State v. Blevins

968 P.2d 402, 355 Utah Adv. Rep. 3, 1998 Utah App. LEXIS 101, 1998 WL 751441

• Court: Court of Appeals of Utah
• Decided: October 29, 1998
• Docket: 971419-CA
• Status: Published

Opinions

OPINION

BILLINGS, Judge:

Appellant Donald Blevins appeals his conviction for possession of methamphetamine, a controlled substance, in a drug-free zone, a second degree felony under Utah Code Ann. § 58-37-9(2)(a)(i) (Supp.1997), asserting the trial court erred in denying his Motion to Suppress. We affirm.

FACTS

“We recite the facts in a light most favorable to the lower court’s findings when reviewing its decision denying defendant’s motion to suppress.” State v. Montoya, 937 P.2d 145, 147 (Utah Ct.App.1997) (citing State v. Anderson, 910 P.2d 1229, 1230 (Utah 1996)).

On September 4, 1997, law enforcement officers from the Utah County Narcotics Enforcement Team (NET) executed a search warrant on a Provo City private residence (the residence) in search of controlled substances. The search warrant’s language permitted the officers to search the “[residence], outbuildings and curtilage, persons of individuals present or arriving to this location and vehicles related to individuals present or arriving to the location.”

While police were executing the warrant, Blevins drove up to the residence and parked his vehicle nearby on a public street. As Blevins exited his vehicle, NET officers approached him, and upon questioning he told the officers he was there to visit an occupant of the residence. The officers cursorily searched Blevins for weapons, handcuffed him, and led him into the residence where they performed a thorough search for both weapons and controlled substances; neither was found on his person. The NET officers also searched Blevins’ vehicle where they found a syringe and a baggie of methamphetamine.

Blevins entered a conditional guilty plea to the charge of possession of a controlled substance in a drug-free zone. He then filed a Motion to Suppress the methamphetamine and paraphernalia found in his vehicle. The trial judge denied Blevins’ motion and he now appeals.

ANALYSIS

Blevins asserts the “arriving at” warrant, which allowed police to search the vehicle he drove to the residence, was an impermissible “general warrant” not supported by probable cause.

“We ‘accord great deference to the magistrate’s decision’ regarding probable cause.” State v. Doyle, 918 P.2d 141, 143 (Utah Ct.App.), cert. denied, 925 P.2d 963 (Utah 1996) (quoting Salt Lake City v. Trujillo, 854 P.2d 603, 606 (Utah Ct.App.1993)). “The standard of probable cause is described as being ‘only the probability, and not a prima facie showing, of criminal activity.’ ” State v. Brown, 798 P.2d 284, 285 (Utah Ct.App.1990) (quoting Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 2330, 76 L.Ed.2d 527 (1983)) (additional citations omitted). Further,

Utah appellate courts have adopted the totality of the circumstances test ... for determining whether there is probable cause to support the issuance of a search warrant.... Accordingly, the magistrate must consider all the circumstances set forth in the affidavit and make a “practical, common-sense decision whether ... there is a fair probability” that criminal evidence will be found in the described place.

Id. at 285-86 (quoting Gates, 462 U.S. at 238, 103 S.Ct. at 2332) (omission in original) (additional citations omitted). However, in State v. Covington, 904 P.2d 209, 212 (Utah Ct. App.1995), we approved the practice of strictly scrutinizing an affidavit supporting an “all persons warrant.”

In Covington, this court first dealt with an “all persons warrant,” and framed the issue as follows:

The question remains whether a warrant that authorizes the search of unnamed persons present at a location is lawful if it is supported by probable cause to believe that all persons in the place at the time of the search will be involved in the criminal activity upon which the warrant issued....

[And wjhether, based on the affidavit upon which th§ search warrant issued, the authorities had probable cause to believe that any person found at the basement apartment would be involved in narcotics trafficking.

Id. at 211-12. In Covington we reviewed both federal and state caselaw and agreed with the majority view that approves of “all persons warrants” in limited situations, and consequently upheld a warrant allowing the search of all persons present at a basement apartment. See id. at 211-13. In so holding, we agreed with the New Jersey Supreme Court that there was sufficient physical nexus to overcome the vice of a general warrant. See id. at 211 (citing State v. DeSimone, 60 N.J. 319, 288 A.2d 849, 850 (N.J.1972)). The DeSimone court stated:

[Wjith regard to the Fourth Amendment demand for specificity as to the subject to be searched, there is none of the vice of a general warrant if the individual is thus-identified by physical nexus to the ongoing criminal event itself. In such a setting, the officer executing the warrant has neither the authority nor the opportunity to search everywhere for anyone violating a law. So long as there is good reason to suspect or believe that anyone present at the anticipated scene will probably be a participant, presence becomes the descriptive fact satisfying the aim of the Fourth Amendment. The evil of the general warrant is thereby negated.

