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State v. Ahmed

Court of Appeals of Utah

April 25, 2019

State of Utah, Appellee,
Adam Zakaria A. Ahmed, Appellant.

          Third District Court, Salt Lake Department The Honorable Paul B. Parker No. 161907424

          Diana Pierson, Andrea J. Garland, and Sarah J. Carlquist Attorneys for Appellant

          Sean D. Reyes and John J. Nielsen, Attorneys for Appellee

          Judge Gregory K. Orme authored this Opinion, in which Judges David N. Mortensen and Ryan M. Harris concurred.


          ORME, JUDGE.

         ¶1 Appellant Adam Zakaria A. Ahmed challenges his conviction for possession of a controlled substance with intent to distribute, arguing, primarily, that the trial court erred in denying him access to the surveillance location from which law enforcement observed the conduct that culminated in his arrest. We reverse, provisionally, and remand for further proceedings.


         The Arrest

         ¶2 On a Spring day in 2016, a drug interdiction officer (the Officer) conducted surveillance from a ground-level room of an office building located, according to his testimony, approximately forty feet from where Ahmed was arrested near the homeless shelter in the crime-ridden Rio Grande neighborhood of Salt Lake City. According to the Officer, while standing on a desk and looking through the top of an 8-foot tall window, "part[ing] the blinds just enough" to make room for his binoculars, his attention was drawn to two men-later identified as Ahmed and his cohort, Troy Pace. The Officer observed "multiple different individuals" approach Ahmed and Pace and "hand[] them money" in "quick, hand-to-hand transactions and walk away." Based on the Officer's experience and training, he recognized this behavior as being consistent with drug dealing.

         ¶3 The Officer testified that he observed Ahmed and Pace for "about 30 minutes," during which time he saw the men distribute what was later determined to be spice[2] in "multiple different ways." They sold spice in "joints that were already rolled," or in "containers that had some loose spice or . . . spice joints in them." He also observed them "pour out loose spice" into purchasers' own rolling paper. The Officer also testified that throughout these exchanges, consistent with his past observations of drug deals, Pace "act[ed] primarily as a holder," tasked with keeping the "majority of the drugs and the money," while Ahmed "act[ed] as a dealer," "dealing out small amounts" of spice and being "resupplied by . . . Pace."

         ¶4 After approximately "10 to 15 separate individuals or groups" interacted with Ahmed and Pace in this manner, the Officer radioed "takedown officers" positioned "around the corner" and instructed them to detain an individual who he believed had just purchased spice from Ahmed. Upon searching this buyer, the officers found what they believed to be spice cigarettes, given their color and smell. Based on his observations and the discovery made during the search of the buyer, the Officer concluded there was probable cause to arrest Ahmed and Pace, and he radioed the takedown officers and instructed them to take the pair into custody.

         ¶5 The Officer described Ahmed to the takedown officers as a "black [male] with a tan coat" and Pace as the "taller" of the two and wearing a backpack. The Officer provided no additional descriptive details about either Ahmed or Pace. The Officer testified that when the takedown team was approximately twenty feet away from Ahmed, he saw Ahmed drop his "very large, heavy, tan coat." A member of the takedown team also testified that he saw Ahmed remove the coat and place it on the ground as he approached. A search of the coat revealed containers and joints of what appeared-and what testing later confirmed-to be spice.

         Legal Proceedings

         ¶6 The State charged Ahmed with possession of a controlled substance with intent to distribute, a third degree felony, in violation of Utah Code section 58-37-8(1)(a)(iii).[3] During the preliminary hearing, Ahmed asked the Officer about the Officer's exact surveillance location from which he observed the alleged spice-dealing. The State objected and the Officer declined to disclose the information, citing safety concerns. Ahmed argued that his due process rights entitled him to this information. The trial court sustained the State's objection "for purposes of the preliminary hearing," but it allowed inquiry into the distances involved and the Officer's ability to observe the alleged crime.

         ¶7 Prior to trial, Ahmed moved to access the Officer's exact surveillance location "for the purpose of collecting relevant and exculpatory evidence in the possession of law enforcement." The State urged the court to deny Ahmed's motion, drawing an analogy to the confidential informant evidentiary privilege because "other courts have compared the location of a surveillance tower area to the name of a [confidential informant]." The State also argued that the court should deny the motion due to "officer safety concern[s]" and concerns for the owner of the particular building, and because disclosure would result in law enforcement's loss of the site for future surveillance work.

         ¶8 The trial court denied Ahmed's motion to access the Officer's surveillance location based on a "balance of interest." It reasoned that "there is a substantial need for law enforcement to be able to conduct undercover operations to try and catch those distributing controlled substance[s] in the area." The court also found the State had an interest in keeping the location secret because "[t]here are only a few higher buildings" in the area and disclosure of the surveillance location would limit its use by law enforcement, thus increasing "the importance of not revealing those locations."[4] Ultimately, the court denied Ahmed's request because "the community has an interest in effective law enforcement" in the Rio Grande neighborhood, which outweighed Ahmed's interest "in disclosure and [the] opportunity to prepare." The court did, however, instruct the State "to work with the defense . . . to see if [they could] at least allow some kind of viewing of a similar angle and distance."

         ¶9 In making this ruling, the court rejected the State's assertion that an evidentiary privilege prohibited disclosure of the site. Instead, the court found that this was "a question of the credibility of the officer" and "the Defense's need to try and cross-examine" him.

         ¶10 Ahmed's theory at trial was that he was misidentified. His own testimony was supported by Pace, who testified that he was carrying a "light tan" "camouflage" backpack that contained spice. Pace also testified that he had a "tan" jacket that he had taken off and that was "sitting next to" him on the street. Pace further stated he was about 5'8'' or 5'9''. Finally, he testified that Ahmed was not dealing spice with him and was simply "walking by" when the takedown officers arrested both of them. Ahmed testified that he was in the area where the arrest took place because he "was visiting a friend." He denied dealing with Pace and insisted he had no spice on him that day. He also testified that he was 6'3'', making him the taller of the two by several inches.

         ¶11 At the close of the State's case-in-chief, Ahmed moved for a directed verdict. He argued the State presented insufficient evidence to support a conviction, specifically, that "[w]e don't know who [the Officer] saw. He said a black male in a tan coat. He failed to mention any braids. He failed to mention a hat. He failed to estimate height, weight, features, hairstyle, age, eye color, [or] hair color." Ahmed further argued that "[w]ith regard to [the substance found on the buyer], there is no reliable evidence" that what was distributed was the same substance found in the coat because the substance retrieved from the buyer was never tested. Finally, Ahmed argued that the evidence ...

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