State v. Simmons

2017 UT App 224

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ROGER WAYNE SIMMONS,
Appellant.

Opinion
No. 20150426-CA
Filed November 30, 2017

Third District Court, Salt Lake Department
The Honorable Mark S. Kouris
No. 121904077

Samuel P. Newton, Attorney for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which JUDGES
GREGORY K. ORME and KATE A. TOOMEY concurred.

HAGEN, Judge:

¶1 Roger Wayne Simmons was arrested on suspicion of
drunk driving at the Salt Lake City International Airport. When
Simmons refused to submit voluntarily to any sobriety tests,
police obtained a warrant to collect a blood sample. Simmons
became agitated and combative, and the officers executing the
warrant restrained him while they drew his blood. Police never
handed a copy of the warrant to Simmons but instead left a copy
with his belongings. Simmons moved to suppress the results of
the blood test, claiming that the warrant was invalid and was not
properly served prior to the search. The district court denied the
motion, and Simmons appeals. We affirm.
State v. Simmons

BACKGROUND

¶2 Around two o’clock in the morning, Officer Kenny Brown
of the Salt Lake City International Airport Police Department
noticed Simmons driving a car significantly below the speed
limit, straddling two lanes, and drifting into the park-and-wait
lot. As he watched, Simmons drove past a stop sign, turned into
a commercial vehicle lane, and continued the wrong way down
a one-way road. Officer Brown activated his overhead lights, but
Simmons continued driving until his car hit the concrete barrier
of a parking stall.

¶3 As Officer Brown approached the car, he noticed
Simmons “moving very quickly, as if he was anxiously trying to
remove the keys from the ignition.” When Officer Brown
knocked on the window, Simmons stared straight ahead and did
not respond. Officer Brown opened the door and smelled a
strong odor of alcohol coming from inside the car. Eventually,
Simmons slowly turned to the officer, smiled, and raised his
keys in the air, waving them back and forth. Simmons
apologized for driving so fast but explained that he had a
“covert message” to deliver to China. Simmons’s pants were
unzipped, his eyes were bloodshot, and he appeared confused.
Officer Brown called for backup.

¶4 When additional officers arrived on the scene, Officer
Brown asked Simmons to step out of the vehicle to perform field
sobriety tests. Simmons refused all tests and claimed that “he
ha[d] not consumed any alcohol, and that there was no alcohol
in the vehicle.” The officers requested identification from
Simmons, who “stated that his license was somewhere in the
vehicle.” While retrieving Simmons’s driver license from the car,
Officer Brown noticed a cup in the center console, smelled its
contents, and recognized that it contained an alcoholic beverage.

¶5 Simmons was arrested and taken to the airport police
station. Because Simmons would not comply with police safety

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State v. Simmons

instructions, he remained handcuffed in the holding cell while
police sought a warrant to obtain a blood sample.

¶6 Officer Brown contacted Sergeant Ryan Albrecht, a
member of the investigations team, and requested his assistance
with a search warrant application. Sergeant Albrecht prepared
and signed the warrant affidavit, which recited the relevant
facts. Throughout the affidavit, Sergeant Albrecht indicated that
it was Officer Brown who had witnessed the facts supporting
probable cause.

¶7 After Sergeant Albrecht obtained the warrant, Detective
Jeff Payne,1 a certified phlebotomist, came to the airport police
station to collect the blood sample. Both Detective Payne and
Officer Brown informed Simmons that they had a search warrant
to draw his blood. Simmons became “very agitated” and “made
it clear that he was not willingly going to cooperate with the
blood draw.” Simmons became confrontational, shouting and
spitting at the officers, and they had to restrain him on the
ground with a spit hood over his head. After Detective Payne
completed the blood draw, another officer placed a copy of the
warrant in Simmons’s bag along with his personal effects. The
district court found no evidence that Simmons was handed a
copy of the warrant.