Id. at 850 (emphasis added). We also approved of the Massachusetts Supreme Judicial Court’s three-factor approach in evaluating the validity of these “all persons warrants”:

the premises or area to be searched are small, confined and private; [2] the nature of the criminal activity is such that the participants (in general) constantly shift or change so that it is, practically, impossible for the police to predict that any specific person or persons will be on the premises at any given time; and [3] the items specifically described in the warrant as the target of the search are of a size or kind which renders them easily and likely to be concealed on the person.

Commonwealth v. Smith, 370 Mass. 335, 348 N.E.2d 101, 107 (Mass.), cert. denied, 429 U.S. 944, 97 S.Ct. 364, 50 L.Ed.2d 314 (1976) (footnote omitted).

Subsequently, in State v. Doyle, 918 P.2d 141 (Utah Ct.App.), cert. denied, 925 P.2d 963 (Utah 1996), we held that an affidavit sufficiently established probable cause to issue an “all persons warrant” to search all those present in a trailer home whose resident was suspected of “conducting a retail drug sales operation from [the] residence.” Id. at 144. Doyle further held that “an ‘all persons warrant’ applies equally to all persons who are present within a reasonable time after the execution of the warrant, including those who arrive on the premises while the police are still legitimately present.” Id. at 145 (emphasis added).

Defendant argues that this case pushes the scope of an “arriving persons warrant” too far by extending the search to the arriving persons’ vehicles. We disagree. In United States v. Alva, 885 F.2d 250, 252-53 (5th Cir.1989), the Fifth Circuit upheld a search for cocaine under a warrant that allowed a search of the house and all “motor vehicles found on the premises” under facts similar to our ease. While the search of the house was underway, Alva arrived in his pickup truck and parked about fifteen feet from the house and entered. See id. at 251. While officers detained Alva in the house, other officers left the house and searched the truck where they found a weapon. See id. Based upon the weapon’s discovery, Alva was later charged with being a felon in possession of a firearm. See id. Even though the warrant did not expressly include all vehicles arriving to the residence as ours does, the court upheld the search of the truck as not exceeding the warrant’s scope nor the proscription against general warrants. See id. at 253.

In State ex rel. L.Q., 236 N.J.Super. 464, 566 A.2d 223, 226 (N.J.Super.Ct.App.Div.1989), cert. denied, 122 N.J. 121, 584 A.2d 199 (N.J.1990), the New Jersey Superior Court in an “arriving persons warrant” case explained the rationale allowing such a warrant, a rationale we think equally applies to “arriving vehicles” carrying these persons.

The evidence was sufficient to create a well-grounded suspicion or belief that numerous sales of CDS were being conducted in the premises. Although the affidavit did not exclude the possibility of other activities on the premises, the description of the activity actually observed provided a firm foundation for the suspicion or belief that any person in the private premises was involved in the overt unlawful activity of sale and possession of cocaine. Such a suspicion or belief is not limited to persons already there when the police arrive, but reasonably extends to a person who enters the premises during the search. Such a person is probably a supplier, a subdealer or a customer. The criminality of the supplier and subdealer are obvious. Even the customer could already be carrying CDS or paraphernalia. At the least, there is probable cause to believe that the customer is attempting to violate the laws prohibiting possession and use of controlled dangerous substances.

Id. at 226 (emphasis added) (citations omitted). If anything, it is more likely that evidence of criminal activity will be found in the vehicle bringing the person to the residence, than it is likely that such evidence will be found on the person himself.

We conclude the extension of the search to the vehicles of persons arriving at a residence does not exceed Covington’s nexus requirement, and thus does not violate the general warrant provision. In this case, the officers saw Blevins as he arrived at the street in front of the residence. The officers approached and questioned Blevins as to his destination as he exited the vehicle. Blevins told the officers that he was there to see an individual living at the residence then being searched for drugs, after which Blevins himself was searched and led into the house. Later, the officers searched Blevins’ vehicle and located the methamphetamine and accompanying paraphernalia.

