State v. Hoffmann

1. “We recite the facts in the light most favorable to the [district]
court’s findings from the suppression hearing.” State v. Despain,
2007 UT App 367, ¶ 1 n.1, 173 P.3d 213 (citation and internal
quotation marks omitted).
2013 UT App 290
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
SAMUEL JOSEPH HOFFMANN,
Defendant and Appellant.
Opinion
No. 20111039-CA
Filed December 12, 2013
Second District Court, Ogden Department
The Honorable W. Brent West
No. 111900258
Samuel P. Newton, Attorney for Appellant
Brian L. Tarbet and Jeffrey S. Gray, Attorneys
for Appellee
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES CAROLYN B. MCHUGH and STEPHEN L. ROTH concurred.
VOROS, Judge:
¶1 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.
BACKGROUND1
¶2 This case began, like many others, with an informant’s tip.
The informant told police about drug sales “in exchange for a

State v. Hoffmann
20111039-CA 2 2013 UT App 290
possible reduction of his or her own charges.” The informant
reported that two males, “Sam” and “Rocky,” distributed high-
grade marijuana from their apartment. According to the informant,
Sam and Rocky usually had “between 4 and 5 pounds of ‘chronic’”
in their apartment at any given time. The informant led officers to
the apartment where the informant believed Sam and Rocky lived.
The informant told the officers that they had a better chance of
getting somebody to open the door if they covered the peephole,
because the apartment’s occupants usually looked out the peephole
when someone knocked at the door. The informant also stated that
the occupants would open the door only if they recognized the
person outside.
¶3 When the Weber Morgan Narcotics Strike Force arrived at
the apartment, Officer Jared Francom detected the faint smell of
burnt marijuana “coming from what [he] believed to be inside the
apartment.” Officer Francom knocked and, following the
informant’s advice, covered the peephole with his finger “to try
and prevent [the occupants from] seeing it was law enforcement at
the door.” Someone inside the apartment asked, “Who is it?” and
demanded that whoever was knocking uncover the peephole. The
officers did not respond. Officer Francom then heard the sound of
a security-latch chain being secured.
¶4 Over the next few minutes Officer Francom knocked several
more times. The occupants later characterized the knocks as
unusually forceful: aggressive knocking lasting two or three
minutes. One of the occupants, Reyes “Rocky” Cimina, finally
opened the door, turned around, walked back into the apartment,
and “sat down next to two other males on the couch without
saying a word,” leaving the door open behind him. With the door
open, Officer Francom confirmed that the smell of burnt marijuana
was coming from inside the apartment. In fact, he was
“overwhelmed by the odor of burnt marijuana coming from
inside.”
¶5 Officer Francom asked, “Can I come in?” In response, one of
the men on the couch said, “Yeah, come in.” When the officers

State v. Hoffmann
20111039-CA 3 2013 UT App 290
entered the apartment, they asked the three men on the couch if
they lived there. Hoffmann, who was standing just out of sight in
the kitchen, answered that he did. Hoffmann also gave the officers
his name. When Officer Francom asked for permission to search the
apartment for drugs and paraphernalia, Hoffmann asked if he had
a search warrant. Officer Francom said that he did not but that he
“could obtain one if that was the way [Hoffmann] wanted to
proceed.” Hoffmann told Officer Francom that he wanted to speak
to an attorney. Officer Francom “took that to mean that
[Hoffmann] was not going to authorize consent.” The officers
proceeded to secure the premises by searching and handcuffing the
four occupants and conducting a protective sweep of the
apartment. During the sweep, they found a bong in a bedroom.
¶6 Officer Francom left to obtain a search warrant. While
drafting his affidavit, he received a call from the officers still at
Hoffmann’s apartment reporting that two potential buyers had
arrived at the apartment. Officer Francom had previously
investigated the first buyer in a case “involving a lot of ecstasy
tablets”; the second buyer was carrying $700 in cash. Officer
Francom also “did a check of Mr. Hoffmann’s background” and
“learned that there was a [previous] complaint made regarding . . .
the odor of marijuana coming from [Hoffmann’s] apartment.”
Officers had tried to investigate at that time by knocking at the
apartment door, but no one had answered. Officer Francom’s
search warrant affidavit included information about the bong,
Hoffmann’s statement that he lived in the apartment, the two
potential buyers, and the prior marijuana complaint. When Officer
Francom returned with a warrant, the officers searched the
apartment and found five bags of marijuana, several items of drug
paraphernalia, and a handgun.
¶7 Hoffmann was charged with possession of a controlled
substance with the intent to distribute and possession of a firearm
by a restricted person. See Utah Code § 58-37-8(1)(a)(iii) (LexisNexis
Supp. 2010); id. § 76-10-503(3) (2008). Hoffmann moved to suppress
the evidence the officers obtained during the initial warrantless
entry and during the later warrant search.

