion is supported by the fact that shortly before arresting Glaser, the officers had no advance information as to where the final sale of cocaine would occur. Indeed, the plan to arrest Glaser had only been made that morning. At that time, the officers, aware of neither Ashe’s existence nor his location, were certainly not in a position to secure a warrant. They discovered these critical facts unexpectedly at about the same time Ashe from all appearances became aware of the officers’ presence.¹⁵

At that point, the officers’ ability to have staged a siege at the house and waited for a search warrant would not have prevented the destruction of the evidence.¹⁶ Moreover, even the officers’ ability to merely protect against Ashe’s escape was limited by their incomplete knowledge regarding Ashe’s house. Despite their numbers, they could not be reasonably certain that their coverage of the apparent exits was sufficient to prevent Ashe’s escape. Nor was there sufficient time to discover and secure any unknown exits that Ashe might have used to escape. Under these circumstances, the officers faced the choice, through no fault of their own, of acting immediately to enter and arrest Ashe without a warrant or risk not being in a position again to arrest him. Therefore, there was no realistic opportunity to seek a search warrant before the exigencies of the matter made it necessary to enter the dwelling.

Upon making the determination that immediate action was required, Brown knocked and waited for a response. Absent a response, the officers entered. As indicated, such entry was reasonable. Accordingly, in light of the above analysis, the arrest was lawful, and any items seized incident or pursuant to the warrantless entry were properly admitted.¹⁷

Shortly after they entered Ashe’s residence, the sound of a flushing toilet alerted one of the officers that an individual on the premises might be destroying contraband. Investigation was therefore necessary in the interest of assuring the safety of the officers and preventing destruction of the contraband.¹⁸ This investigation disclosed Ashe apparently attempting to flush the contents of a plastic bag down the toilet. The police action which led to this discovery was consistent with constitutional requirements.

The facts in the instant case are almost identical to those held sufficient to justify warrantless entries in People v. Williams¹⁹ and United States v. Delguyd.²⁰ In Williams, police agents arranged a meeting with a drug middleman in the parking lot of a restaurant. The meeting was arranged to enable the agents to purchase one pound of cocaine. The middleman was to receive cocaine for arranging the transaction. After meeting, the agents followed middleman Salnajs and his driver, Sullivan, to a different location, whereupon Sullivan approached a specific house. While the agents were waiting there, defendant Williams arrived at the house, and he and Sullivan entered the residence. Thereafter, Sullivan returned to the agents’ vehicle with a sample of the cocaine that was to be purchased. After the agents determined it was cocaine, both Sullivan and Salnajs reentered the residence. After more than forty-five minutes had passed since the agents arrived at Williams’ house, Salnajs approached the agents’ vehicle, gave them the cocaine, and indicated that one ounce had been removed as his payment for arranging the sale. The agents arrested Salnajs immediately, but at that time did not know the location of the ounce of cocaine that had been removed.²¹ Nevertheless, they decided in conjunction with other surveillance police officers to “ ‘secure’ the residence to prevent the possible destruction of evidence believed to be located there.”²² Thereafter, as the plainclothes police officers and agents approached the front of the house, an individual was seen looking out of a window next to the front door. As soon as the officers saw the parted drape fall back into place, they identified themselves as police officers and told the persons inside to open the door. Upon receiving no response, they kicked in the door. Once inside, one agent heard a toilet flush and, fearing that someone was destroying contraband, went to the bathroom and discovered defendant Jenkins “standing next to the toilet holding a plastic bag dripping with water.”²³ After the individuals in the house were arrested, two officers remained in the house to “secure” it while a search warrant was sought. Approximately an hour and a half later, one of the agents returned with a warrant to search the house for cocaine. Numerous articles were seized during the search.²⁴

Although the trial court found that there was no probable cause to justify issuance of the warrant and that there were no exigent circumstances to justify the forced entry into the house, the Colorado Supreme Court (sitting en banc) disagreed. In doing so, that court held in part that under the facts of that case, exigent circumstances existed for the officers to enter the residence and make the arrest. The court also held that the police officers did not have a realistic opportunity to seek a search warrant before “the exigencies of the matter made it necessary to enter the dwelling.”²⁵

Similarly, in Delguyd, defendant Del-guyd fled while FBI agents were attempting to execute a search warrant at his home. When he arrived outside conspirator Maimone’s apartment complex, he was confronted by other FBI agents who had been previously stationed there. Thereafter, one of the agents noticed Maimone watching from the living room window in his apartment; then Maimone disappeared into his apartment. Although the agents had prior information indicating that Maim-one was Delguyd's confederate, and although they had previously surmised that Maimone may have evidence in his possession concerning the parties’ joint loansharking activities, they did not have a warrant to arrest Maimone or enter his apartment. Nevertheless, the agents rushed to the apartment and after identifying themselves and hearing a toilet being flushed, broke down the door. Maimone was in the process of tearing up papers and flushing them down the toilet. The agents retrieved some papers from the toilet, secured the apartment, and went to get a search warrant. With the warrant, they searched the apartment and seized evidence which helped to implicate Maimone and Delguyd in loan-sharking activities.