The fact that Blevins parked his vehicle on the street, rather than within the curtilage of the suspected house is not determinative.¹ Because the NET officers determined Blevins to be “arriving to” the residence, the particularity and nexus requirements were met. It was clear that the vehicle being searched belonged to Blevins, not any other person, and that he had driven it to the residence with the intention of visiting its occupants.

We also conclude that in this ease there was probable cause to support an “all persons warrant.” The affidavit supporting the issuance of the warrant specifically discussed the likelihood of vehicles “arriving to” the residence containing controlled substances or paraphernalia. The magistrate issued a search warrant directing the officers to

conduct a search of the residence, person’s [sic] of individuals at or arriving to the residence along with the vehicles associated with the person’s [sic] at or arriving to the residence, outbuildings and curtilage, persons of individuals present or arriving to this location and vehicles related to individuals present or arriving to the [residence].

(Emphasis added). NET officer Richard Case executed an affidavit, which stated in part:

2. That within the past 48 hours myself and other officers from N.E.T. made a controlled buy of marijuana using a confidential informant. That this confidential informant purchased over two ounces of marijuana from the residence located at approximately 1148 west 100 north Provo, Utah.

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4. That the confidential informant was taken to the residence by an unwitting informant to purchase the marijuana. That officers from N.E.T. followed the confidential informant and unwitting informant to the residence [described above].

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6. That the unwitting informant stated that a female, living in the west apartment of the duplex at the above mentioned locations, was selling large amounts of marijuana, but would only sell amounts in ounce or less bags. The unwitting informant stated that the female would sell ounce bags all day and all night long. 7. That while I was monitoring the controlled buy, I observed numerous persons arrive at the residence, stay a short period of time then leave.

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9. That the amounts of marijuana being sought are large amounts for distribution and small amounts for personal use, and sale. Such amounts are typically packaged in one ounce baggies or less and can be quickly and easily hidden.

10. It is my experience that persons I have encountered with the unlawful use/distribution of marijuana and paraphernalia, often keep these items in outbuildings and vehicles. Failure to search the curtilage of the residence, and the vehicles located or related to the individuals at this location at the time of the execution of this warrant, will likely result in officers missing important evidence.

11. That from your affiant’s training and experience, persons arriving at the residence to purchase marijuana and related paraphernalia will often keep these items on their person or in their vehicles. Failure to search the person and vehicles of individuals arriving to the residence during the execution of the warrant will result in officers missing valuable evidence.

(Emphasis added).

The dissent argues that the affidavit failed to establish the nexus between the criminal activity involved — the sale of drugs from a house — and all persons and their vehicles arriving to the residence. We disagree. First, the dissent requires too high a standard for the execution of a search warrant claiming that “every person within the orbit of the search must possess the items sought by the warrant,” citing a Kansas case. The law in Utah is rather whether “there is a fair probability that criminal evidence will be found in the described place.” State v. Brown, 798 P.2d 284, 285 (Utah Ct.App.1990) (citations omitted). We conclude that the affidavit sufficiently established a “fair probability” that persons arriving at the residence would have evidence of criminal activity in their vehicles. Further, our holding is consistent with our prior cases dealing with “all persons warrants.” In our most recent case, State v. Doyle, 918 P.2d at 145, we held that an affidavit established the requisite nexus to search “all persons arriving” at the residence without specifically referring to arriving persons, but where the warrant focused only on “any individuals present.”

Based upon the affidavit here, we conclude probable cause existed to search the vehicles of “persons arriving at” the residence. The magistrate could easily have found, considering all the circumstances, that it was more likely than not that controlled substances or paraphernalia would be found on the person of arriving individuals or in the vehicles bringing them to the residence. Thus, we conclude that there was probable cause for the search warrant as issued, and that it was not an impermissible general warrant.

GREENWOOD, J., concurs

1 . Defendant directs us to two cases, Freeman v. State, 681 So.2d 242 (Ala.Crim.App.1994), and Henderson v. State, 685 So.2d 970 (Fla.Dist.Ct.App.1996), for the proposition that a vehicle parked on a public street in front of or behind a residence is not within the curtilage or residence and thus cannot be searched. Defendant misapprehends the nature of the physical nexus in the case at bar. Here, the nexus is not that the vehicle is parked on the premises, but that the vehicle has brought a person who admits he is going to the residence where the drugs are allegedly being sold. Thus the vehicle's location in relation to the residence is not critical because the officers saw defendant exit his vehicle and determined his destination.