¶8 The test revealed that Simmons had a blood alcohol
concentration of “.21 grams per 100 milliliter[s],” more than
twice the legal limit. See Utah Code Ann. § 41-6a-502(1)
(LexisNexis 2014). The State charged Simmons with multiple

1. Simmons submitted a letter to this court, purportedly under
rule 24(j) of the Utah Rules of Appellate Procedure, referencing
an unrelated incident involving Detective Payne. That
information is outside the record on appeal, and we do not
consider it in reaching our decision.

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State v. Simmons

offenses, including driving under the influence of alcohol with
prior convictions, a third degree felony.

¶9 Prior to trial, Simmons moved to suppress the results of
the blood test, arguing that the warrant (1) was invalid because
the affiant did not have personal knowledge of the facts giving
rise to probable cause, and (2) was not properly served on him
prior to the blood draw. As to the first issue, the district court
found that the affidavit “specifically indicates throughout that
Officer Brown was the officer involved” and “does not state that
Sergeant Albrecht himself witnessed the events.” Because
officers are free to rely on hearsay from other officers, the court
ruled that the warrant was supported by probable cause. As to
the second issue, the court determined that failure to present a
warrant before a search takes place does not rise to the level of a
Fourth Amendment violation requiring suppression. In the
alternative, the court ruled that, “given [Simmons’s] disruptive
behavior during the blood draw, placing a copy of the warrant
with his belongings constituted adequate service.” Accordingly,
the district court denied Simmons’s motion to suppress.

¶10 At trial, Simmons was convicted of two misdemeanors as
well as the felony offense of driving under the influence of
alcohol with prior convictions. He now appeals, arguing that the
results of his blood test should have been suppressed.

ISSUES AND STANDARD OF REVIEW

¶11 Simmons raises two grounds for reversal on appeal. First,
he argues that the district court erred in concluding that the
warrant was valid where the officer-affiant had no personal
knowledge of the facts giving rise to probable cause. Second,
Simmons contends that the officers violated rule 40(d) of the
Utah Rules of Criminal Procedure when they failed to personally
serve the warrant prior to the search and that this alleged
violation should result in suppression.

20150426-CA 4 2017 UT App 224
State v. Simmons

¶12 “We review a trial court’s decision to grant or deny a
motion to suppress for an alleged Fourth Amendment violation
as a mixed question of law and fact.” State v. Fuller, 2014 UT 29,
¶ 17, 332 P.3d 937. “While the court’s factual findings are
reviewed for clear error, its legal conclusions are reviewed for
correctness, including its application of law to the facts of the
case.” Id.

ANALYSIS

I. Validity of the Warrant

¶13 Simmons argues that the warrant authorizing the blood
draw was invalid because “the affirming officer had no personal
knowledge of the facts being sworn to and failed to inform the
court that his knowledge was based on another officer’s
observations.” This argument fails for two reasons. First, in
seeking a warrant, an officer-affiant may rely on the
observations of fellow officers. Second, the affidavit in this case
made it clear that Officer Brown, not the affiant, personally
observed the facts giving rise to probable cause.

¶14 As an initial matter, it is well established that
“[o]bservations of fellow officers of the Government engaged in
a common investigation are plainly a reliable basis for a warrant
applied for by one of their number.” United States v. Ventresca,
380 U.S. 102, 111 (1965). Simmons claims that, where the facts are
not based on the affiant’s personal knowledge, the affidavit must
establish the veracity and reliability of the person supplying the
information. While such a showing may be necessary when
relying on certain nonpolice sources, “lower courts have
consistently held that another law enforcement officer is a
reliable source and that consequently no special showing of
reliability need be made as a part of the probable cause
determination.” 2 Wayne LaFave et al., Search & Seizure § 3.5(a)
(5th ed. 2009) (collecting cases).

