State v. Vasquez-Marquez

204 P.3d 178

2009 UT App 14

STATE of Utah, Plaintiff and Appellee, v. David VASQUEZ-MARQUEZ, Defendant and Appellant.

No. 20070488-CA.

Court of Appeals of Utah.

January 23, 2009.

Margaret P. Lindsay, Spanish Fork, for Appellant.

Mark L. Shurtleff, atty. gen., and Joanne C. Slotnik, asst. atty. gen., Salt Lake City, for Appellee.

Before THORNE, Associate P.J., BILLINGS,¹ and DAVIS, JJ.

OPINION

DAVIS, Judge:

¶ 1 A jury convicted David Vasquez-Marquez (Vasquez) of possession of a controlled substance with intent to distribute in a drug-free zone, a first degree felony, see Utah Code Ann. § 58-37-8(1)(a)-(b), (4) (Supp. 2008). Vasquez appeals, arguing that the trial court erred in denying his motion to suppress the evidence found during a search of his home. We agree and reverse.

BACKGROUND

¶ 2 On September 14, 2006, Sergeant Troxel of the Provo Police Department prepared a search warrant for Vasquez's home, where Vasquez lived with his wife and children. In the affidavit supporting the search warrant, Sergeant Troxel included the following facts: a reliable confidential informant (the CI) "had personal knowledge that [Vasquez] was dealing cocaine"; the CI also knew where Vasquez lived; Vasquez's vehicles were registered to this same address; the CI and Sergeant Troxel conducted five controlled buys from Vasquez, the last being within seventy-two hours of the warrant request;² Vasquez drove to his home after two of the five controlled buys; within minutes of each call to request drugs, Vasquez or an unidentified Hispanic male would meet the CI at the predetermined location; on three occasions Vasquez and the Hispanic male arrived together, with Vasquez driving a vehicle registered in his name; Vasquez had an extensive criminal history, which included convictions for illegal possession or use of controlled substances; and, finally, Vasquez's home is half a block from Orem Junior High School. The search warrant was issued, and its execution uncovered the large amount of cocaine that formed the basis for the possession with intent to distribute charge filed against Valdez.³

¶ 3 Prior to trial, Vasquez filed a motion to suppress the evidence, alleging that the affidavit in support of the search warrant failed to provide probable cause that illegal drugs would be found at his home. The trial court denied the motion, concluding that Sergeant Troxel's affidavit provided "a sufficient nexus" between Vasquez's cocaine distribution and his home "to support the issuance of the search warrant." Vasquez now appeals the denial of his motion to suppress.

ISSUE AND STANDARD OF REVIEW

¶ 4 The only issue on appeal is whether the search warrant was supported by probable cause. "In reviewing the magistrate's [probable cause] decision, we assess whether the magistrate had `a substantial basis for determining that probable cause existed.'" State v. Norris, 2001 UT 104, ¶ 14, 48 P.3d 872 (quoting State v. Thurman, 846 P.2d 1256, 1260 (Utah 1993)). The magistrate's decision is afforded "`great deference,'" and we consider the affidavit "`in its entirety and in a common[]sense fashion.'" Id. (alteration in original) (quoting Thurman, 846 P.2d at 1260).

ANALYSIS

¶ 5 In order for a search warrant of a residence to be lawful, it must be supported by probable cause. "`Probable cause undoubtedly requires a nexus between suspected criminal activity and the place to be searched.'" State v. Dable, 2003 UT App 389, ¶ 5, 81 P.3d 783 (quoting United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir. 2000)). "The affidavit [justifying a search warrant] must support the magistrate's decision that there is a `fair probability' that evidence of the crime will be found in the place or places named in the warrant." Thurman, 846 P.2d at 1260. The question before us is whether the facts stated in Sergeant Troxel's affidavit provided probable cause to issue the search warrant for Vasquez's home.

¶ 6 Vasquez relies on United States v. Rowland, 145 F.3d 1194 (10th Cir.1998), for the proposition that "[p]robable cause to search a person's residence does not arise based solely upon probable cause that the person is guilty of a crime. Instead, there must be additional evidence linking the person's home to the suspected criminal activity." Id. at 1204 (emphasis added). We agree. Affidavits may not be "purely conclusory" but must detail the "`underlying circumstances'" in order to support a determination that probable cause exists. United States v. Ventresca, 380 U.S. 102, 108-09, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). Of course, in determining whether there is a fair probability that evidence of a crime will be found in the place to be searched, the magistrate may draw "reasonable inferences" from the information given in the search warrant application. Illinois v. Gates, 462 U.S. 213, 240, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Such inferences, however, must be based on specific facts and cannot be the result of broad generalizations.⁴ Thus, "[a]lthough common sense and experience inform the inferences reasonably to be drawn from the facts, broad generalizations do not alone establish probable cause.... [G]eneralizations do not substitute for facts and investigation." State v. Thein, 138 Wash.2d 133, 977 P.2d 582, 589-90 (1999). In sum, an affidavit that details only the facts showing that the accused had been involved in selling drugs will never allow a reasonable inference that those drugs are stored at the accused's residence.

