December 12, 2013 Utah Court of Appeals Case Summaries

State v. Mitchell, 2013 UT App 289, No. 20110723-CA (December 12, 2013)

ISSUES: Typo in Affidavit Seeking Search Warrant, Inevitable Discovery, Brady Disclosures of Exculpatory Evidence, Pretrial Disclosures

Judge Voros,

Donald Mitchell appeals from his conviction of ten counts of sexual exploitation of a minor, a second degree felony. We affirm.

At ¶ 1.

         On September 20, 2006, Agent David White, assigned to the Utah Attorney General’s Internet Crimes Against Children taskforce, used a computer program to access a peer-to-peer filesharing network. He observed that a particular IP address was sharing files known to contain child pornography. Agent White then requested a search warrant; however, his affidavit in support of a search warrant contained an apparent inconsistency. He stated that he had observed this activity on September 26, 2006, but also stated that he had requested that the internet service provider identify the subscriber to whom that IP address was assigned as of September 20, 2006. Agent White explained the discrepancy at trial. Based on his contemporaneous notes, he testified that “the actual date that I made the direct connection with the suspect IP address was actually on September 20th and was not on September 26th. I must have taken the time 12:26 and somehow got it in there. It was a typo.”

At ¶ 3.

Based on Agent White’s affidavit and information concerning the address of the person registered to the IP address, police obtained a search warrant for Defendant’s home.

At ¶ 4.

On November 14, 2006, Agent White and other officers approached Mitchell at the golf course where he worked, told him that they had a search warrant for his house, and told him that he would need to accompany them back to his house. The officers informed Mitchell of his Miranda rights, which he waived. See Miranda v. Arizona, 384 U.S. 436 (1966). For the safety of the officers, Mitchell was handcuffed during the drive to and search of his house. During the eight-mile drive, Mitchell gave the officers directions. When asked if he had downloaded child pornography, Mitchell responded that he had but stated that he had done so accidentally and that he had deleted the files. Upon arriving, Mitchell accompanied the officers into his house. After a search lasting nearly two hours, the officers confiscated two computers for later analysis and uncuffed Mitchell.

At ¶ 5.

The officers then obtained a second warrant, which authorized forensic analysis of the seized computers. This analysis revealed five child pornography videos on one of the computers. Because the videos depicted ten different minors, Mitchell was charged with ten counts of sexual exploitation of a minor.

At ¶ 6.

Typographical Error in Affidavi

The trial court denied [Defendant’s second] motion to suppress as untimely. Mitchell has not challenged this basis for the trial court’s ruling. “Because [Mitchell] fails to address the basis of the district court’s ruling, we reject this challenge.” Golden Meadows Props., LC v. Strand, 2010 UT App 257, ¶ 17, 241 P.3d 375.

At ¶ 10.

Mitchell also argues that he received ineffective assistance of counsel when his trial counsel failed to file a timely motion to suppress. See Utah R. Crim. P. 12(c)(1) (requiring motions to suppress to be raised at least five days prior to trial). [The Court sets forth twp step Strickland v. Washington standard of review for an ineffective assistance of counsel claim: (1) deficient performance, and (2) prejudice].

At ¶ 11.

Mitchell, assuming that the September 26 date [contained in Agent White’s Affidavit] was accurate, argues that the affidavit does not establish probable cause, because IP addresses frequently change. Therefore, Mitchell argues, no information was provided to show that he was the subscriber of the IP address on September 26, when the child pornography was being shared. The State responds that the September 26 date was a typographical error that did not undermine the probable cause determination.

At ¶ 14.

Errors in an affidavit do not require suppression when the magistrate has a substantial basis to determine that the erroneous facts are merely typographical errors and the facts otherwise support a determination of probable cause. . . .

At ¶ 15.

In light of this . . . , Mitchell has not demonstrated a reasonable probability that a timely motion would have resulted in suppression of the evidence obtained from the search warrant. “The Sixth Amendment does not require counsel to make futile objections.” State v. Ricks, 2013 UT App 238, ¶ 22 (citing State v. Whittle, 1999 UT 96, ¶ 34, 989 P.2d 52). Accordingly, Mitchell has not shown that he was prejudiced by his counsel’s failure to make the motion. Therefore, counsel’s failure to timely file a motion to suppress based on the validity of the warrant did not amount to constitutionally ineffective assistance of counsel.

At ¶ 17.

Inevitable Discovery

Mitchell next challenges the trial court’s denial of an earlier, timely motion to suppress. As explained above, en route from his workplace to his house, Mitchell told police that he had downloaded child pornography by accident but that he had deleted it. At the house, the officers continued to detain Mitchell for nearly two hours while they searched Mitchell’s house and computers. Mitchell moved to suppress, as fruit of an illegal arrest, the statements he made and the evidence of child pornography ultimately found on one of his computers. The trial court denied the motion. It ruled that the statements were admissible because they were made voluntarily. And it ruled that the evidence from the computers was admissible because Mitchell’s detention was not a formal arrest but was justified under Michigan v. Summers, which recognizes limited authority to detain occupants of premises incident to the execution of a search warrant. See 452 U.S. 692, 705 (1981). But see Bailey v. United States, 133 S. Ct. 1031 (2013) (limiting Summers). The trial court ruled in the alternative that the evidence found on the computer was admissible under the inevitable discovery doctrine. It reasoned that the evidence would have been discovered through the search warrant “regardless of [Mitchell’s] presence, his cooperation, or his statements.”

