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State v. Nihells

Court of Appeals of Utah

December 27, 2019

State of Utah, Appellant,
Tyler A. Nihells, Appellee.

          Third District Court, Salt Lake Department The Honorable Andrew H. Stone No. 181903545

          Sean D. Reyes and Jeffrey D. Mann, Attorneys for Appellant

          Sarah Carlquist, Attorney for Appellee

          Judge Gregory K. Orme authored this Opinion, in which Judges David N. Mortensen and Diana Hagen concurred.


          ORME, JUDGE.

         ¶1 Having determined that the State had not presented sufficient evidence at a preliminary hearing to establish probable cause to believe that defendant Tyler A. Nihells committed two drug-related offenses, the magistrate declined to bind him over for trial on either charge. The State appeals, and we reverse.


         ¶2 Prompted by an expired registration, a state trooper (Trooper) pulled over a vehicle containing two occupants: Nihells, the driver, and Thomas A. Burzak Jr., the passenger and owner of the vehicle. After obtaining a driver license from each of them, Trooper asked Nihells to accompany him to his patrol car while he ran a records check. Trooper also approached Burzak, who declined to speak with Trooper. Burzak was nervous, "breathing really heavily and just seemed uneasy."

         ¶3 As soon as Trooper and Nihells were in the patrol car, Trooper immediately "noticed a strong odor of marijuana emitting from [Nihells]." Trooper later described Nihells's demeanor as "overly nervous" and "uneasy with [Trooper's] presence." Trooper also testified that Nihells avoided eye contact and was "breathing heavily." Trooper noted that Nihells's "carotid artery was pumping in his neck." Nihells told Trooper that he and Burzak were returning home from San Francisco, where they had spent a few weeks visiting friends. He also told Trooper that they were both unemployed and "had been for an amount of time," but they had been able to pay for the trip with savings. When Trooper informed Nihells that he "could smell marijuana," Nihells explained that "it was probably coming from his clothes." Trooper asked whether "he had used recently," and Nihells answered that "it had been a little bit-a little while." But Nihells denied having any marijuana on his person, and Trooper did not search him.

         ¶4 While still waiting for dispatch to respond on the records check Trooper requested, he deployed his canine around Burzak's vehicle. The canine alerted on both the front passenger's and driver's side doors, but it did not alert on the trunk. Prior to conducting a physical search of the vehicle with two other troopers who had arrived on the scene, Trooper asked Nihells and Burzak whether the contents of the vehicle belonged to them, and they "said everything belonged to them."[2]

         ¶5 A search of the car revealed "two backpacks that were stuffed in the front of the trunk completely surrounded by other belongings." In the backpacks, Trooper found "11 packages of marijuana" with a cumulative weight of 11.15 pounds. Based on Trooper's training and experience, he testified that this represented a distributable amount. The search also revealed "marijuana fragments throughout the car and some rolling papers." Trooper did not ask who owned the backpacks, which did not contain any tags or other markings identifying their owner. Based on both Nihells's and Burzak's presence in the vehicle and their prior comments confirming ownership of all the car's contents, Trooper assumed that the backpacks belonged to both of them and placed the two under arrest.

         ¶6 The State charged Nihells and Burzak with one count each of possession of a controlled substance with intent to distribute and possession of drug paraphernalia. A district court judge, acting as a magistrate, held a joint preliminary hearing, at which Trooper was the only witness to testify. Following Trooper's testimony, Burzak's counsel argued that insufficient evidence supported bindover on the charges against his client because "this is a construct[ive] possession case where it's multiple passengers in the vehicle and it seems with [Burzak] all the state has been able to present has been mere presence" of marijuana and rolling papers because no contraband was "near [Burzak's] immediate control or where he had immediate access." He also argued that Nihells's and Burzak's answer to Trooper's "blanket question" of whether they owned everything in the vehicle was insufficient to establish the element of intent. Nihells's counsel "join[ed] most [of] those comments" and argued that "there's simply nothing tying [Nihells] to those backpacks." The State responded, asserting that the totality of the evidence, when viewed "in the light most favorable to the state," supported bindover for both defendants.

         ¶7 The magistrate concluded there was "[n]o probable cause as to any of the charges" because "it's probably a legal impossibility for each of [the defendants] to own everything in the vehicle" and "[t]here isn't anything tying either defendant to the materials found in the trunk." He stated that the "vague reference to fragments [of marijuana] without any quantification or location within the car other than to say it's throughout the car" was insufficient to establish knowledge and that "[o]dor by itself doesn't reflect knowledge of the contraband being there or raise an inference of that." The magistrate also determined that "nervousness" does not raise an inference of guilt. Accordingly, the magistrate declined to bind either defendant over for trial on either charge.

         ¶8 The State appeals the magistrate's denial of bindover for Nihells.[3]See Utah Code Ann. ...

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