At trial, defendants moved to suppress the evidence seized from Maimone’s apartment. The trial court granted this motion, suppressing the evidence as to both defendants on the grounds that there were neither exigent circumstances nor probable cause to justify the warrantless entry.²⁶ In reversing that order, the federal appellate court determined that the fact that the agents perceived Maimone observing the confrontation in the parking lot, together with the noises they heard upon demanding entrance at the door, supported the conclusion that evidence was probably being destroyed in the apartment. This conclusion, held the court, “not only contributes to the finding of probable cause to believe that evidence existed in the apartment, but also supplies the exigent circumstances necessary to justify a warrantless entry under the preservation-of-evidence rationale.”²⁷

While the Sixth Circuit Court of Appeals admitted that other (nonexigent) explanations could be proposed for these events, it held that “it is not necessary to eliminate all but one possible explanation in order to establish probable cause, so long as the explanation advanced by the ... agents to support the search appears in all probability to be correct.”²⁸ The court also found that it was not necessary to show that Maimone was connected with the loansharking business in order to search his apartment. Rather, “[i]t was only necessary to show probable cause to believe that evidence of someone’s loan sharking activities was present in Maimone’s apartment.”²⁹ Delguyd’s desperate flight to Maimone’s apartment established this probable cause. Similarly, in the case at bar, Glaser’s comments, together with Cricks’ activities, supported a finding of probable cause that evidence of drug activities was present in Ashe’s house.

In the instant case, Ashe’s appeal is predicated upon our acceptance of his version of what occurred and how the officers should have perceived the circumstances as they existed. However, there was contrary evidence on this point. Although Ashe finds significance in the fact that Glaser’s testimony conflicted with that of Brown, the trial court did not find Glaser’s testimony credible. In this regard, it is for the fact finder in the first instance to decide how much weight to give testimony.³⁰ To this end, the trial court viewed the State’s witnesses (and their testimony that Ashe’s conspirators were expected to return quickly) as justifying the officers’ concern that participants waiting in the house would become alarmed and attempt to destroy the evidence and/or flee if Glaser and Cricks did not return quickly. Again, the trial court’s findings on a motion to suppress are subject to a clearly erroneous standard of review, and its conclusions in the instant case are plainly supported by the record.³¹

In contrast to the above analysis, Ashe claims that the trial court erred in denying his motion to suppress because, first, the officers had decided to enter the house prior to leaving the scene where Cricks and Glaser were arrested and, second, Ashe’s actions at the window were “caused by the presence of the officers at the house, a situation created by the officers themselves.” In short, the contention is that in determining the existence of exigent circumstances, it was improper for the trial court to consider all the facts and circumstances which occurred up to and at the time the police entered the house. We disagree.

First, it is axiomatic that in determining whether a fourth amendment constitutional violation has occurred (thereby requiring suppression of evidence), the trial court may properly consider all admissible evidence supporting or contradicting the alleged misconduct. In this case, the alleged constitutional violation was the war-rantless entry, not the mental decision to enter the home. Mere mental decision making (without action) by police officers does not violate a defendant’s fourth amendment rights. As stated in People v. Jansen,32 “The existence of probable cause and exigent circumstances must be determined by evaluating the facts available at the time of the warrantless entry and search.”³³ The trial court evaluated such facts, and its judgment is supported by the record.

Second, the fact that the officers may have made an initial mental determination to enter the premises does not destroy circumstances as they occur. Having made such a decision, there is no evidence demonstrating that absent seeing Ashe at the window, the police would have in actuality entered without a warrant. Even if a “firm decision” to enter the premises had been made, there remains the possibility that if, upon arriving at Ashe’s house, the circumstances had been such that a war-rantless entry was unnecessary, the officers would not have entered without a warrant. However, once the officers became aware that Ashe knew of their presence and that someone in the house could destroy evidence, the circumstances allowed for a warrantless entry. It is thus inappropriate to ignore the impact of events which occurred prior to the time of the warrant-less entry.

Third, in attempting to sever the various circumstances in order to isolate their individual insufficiency, the dissent relies solely upon a 1974 opinion in United States v. Rosselli.34 Rosselli and its analysis, however, are inapposite to this case. Therein, the court determined that an unjustified warrantless search occurred when, without sufficient evidence of existing exigency, police agents intentionally alerted Rosselli of their presence and thereafter effected the warrantless entry.³⁵ At that time and under the circumstances of that case, there was no basis for the agents to believe and no evidence of exigency to sufficiently support a finding that prior to obtaining a warrant, Rosselli had any reason to flee or to destroy the contraband evidence.³⁶ Accordingly, when the agents knocked on Rosselli’s door and intentionally informed him of their presence, “a conclusion that marijuana was being destroyed could not have been justified.” ³⁷