State v. Hoffmann
20111039-CA 4 2013 UT App 290
¶8 The district court denied the motion. The court agreed with
Hoffmann that the officers entered his apartment without lawful
consent. But it ruled that the evidence obtained before entry
supplied probable cause to support a warrant. The court explained
that it had adopted the method Hoffmann’s attorney
recommended: it deleted from the search warrant affidavit all
references to evidence found after the entry, including the
“discussions with the people that were there, all of the observations
that were made there, the bong, [and] everything else that was the
result of the warrantless [search].” The court then “looked at what
was left and . . . was of the opinion that [it] would have issued that
search warrant.” It pointed to three pieces of information it
believed justified the issuance of a search warrant: (1) the faint odor
of marijuana the officers detected before the door opened, (2) the
overwhelming odor of burnt marijuana emanating from the
apartment after the door opened, and (3) the tip provided by the
informant, corroborated in part by Officer Francom’s “testing” of
the tip by using the peephole-covering maneuver the informant
had recommended.
¶9 Following the district court’s denial of his motion to
suppress, Hoffmann entered a conditional no-contest plea to the
two charges, reserving his right to appeal the court’s suppression
decision. Hoffmann now appeals the order denying his motion to
suppress.
ISSUES AND STANDARDS OF REVIEW
¶10 Hoffmann first contends that by covering the apartment
door peephole, the officers employed “trickery and deception,
which negates voluntary consent to open a door to police.”
“Whether consent was given presents a question of fact reviewed
for clear error; whether consent was voluntary presents a question
of law reviewed for correctness.” State v. Gomez, 2012 UT App 102,
¶ 6, 275 P.3d 1073.

State v. Hoffmann
20111039-CA 5 2013 UT App 290
¶11 Hoffmann next contends that the officers would not have
sought a warrant—and the magistrate would not have granted
one—without the evidence discovered after the warrantless entry.
Therefore, in Hoffmann’s view, any information gathered during
the warrant search must be suppressed. The district court’s denial
of the motion to suppress is a legal determination, reviewed for
correctness. See State v. Brake, 2004 UT 95, ¶¶ 11–15, 103 P.3d 699.
¶12 Finally, Hoffmann contends that the district court should
have excluded all the challenged evidence as a remedy for a
violation of the Utah Constitution, which, he asserts, does not
recognize the independent-source doctrine. This contention
presents a question of law. See Chen v. Stewart, 2004 UT 82, ¶ 25, 100
P.3d 1177.
ANALYSIS
¶13 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.
I. The Warrantless Entry
¶14 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

State v. Hoffmann
20111039-CA 6 2013 UT App 290
door to Hoffmann’s apartment opened, and (3) the overwhelming
odor of burnt marijuana emanating from the apartment after the
door opened.
¶15 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.
A. The Occupants’ Consent to Open the Door
¶16 Hoffmann contends that by covering the apartment door
peephole, the officers employed “trickery and deception, which
negates voluntary consent to open a door to police.” To guard
against deception, he proposes a rule that “officers seeking to
engage people in the home or observe the home’s interior” be
required to “identify themselves as police so as to allow those inside
to decide whether to expose themselves and the residence to
police.” Because the officers at his door did not disclose their
identity, Hoffmann reasons, all evidence they obtained after the
door opened—including the overwhelming odor of burnt
marijuana—should have been suppressed.
¶17 The State denies that the officers used any inherently
coercive tactics. It argues that the occupants’ decision to open the
door was “an essentially free and unconstrained choice.” See
Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973) (discussing
voluntariness in the context of confessions). Thus, in the State’s
view, the overwhelming odor of burnt marijuana was properly
included in the warrant affidavit.
¶18 “The Fourth Amendment generally prohibits the
warrantless entry of a person’s home . . . . The prohibition does not

State v. Hoffmann
20111039-CA 7 2013 UT App 290
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).
¶19 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. See, e.g., Hoffa
v. United States, 385 U.S. 293, 300–02 (1966) (holding “no interest
legitimately protected by the Fourth Amendment [was] involved”
when the government successfully placed a police informant in
Hoffa’s inner circle); United States v. Alejandro, 368 F.3d 130, 131–32,
137–38 (2d Cir. 2004) (holding that officers who posed as utility
workers to gain entry committed no constitutional violation);
United States v. Allen, 675 F.2d 1373, 1377, 1382 (9th Cir. 1980)
(holding that a customs official who posed as a representative of
the Bureau of Land Management did not violate the fourth
amendment); United States v. Raines, 536 F.2d 796, 798–800 (8th Cir.
1976) (holding that a law enforcement agent who posed as a friend
of the defendant’s drug associate “did not interfere with the
defendant’s Fourth Amendment rights”). “[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).
¶20 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.