At ¶ 18.

Assuming without deciding that Mitchell’s detention was illegal, we conclude that the trial court properly admitted the evidence under the inevitable discovery doctrine. Generally, “[w]hen evidence is the product of illegal governmental activity, a court must suppress the evidence to deter the illegality.” . . .. “The inevitable discovery doctrine admits unlawfully obtained evidence if the police would have, in spite of the illegality, discovered the evidence by some other legal means.” Tripp, 2010 UT 9, ¶ 56; see also Topanotes, 2003 UT 30, ¶ 14; Strieff, 2012 UT App 245, ¶¶ 8–10.

At ¶ 20.

“A crucial element of inevitable discovery is independence; there must be some independent basis for discovery, and the investigation that inevitably would have led to the evidence [must] be independent of the constitutional violation.” Topanotes, 2003 UT 30, ¶ 16 (alteration in original) (citations and internal quotation marks omitted). “Thus, the fact or likelihood that makes the discovery inevitable [must] arise from circumstances other than those disclosed by the illegal search itself.” Id. (alteration in original) (citation and internal quotation marks omitted). Although the inevitable discovery doctrine deals in hypothetical scenarios, the prosecution must prove by a preponderance of the evidence not merely that “the situation could have developed in the manner hypothesized by the State,” but that the independent source “would have led to legal discovery of the evidence in question.” Id. ¶ 21. “If the evidence would not necessarily have been discovered, then it must be excluded to effect the primary purpose of the exclusionary rule: to deter unconstitutional police conduct.” Strieff, 2012 UT App 245, ¶ 10.

At ¶ 21.

Mitchell argues that the State would not have discovered the evidence on his computers without detaining him, because the officers could not have found his house without his assistance. This is so, Mitchell contends, because “the address listed on the search warrant was 70 North 100 East,” which was his father’s address; Mitchell’s own address was 50 North 100 East.

At ¶ 22.

The Court reviews the information available to the police and determines that it supports the trial court’s determination that police would have inevitably located the home and searched it.

At ¶¶ 23-24.

Sufficiency of the Evidence

Mitchell next contends that the evidence presented at trial was insufficient to support the jury’s conclusion that he knowingly possessed child pornography. See Utah Code Ann. § 76-5b-201 (LexisNexis 2012). The State responds that Mitchell “argues his sufficiency challenge as if it were preserved” without demonstrating that it was.

At ¶ 26.

After reviewing the record, we agree with the State that Mitchell did not preserve this claim. See Utah R. App. P. 24(a)(9). And merely mentioning in a reply brief that exceptions to the preservation requirement exist does not serve to invoke them. See id. R. 24(c); Allen, 2008 UT 56, ¶ 8. Thus, on procedural grounds alone, his sufficiency challenge fails.

At ¶ 28.

But even if that were not the case, Mitchell has not demonstrated plain error. . . . Here, Mitchell challenges the evidence that his possession of the child pornography was knowing. “Proof of a culpable mental state comes by way of circumstantial evidence, and proof of intent or knowledge is an inference that may be drawn by the factfinder both from direct and from circumstantial evidence.” State v. O’Bannon, 2012 UT App 71, ¶ 43, 274 P.3d 992 (citing State v. James, 819 P.2d 781, 789–90 (Utah 1991)).

At ¶ 29.

Mitchell’s summary of the evidence supporting the jury’s verdict omits evidence that would support a finding that he knowingly possessed child pornography. For example, evidence was presented at trial that Mitchell used known child pornography search terms on a peer-to-peer file-sharing network, had pending download requests for files containing those terms, changed the default folder to which downloads were automatically sent, and had manually moved some of the downloaded files from that folder to a second folder. Additionally, one of the three file-sharing programs on his computer was set to automatically delete his search history when closed. Having failed to marshal this apparently incriminating evidence, Mitchell does not explain why it, in combination with evidence Mitchell does marshal, is insufficient to support a finding of knowledge. Accordingly, his argument falls short of demonstrating that the jury’s verdict was not supported by sufficient evidence.

At ¶ 32.

Brady Disclosures

The Utah Supreme Court has held that “a Brady violation occurs only where the state suppresses information that (1) remains unknown to the defense both before and throughout trial and (2) is material and exculpatory, meaning its disclosure would have created a reasonable probability that the result of the proceeding would have been different.” State v. Pinder, 2005 UT 15, ¶ 24, 114 P.3d 551 (citation and internal quotation marks omitted).

At ¶ 34.

Less than two weeks before trial, Mitchell sent a supplemental discovery request asking for the specific file names and file paths for the files on which the State based its charges of sexual exploitation of a minor. The State provided the information a few days before trial. Mitchell argues that this information led to evidence which “would have directly exonerated [him] by showing that some of the files downloaded were downloaded while the computer was in the custody of the investigators.” Mitchell also asserts that he was not present when several of the files were accessed.

