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State v. Rowan

Supreme Court of Utah

December 1, 2017

State of Utah, Appellant,
v.
Michael Rowan and Rebecca George, Appellees.

         On Direct Appeal Fourth District, Provo The Honorable Derek P. Pullan No(s). 131402290, 131402291

          Sean D. Reyes, Att'y Gen., Jeffrey S. Gray, Asst. Solic. Gen., Salt Lake City, for appellant.

          Richard P. Gale, Provo, for appellee Michael Rowan

          Douglas J. Thompson, Provo, for appellee Rebecca George

          Paul G. Cassell, Salt Lake City, James M. Swink, Logan, for amici Utah Council on Victims of Crime.

          Chief Justice Durrant authored the opinion of the Court, in which Justice Durham, [*] and Justice Himonas joined.

          Justice Himonas filed a concurring opinion, in which Chief Justice Durrant and Justice Durham joined.

          Associate Chief Justice Lee filed an opinion concurring in the result, in which Justice Pearce joined.

          OPINION

          DURRANT, CHIEF JUSTICE

         Introduction

         ¶ 1 In this case we consider a magistrate's determination of probable cause supporting a search warrant. A confidential informant (CI) told a police officer that he had bought marijuana from a man he knew only as "Mike" in Mike's house. In exchange for leniency on pending criminal charges, the CI agreed to make a controlled buy. After the CI completed the controlled buy, the officer submitted an affidavit to establish probable cause for a warrant to search Mike's house. The warrant was signed by a magistrate and executed by police. Mike's house was occupied by defendants Michael Rowan and Rebecca George. The police found drugs, drug paraphernalia, buy-owe sheets, firearms, and a large amount of cash.

         ¶ 2 Mr. Rowan and Ms. George moved under the state and federal constitutions to suppress the result of the search, challenging the magistrate's probable cause determination. The district court found that there was no probable cause, but it also determined that the federal good faith exception to the exclusionary rule applied. Defendants moved again to suppress the evidence, this time arguing that it should be excluded under article I, section 14 of the Utah Constitution. The court suppressed the evidence under the state constitution, concluding that the state constitution contains an exclusionary rule, but does not include a good faith exception. The State dismissed the charges due to lack of evidence and appealed.

         ¶ 3 On appeal, we are asked to consider (1) whether there was a substantial basis for the magistrate's probable cause determination; (2) whether this court recognized an exclusionary rule under article I, section 14 of the Utah Constitution in State v. Thompson[1] and State v. Larocco;[2] and (3) if we did recognize an exclusionary rule under the Utah Constitution, whether there should be a good faith exception. Because we conclude that there was a substantial basis for the magistrate's probable cause determination and that therefore the evidence should not have been suppressed, we do not reach the questions of whether we have recognized an exclusionary rule under article I, section 14 of the Utah Constitution or whether there should be a good faith exception to such a rule. We therefore reverse the district court.

         Background

         ¶ 4 A confidential informant (CI) reported to a Springville City police officer that a man whom the CI knew only as "Mike" was in possession of marijuana and would sell it to the CI. The CI told the officer that he had been in Mike's home and purchased drugs from Mike before. The CI also told the officer that Mike sold marijuana in bulk and "his product [was] vacuum sealed"; that Mike traveled to California to obtain marijuana to sell in Utah; that Mike kept the marijuana inside his house, although the CI did not know where; that Mike was a master of martial arts; and that the CI had heard Mike talking about firearms and he believed Mike had a firearm in the house.

         ¶ 5 The police officer tried to determine Mike's identity, but record checks on the residence, registration checks on vehicles, and inquiries to other agencies were unsuccessful. He then proposed that the CI assist in a controlled buy of marijuana from Mike, in exchange for leniency on the CI's pending criminal charges. The CI agreed to participate.

         ¶ 6 Before the controlled buy, police searched the CI and found no illegal items. Then, in the presence of the police, the CI called Mike and arranged to buy a specific amount of marijuana for a specific amount of money. After receiving the money for the buy from the police, the CI drove in his own car to Mike's residence. The police did not search the CI's car, but kept the car and the CI in "visual sight at all times." The CI drove directly to Mike's house and went inside.

         ¶ 7 After a short time had passed, the CI left the residence and drove to a predetermined location to meet with the affiant police officer. The CI reported that after he entered Mike's house, he used the money given to him by the police to buy marijuana from Mike. The police searched the CI and found the agreed-upon amount of marijuana.

         ¶ 8 The police officer prepared an affidavit, which presented both the information about "Mike" conveyed to him by the CI and the details of the controlled buy. Relying on the police officer's affidavit, a magistrate issued a warrant authorizing the search of a Provo residence, the home of defendants Michael Rowan and Rebecca George.

