State v. Strieff

286 P.3d 317

716 Utah Adv. Rep. 26

2012 UT App 245

STATE of Utah, Plaintiff and Appellee,

v.Edward Joseph STRIEFF Jr., Defendant and Appellant.

No. 20100541–CA.

Court of Appeals of Utah.

Aug. 30, 2012.

Elizabeth A. Lorenzo and Robert K. Engar, Salt Lake City, for Appellant.

Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee.

Before Judges VOROS, THORNE, and ROTH.

OPINION

ROTH, Judge:

¶ 1 Edward Joseph Strieff Jr. appeals from his convictions for attempted possession of a controlled substance and possession of drug paraphernalia. Strieff contends that the district court erroneously denied his motion to suppress the evidence underlying these convictions by applying an intervening circumstancesexception not recognized by Utah law or the Utah Constitution. Because we conclude that the district court applied the proper test and correctly denied the motion to suppress, we affirm.

BACKGROUND

¶ 2 After receiving an anonymous tip that drug activity was occurring at a home in South Salt Lake, Utah, Officer Doug Fackrell conducted intermittent surveillance of the home for approximately three hours over a one-week period. In the course of his surveillance, Officer Fackrell observed short-term traffic at the house, which in his experience was consistent with drug sales activity. Consequently, Officer Fackrell decided he needed to “find out what was going on [in] the house.”

¶ 3 Officer Fackrell then saw Strieff leave the home on foot. Although he had not witnessed Strieff's arrival at the house, Officer Fackrell believed, based on his observations of other short-term traffic at the location, that Strieff was a short-term visitor who might be involved in drug activity, so he followed Strieff in his unmarked vehicle. When Strieff approached a 7–Eleven, Officer Fackrell pulled alongside him, stepped out of his vehicle, and identified himself as a police officer. The officer then asked Strieff what he had been doing at the house. Officer Fackrell also requested identification, and Strieff produced an identification card, which the officer retained while he ran a warrants check. That inquiry revealed a “small traffic warrant.” As a result, Officer Fackrell arrested Strieff and, in the course of conducting a search incident to the arrest, discovered “a white crystal substance” that “tested positive for methamphetamine,” “a small green plastic scale” covered with a “white powder residue,” and a glass pipe. Strieff was subsequently charged with unlawful possession of a controlled substance and possession of drug paraphernalia.

¶ 4 Strieff moved to suppress the methamphetamine and paraphernalia evidence, asserting that it had been obtained as the result of an illegal seizure. The State conceded that Officer Fackrell had illegally detained Strieff ¹ but argued that the evidence was nevertheless admissible because it “was discovered during a search incident to a lawful warrant-arrest .... [and therefore] was not a product of the initial detention.” See generally Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (stating that “the more apt question” in determining whether evidence obtained from “the illegal actions of the police” should be suppressed is “whether, granting establishment of the primary illegality, the evidence ... has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint”); State v. Arroyo, 796 P.2d 684, 690 n. 4 (Utah 1980) (employing a three-part test for determining whether evidence is obtained through exploitation of an illegal search or seizure, which requires consideration of the temporal proximity between the discovery of the evidence and the initial illegality, the presence or absence of intervening circumstances, and the purpose and flagrancy of the officer's misconduct).

¶ 5 The district court agreed with the State, concluding that although the illegal seizure and the search occurred in quick succession and their temporal proximity therefore weighed in favor of suppression, an intervening circumstance—the discovery of the warrant—and the officer's lack of purposefulness and flagrancy in detaining Strieff weighed against exclusion of the evidence. The district court concluded that, on balance, the attenuation factors supported a determination that the discovery of the evidence was not a result of exploitation of the initial illegality and denied Strieff's motion to suppress. Strieff entered conditional guilty pleas ² to attempted possession of a controlled substance and possession of drug paraphernalia. He now appeals, asserting that the district court applied a test not recognized by Utah law to deny his motion to suppress.