Rosselli does not support the proposition that when police conduct creates the final exigent circumstance necessary to validate the warrantless search, police officers cannot thereafter rely on that circumstance to support their contention that the exigencies of the situation required a warrantless entry. Indeed, the court in Rosselli clearly stated that the emergency or exigent circumstance which did develop was not contrived or created by the agents. Moreover, a complete reading of Rosselli and its progeny unequivocally indicates that the court merely held that since no actual exigent circumstances existed or had occurred prior to the agents’ knocking on Rosselli’s door, and since therefore, absent only deliberate police action there was no basis for believing Rosselli had any reason to destroy the valuable contraband evidence, there was sufficient time for the agents to obtain a warrant, and the agents should not have created a situation to avoid the same.³⁸

In contrast to Williams and Delguyd, discussed above, Rosselli, then, is inappo-site to this case. Therein, the agents had plenty of time to obtain a warrant before they themselves created the only risk that evidence would be destroyed. In contrast, there are no allegations or evidence in the instant case to support a finding that the officers’ own conduct created the exigent circumstances necessary to validate the warrantless entry and search. Instead, according to the trial court below, the police officers were confronted with a myriad of unavoidable exigent circumstances, including Glaser’s statements, Cricks’ trips to and from Ashe’s house with the money and the cocaine, and Ashe’s observations from the window. Also in contrast to Rosselli, the officers determined prior to arriving at Ashe’s residence and knocking at his door that exigent circumstances mandated a warrantless entry. Their conduct did not create the “final exigent circumstance.” Instead, any conspicuousness on behalf of the officers approaching Ashe’s house was a “reasonable protective response,”³⁹ and the officers did not rely solely upon seeing Ashe in the window to justify a warrant-less entry.

Of further importance is the fact that the Seventh Circuit Court itself distinguished Rossetti from situations similar to the instant case where the likelihood of destruction of evidence was great and where police officers were not in a position to prevent the exigent circumstances that arose.⁴⁰ Indeed, in 1986 the court decided United States v. Altman,⁴¹ which supports the trial court’s decision herein. In Altman, co-defendant Fagen and an undercover agent attempting to purchase ten pounds of hashish drove to defendant Altman’s house. The agent gave Fagen money for the purchase of one pound of the contraband and agreed to purchase the remaining nine pounds if he found that the sample, was satisfactory. Pursuant to this arrangement, Fagen entered and returned from Altman's house with the one pound of hashish, whereupon he was arrested. Since the agent believed that nine pounds of the remaining contraband were still in Altman’s house, five surveillance agents surrounded the premises. After alerting Altman of their presence by knocking on the front door and identifying themselves as the police, one agent then saw Altman through the window “turn and walk to the rear of the house.” The agents kicked in the door after one agent viewed Altman “dropping something into what appeared to be a crawl space in the closet.”⁴² Without regard to what the agents saw or the fact that they affirmatively alerted Altman of their presence, the Seventh Circuit held that two exigent circumstances provided the needed exception to the warrant requirement. Specifically, the court determined that the mere expectation and likelihood that Altman could have looked out of his window and could have been “tipped off by simply observing what was happening in front of his house ... alone might be enough to create the necessary exigent circumstances.”⁴³ Moreover, since Altman expected Fagen to return almost immediately to the house with the remaining money to purchase the other nine pounds of hashish, his failure to return, “an event that would occur long before a warrant could possibly be secured,” would result in the serious risk that Altman would realize that there had been some problem and the hashish would be destroyed. Therefore, even ignoring the fact that the agents saw Altman at the window, merely the likelihood of his observation and expectation made “it clear beyond all doubt that exigent circumstances were present.”⁴⁴

Importantly, when Altman himself attempted to argue the preclusive effect of Rossetti (i.e., the entry was unjustified since the agents created the exigency themselves by knocking on Altman’s door and alerting him of their presence), the appellate court found any reliance thereon misplaced. Instead, the court distinguished Rossetti and stated:

In Rossetti the evidence of exigent circumstances consisted of the possibility that a girlfriend of the defendant’s brother might have notified the defendant that some of his accomplices had been arrested. As this court pointed out, since the girlfriend was at the apartment where some of the other defendants were arrested, the police could have easily left some agents with the girlfriend until a warrant had been obtained. In Rossetti, there was simply no other danger that the suspect would have been put on notice that it was in his penal interest to destroy evidence.45

In the instant case, Ashe’s argument would compel the trial court (as well as police officers) to ignore factually based evidence of exigent circumstances not deliberately created or avoidable by the officers and occurring prior to and at the time of the warrantless entry. As noted above, Rossetti and its progeny do not support that proposition, nor are we aware of any other supportive authority. Therefore, in light of the factual differences and viewing the evidence of exigent circumstances on a case-by-case basis,⁴⁶ Rossetti does not apply-

Ashe next contends that the trial court erred in not suppressing the evidence since there was no showing that absent the warrantless entry, evidence in his house would be destroyed. In this regard, Ashe implicitly claims that Glaser’s statements to Brown do not support an objectively reasonable conclusion that someone in the residence would destroy the evidence before the officers could obtain a warrant. The State’s failure to prove that Ashe may not have destroyed the evidence if Glaser did not return quickly does not compel this Court to disturb the trial court’s finding based on adequate record evidence. Furthermore, such presumption is unsupported by case law, and many cases involving similar situations indicate otherwise.