         ¶ 9 After securing the warrant, police searched the defendants' home and found over four pounds of marijuana, psilocybin mushrooms, drug paraphernalia, buy-owe sheets, more than $3, 600 in cash, an assault rifle, and a handgun. The drugs and related paraphernalia were found throughout the home and were easily accessible to the defendants' minor child, who was living in the home and present when the police entered the home.

         ¶ 10 Mr. Rowan was charged with (1) distributing marijuana in a drug-free zone, a second degree felony; (2) possessing marijuana with intent to distribute in a drug-free zone while having a prior drug-related conviction, a first degree felony; (3) possessing or using psilocybin mushrooms in a drug-free zone while having a prior drug-related conviction, a first degree felony; (4) possessing a firearm as a restricted person, a third degree felony; (5) possessing drug paraphernalia in a drug-free zone, a class A misdemeanor; and (6) endangering a child, a third degree felony. Ms. George was charged with endangering a child, a third degree felony.

         ¶ 11 At the district court, Defendants argued under the Fourth Amendment that the warrant was not supported by probable cause and moved to suppress the evidence seized in the search of their home. In response, the State argued that the magistrate had a substantial basis for finding probable cause, but even if he did not, that the evidence should not be suppressed under the federal good faith exception, which allows for admission of evidence when police reasonably rely on a magistrate's incorrect finding of probable cause. The district court concluded that the magistrate incorrectly determined that the warrant was supported by probable cause, but the court applied the federal good faith exception and did not suppress the evidence.

         ¶ 12 Defendants filed a "motion to address [the] good faith exception under [the] Utah Constitution, " arguing that the federal good faith exception "is prohibited by the Utah State Constitution." The State argued in response that there is no basis for an exclusionary rule under the Utah Constitution and, even if there were, a state exclusionary rule should include a good faith exception analogous to the federal exception. Relying on this court's decision in State v. Thompson, [3] the district court concluded that a state exclusionary rule is required under the state constitution, but that "there is no good faith exception to the exclusionary rule under article I, section 14" of the Utah Constitution. The court granted Defendants' motion to suppress the evidence seized in the search of their home.

         ¶ 13 On the State's motion, the district court dismissed the charges against Defendants on the ground that the suppression of evidence substantially impaired the State's cases. The State timely appealed both cases. This court has jurisdiction to hear this appeal pursuant to Utah Code section 78A-3-102(3)(i) in Mr. Rowan's case and Utah Code section 78A-3-102(3)(b) in Ms. George's case.[4]

         Standard of Review

         ¶ 14 We review a district court's assessment of a magistrate's probable cause determination for correctness and ask whether the court erred in concluding that the magistrate did not have a substantial basis for a determination of probable cause.[5]

         Analysis

         ¶ 15 The State argues that the magistrate had a substantial basis for finding probable cause and that the district court did not afford the magistrate's probable cause determination "great deference, " but "reviewed the probable cause affidavit de novo." Defendants argue that the district court correctly concluded that the affidavit did not establish a substantial basis for probable cause, pointing to the court's consideration of the "CI's lack of credibility, the officer's failure to corroborate any of [the CI's] claims, and the complete lack of control over the buy." We agree with the State that the district court did not give the magistrate appropriate deference and that the affidavit provided a substantial basis for the magistrate's determination of probable cause.

         ¶ 16 "Where a search warrant supported by an affidavit is challenged as having been issued without an adequate showing of probable cause, our review focuses on the magistrate's probable cause determination."[6] "We afford the magistrate's decision 'great deference' and consider the affidavit relied upon by the magistrate 'in its entirety and in a common[]sense fashion.'"[7] This court has "consistently employed" the totality of the circumstances analysis set forth by the United States Supreme Court in Illinois v. Gates to evaluate probable cause:[8]

The task of the issuing magistrate is simply to 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 or evidence of a crime will be found in a particular place.[9]

         "[A]n informant's 'reliability' and 'basis of knowledge' are but two relevant considerations, among others, in determining the existence of probable cause under 'a totality-of-the-circumstances.'"[10] "The indicia of veracity, reliability, and basis of knowledge are nonexclusive elements to be evaluated in reaching the practical, common-sense decision whether, given all the circumstances, there is a fair probability that the contraband will be found in the place described."[11]

         ¶ 17 "[W]hen a search warrant is issued on the basis of an affidavit, that affidavit must contain specific facts sufficient to support a determination by a neutral magistrate that probable cause exists."[12] Probable cause cannot "be made out by affidavits which are purely conclusory, stating only the affiant's or an informer's belief that probable cause exists without detailing any of the 'underlying circumstances' upon which that belief is based."[13] But "where [underlying] circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner."[14] In determining whether an affidavit demonstrates the existence of probable cause, "the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants."[15]

