District Court, Logan Department The Honorable Brian G.
Cannell No. 161100060
L. Holdaway and Diane Pitcher, Attorneys for Appellant.
D. Reyes and Jeffrey D. Mann, Attorneys for Appellee.
Diana Hagen authored this Opinion, in which Judges David N.
Mortensen and Ryan M. Harris concurred.
Jeremy Lee Perkins challenges the district court's denial
of his motion to suppress evidence obtained from a search
that he argues was unconstitutional. Perkins argues that the
officers did not have reasonable suspicion of recent criminal
activity and his detention was therefore illegal. In the
alternative, he argues that even if the detention was lawful
at its inception, the detention was unreasonably long. We
A concerned citizen met "face-to-face" with Officer
Pearce to inform the officer that Perkins's girlfriend
(the girlfriend) was using and selling drugs. Among other
things, the concerned citizen witnessed the girlfriend sell
methamphetamine to Perkins. For the next few weeks, Officer
Pearce attempted to contact the girlfriend and her probation
officer, to no avail.
When the girlfriend went to the Adult Probation and Parole
(AP&P) office for her monthly check-in, the probation
officer informed Officer Pearce that she had arrived. Officer
Pearce met with the girlfriend at the AP&P office and
asked her some questions based on the concerned citizen's
report. In particular, Officer Pearce asked the girlfriend if
he and the probation officer would find any drugs if they
searched her car. At first the girlfriend said no, but as
they were walking to her car, she admitted there were drugs
in the center console. The officers searched the car and
collected small baggies containing crystal pieces that later
tested positive for methamphetamine.
After discovering the narcotics in her car, Officer Pearce
informed the girlfriend of her rights and questioned her
about using and selling drugs. The girlfriend admitted to
selling methamphetamine and confirmed the concerned
citizen's report that Perkins was one of her customers.
Initially, she told Officer Pearce that she had seen Perkins
use methamphetamine that morning, but she later changed her
story and claimed she had last seen him use the week before.
The girlfriend lived with Perkins and his sister, and Officer
Pearce asked whether there were drugs at the residence (the
residence). The girlfriend said they would find only drug
Officer Pearce, other officers, and a canine unit,
accompanied the girlfriend back to the residence and
conducted a drug sniff and a search of the common areas
"as outlined in [her] probation agreement." The
girlfriend lived in the basement of the residence, and
Perkins and his sister lived upstairs. The drug dog alerted
to narcotics in the girlfriend's bedroom and in an
upstairs bathroom used by Perkins and his sister. The
officers also found paraphernalia and prescription medication
not prescribed to the girlfriend in her room.
Based on the information provided by the concerned citizen as
well as the girlfriend's statements that she sold Perkins
methamphetamine and recently saw him use it, Officer Pearce
wanted to detain Perkins for further investigation. Officer
Pearce contacted another officer, Officer Stirland, and
instructed him to attempt to locate and detain Perkins at his
workplace. According to Officer Stirland's testimony,
Officer Pearce did not provide many details about the
justification for or purpose of the stop.
At 11:44 a.m., Officer Stirland located Perkins in the
company's parking lot and detained him. Officer Stirland
notified Officer Pearce, who was still at the residence where
the canine unit was finishing its work. Officer Pearce told
Officer Stirland that he was dispatching a canine unit to
Perkin's location and to continue to detain Perkins until
the unit arrived. As soon as the drug sniff at the residence
had concluded, the canine unit left for Perkins's
location. Due to heavy snow on the roads as well as the
distance between the residence and Perkins's location,
the drive took approximately twenty minutes. While waiting
for the canine unit to arrive, Officer Stirland allowed
Perkins to remove company-owned items from his truck and wait
inside his company's office. According to the call
records, the canine unit arrived at Perkins's location
between 12:20 p.m. and 12:30 p.m. The drug dog alerted to
narcotics in Perkins's truck within five minutes of
Meanwhile, at the residence, Officer Pearce had begun
drafting an affidavit for a search warrant to obtain bodily
fluids from Perkins to test for recent drug use. When he was
notified that the drug dog had alerted to the smell of
narcotics in Perkins's truck, Officer Pearce revised his
affidavit to include a request to search the truck. The
officers decided to wait for the search warrant, which was
already in progress, rather than conduct a warrantless search
of the truck based on the drug dog's alert or
Officer Pearce concluded his investigation at the residence
at approximately 12:45 p.m. and then traveled to
Perkins's location. Officer Pearce completed the
affidavit for a search warrant while another officer drove.
Once they arrived on the scene, Officer Pearce electronically
submitted the affidavit for the search warrant at 1:31 p.m.
When he did not receive an immediate response, Officer Pearce
contacted the court and learned that the magistrate judge who
was in charge of signing warrants that week was not
available. Officer Pearce contacted two other magistrate
judges, but neither judge could access the ...