For example, in United States v. Kunkleri⁴⁷ the Ninth Circuit Court of Appeals held that where it was reasonable for agents to infer that the defendant was a suspected drug supplier, that the defendant was wary and cautious in his dealings, that he was expecting his dealer to return shortly, and that the defendant’s expectant conduct upon the dealer’s delay indicated his suspicion that something had gone wrong, exigent circumstances justified a warrant-less seizure of the defendant’s premises.⁴⁸ In the instant case, the evidence indicated that once the dealer (Glaser) was arrested, police officers suspected that Ashe’s residence contained drugs, that the supplier (Ashe) was wary, that Glaser was expected back shortly, and that from his observations at the window, Ashe may have suspected that something had gone wrong. Accordingly, exigent circumstances justified a warrantless entry.

Similarly, in Altman, the Seventh Circuit Court of Appeals held that since Altman expected his dealer to return almost immediately to the house with the remaining money to purchase the hashish, when he failed to return (an event that would occur before a warrant could be secured), Altman would realize there had been some problem with the drug sale, and “[tjhere was a serious risk that the hashish would be destroyed.” ⁴⁹

These and other cases point out the fallacy in Ashe’s argument that the officers in this case were unreasonable in believing that the failure of Glaser and Cricks to promptly return to Ashe’s house with the money could create a substantial risk that Ashe would flee or destroy evidence. In any event, such determination does not in this case meet our clearly erroneous standard of review.

In similar regard, the dissent ascribes some importance to the fact that Glaser made her statements to Brown approximately thirty minutes after the officers saw Cricks leave Ashe’s house. From this fact, the dissent concludes that the officers had sufficient probable cause for a search warrant when they first observed Cricks leave Ashe’s residence and yet they “failed to send someone to obtain a warrant at that time.” Not only is this issue and determination not before us for review, but there is no rationale requiring that this Court assume the role of fact finder by surveying the evidence and drawing independent conclusions as to weight, sufficiency, and effect.⁵⁰ We also find nothing in the record to encourage us to presume that the police were other than circumspect in the way they conducted the investigation and “organized the sale.”

In any event, police delay before a war-rantless search does not necessarily negate exigency of circumstance. In United States v. Johnson,⁵¹ the Circuit Court of the District of Columbia, sitting en banc, held that even a half-hour to forty-minute delay before conducting a warrantless search of a house did not terminate the existence of probable cause or exigent circumstances.⁵² Likewise, in United States v. Gardner,53 the Fifth Circuit Court of Appeals held that even though agents knew in advance that the defendant was involved in the drug trade and that cocaine was likely hidden in his home, “the reasonableness of a search under exigent circumstances is not foreclosed by the failure to obtain a warrant at the earliest practicable moment.”⁵⁴ Furthermore, that court more recently stated:

The government is not compelled to effect an arrest upon the occurrence of probable cause to believe a crime has been committed. Rather, the government may await that move in the hope of ferreting out any hitherto unknown individuals involved in the illicit undertakings, gathering additional evidence substantiating the crimes believed to have been committed, or discovering any other offenses in which the suspects are involved.⁵⁵

Similarly, in the case at hand, the officers’ failure to avail themselves of an earlier opportunity to obtain a warrant did not automatically preclude them from acting upon exigent circumstances arising thereafter.⁵⁶ And the fact that the exigency may have been foreseeable at the time the decision was made to forego or postpone obtaining a warrant does not control the legality of a subsequent warrantless search triggered by that exigency.⁵⁷

Furthermore, in regard to the issue of exigency, greater significance exists in reviewing the time available for the officers to have obtained a search warrant once Glaser made her statements which indicated the whereabouts of the remaining cocaine and triggered the existence of probable cause and immediate exigency. In that regard, and under the facts of this case, there was no realistic opportunity to seek a search warrant before the exigencies of the matter made it necessary to enter the dwelling.

Finally, Ashe suggests the trial court held that merely seeing him move from a window justified the warrantless entry. However, this is not entirely correct. In its October 3,1983 “Order Denying Defendant Ashe’s Motion to Suppress,” the trial court ruled that the following exigent circumstances supported the warrantless entry:

(1) Defendant Glaser’s statement to Agent Brown that the rest of the money was expected at the residence in a few minutes and that the transaction would be done at the doorway; [and]

(2) the undercover officer’s observations of Kenneth Cricks going into the Ashe residence after he received the $500.00 and returning from said residence with one ounce of cocaine.