At ¶ 35.

Mitchell sought to admit this evidence through the testimony of his expert and through alibi witnesses. However, the trial court ruled that the additional expert testimony could not come in because the notice of expert did not comply with the rules. The trial court also ruled that due to the late notice, any alibi evidence would be limited to Mitchell’s own testimony, should he take the stand. See Utah Code Ann. § 77-14-2 (LexisNexis 2012) (requiring notice of alibi to be given at least ten days before trial).

At ¶ 36.

Mitchell has not carried his burden of demonstrating a Brady violation. First, Mitchell does not contend that the evidence in question was “unknown to the defense both before and throughout trial.” See Pinder, 2005 UT 15, ¶ 24. Indeed, he acknowledges that it was provided to him before trial.

At ¶ 37.

Second, although Mitchell claims that the evidence “would have created a reasonable probability that the result of the proceeding would have been different,” see id., he does not explain how. The gist of Mitchell’s claim, as we understand it, is stated in this passage from his opening brief: “The State’s expert testified that all these files had been viewed more than once as [they] were in the recent document folders for November 14, 2006 and November 15, 2006.” He continues, “However, the police officer[s] picked up Donald [Mitchell] from the [golf course] on November 14, 2006 at 4:40 p.m. and confiscated his computer that night. Shortly [afterwards,] he was in an accident.” Thus, he concludes, he could not have accessed the files on November 14 or November 15.

At ¶ 38.

        However, the State’s expert did not testify that the files were accessed on November 15, 2006. He testified that he had determined that one of the files had been opened “a minimum of two times” based on registry information showing that “prior to August 8th the file was opened, and then back in November, prior to November 15th, it was opened again.” (Emphasis added.)7 In any event, the fact that Mitchell was not present when some files were downloaded does not prove that he had not earlier requested the downloads. As the testimony at trial demonstrated, Mitchell need not have been present when previously-requested downloads took place. And the State’s expert also testified that the files’ access dates would refer to any number of actions besides opening a file, such as running a virus scan. Such actions would not necessarily need a user present. Mitchell has thus failed to demonstrate that the supposedly exculpatory evidence would have created a reasonable probability that the result of the proceeding would have been different, especially in light of the evidence recounted above. See supra ¶ 32.

At ¶ 39.

Expert Testimony and Alibi Witness (Pretrial Disclosures)

As discussed above, Mitchell has not demonstrated that he was prejudiced by the exclusion of evidence that the files were downloaded when he was not present. Accordingly, his claims of plain error and ineffective assistance of counsel cannot succeed.

At ¶ 41.

Mitchell also asserts in his opening brief that “[t]here are documents generated by the expert, not in the record, that if admitted would tend to exonerate [him].” Yet Mitchell never moved for a rule 23B remand to establish a record to demonstrate prejudice. See Utah R. App. P. 23B. “If a defendant is aware of any ‘nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective,’ defendant bears the primary obligation and burden of moving for a temporary remand.” State v. Litherland, 2000 UT 76, ¶ 16, 12 P.3d 92 (quoting Utah R. App. P. 23B). “Where the record appears inadequate in any fashion, ambiguities or deficiencies resulting therefrom simply will be construed in favor of a finding that counsel performed effectively.” Id. ¶ 17. Mitchell has not attempted to supplement the record with evidence tending to show that he was prejudiced. Absent a showing of prejudice, he is not entitled to relief.

At ¶ 42.

Mitchell next contends that the trial court plainly erred by failing to continue trial when, on the first day of trial, Mitchell made his untimely second motion to suppress and his untimely notice of alibi. . . .

At ¶ 43.

            Mitchell does not claim that the trial court’s rulings violated any rule of law. Rather, he claims that the obvious error that the trial court should have noticed and corrected was his trial counsel’s deficient performance. Mitchell cites no authority for the proposition that ineffective assistance of counsel can constitute an obvious trial error warranting reversal under the plain error doctrine; the only case he refers to discusses generally a defendant’s right to effective assistance of counsel. See Utah R. App. P. 24(a)(9) (requiring briefs to contain citation to and analysis of authority). Furthermore, as explained above, Mitchell has not demonstrated that he was harmed by the denial of the motion to suppress or by the exclusion of alibi witness testimony. Therefore, Mitchell has not demonstrated that the trial court plainly erred.

At ¶ 44.

Preservation of Appeal

Finally, Mitchell contends that, under rules 403 and 404(b) of the Utah Rules of Evidence, the trial court erred by admitting testimony that his computer contained uncharged images of child pornography. Mitchell did not adequately preserve this issue for appeal.

At ¶ 45.

State v. Hoffmann, 2013 UT App 290, No. 20111039-CA (December 12, 2013)

ISSUES: Probable Cause, Hiding Identity of Police Officers as Strategy to Obtain Consent, Independent Source Exception, Briefing a Utah Constitutional Argument

Judge Voros,

Samuel Joseph Hoffmann appeals from a district court order denying his motion to suppress drugs, drug paraphernalia, and a handgun seized during a warrant search of his apartment. We affirm.