[An] affidavit [that] provide[s] no basis to either limit the possible sites or suggest that [the suspect's] home was more likely than the otherwise endless possibilities.... is insufficient to provide a substantial basis for concluding there was probable cause to believe the contraband would be in [the suspect's] home at the time the search was to take place.

Rowland, 145 F.3d at 1205. Any other rule would erode Fourth Amendment protections because where "`there is nothing to connect the illegal activities with the arrested person's [residence], to issue a warrant based solely on the agent's expert opinion would be to license virtually automatic searches of residences of persons arrested for narcotics offenses.'" Sowers v. Commonwealth, 49 Va. App. 588, 643 S.E.2d 506, 511 (2007) (quoting United States v. Gomez, 652 F.Supp. 461, 463 (E.D.N.Y.1987)).⁵

¶ 7 The State argues that such generalizations are sufficient, citing to several cases that it claims have determined that a suspect's status as a drug dealer is, by itself, a sufficient basis for probable cause to search his or her residence. See, e.g., State v. Nazario, 38 Conn.App. 588, 662 A.2d 1313, 1318 (1995) ("In the case of drug dealers, evidence is likely to be found where the dealers live." (internal quotation marks omitted)); State v. Perez, 92 Wash.App. 1, 963 P.2d 881, 884 (1998) ("`[A] nexus is established between a suspect and a residence if the affidavit provides probable cause to believe the suspect is involved in drug dealing and the suspect is ... living there ....'" (quoting State v. O'Neil, 74 Wash.App. 820, 879 P.2d 950, 953 (1994), overruled by State v. Thein, 138 Wash.2d 133, 977 P.2d 582 (1999))).<sup>6</sup> Yet in nearly all of the cases that the State cites, probable cause was not simply based on generalizations about drug dealers but, rather, each affiant had additional facts that supported the reasonable inference that the drugs were at the suspect's residence instead of somewhere else. See United States v. McClellan, 165 F.3d 535, 546 (7th Cir.1999) ("`[The informant] had seen [the suspect] back-up his pick-up truck to a storage facility, located at the residence ... and unload bundles of marijuana into the storage facility'...."); United States v. Reddrick, 90 F.3d 1276, 1279 (7th Cir.1996) (quoting testimony that the informant had very recently been in the residence and had seen several kilos of drugs there); United States v. Angulo-Lopez, 791 F.2d 1394, 1396 (9th Cir.1986) (stating that citizen informants had reported that the suspect was selling drugs out of his residence); Nazario, 662 A.2d at 1316-17 (indicating that the police verified that the residence was the location of the suspect's phone number and followed the suspect from the residence to other places where what appeared to be quick drug transactions occurred); People v. Lyons, 373 Ill.App.3d 1124, 313 Ill.Dec. 410, 872 N.E.2d 393, 395 (2007) (stating that a police surveillance team observed the suspect, shortly after receiving a phone call requesting drugs, leave his residence and drive to the specified location for the transaction); Commonwealth v. Luthy, 69 Mass.App.Ct. 102, 866 N.E.2d 930, 934 (2007) ("[S]urveillance revealed that the black GMC Envoy, used in both controlled buy transactions, was parked at the ... residence prior to, and immediately following, the second buy." (emphasis added)); Perez, 963 P.2d at 884 (discussing police observations of the suspect driving directly to the residence after receiving a page requesting drugs). But see United States v. Feliz, 182 F.3d 82, 85 (1st Cir.1999) (reciting as support for the search of the residence only the affiant's experience that "where ... an individual is demonstrated to be trafficking in drugs, it is not uncommon for there to be evidence of their drug trafficking activities ... kept at the trafficker's residence");⁷ United States v. Williams, 974 F.2d 480, 481 (4th Cir.1992) (relating that the only fact supporting the search of the suspect's hotel room was that the suspect was a drug dealer wanted on a fugitive warrant from another state where he had used his prior residence as a drug processing plant). Thus, we remain unconvinced that a broad generalization about drug dealers, unsupported by any underlying factual circumstances that would connect drugs to the drug dealer's home, is alone sufficient to support a finding of probable cause that the drugs are at the drug dealer's home.

¶ 8 Here, Vasquez and the unidentified...