Importantly, all of these additional exigent circumstances not noted by Ashe were neither created nor avoidable by the officers and occurred before they arrested the code-fendants and decided to approach and enter Ashe’s residence.⁵⁸

Ill

Finally, Ashe argues that the trial court erred in denying his motion to suppress since no attempt was made by the officers to obtain a telephone warrant.⁵⁹

While we do not decide whether the prosecution has the burden of proving the unavailability of a state telephone warrant in order to demonstrate sufficient exigent circumstances to justify a warrantless search,⁶⁰ numerous federal cases hold that proof of the unavailability of a telephone warrant is not required when the exigency is so immediate or great that it precludes recourse to any warrant procedures.⁶¹ Such is the case here. As indicated above, at the time the officers entered Ashe’s premises without a warrant, they had substantial cause to believe that destruction of evidence would occur before they could obtain a search warrant.⁶² Indeed, it is evident that the time required to obtain a telephone warrant, however brief, was not available. The “clock began to run” when Cricks left Ashe’s house with the cocaine to meet Glaser and complete the first phase of the transaction. It was impossible to know how many minutes could pass without arousing Ashe’s concern. Because of the close proximity of the locations and what appears to be prearrangement of the transaction details, no delay beyond those few minutes required by the officers to arrest the conspirators and drive to Ashe’s house could be considered safe.⁶³

In contrast, Ashe suggests that the police had ample time to obtain a search warrant. Such contention implies that a simple phone call is all that is required to obtain a telephone search warrant in Utah. However, section 77-23-4(2) lists several prerequisites to obtaining a valid telephone search warrant:

(2) ... The sworn oral testimony may be communicated to the magistrate by telephone or other appropriate means and shall be recorded and transcribed.

After transcription, the statement shall be certified by the magistrate and filed with the court. This statement shall be deemed to be an affidavit for purposes of this section.

(a) ... Prior to issuance of the warrant, the magistrate shall require the law enforcement officer or the prosecuting attorney who is requesting the warrant to read to him verbatim the contents of the warrant. The magistrate may direct that specific modifications be made in the warrant. Upon approval, the magistrate shall direct the law enforcement officer or the prosecuting attorney for the government who is requesting the warrant to sign the magistrate’s name on the warrant. This warrant shall be called a duplicate original warrant and shall be deemed a warrant for purposes of this chapter. In such cases the magistrate shall cause to be made an original warrant. The magistrate shall enter the exact time of issuance of the duplicate original warrant on the face of the original warrant.⁶⁴

In many respects, this procedure is similar to the detailed process required for issuance of a federal telephone warrant.⁶⁵ In this regard, many federal cases indicate that issuance of a telephone warrant can take significant time. Indeed, the Ninth Circuit Court of Appeals in United States v. Hackett⁶⁶ recognized that twenty to thirty minutes was insufficient time under the circumstances to procure a telephone warrant in compliance with Federal Rule of Criminal Procedure 41(c)(2).⁶⁷ This finding was based in part upon the fact that more than a simple telephone call is required in order to obtain a federal warrant based upon oral testimony.⁶⁸

In the case at hand, the court below heard evidence indicating that Ashe’s house was only two to five minutes away from where the parties met. Even assuming that the procedures for obtaining a telephone warrant had been in place,⁶⁹ there was no delay on behalf of the officers, and the existing circumstances required them to spend fifteen minutes after conspirator Glaser met Brown in the parking lot.⁷⁰ If the officers had waited even an additional twenty to thirty minutes to obtain a telephone search warrant, Crick’s delay in returning to Ashe's house would have been forty-five minutes plus. Obviously, forty-five minutes is not “very quickly.” While there may be sufficient time to obtain a state telephone warrant under some circumstances, the facts demonstrate that there was inadequate time to wait to obtain a warrant in the instant case.⁷¹

Accordingly, since neither ignorance or discomfort in obtaining a telephone warrant nor the failure to introduce evidence on the availability of the same alters the fact that exigent circumstances existed,⁷² the officers’ failure to obtain a telephone warrant in this case was not inappropriate, and the trial court was not clearly in error in denying Ashe’s motion to suppress.

IY

In finding no violation of Ashe’s fourth amendment rights, we do not minimize the importance of that amendment’s protection in shielding citizens from unwarranted intrusions. The strong constitutional preference for searches pursuant to warrants is clear. Only the emergency circumstances here justified the warrantless entry into Ashe’s house.⁷³

Because the trial court had substantial evidence before it to justify its refusal to suppress evidence, and due to the absence of clear error, we affirm Ashe’s convictions and hold that under the circumstances outlined above, the trial court committed no error in denying his motion to suppress.

STEWART, Associate C.J., and HOWE, J., concur.