At ¶ 1.

The Court outlines the facts of this case.

At ¶¶ 2-9

The challenged evidence was obtained in a search conducted pursuant to a warrant. Relying on the Fourth Amendment to the United States Constitution and article I, section 14 of the Utah Constitution, Hoffmann maintains that the warrant search was unlawful for two reasons. First, he argues that the search warrant affidavit was based on evidence obtained through an unlawful warrantless search, that is, by tricking the apartment occupants into opening their door. Second, he argues that the warrant search should be suppressed because, but for evidence acquired in the warrantless entry (including the opening of the door), the officers would not have sought a warrant and the magistrate would not have issued one.

At ¶ 13.

The district court ruled that the eventual warrant search of Hoffmann’s apartment was supported by probable cause. The probable cause finding rested on three key pieces of evidence, all obtained without a warrant: (1) the confidential informant’s tip, (2) the faint odor of marijuana Officer Francom detected before the door to Hoffmann’s apartment opened, and (3) the overwhelming odor of burnt marijuana emanating from the apartment after the door opened.

At ¶ 14.

Hoffmann maintains that the third piece of evidence should not have been included in the probable cause calculus, because it was obtained unlawfully. In Hoffmann’s view, by covering the peephole and knocking loudly but intermittently for several minutes Officer Francom coerced the occupants into opening the front door. We conclude that Officer Francom did not coerce the occupants into opening the apartment door. He thus acted lawfully in perceiving the overwhelming smell of burnt marijuana and in including that fact in the search warrant affidavit.

At ¶ 15.

“The Fourth Amendment generally prohibits the warrantless entry of a person’s home . . . . The prohibition does not apply, however, to situations in which voluntary consent has been obtained . . . .” Illinois v. Rodriguez, 497 U.S. 177, 181 (1990) (citations omitted). “Consent is not voluntary if it is obtained as ‘the product of duress or coercion, express or implied.’” State v. Bisner, 2001 UT 99, ¶ 47, 37 P.3d 1073 (quoting Schneckloth, 412 U.S. at 227).

At ¶ 18.

Police commonly act in ways that lead suspects to believe they are not in fact police. This tactic alone does not require suppression of information obtained from suspects. . . . “[T]he particular circumstances of each case govern the admissibility of evidence obtained by stratagem or deception.” Lewis v. United States, 385 U.S. 206, 208 (1966). But “it has long been acknowledged by the decisions of [the United States Supreme Court] that, in the detection of many types of crime, the Government is entitled to use decoys and to conceal the identity of its agents.” Id. at 208–09 (citations omitted).

At ¶ 19.

Here, the officers engaged in no deception. They made no misrepresentations. In fact, they made no representations at all. Hoffmann testified that the officers knocked loudly for several minutes, that Rocky went to the door and told Hoffmann that someone was covering the peephole, and that he told Rocky not to open the door. But nothing in the testimony of the apartment occupants indicates that the officers misidentified themselves or that they misrepresented the purpose of their visit.

At ¶ 20.

Indeed, the occupants of the apartment were well aware that whoever was knocking insistently on their door was concealing his or her identity. They knew the person on the other side might well be a police officer. They did not know that person’s identity, and they knew that they did not know it—it was a known unknown. . . .  The occupants knew they were not just opening the door to a stranger; they were opening the door to someone deliberately trying to hide his or her identity. Despite that knowledge, one of the occupants opened the door.

At ¶ 21.

Because the officers made no misrepresentations, their peephole-covering tactic was not only noncoercive, it was more innocuous than the disguises and decoys that government actors have long constitutionally employed. See Lewis, 385 U.S. at 208–09. As the United States Supreme Court noted in Lewis v. United States, a requirement that officers identify themselves would “severely hamper the Government in ferreting out those organized criminal activities that are characterized by covert dealings with victims who either cannot or do not protest.” Id. at 210. Therefore, we hold that the officers’ covering of the peephole did not render the occupants’ consent to open the door involuntary.

At ¶ 22.

Once [Defendant’s friend] opened the door, the overwhelming odor of burnt marijuana was plainly observable. Therefore, the officers lawfully observed it.

At ¶ 24.

The Court differentiates this case from Florida v. Jardines, 133 S. Ct. 1409, 1416–17 (2013).

At ¶¶ 25-31.

Independent Source Doctrine

Hoffmann next contends that because the warrant was a product of the officers’ unlawful entry into the apartment, the district court should have excluded the evidence obtained pursuant to that warrant. In Hoffmann’s view, the tainted evidence affected the officers’ decision to seek the warrant and the magistrate’s decision to issue it. Accordingly, Hoffmann argues, the district court erred when it relied on the independent-source exception found in Murray v. United States to deny his motion to suppress the evidence seized pursuant to the warrant. 487 U.S. 533 (1988).

At ¶ 32.