ISSUE AND STANDARD OF REVIEW

¶ 6 Strieff recognizes that both the United States Supreme Court and the Utah Supreme Court have applied the attenuation doctrine for the purpose of assessing whether evidence obtained during a search or seizure conducted in violation of the Fourth Amendment must be suppressed or whether it is sufficiently separate from the initial illegality to be purged of any taint. See Wong Sun, 371 U.S. at 487–88, 83 S.Ct. 407;Arroyo, 796 P.2d at 690 n. 4. Strieff contends, however, that in considering the warrant as an intervening circumstance, the district court went beyond the bounds of the attenuation doctrine as it has been recognized under Utah law.³ We review the district court's denial of a motion to suppress for correctness. See State v. Tripp, 2010 UT 9, ¶ 23, 227 P.3d 1251. We likewise review the court's interpretation of precedent in reaching its decision to suppress for correctness. See generally Ellis v. Estate of Ellis, 2007 UT 77, ¶ 6, 169 P.3d 441 (stating the standard for reviewing the district court's interpretation of precedent).

ANALYSIS

I. State v. Topanotes

¶ 7 As a threshold matter, we address Strieff's contention that the methamphetamine and paraphernalia evidence discovered by Officer Fackrell following the warrant arrest must be suppressed under the reasoning of the Utah appellate courts in State v. Topanotes, 2003 UT 30, 76 P.3d 1159, and a number of other cases. Unlike the dissent, we are not persuaded that Topanotes is controlling authority in this case. But, because of the similarity of the facts between the two cases and the dissent's thoughtful discussion of Topanotes, we engage in a separate analysis to explain how we distinguish it from the case before us.

¶ 8 The Fourth Amendment protects against unreasonable searches and seizures. SeeU.S. Const. amend. IV. The exclusionary rule is a judicial remedy that renders “evidence obtained by searches and seizures in violation of the Constitution ... inadmissible in state court.” Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The exclusionary rule is not absolute, however; evidence seized as a result of an illegal search or seizure may be admissible under three “closely related but analytically distinct” exceptions: independent source, inevitable discovery, and attenuation. See United States v. Terzado–Madruga, 897 F.2d 1099, 1113 (11th Cir.1990). Under the independent source doctrine, challenged evidence is admissible despite the constitutional violation “if it derived from a lawful source independent of the illegal conduct.” Id. The inevitable discovery doctrine is an extension of the independent source doctrine and deems admissible evidence discovered during an illegal search or seizure “if it inevitably or ultimately would have been discovered by lawful means without reference to the police misconduct.” Id. And the attenuation doctrine considers whether the “causal connection between the constitutional violation and the discovery of the evidence has become so attenuated as to dissipate the taint” of the initial illegality, making suppression unnecessary as a deterrent. Id.

¶ 9 Although Topanotes is nearly factually identical to the present case,⁴ the Utah Supreme Court was analyzing whether drug evidence discovered pursuant to arrest on a warrant discovered following an illegal detention could be admitted under the inevitable discovery doctrine, not the attenuation doctrine. The dissent places emphasis on the “closely related” aspect of the relationship between the three exceptions, noting that it was unlikely that the “Utah Supreme Court would have allowed the evidence discovered in [ Topanotes ] if only the State had urged the attenuation doctrine instead of the ‘closely related’ inevitable discovery doctrine.” See infra ¶ 56 (quoting Terzado–Madruga, 897 F.2d at 1113). However closely related these doctrines are, they are nevertheless “analytically distinct,” and we believe that our treatment of the warrant discovery in this case as an issue of first impression under the attenuation doctrine is therefore justified. Compare Topanotes, 2003 UT 30, ¶ 16, 76 P.3d 1159 (noting that “[a] crucial element of inevitable discovery is independence; there must be some ‘independent basis for discovery’ ” (citation omitted)), with State v. Newland, 2010 UT App 380, ¶¶ 9, 11, 253 P.3d 71 (requiring a causal connection between the initial illegality and the challenged evidence for application of the attenuation doctrine and focusing on whether the evidence is obtained “ ‘by exploitation of the illegality or instead by means sufficiently distinguishable to be purged of the primary taint’ ” (quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963))).

¶ 10 Indeed,

[t]he inevitable discovery doctrine allows the admission of evidence that was seized illegally if it would have been seized legally eventually.... In contrast, the attenuation doctrine admits evidence that is obtained with the authority of law provided that the evidence was not come at by the exploitation of a prior illegal act.

State v. Eserjose, 171 Wash.2d 907, 259 P.3d 172, 183 (2011) (en banc) (emphasis and internal quotation marks omitted). Using the...