1 . While we do not reach the issue of an independently valid search warrant, we note that the affidavit in support of the search warrant did not detail any facts observed upon entry into Ashe's house. Instead, the information known to the officers prior to the entry was set forth in the affidavit, and this information demonstrated the existence of probable cause that additional cocaine would be found on the premises. Accordingly, a search warrant was issued — the validity of which is uncontested on appeal. See United States v. Spanier, 597 F.2d 139, 149 (9th Cir.1977).

2 . Ashe advances only an analysis of the protections granted under the fourth amendment to the federal constitution. Therefore, we reserve for another day analysis of the Utah Constitution’s prohibition against unreasonable searches and seizures.

3 . See State v. Bullock, 699 P.2d 753, 755 (Utah 1985).

4 . Id.

5 . State v. Branch, 743 P.2d 1187, 1189 (Utah 1987); State v. Gallegos, 712 P.2d 207, 208-09 (Utah 1985); State v. Cole, 674 P.2d 119, 123 (Utah 1983); see abo Davis v. United States, 328 U.S. 582, 593, 66 S.Ct. 1256, 1261 90 L.Ed. 1453 (1946); United States v. Gardner, 627 F.2d 906, 909 (9th Cir.1980). In Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969), the Supreme Court provided guidance for application of the clearly erroneous standard:

The authority of an appellate court, when reviewing the findings of a judge as well as those of a jury, is circumscribed by the deference it must give to decisions of the trier of the fact, who is usually in a superior position to appraise and weigh the evidence. The question for the appellate court under rule 52(a) is not whether it would have made the findings the trial court did, but whether "on the entire evidence [it] is left with the definite and firm conviction that a mistake has been committed.”

(Citations omitted); see abo State v. Walker, 743 P.2d 191, 193 (Utah 1987).

6 . See 395 U.S. at 123, 89 S.Ct. at 1576.

7 . Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967) (footnotes omitted; emphasis in original).

8 . Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971) (plurality opinion) (footnote omitted) (quoting Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 514 (1958); McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948)).

9 . See Zenith Radio Corp., 395 U.S. at 123, 89 S.Ct. at 1576; United States v. Glasby, 576 F.2d 734, 737 (7th Cir.), cert. denied, 439 U.S. 854, 99 S.Ct. 164, 58 L.Ed.2d 159 (1978); see abo State v. Nielen, 727 P.2d 188, 192 (Utah 1986), cert. denied, — U.S. -, 107 S.Ct. 1565, 94 L.Ed.2d 758 (1987).

10 . See, e.g., United States v. Manfredi, 722 F.2d 519, 522-23 (9th Cir.1983); United States v. Cuaron, 700 F.2d 582, 586-90 (10th Cir.1983); United States v. Kunkler, 679 F.2d 187, 191-92 (9th Cir.1982); United States v. Erb, 596 F.2d 412, 417-18 (10th Cir.), cert. denied, 444 U.S. 848, 100 S.Ct. 97, 62 L.Ed.2d 63 (1979); United States v. Gardner, 553 F.2d 946, 948 (5th Cir. 1977), cert, denied, 434 U.S. 1011, 98 S.Ct. 722, 34 L.Ed.2d 753 (1978); United States v. Shima, 545 F.2d 1026, 1028-29 (5th Cir.), aff’d on rehearing, 560 F.2d 1287 (per curiam; en banc), cert, denied, 434 U.S. 996, 98 S.Ct. 632, 54 L.Ed. 2d 490 (1977); United States v. Delguyd, 542 F.2d 346, 350-52 (6th Cir. 1976); United States v. Blake, 484 F.2d 50, 54-56 (8th Cir.1973), cert, denied, 417 U.S. 949, 94 S.Ct. 3076, 41 L.Ed.2d 669 (1974).

11 . See Manfredi, 722 F.2d at 522, 523.

12 . See United States v. Altman, 797 F.2d 514, 515 (7th Cir.1986); United States v. Moore, 790 F.2d 13, 16 (1st Cir.1986); United States v. Wulferdinger, 782 F.2d 1473, 1476 (9th Cir.1986); United States v. Hicks, 752 F.2d 379, 384 (9th Cir.1985); Kunkler, 679 F.2d at 192; United States v. Kulcsar, 586 F.2d 1283, 1287 (8th Cir.1978). In view of the exigency of the particular circumstances, there is no merit to Ashe’s claim that the police acted improperly by not attempting to contact a justice of the peace prior to deciding to enter Ashe’s residence.

13 . See Altman, 797 F.2d at 515; Wulferdinger, 782 F.2d at 1476; United States v. Acevedo, 627 F.2d 68, 71 (7th Cir.), cert. denied, 449 U.S. 1021, 101 S.Ct. 587, 66 L.Ed.2d 482 (1980); see also Kulcsar, 586 F.2d at 1285; Glasby, 576 F.2d at 738; Gardner, 553 F.2d at 948.