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State v. Simmons

¶15 Second, Sergeant Albrecht fully disclosed that the facts
described in the warrant application were based on another
officer’s observations. Simmons argues that this case is similar to
State v. Nielsen, 727 P.2d 188 (Utah 1986), where the officer-
affiant misrepresented that he had been told facts by a
confidential informant he considered reliable when, in truth, he
had never personally interacted with the informant. Id. at 190.2
Unlike the misleading affidavit in Nielsen, the affidavit in this
case never suggested that Sergeant Albrecht personally observed
Simmons’s behavior, smelled the odor of alcohol, or saw the
open container in the car. To the contrary, the affidavit prefaces
each of these factual statements by indicating that they were
“noticed” or “witnessed” by Officer Brown. The issuing judge
was therefore fully informed that Officer Brown was the
firsthand source of the information.

¶16 Finally, Simmons argues that, even if the warrant affidavit
satisfied the probable cause requirement of the federal
constitution, “Utah’s constitution protects against an officer’s
failure to state in a warrant application that he does not have
personal knowledge of the facts he attests to be true.” Because
Simmons did not raise this state constitutional claim to the trial
court, he has not preserved it for appeal. See State v. Worwood,
2007 UT 47, ¶ 18, 164 P.3d 397, 405; see also State v. Fahina, 2017
UT App 111, ¶ 21, 400 P.3d 1177 (“An issue is preserved for
appeal when it has been presented to the district court in such a

2. In Nielsen, the supreme court determined that the “officer’s
misstatements were intentional and in bad faith,” but ultimately
concluded that the misstatements “did not materially affect the
magistrate’s finding of probable cause.” State v. Nielsen, 727 P.2d
188, 189 (Utah 1986). In this case, because Sergeant Albrecht
disclosed that he was recounting Officer Brown’s observations,
we do not consider whether failure to do so would have
rendered the warrant invalid.

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State v. Simmons

way that the court has an opportunity to rule on [it].”) (alteration
in original) (citation and internal quotation marks omitted).
Simmons has not established any of the three recognized
exceptions to preservation—plain error, ineffective assistance of
counsel, or exceptional circumstances—that would persuade us
to reach this unpreserved issue. See State v. Johnson, 2017 UT 76,
¶ 19.

II. Service of the Warrant

¶17 Simmons next argues that the evidence obtained from the
blood draw should be suppressed because the executing officers
failed to serve the warrant as required by rule 40(d) of the Utah
Rules of Criminal Procedure. Rule 40(d) provides that “[a] copy
of the search warrant shall be served in a readable form upon the
person or place to be searched.” Although there are no Utah
cases interpreting the meaning of this provision, Simmons
argues that the syntax of subsection (d) suggests that officers
must hand the subject a copy of the warrant prior to beginning
the search.

¶18 The district court denied the motion to suppress on two
alternative grounds. First, the court ruled that a violation of rule
40(d) would not rise to the level of a Fourth Amendment
violation requiring suppression of evidence. Second, it ruled
that, “given [Simmons’s] disruptive behavior during the blood
draw, placing a copy of the warrant with his belongings
constituted adequate service.”

¶19 In briefing this issue on appeal, Simmons argues only that
the exclusionary rule should apply to a violation of rule 40(d).
He does not address the court’s alternative conclusion that
placing the warrant with Simmons’s belongings was adequate
service under the circumstances. We “will not reverse a ruling of
the district court that rests on independent alternative grounds
where the appellant challenges only one of those grounds.”
Gilbert v. Utah State Bar, 2016 UT 32, ¶ 24, 379 P.3d 1247; see also

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State v. Simmons

State v. Roberts, 2015 UT 24, ¶ 38, 345 P.3d 1226. Because
Simmons has not shown that the district court erred in finding
service was adequate under rule 40(d), we affirm on that basis.

CONCLUSION

¶20 The district court properly denied the motion to suppress
because the warrant was supported by probable cause. Because
Simmons has not challenged the district court’s conclusion that
the warrant was adequately served under the circumstances, we
do not reach the question of whether suppression would be an
appropriate remedy for a violation of rule 40(d).

¶21 Affirmed.

20150426-CA 8 2017 UT App 224