The independent-source doctrine is an exception to the exclusionary rule. See Nix v. Williams, 467 U.S. 431, 443–44 (1984); accord State v. Krukowski, 2004 UT 94, ¶ 7, 100 P.3d 1222. When officers conduct two searches, the first unlawful and the second lawful, evidence seized during the second search is admissible if the second search “is genuinely independent of [the] earlier, tainted one.” Murray, 487 U.S. at 542. The independent-source doctrine seeks to “put[] the police in the same . . . position . . . they would have been in if no police error or misconduct had occurred.” Nix, 467 U.S. at 443. Taken together, the exclusionary rule and the independent-source doctrine seek to balance “the interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime.” See id.

At ¶ 35.

Murray provides a two-pronged test for determining whether two searches are “genuinely independent.” 487 U.S. at 542. The government must establish (1) that the officers’ decision to seek a warrant was not “prompted by what they had seen during the initial entry” and (2) that no information gained from the illegal entry “was presented to the Magistrate and affected his decision to issue the warrant.” Id.

At ¶ 36.

Murray’s first prong requires a showing that the officers’ decision to seek a warrant was not prompted by what they saw during the unlawful search. Hoffmann argues that the State failed to make this showing. The State responds that Hoffmann did not preserve the issue.

At ¶ 38.

Here, Hoffmann’s discussion of Murray’s first prong consisted of a single line in his memorandum supporting his motion to suppress: “In Mr. Hoffmann’s case, agents may have been prompted by what they saw inside the home . . . .” By stating that the officers “may have been prompted by what they saw,” Hoffmann also implied the converse—that the officers may not have been. This equivocation suggests that Hoffmann was not asserting a violation of Murray’s first prong. Cf. State v. Winfield, 2006 UT 4, ¶ 15, 128 P.3d 1171 (explaining the invited error doctrine). Perhaps because Hoffmann did not squarely challenge the State’s showing on the first Murray prong, the district court made no express finding on it. In any event, we need not decide the preservation question, because we conclude that, as Hoffmann’s equivocal statement to the district court implied, Murray’s first prong is satisfied here.

At ¶ 40.

When a party presents a factual issue to the trial court but the court makes no findings of fact on the issue, “we assume that the trier of facts found them in accord with its decision.” State v. Ramirez, 817 P.2d 774, 787–88 (Utah 1991) (citation and internal quotation marks omitted). “We affirm the decision if from the evidence it would be reasonable to find facts to support it.” Id. (citation and internal quotation marks omitted). The district court considered Murray’s application of the independent-source doctrine in denying Hoffmann’s motion to suppress. The doctrine was briefed and argued by both parties, and the court made specific findings regarding the second Murray prong. See infra Part II.B. Because the district court ruled that the Murray test was satisfied, we assume it found that the officers’ decision to seek a warrant was not motivated by evidence they discovered during their initial search.

At ¶ 41.

The record facts support that finding. Before the officers entered Hoffmann’s apartment, they had already received an informant’s tip, partially tested the tip by covering Hoffmann’s peephole, detected the faint smell of marijuana with the door closed, and noted that the smell intensified when the door opened. As explained below, the smell of burnt marijuana alone may provide probable cause to obtain a warrant. See infra Part II.B. Even if the officers had not entered the apartment—and therefore neither found the bong nor confirmed that someone named “Sam” lived there—they had probable cause to support a warrant as a matter of law. In fact, before the officers discovered the bong during the protective sweep, Officer Francom told Hoffmann that he would be able to obtain a warrant based on the evidence the officers had already gathered. The officers’ decision to seek a warrant thus did not depend on additional supporting evidence. Because the evidence supports the finding that the officers were not prompted to seek a warrant by what they saw after their initial entry, we affirm the district court’s ruling denying Hoffmann’s suppression motion insofar as it rests on Murray’s first prong.

At ¶ 42.

Hoffmann next argues that Murray requires the State to demonstrate that “illegally obtained evidence submitted to the magistrate did not affect the magistrate’s decision” to grant a warrant. The State responds that the untainted information in the search warrant affidavit “was more than sufficient to establish probable cause” and therefore the tainted evidence “did not materially affect the magistrate’s decision to issue the warrant.”

At ¶ 43.

The second part of Murray’s second prong asks whether the unlawfully obtained information affected the magistrate’s decision to issue a warrant. Id. “Every circuit to consider the question has held that the Court’s instruction in Murray to analyze whether the tainted information affected the magistrate’s decision to issue the warrant did not mean to change the dominant pre-existing approach” established by Franks v. Delaware, 438 U.S. 154 (1978). See United States v. Dessesaure, 429 F.3d 359, 366–67 (1st Cir. 2005) (collecting cases).

At ¶ 45.

Under Franks, a court faced with a tainted affidavit must weigh the probable cause decision “with the affidavit’s false material set to one side.” 438 U.S. at 156. If “the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.” Id.; see also State v. Krukowski, 2004 UT 94, ¶ 14, 100 P.3d 1222.

At ¶ 46.

The district court here followed those instructions precisely. It “went through the search warrant,” “deleted all the . . . evidence based on the illegal entry,” “then looked at what was left and . . . was of the opinion that [it] would have issued that search warrant” even if the disputed evidence had not been included. . . .

At ¶ 47.

The Court agrees with the trial court that the information contained in the affidavit, minus that information illegally obtained, still supported issuance of the warrant.