14 . See People v. Williams, 200 Colo. 187, 191-92, 613 P.2d 879, 882 (1980) (en banc) (citing United States v. Rubin, 474 F.2d 262 (3d Cir.), cert. denied, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973); People v. Barndt, 199 Colo. 51, 604 P.2d 1173 (1980) (en banc); People v. Boorem, 184 Colo. 233, 519 P.2d 939 (1974) (en banc); People v. Duleff, 183 Colo. 213, 515 P.2d 1239 (1973) (en banc); People v. Vaughns, 175 Colo. 369, 489 P.2d 591 (1971) (en banc)).

15 . See Acevedo, 627 F.2d at 71 n. 4. The potential discovery of the presence of police officers or agents has itself been said to constitute an exigent circumstance. United States v. Curran, 498 F.2d 30, 35 (9th Cir.1974); Williams, 200 Colo, at 192, 613 P.2d at 882.

16 . See Spanier, 597 F.2d at 140.

17 . See Acevedo, 627 F.2d at 71.

18 . See Williams, 200 Colo. at 192, 613 P.2d at 882; Manfredi, 722 F.2d at 522.

19 . 200 Colo. 187, 613 P.2d 879.

20 . 542 F.2d 346.

21 . 200 Colo, at 189-90, 613 P.2d at 880-81.

22 . Id. at 190, 613 P.2d at 881.

²³

²⁴

25 . Id. at 191-92, 613 P.2d at 882. The court further held that the circumstances surrounding discovery of the plastic bag (after the warrant-less entry), the contents of which had apparently been flushed down the toilet, could be properly used in an affidavit to support an application for a warrant to search the entire premises for cocaine. Id. at 192-93, 613 P.2d at 883.

26 . 542 F.2d at 349.

27 . Id. at 351-52.

28 . Id. at 351 (footnote omitted).

29 . Id. at 352. The court in Delguyd also noted that inasmuch as the agents upon entry confined their activities to those necessary to preserve evidence, they had not abused the exigent circumstance search. The record clearly indicates that the scope of the officers’ intrusion in the instant case was limited to acts necessary to maintain the status quo.

30 . See Walker, 743 P.2d at 193; State v. Bagley, 681 P.2d 1242, 1244 (Utah 1984); Cuaron, 700 F.2d at 588 n. 5. While it does not affect the outcome of this appeal, we note that the police officers’ explanations for failing to record the conversations between Brown and Glaser are inadequate at best.

31 . See Branch, 743 P.2d at 1189; Gallegos, 712 P.2d at 208-09; Cole, 674 P.2d at 122.

32 . 713 P.2d 907 (Colo.1986) (en banc).

33 . Id. at 911 (emphasis added) (citing United States v. Neet, 504 F.Supp. 1220 (D.Colo.1981); State v. Valenzuela, 121 Ariz. 274, 589 P.2d 1306 (1979) (en banc)); see also Erb, 596 F.2d at 419 C‘[W]e must look to the facts and circumstances existing in the instant case at the time the DEA agents made the warrantless entry and effected the arrests in order to determine whether probable cause and exigent circumstances justified that action." (Emphasis added.)).

34 . 506 F.2d 627 (7th Cir.1974).

35 . Id. at 629-30. Rosselli involved only the remote and avoidable possibility that a girlfriend of Rosselli’s brother could have notified Rosselli that some of his accomplices had been arrested. In this regard, the Seventh Circuit Court of Appeals noted that the girlfriend was at the apartment where the codefendants had been arrested and that any possible exigency could have been easily neutralized by leaving agents with the girlfriend until a warrant to search Rosselli’s apartment was obtained. Moreover, since the codefendants were not expected back at Rosselli’s residence, Rosselli would have no indication of their arrest or of his impending risk. Id.; see also Altman, 797 F.2d at 516.

36 . See 506 F.2d at 629-30; 797 F.2d at 516.

37 . 506 F.2d at 630.

38 . See id. at 629-30; see also 797 F.2d at 516.

39 . Acevedo, 627 F.2d at 71.

40 . 506 F.2d at 629 n. 6.

41 . 797 F.2d 514.

42 . Id. at 514-15.

43 . Id. at 515; see also supra note 15.

44 .See id. The court also stated that once an undercover drug agent identifies himself to a drug dealer, the situation could become dangerous and the agent is not required by the fourth amendment to risk his life in order to prevent exigent circumstances from arising. Id. at 515-16.

45 . Id. at 516 (emphasis added; citation omitted).

46 . See Glasby, 576 F.2d at 737; see also Acevedo, 627 F.2d at 70.

47 . 679 F.2d 187.

48 . Id. at 192.

49 . 797 F.2d at 515; see also Moore, 790 F.2d at 16; Wulferdinger, 782 F.2d at 1476; Acevedo, 627 F.2d at 71.

50 . See State v. Bolsinger, 699 P.2d 1214, 1226-27 (Utah 1985) (Hall, C.J., dissenting).

51 . 561 F.2d 832 (D.C.Cir.) (en banc), cert. denied, 432 U.S. 907, 97 S.Ct. 2953, 53 L.Ed.2d 1080 (1977).

