State v. Covington

904 P.2d 209, 274 Utah Adv. Rep. 22, 1995 Utah App. LEXIS 93, 1995 WL 574627
CourtCourt of Appeals of Utah
DecidedSeptember 28, 1995
Docket940716-CA
StatusPublished
Cited by11 cases

This text of 904 P.2d 209 (State v. Covington) 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
State v. Covington, 904 P.2d 209, 274 Utah Adv. Rep. 22, 1995 Utah App. LEXIS 93, 1995 WL 574627 (Utah Ct. App. 1995).

Opinion

OPINION

BILLINGS, Judge:

Defendant Stacey A. Covington appeals from the trial court’s denial of his motion to suppress evidence used to convict him of drug-related offenses. Having determined that “[t]he facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument,” Utah R.App.P. 29(a)(3), we affirm.

*210 FACTS

On February 22, 1994, Rachel Anderson was arrested by officers of the Pleasant Grove Police Department. At the time of her arrest, officers discovered methamphetamine concealed in her clothing. Anderson later told one of the officers that she had stolen the drug from Rick Close, who had additional quantities of methamphetamine in bindles at his apartment, ready for sale. She said that Close had been supplying her with methamphetamine and that she had been smoking methamphetamine with him that day. She also stated that Close was living with Melissa Seamster and John Walker in the basement apartment of a house located at 479 South 100 East.

The officers were familiar with Mr. Close, who had a history of involvement with controlled substances. Prior to Anderson’s arrest, the officers had received tips that Close had been selling methamphetamine and had searched Close’s vehicle and found drug paraphernalia. Moreover, the officers were familiar with the house Anderson described, having arrested people residing in it.

Based upon this information, the officers obtained a'search warrant. The warrant authorized them to search “[t]he downstairs apartment and the person of all individuals present at 479 South 100 East, Pleasant Grove” for “narcotics and other evidence of trafficking[,] including but not limited to cash, weapons, baggies, scales, buy-owe sheets and paraphernalia for the use, storage, sale or preparation of narcotics.”

The officers arrived at Close’s apartment to execute the warrant at 8:40 p.m. on February 22, 1994. The door leading to the apartment was located on the north side of a covered porch that protruded from the southeast corner of the rear of the house. A truck with its hood up was parked to the north of Close’s door, approximately eight to ten feet away. Defendant stood between the truck and the door. The first officers to arrive at the door encountered defendant. One of them took custody of him, while the others proceeded into the apartment.

The officer who took custody of defendant ordered him to lie down on the ground, with his hands and legs spread. The officer then frisked defendant, and felt a hard, cylindrical object in his shirt pocket, as well as what he believed to be a cigarette package. The officer testified that the hard object “was small, like a pinky size, cylindrical in nature and had the curvature around the mouth piece and things of that nature that I felt indicated to me — or made me feel it was a marijuana pipe.”

The officer did not immediately remove either object from defendant’s shirt, but instead waited until the apartment had been secured. He then took defendant inside the apartment and stood him next to the other suspects. At that point, the officer searched defendant’s person and removed a marijuana pipe and cigarette package from defendant’s shirt pocket. Upon inspecting the cigarette package, which contained marijuana, the officer arrested defendant for possession of drug paraphernalia and possession of marijuana. At the Pleasant Grove Police Department, officers conducted an extensive search of defendant and found a small quantity of methamphetamine in the change pocket of his jeans. A larger quantity was also found near the truck where defendant had first been observed.

Defendant was charged with possession of a controlled substance (methamphetamine) in a drug-free zone, a second-degree felony, Utah Code Ann. § 58 — 37—8(l)(a)(iv) (1994); possession of a controlled substance (marijuana) in a drug-free zone, a class A misdemeanor, id. § 58 — 37—8(2)(a)(i); noncompliance with the illegal drug stamp tax act, a third-degree felony, id. § 59 — 19—103(l)(b); and possession of drug paraphernalia in a drug-free zone, a class A misdemeanor, id. § 58-37a-5(l).

Prior to trial, defendant moved to suppress the drugs and marijuana pipe. After an evidentiary hearing, the trial court denied the motion. Defendant then pled guilty to the first two charges, conditioned upon his right to appeal the trial court’s denial of his motion to suppress. See State v. Sery, 758 P.2d 935, 939 (Utah App.1988). Defendant now challenges the trial court’s ruling as violative of the Fourth Amendment.

*211 “ALL PERSONS PRESENT” SEARCH WARRANT

The Fourth Amendment to the United States Constitution directs that “no Warrants shall issue, but upon probable cause ... and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. As a general rule, therefore, “ ‘open-ended’ or ‘general’ warrants are constitutionally prohibited.” Ybarra v. Illinois, 444 U.S. 85, 92 n. 4, 100 S.Ct. 338, 342 n. 4, 62 L.Ed.2d 238 (1979). Additionally, it is clear that a warrant to search designated premises does not authorize the search of every individual who happens to be on the premises. Id. “Because the standard of probable cause must be particularized to every person or place to be searched, a warrant authorizing the search of premises does not authorize officers to search an individual merely because that person is present on the premises.” State v. Ayala, 762 P.2d 1107, 1111 (Utah App.1988), cert. denied, 773 P.2d 45 (Utah 1989).

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. This issue is one of first impression in Utah.

The majority of courts that have addressed the validity of “all persons present” search warrants have held that, depending on the evidence supporting the probable cause for their issuance, they may pass constitutional muster. 1 In State v. De Simone, 60 N.J. 319, 288 A.2d 849 (1972), the New Jersey Supreme Court set forth the following rationale for upholding such a warrant:

On principle, the sufficiency of a warrant to search persons identified only by their presence at a specified place should depend upon the facts. A showing that lottery slips are sold in a department store or an industrial plant obviously would not justify a warrant to search every person on the premises, for there would be no probable cause to believe that everyone there was participating in the illegal operation.

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Bluebook (online)
904 P.2d 209, 274 Utah Adv. Rep. 22, 1995 Utah App. LEXIS 93, 1995 WL 574627, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-covington-utahctapp-1995.