         ¶ 18 In this case, the district court did not afford the magistrate "great deference" and instead read the affidavit "in a hypertechnical, rather than commonsense, manner." The court began by finding that the buy was not controlled, because police failed to search the CI's car before and after the buy. Based on this finding, the court concluded that the police had failed to corroborate the CI's information. This in turn negated the CI's personal knowledge of Mike and his implication of himself in criminal activity, as the court reasoned, "these factors standing alone-without independent corroboration-cannot in this Court's view give rise [to] a finding of probable cause." Accordingly, the district court concluded that the affidavit did not establish probable cause.

         ¶ 19 We disagree. When considered "in its entirety and in a common sense fashion, "[16] the affidavit is sufficient to support the magistrate's determination of probable cause that contraband would be found at Mike's house. The affidavit was not conclusory, but contained specific facts, detailing both the underlying circumstances and the affiant officer's reasons for crediting the CI's information. The underlying circumstances included the following: the affiant officer had met the CI within 72 hours of preparing the affidavit; the CI had told the officer that an individual known to the CI as Mike sold marijuana in bulk and "his product [was] vacuum sealed"; Mike traveled to California to obtain marijuana to sell in Utah; Mike kept the marijuana inside his house, although the CI did not know where; the CI had heard Mike talking about firearms and he believed Mike had a firearm in the house; Mike was a master of martial arts; and Mike lived with his girlfriend and their minor child. The officer credited the information given to him by the CI for these reasons: the CI had "made drug purchases" from Mike; the CI was "familiar with drug distribution and drug practices"; and the CI would receive leniency for pending charges for participating in the controlled buy. The affiant officer further concluded that by implicating himself in criminal activity, the CI bolstered his reliability.[17]

         ¶ 20 The affidavit also detailed the affiant officer's attempts to corroborate the CI's information by checking records, vehicle registrations, and requesting information from other agencies. When those attempts to corroborate proved fruitless, the officer arranged the controlled buy to corroborate the CI's information. And although the controlled buy may not have been perfectly executed, [18] police sufficiently controlled the buy through the following measures: the police searched the CI before the buy; they supervised the CI's call to Mike; the CI arranged to purchase a specific amount of marijuana for a specific amount of money at Mike's residence; the police gave the CI the agreed upon amount of money; the CI drove his own car to Mike's residence, but police followed him, maintaining "visual sight at all times"; the CI entered Mike's residence and was shortly seen leaving Mike's residence; the police again followed the CI as he drove his own car; the CI drove to a prearranged location to meet with the affiant officer; the CI had the agreed-upon distributable amount of marijuana in his possession; and the police again searched the CI, finding no additional illegal items. Even if under best practices the police should have searched the car before and after the controlled buy, this does not negate the magistrate's finding of probable cause. The totality of the circumstances, as presented in the affidavit, was sufficient to give rise to probable cause.

         Conclusion

         ¶ 21 We conclude that the magistrate had a substantial basis to determine there was probable cause based on the affidavit's description of the information the CI reported to the police and the results of the controlled buy. The judgment of the district court is reversed.

          Justice Himonas, concurring:

         INTRODUCTION

         ¶22 I concur in full in Chief Justice Durrant's excellent opinion. I write separately only to explain my decision to decide this case on settled principles and to avoid unnecessarily roiling constitutional waters. In my opinion, "[b]efore embarking on a review of the constitutional principles underlying . . . [the state exclusionary rule], proper concern for stare decisis joins with our long-standing policy of avoiding unnecessary constitutional decisions to counsel that a decision on the continuing vitality of . . .[the state exclusionary rule] be avoided unless it is really necessary." Elkins v. Moreno, 435 U.S. 647, 660-61 (1978). So while I respect Associate Chief Justice Lee's right "to articulate an alternative ground for reversal, " I believe the majority is right to decline to revisit today our precedents recognizing that the Utah Constitution embodies the suppression remedy for unlawful searches and seizures. Infra ¶ 36; see State v. Larocco, 794 P.2d 460 (Utah 1990).

         ANALYSIS

         ¶23 The Associate Chief Justice rightly notes that we have the "discretion to decide any and all issues presented for review, " including, in this case, the viability of the state exclusionary rule. Infra ¶ 59. But having discretion is not the same as prudently exercising it. For this reason, we have said time after time that "when possible, we [will] decline to address issues beyond the narrowest applicable grounds." Alliant Techsystems, Inc. v. Salt Lake Bd. of Equalization, 2012 UT 4, ¶ 27 n.41, 270 P.3d 441. Here, a confluence of prudential ...


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