At ¶¶ 48-50.

Utah Constitution

Finally, Hoffmann contends that article I, section 14 of the Utah Constitution provides a separate basis for excluding the evidence discovered in the warrant search. He asserts that the Utah Constitution does not recognize the independent-source doctrine. The State responds that Hoffmann failed to preserve the state constitutional claim in the district court and failed to adequately brief it on appeal. The State also maintains that an exclusionary rule itself is not a feature of article I, section 14. See State v. Walker, 2011 UT 53, ¶¶ 27–61, 267 P.3d 210 (Lee, J., concurring).

At ¶ 51.

Whatever the precise briefing standard, Hoffmann’s brief falls short. It does not quote or analyze the constitutional text, which our supreme court has consistently held to be the starting point of state constitutional analysis. It does not discuss the original understanding of article I, section 14. And it does not discuss historical and textual evidence, sister state law, or policy arguments.

At ¶ 54.

Hoffmann’s state constitutional argument is composed largely of citations to cases, many of which interpret the Fourth Amendment, for broad generalities of search and seizure law. . . .

At ¶ 55.

         Of course, a litigant advocating a novel application of a state constitutional provision cannot be expected to cite controlling law. But here Hoffmann urges us to read article I, section 14 to bar an independent-source exception to the exclusionary rule without analyzing either the rationale for the independent-source doctrine or the question of whether article I, section 14 includes an exclusionary rule. This latter point is significant. “The issue of whether the Utah Constitution contemplates an exclusionary rule is a controversial one.” State v. Walker, 2011 UT 53, ¶ 25, 267 P.3d 210 (Nehring, J., joined by Durham and Parrish, JJ., concurring). As noted, one justice of our supreme court has already made his position clear: “there is no exclusionary rule under the Utah Constitution.” Id. ¶ 28 (Lee, J., concurring).

At ¶ 56.

Given the complexity of the issues involved, adequate briefing requires more than repeating such truisms as that “warrantless searches will be permitted only where they satisfy their traditional justification, namely, to protect the safety of police or the public or to prevent the destruction of evidence,” Larocco, 794 P.2d at 469–70. This “analysis of the issue is so lacking as to shift the burden of research and argument to the reviewing court.” See State v. Thomas, 961 P.2d 299, 305 (Utah 1998). Accordingly, Hoffmann has not carried his burden on appeal of demonstrating that the district court erred by not suppressing the challenged evidence under the Utah Constitution.

At ¶ 57.

Scott v. Labor Commission, 2013 UT App 291, No. 20120526-CA (December 12, 2013)

Per establish policy I will not summarize this case because it challenges the sufficiency of evidence supporting an agency determination.  To the extent it challenges the Commission’s determination not to consider medical records that were filed late, the Court rules that the Commission acted well within the bounds of its broad discretion when it excluded the reports because the substance of the reports were already in the record.

State v. Mangum, 2013 UT App 292, No. 20120346-CA (December 12, 2013)

Per establish policy I will not summarize this case because it challenges the sufficiency of evidence supporting a conviction for aggravated assault.

In re O.H., 2013 UT App 293, No. 20130914-CA (December 12, 2013)

Per establish policy I will not summarize this case because it challenges the sufficiency of evidence supporting a Juvenile Court’s determination to terminate parental rights.

In re J.S., 2013 UT App 294, No. 20130811-CA (December 12, 2013)

ISSUES: Ineffective Assistance of Counsel

Mother asserts that she received ineffective assistance of counsel after her trial counsel declined to subpoena Mother’s proposed witnesses. . . .

At ¶ 2.

The Court reviews the Mother desire to have admitted and determines that 

The record objectively demonstrates that Mother’s proposed witnesses would have been unable to offer any testimony that was relevant to the issues before the court. It is apparent from the record that trial counsel had a legitimate basis for declining to call Mother’s proposed witnesses, and that no prejudice resulted from trial counsel’s strategic decision.

At ¶ 3.

Mother next asserts that rule 55(b) of the Utah Rules of Appellate Procedure improperly requires trial counsel to assert his or her own ineffectiveness in a petition on appeal. See Utah R. App. P. 55(b) (“Claims of ineffective assistance of counsel do not constitute extraordinary circumstances [to allow withdrawal of counsel] but should be raised by trial counsel in the petition on appeal.”). In the context of child welfare proceedings, once a claim of ineffective assistance of trial counsel is raised, this court independently reviews the juvenile court’s record, and any responses to the petition on appeal. If the court determines that the alleged ineffective assistance of counsel warrants further briefing, we may order the juvenile court to appoint conflict counsel for further briefing and argument. We conclude that rule 55(b) does not deprive Mother of a fair opportunity to present her ineffective assistance of counsel claims on appeal.

At ¶ 4.

American National v. Olsen, 2013 UT App 295, No. 20110221-CA (December 12, 2013)

ISSUES: Contract Interpretation, Homeowner’s Insurance Coverage, Definition of “Insured Location”

Judge Christiansen,

This case involves a dispute over whether a homeowner’s insurance policy excludes coverage for an all-terrain vehicle (ATV) accident that occurred in a residential subdivision. American National Property and Casualty Company (American National) appeals the district court’s award of summary judgment in favor of the passenger in the ATV accident, Stephen Dane Olsen. We affirm.

