State v. Rowe

806 P.2d 730, 154 Utah Adv. Rep. 12, 1991 Utah App. LEXIS 15, 1991 WL 17377
CourtCourt of Appeals of Utah
DecidedFebruary 8, 1991
Docket890396-CA
StatusPublished
Cited by30 cases

This text of 806 P.2d 730 (State v. Rowe) 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. Rowe, 806 P.2d 730, 154 Utah Adv. Rep. 12, 1991 Utah App. LEXIS 15, 1991 WL 17377 (Utah Ct. App. 1991).

Opinions

OPINION

ORME, Judge:

Defendant appeals her conviction of possession of a controlled substance, a third degree felony, in violation of Utah Code Ann. § 58 — 37—8(2)(a)(i), (b)(ii) (1989). We reverse.

FACTS

On October 7, 1988, a search warrant was issued and executed which authorized police to search for narcotics in the residence of Stan Swickey in Leeds, Utah. The warrant contained provisions which allowed police to enter “day or night,” and to effect the search without notice, i.e., on a “no-knock” basis. The warrant was issued based on information in the officer’s supporting affidavit that a confidential informant had been contacted by Swickey, who told the informant that he, Swickey, had picked up a quantity of methamphetamine and marijuana that was being stored at his home in Leeds. The affidavit in support of the warrant contained preprinted language which stated that the affiant reasonably believed that the property sought could be easily destroyed or hidden or that harm to officers could result from notice. Following this language are two boxes that the affiant can check, and which were checked, to request nighttime and “no-knock” authority. No other factual information supports these requests.

The warrant was executed on a “no-knock” basis on October 7, 1988,1 at approximately 11:30 p.m. When police entered Swickey’s apartment, they found eight people, in addition to Swickey, in the home. Everyone except defendant was in the living room playing cards around a table. Defendant was in the kitchen. After securing the home, the officers had defendant join the other people in the living room, while Swickey was taken into the kitchen and placed under arrest, pursuant to an arrest warrant, and advised of the search warrant. Another individual was arrested when the officers saw drugs nearby, in plain view. The remaining individuals, including defendant, were told they could leave the premises. Defendant did not have her shoes, and asked if she could go to the bedroom to retrieve them. An officer accompanied her to the room, where she took the shoes from a pile of items. [732]*732The officer asked her if she had everything that was hers from that room. Defendant replied that she did.

After defendant left, the officers conducted a search of the home. Narcotics were found throughout the house. A purse was seized from the pile in the bedroom from which defendant had retrieved her shoes. Inside the purse was a small brown vial which contained methamphetamine. Also in the purse were several documents that revealed that the purse belonged to defendant.

Police contacted defendant the next day and advised her that they had a purse that belonged to her. She came down to the station and was arrested. After being advised of her Miranda rights, defendant admitted that the purse and vial of drugs were hers. She told police that she had been “ripping off” drugs from Swickey.

Prior to trial, defendant filed a motion to suppress the vial and other contents seized from her purse. The motion was accompanied by a memorandum of points and authorities. The state filed a memorandum opposing defendant’s motion to suppress, and requested a ruling on defendant’s motion. On March 17, 1989, the court issued a written order denying defendant’s motion.

Defendant waived her right to a jury trial, and a bench trial commenced on March 21, 1989. During the trial defendant again renewed her motion to suppress. The basis of her argument was that the search warrant was defective since the supporting affidavit did not support the nighttime or “no-knock” authorization. The state argued that “Mr. Swickey would be the only one to have standing to object to that,” and also argued the merits of the claim. The court denied the renewed motion. Defendant was convicted as charged.

Defendant raises three issues on appeal, all of which challenge the district court’s failure to suppress the items seized from defendant’s purse: 1) Whether there was sufficient factual information in the supporting affidavit to authorize a nighttime search, 2) whether there was sufficient factual information in the supporting affidavit to authorize a “no-knock” search, and 3) whether the search was defective since the warrant was dated subsequent to the search.2

“NO-KNOCK” SEARCH

Defendant argues there was insufficient factual information presented in the supporting affidavit to justify the inclusion of a “no-knock” provision in the search warrant. Utah Code Ann. § 77-23-10 (1990) provides, in pertinent part, as follows:

When a search warrant has been issued authorizing entry into any building, room, conveyance, compartment or other enclosure, the officer executing the warrant may use such force as is reasonably necessary to enter:
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(2) Without notice of his authority and purpose, if the magistrate issuing the warrant directs in the warrant that the officer need not give notice. The magistrate shall so direct only upon proof, under oath, that the object of the search may be quickly destroyed, disposed of, or secreted, or that physical harm may result to any person if notice were given.

The affiant in this case requested a warrant to search for narcotics believed located in a residence, by checking a preprinted provision on the affidavit form. A “no-knock” warrant was requested based on the affiant’s statement that such narcotics could be easily destroyed. Defendant argues that this statement alone is insufficient to justify issuance of a “no-knock” warrant. However, reading the affidavit “in a common sense manner and as a whole,” State v. Paul, 225 Neb. 432, 405 N.W.2d 608, 610 (1987) (quoting People v. Mardian, 47 Cal.App.3d 16, 35, 121 Cal.Rptr. 269, 281 (1975)), we conclude that the [733]*733magistrate had sufficient basis to issue a “no-knock” warrant.

Although the affidavit is sparse, it is clear that the object of the search was drugs located in a residence. The small amount of drugs ordinarily found in a residential setting can be easily and quickly destroyed with even the briefest notice. Therefore, issuance of a “no-knock” warrant is justified if the affidavit suggests that a small, readily disposable, quantity of drugs in a residence is the object of the search.3 The’magistrate can readily and properly infer that such drugs could be quickly destroyed if notice is given. State v. Spisak, 520 P.2d 561 (Utah 1974); State v. Miller, 740 P.2d 1363 (Utah Ct.App.1987). While a detailed and factually specific affidavit is commendable and may facilitate subsequent review by an appellate court, it is not strictly necessary for the officer to elaborate on the obvious in the affidavit.

NIGHTTIME SEARCH

Defendant also argues that the supporting affidavit lacked sufficient factual information to support a nighttime search. Utah Code Ann. § 77-23-5(1) (1990) provides in pertinent part:

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Bluebook (online)
806 P.2d 730, 154 Utah Adv. Rep. 12, 1991 Utah App. LEXIS 15, 1991 WL 17377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rowe-utahctapp-1991.