52 . 561 F.2d at 842-44; see ako Delguyd, 542 F.2d 346.

53 . 553 F.2d 946.

54 . Id. at 948 (citing Cardwell v. Lewis, 417 U.S. 583, 595-96, 94 S.Ct. 2464, 2471-72, 41 L.Ed.2d 325 (1974) (plurality opinion); United States v. Mitchell, 538 F.2d 1230, 1233 (5th Cir.1976) (en banc), cert. denied, 430 U.S. 945, 97 S.Ct. 1578, 51 L.Ed.2d 792 (1977)).

55 . United States v. Hultgren, 713 F.2d 79, 87 (5th Cir.1983); see ako United States v. Thompson, 700 F.2d 944, 950 (5th Cir.1983) (holding that the agents' failure to avail themselves of the first possible opportunity to obtain a warrant is not a fatal defect).

56 . See United States v. Webster, 750 F.2d 307, 327 (5th Cir.1984), cert. denied, 471 U.S. 1106, 105 S.Ct. 2340, 85 L.Ed.2d 855 (1985) (citing Cardwell, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325).

57 . See Webster, 750 F.2d at 327; Hultgren, 713 F.2d at 88. Although the issue is not properly before us, we would place an unwieldy burden upon the courts and law enforcement agencies if, in order for police officers to subsequently respond to exigent circumstances necessitating a warrantless search, we required them to attempt to procure a search warrant for every place a defendant may lead them while under surveillance.

58 . The trial court’s order denying Ashe’s motion to suppress indicates that even without seeing Ashe at the window, Glaser’s statements, together with other exigent circumstances, justified the warrantless entry.

59 . Telephone warrants are provided for in Utah Code Ann. § 77-23-4 (1982). The government should actively encourage its law enforcement agents to seek search warrants whenever possible and by any available means provided by statute. Judicial officers should cooperate to the utmost in promoting this policy.

60 . Ashe has not briefed the issue on appeal and cites no case law upholding the proposition that the State has the burden of proving the unavailability of a state telephone warrant, and absent meeting that proof, the trial court must find that the warrantless search violated Ashe’s fourth amendment rights. Also, we note that not all federal cases explicitly hold that the prosecution must always establish that law enforcement officers could not have obtained a telephone warrant. See, e.g., Manfredi, 722 F.2d at 523 (government inexplicably failed to introduce evidence regarding time required to obtain a telephone warrant): United States v. Berick, 710 F.2d 1035, 1038 (5th Cir.), cert. denied, 464 U.S. 918, 104 S.Ct. 286, 78 L.Ed.2d 263 (1983) (government must ordinarily introduce evidence of time required to obtain a telephone warrant and the availability of that warrant); United States v. McEachin, 670 F.2d 1139, 1146 (D.C. Cir.1981) (courts must consider amount of time necessary to obtain a warrant by telephone in determining whether exigent circumstances exist).

61 . See, e.g., Manfredi, 722 F.2d at 523; Berick, 710 F.2d at 1038-39; Cuaron, 700 F.2d at 589-90; McEachin, 670 F.2d at 1148.

62 . As noted previously, the reasonableness of this conclusion is supported by substantial case law. See supra notes 10-20 and accompanying text.

63 . See Manfredi, 722 F.2d at 523.

64 . Utah Code Ann. § 77-23-4(2) (1982).

65 . See Fed.R.Civ.P. 41(c)(2); Notes of Advisory Committee on 1977 Amendments to Rules, U.S. C.S. Rules of Criminal Procedure, at 199-202 (1978).

66 . 638 F.2d 1179 (9th Cir.1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981).

67 . Id. at 1184-85.

68 . Id. at 1184; see also Cuaron, 700 F.2d at 590. In Manfredi, 722 F.2d at 523; Wulferdinger, 782 F.2d at 1476-77 (holding that there was insufficient time to procure a telephone warrant in compliance with California Penal Code sections 1526, 1528 (West 1982).

69 . See Wulferdinger, 782 F.2d at 1476-77.

70 . The record indicates that in that time, Glaser met with Brown; a wintergreen test was performed; the remaining "buy” money was counted out as a signal to the surveillance team; Glaser was arrested; Brown removed his police radio out of his trunk to place it back in his car; Brown drove to the place where Cricks was being arrested; and the officers drove to Ashe’s house.

71 . Although in State v. Lopez, 676 P.2d 393, 397 (Utah 1984), this Court noted that according to the record a telephone warrant was obtained in twenty-four minutes, such time frame is not relevant to the case at hand, nor should it suggest that the circumstances herein were not sufficiently exigent to justify a warrantless search since the officers therein obtained a telephone warrant within twenty-four minutes.

72 . See McEachin, 670 F.2d at 1148.

73 . See United, States v. Rubin, 474 F.2d 262, 270 (3d Cir.), cert. denied, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973).