State v. Weaver

817 P.2d 830, 169 Utah Adv. Rep. 47, 1991 Utah App. LEXIS 127, 1991 WL 175239
CourtCourt of Appeals of Utah
DecidedSeptember 6, 1991
Docket900284-CA
StatusPublished
Cited by11 cases

This text of 817 P.2d 830 (State v. Weaver) 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. Weaver, 817 P.2d 830, 169 Utah Adv. Rep. 47, 1991 Utah App. LEXIS 127, 1991 WL 175239 (Utah Ct. App. 1991).

Opinions

[832]*832OPINION

GARFF, Judge:

Defendant, Michael Samuel Weaver, appeals from a conviction of theft, a third degree felony, in violation of Utah Code Ann. § 76-6-404 (1990).

On May 7, 1989 Dusty’s Vans was burglarized. On May 12, 1989, a magistrate executed a search warrant authorizing a search of defendant’s mother’s residence, located in the duplex next to where defendant resided with his grandmother. On March 15, 1990, a district court judge denied defendant’s motion to suppress evidence seized during the search holding' that the warrant was valid. This motion was renewed and again denied at trial.

The search warrant was based upon an affidavit signed by Detective Leslie Kent Powers of the Salt Lake County Sheriff's Office. The affidavit enumerated Detective Powers’s experience, which included one and one-half years as a detective and five years as a deputy sheriff. It then summarized a police report describing a burglary at Dusty’s Vans. To wit: Someone pried open a metal door on the building in the late night, or early morning hours of May 6 or 7, 1989. The listed items removed from the building were valued at well over $1,000. The affidavit summarized a follow-up report containing the statements of Jay and Linda Lawrence, who reported that they were awakened at 7 a.m. on May 7, 1989 “by someone who was jumping back and forth over a fence between [their apartment] and Dusty’s Vans.” They saw a six-foot man, in his thirties, with short blond hair, wearing shorts and a black tank top. The Lawrenc-es saw this man get into a blue Mitsubishi truck which had a temporary sticker in the rear window. They later identified defendant from a photospread.

The affidavit stated that defendant was currently on intense supervised parole for receiving stolen property; that Sally Powell, defendant’s parole officer, reported that defendant “made numerous trips (5-6) between the houses and in fact was at the house to be searched on the evening of May 10, 1989.” The affidavit stated that defendant’s address was 1328 East 3900 South and that the house to be searched was that of defendant’s mother at 1316 East 3900 South.

Powers concluded the affidavit by stating “through his experience and belief that Weaver, being on Intense Supervised Parole, would not keep stolen property at his primary residence knowing that such a place could and is routinely searched by Parole Officers.” Therefore, Powers believed that the evidence would be located at the nearby residence of defendant’s mother.

The affidavit requested no authority in the warrant greater than “that the home be searched during regular hours in a manner least intrusive to other occupants.”

Defendant appeals the denial of his motion to suppress, claiming that the affidavit was insufficient to support the issuance of a search warrant under both the fourth amendment of the United States Constitution and Article I, Section 14 of the Utah Constitution.

I. FEDERAL CONSTITUTIONAL CHALLENGE

A. Totality of Circumstances

Defendant contends that the reviewing court erred in determining that the magistrate had probable cause to issue the warrant. A magistrate may issue a search warrant if there is probable cause to believe that the property to be seized was either unlawfully acquired or unlawfully possessed. Utah Code Ann. § 77-23-2 (1990). Probable cause is to be determined by the totality of the circumstances. United States v. Leon, 468 U.S. 897, 915, 104 S.Ct. 3405, 3416-17, 82 L.Ed.2d 677 (1984); Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332-33, 76 L.Ed.2d 527 (1983).

Under this analysis, the magistrate must “make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband [833]*833or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238, 103 S.Ct. at 2332. See also United States v. Dill, 693 F.2d 1012, 1014 (10th Cir.1982) (“Probable cause is nothing more than a reasonable belief that the evidence sought is located at the place indicated by the policeman’s affidavit.”).

Our duty as a reviewing court is to ensure that the magistrate had a substantial basis for concluding that probable cause existed. Gates, 462 U.S. at 238, 103 S.Ct. at 2332 (citations omitted). Because this court, like the reviewing court below, is bound by the contents of the affidavit, we therefore need not defer to the trial court’s finding, but rather, we make an independent review of the trial court’s determination of the sufficiency of the written evidence. United States v. Freeman, 685 F.2d 942, 948 (5th Cir.1982) (citing United States v. Minis, 666 F.2d 134, 138 (5th Cir.) cert. denied, 456 U.S. 946, 102 S.Ct. 2013, 72 L.Ed.2d 469 (1982)). See also United States v. Pulvano, 629 F.2d 1151, 1156-57 & n. 7 (5th Cir.1980).

In reviewing the magistrate’s determination of the sufficiency of the affidavit, we are obliged to pay great deference to the finding of probable cause and we do not make a de novo review. Gates, 462 U.S. at 236, 103 S.Ct. at 2331; Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590-91, 21 L.Ed.2d 637 (1969); State v. Brown, 798 P.2d 284, 285 (Utah App.1990); State v. Miller, 740 P.2d 1363, 1366 (Utah App.1987). This deference is due, at least in part, to constitutional considerations: “ ‘A grudging or negative attitude by reviewing courts toward warrants,’ is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant....” Gates, 462 U.S. at 236, 103 S.Ct. at 2331 (quoting United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965)). See also State v. Babbell, 770 P.2d 987, 991 (Utah 1989); State v. Collard, 810 P.2d 884, 886 (Utah App.1991).

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State v. Weaver
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Bluebook (online)
817 P.2d 830, 169 Utah Adv. Rep. 47, 1991 Utah App. LEXIS 127, 1991 WL 175239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-weaver-utahctapp-1991.