At ¶ 1.

The Court outlines the terms of the subject insurance policy and the trial court’s determination that the policy covered an ATV accident because it occurred on “an insured location.”

At ¶¶ 2-7.

American National’s central argument is that the district court erroneously determined that it had a duty to defend Sorensen and Simmons and to provide coverage under the policy. Because the accident occurred on the common area of the Highlands development, rather than on Simmons’s property, American National contends that the ATV accident did not occur on an “insured location.” And if the accident did not occur on an “insured location,” the ATV falls within subsection 8(c)’s definition of “motor vehicle” and Simmons’s claim is consequently barred by the motor vehicle exclusions. American National argues, therefore, that the district court erred in ruling that the accident occurred on an “insured location” as defined under the homeowner’s policy.

At ¶ 9.

In the alternative, American National argues that even if we determine that the common area of Simmons’s residential subdivision is an “insured location” under the policy, no coverage exists pursuant to the motor vehicle exclusions because the ATV is also a “motorized land conveyance” within the meaning of the policy. American National contends that although the policy does not define “motorized land conveyance,” according to a commonsense definition, an ATV is clearly a motorized land conveyance. And because the “while off an insured location” language appears only in the definition of a “motor vehicle,” that limitation does not apply to motorized land conveyances. Thus, American National argues that the motor vehicle exclusions apply regardless of whether the accident occurred on or off an insured location.

At ¶ 10.

American National argues that it can deny liability coverage under any of the motor vehicle exclusions contained in the policy because the accident occurred off an insured location and the ATV therefore qualifies as a motor vehicle. As explained below, we do not agree with American National’s interpretation of the term “insured location.”

At ¶ 14.

Courts in other jurisdictions have adopted several different tests to determine whether a location is used in connection with the residence premises. These tests include the “repeated use,” “integral use,” “property ownership and legal right to use,” “foreseeable use,” and “actual use” tests. In Arrowood Indemnity Co. v. King, 605 F.3d 62 (2d Cir. 2010), the Second Circuit certified several questions relevant to interpretation of an insurance policy to the Connecticut Supreme Court, and in presenting its questions, surveyed the case law and provided a helpful explanation of some of these tests. . . . We provide a summary of these tests to illustrate the widely-varied interpretations of similar policy language.

At ¶ 16.

One test that has been applied to determine if a motor vehicle was located on an “insured location” and any premises “used in connection with” the resident premises is whether the insured repeatedly used the area where the accident occurred in connection with the residence. . . .

At ¶ 17.

Another test is whether the accident occurred in a location that was integral to the insured’s use of the residence. . . . A related approach to consider is the foreseeability of the use of the site of the accident. . . .

At ¶ 18.

Another common determination in an “insured location” analysis is the ownership or legal right to use the area where the accident occurred. Courts using this approach generally conclude that ownership or the legal right to use an area weighs in favor of determining that the area is an insured location. . . .

At. ¶ 19.

Related to the question of whether the insured has a legal right to the site of the accident, is a determination of whether the site was owned publicly, or privately by someone other than the insured. This issue often arises in conjunction with homeowners associations. . . .

At ¶ 20.

In determining whether the common area in the Highlands development is an “insured location,” we are guided by the cases set forth above and agree that an ownership interest in the area on which the accident occurred is determinative here. We are also bound by the directive in Utah law to construe the policy “liberally in favor of the insured and their beneficiaries so as to promote and not defeat the purposes of insurance.” Fire Ins. Exch. v. Oltmanns, 2012 UT App 230, ¶ 6, 285 P.3d 802 (citation and internal quotation marks omitted). The policy definition of “insured location” has no contiguity requirement, and therefore, there is no clear language in the policy that excludes the common area from the definition of an insured location simply because it is not contiguous with the residence premises. Also, even though the policy defines “insured location” as “any premises used by [the insured] in connection with” “the residence premises” or “the part of any other premises,” this definition is not contingent upon repeated use by the insured and we see no other basis in the policy language to impose such a requirement here. The policy does not further define “premises” apart from residence premises or require that the premises be subject to a particular property right. Instead, the policy provides only that an insured location is “any premises used by [the insured] in connection with” the “residence premises” or “the part of any other premises, other structures, and grounds, used by [the insured] as a residence.”

At ¶ 21.

Accordingly, the policy language defining “insured location” and “any premises used . . . in connection with” the residence premises “is fairly susceptible to different interpretations.” See id. (citation and internal quotation marks omitted). We therefore liberally construe the provisions in favor of the insured. See id. Moreover, because the insured location provision arises in the definition of “motor vehicle,” which itself arises in the motor vehicle exclusions from liability coverage, we strictly construe these exclusions against the insurer. See id. (“[P]rovisions that limit or exclude coverage should be strictly construed against the insurer.” (citation and internal quotation marks omitted)). We give effect to the motor vehicle exclusions, and thus to the motor vehicle definition, only to the extent “they use ‘language which clearly and unmistakably communicates to the insured the specific circumstances under which the expected coverage will not be provided.’” See id. (quoting Utah Farm Bureau Ins. Co. v. Crook, 1999 UT 47, ¶ 5, 980 P.2d 685).

At ¶ 22.

Therefore, after considering the language of the policy in this case, the policy as a whole, the undisputed facts, and the above factors, we interpret “any premises used by [the insured] in connection with” “the residence premises” or “the part of any other premises, other structures, and grounds, used by [the insured] as a residence” in favor of coverage. Based on the CC&Rs, “Every owner shall have a right and easement of ingress and egress and of enjoyment in, to and over the Common Area which shall be appurtenant to and shall pass with title to every Lot . . . .” Further, although “lot” is limited to a residential lot and specifically excludes the common area, every lot owner is a member of the homeowners association, and that membership “shall be pertinent to and may not be separated from the fee Ownership of such Lot,” which means that every lot owner has a right of enjoyment to the common area. Homeowners within the association therefore have at least some type of ownership interest in and right to use the common area in connection with their residential premises. These factors weigh in favor of the common area being an insured location. To the extent it is a close question, we construe the policy in favor of coverage.

At ¶ 23.

We therefore conclude that the insured in this planned development would have reasonably expected that an ATV accident in the common area would be covered under the policy because based on the CC&Rs, it was a premises used in connection with the residence premises. We recognize that resolution of this issue presents a close question, but given the connection between the residential premises and the common area for a homeowner’s use and enjoyment of the property, we determine that the common area is an insured location for purposes of coverage.

At ¶ 24.

American National alternatively argues that even if the court determines that the common area is an insured location, it must still deny coverage for the accident under the motor vehicle exclusions. American National asserts that the ATV is not only a “motor vehicle” but also a “motorized land conveyance.” The policy does not separately define motorized land conveyance, but the term is included in the motor vehicle exclusions. Exclusion (1)(h) states that coverage is excluded for bodily injury “arising out of the ownership, maintenance, use, loading, or unloading of motor vehicles or all other motorized land conveyances.” Exclusions (1)(k) and (1)(l) provide that coverage is excluded for bodily injury “arising out of the entrustment by any insured to any person” of a motor vehicle or motorized land conveyance or “arising out of statutorily imposed vicarious parental liability for the actions of a child or minor using” “a motor vehicle or any other motorized land conveyance.”

At ¶ 25.

According to American National, because an ATV is commonly defined as a motorized land conveyance, it does not fall within subsection 8(c)’s definition of “motor vehicle.” Subsection 8(c)’s definition of “motor vehicle” hinges on whether the vehicle is used “while off an insured location.” American National contends, therefore, that regardless of whether the common area is an insured location, because the ATV is a motorized land conveyance, it is not subject to the “insured location” limitation of the motor vehicle definition.

At ¶ 26.

As previously noted, “[i]n strictly construing exclusions, we give them effect only when they use language which clearly and unmistakably communicates to the insured the specific circumstances under which the expected coverage will not be provided.” Fire Ins. Exch. v. Oltmanns, 2012 UT App 230, ¶ 6, 285 P.3d 802 (citation and internal quotation marks omitted). An ATV may intuitively be a “motorized land conveyance.” However, that term is not defined in the policy. Nor does the policy clearly and unmistakably communicate that use of a motorized land conveyance excludes coverage even when operated on an insured location. Due to this ambiguity and the similarity of the terms, the policyholder may believe that a motorized land conveyance is also a motor vehicle, subject to the “motor vehicle” definition providing that “a motorized golf cart, snowmobile, or other motorized land vehicle owned by any insured and designed for recreational use off public roads, while off an insured location,” and may believe the corollary that a “motorized land vehicle owned by an insured and designed for recreational use off public roads, while [on] an insured location” is not a motor vehicle. Accordingly, we construe this “ambiguous or uncertain language . . . that is fairly susceptible to different interpretations . . . in favor of coverage.” See id. (citation and internal quotation marks omitted). We therefore conclude that the motor vehicle exclusions do not exclude coverage under the circumstances of this case.

At ¶ 27.

Judge Voros, Concurring, 

I concur in the result reached by the lead opinion and concur in that opinion except as to Part II. I would not reach the merits of American National’s “motorized land conveyance” argument. American National contends (1) that the ATV is a “motorized land conveyance” and (2) that harms arising from use of a “motorized land conveyance” are excluded even if the use occurred on the insured location. The dissent accepts this argument. The lead opinion seems to accept the first step of the argument but rejects the second. I would not reach the argument, because any district court error on this point was invited.

At ¶ 29.

Judge Thorne, Dissenting,

I respectfully dissent from the majority opinion because I disagree with its conclusion that the definition of an “insured location” under Simmons’s homeowner’s policy is broad enough to include the common area where Olsen was injured in this case. Further, I agree with American National’s argument that coverage is excluded under the policy because the ATV in this case is either a “motor vehicle,” a “motorized land conveyance,” or both. Accordingly, I would reverse the judgment of the district court and remand this matter for the entry of judgment in favor of American National.

At ¶ 31.