State v. Hoffmann
20111039-CA 8 2013 UT App 290
¶21 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. See
Republic of Iraq v. Beaty, 556 U.S. 848, 860 (2009) (quoting Pieces of
Intelligence: The Existential Poetry of Donald H. Rumsfeld 2 (Hart Seely
ed., 2003)). 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.
¶22 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.
¶23 This conclusion accords with that reached by the United
States Court of Appeals for the Eleventh Circuit in a recent
peephole-covering knock-and-talk case:
[W]hen officers covered [the defendant’s] peephole,
they did not vitiate the voluntary nature of the
encounter. The measure of impermissible conduct is
coercion. Here, there was no evidence that officers
overpowered [the defendant’s] will by using force,
threats, misrepresentations, or blandishments to coax
him into opening the door. By covering the peephole,
they merely limited the information upon which [the
defendant] acted—his decision to open the door,
however, remained unfettered and uncoerced.

State v. Hoffmann
20111039-CA 9 2013 UT App 290
United States v. Hall, 500 F. App’x 819, 821 (11th Cir. 2012) (per
curiam) (citation omitted).
¶24 In sum, when the officers covered Hoffmann’s peephole
they did not coerce the occupants or misrepresent the nature of
their investigation. Rocky Cimina’s decision to open the door was
thus “an essentially free and unconstrained choice.” See Schneckloth
v. Bustamonte, 412 U.S. 218, 225 (1973). Once he opened the door,
the overwhelming odor of burnt marijuana was plainly observable.
Therefore, the officers lawfully observed it.
B. Government Searches Under Jardines
¶25 Our conclusion is not affected by Florida v. Jardines, a United
States Supreme Court decision issued after briefing was complete
in this case. In Jardines, the Court, in a five-to-four decision, held
that officers’ use of a drug-sniffing dog on the defendant’s front
porch constituted a trespass and therefore an unlawful search
under the Fourth Amendment. 133 S. Ct. 1409, 1416–17 (2013).
¶26 The facts in Jardines are unlike those before us. In Jardines,
officers led a drug-sniffing dog to the defendant’s front door. Id. at
1413. The dog alerted, and the officers obtained a warrant. Id. In the
warrant search of the home, they found marijuana plants. Id.
¶27 The intrusive nature of the dog-sniff was central to the
Jardines holding. The majority opinion relied on what it termed “the
traditional property-based understanding of the Fourth
Amendment.” Id. at 1417. The Court stated, “At the [Fourth]
Amendment’s ‘very core’ stands ‘the right of a man to retreat into
his own home and there be free from unreasonable government
intrusion.’” Id. at 1414 (quoting Silverman v. United States, 365 U.S.
505, 511 (1961)). The right to retreat and be free of government
intrusion “would be of little practical value if . . . agents could
stand in a home’s porch or side garden and trawl for evidence with
impunity . . . [or] enter a man’s property to observe his repose from
just outside the front window.” Id. Unlike the accepted practice of
knocking on another’s door, “[t]here is no customary invitation” to

State v. Hoffmann
20111039-CA 10 2013 UT App 290
employ a drug-sniffing dog on another’s front porch. Id. at 1416.
But the dog sniff was not just a breach of decorum, it was an
“investigation,” id. at 1415, an “attempt to gather information,” id.,
and a tactic employed “in hopes of discovering incriminating
evidence,” id. at 1416.
¶28 Two other members of the Jardines majority joined Justice
Kagan in a separate concurrence. In their view, drug-sniffing dogs,
like thermal-imaging cameras, are “super-sensitive
instrument[s], . . . deployed to detect things inside that [police]
could not perceive unassisted,” and therefore their use constitutes
not only “a trespass,” but also “an invasion of privacy.” Id. at
1418–19 (Kagan, J., concurring) (citing Kyllo v. United States, 533
U.S. 27 (2001)).
¶29 Four Justices dissented. Justice Alito’s dissenting opinion
criticized the majority for deeming the dog sniff a trespass: “If
bringing a tracking dog to the front door of a home constituted a
trespass, one would expect at least one case to have arisen during
the past 800 years. But the Court has found none.” Id. at 1424
(Alito, J., dissenting). The dissent also rejected the analogy between
dog sniffs and thermal-imaging technology on the ground that a
drug-sniffing dog “is not a new form of ‘technology’ or a ‘device.’”
Id. at 1425.
¶30 In contrast to the facts of Jardines, covering an apartment
peephole is neither a trespass nor an investigation. See id. at 1415.
It gives the officers no information about what is going on inside
the home. As the Eleventh Circuit Court of Appeals reasoned, “By
covering the peephole, [officers] merely limited the information
upon which [the defendant] acted . . . .” United States v. Hall, 500 F.
App’x 819, 821 (11th Cir. 2012) (per curiam). Consequently, a
covered peephole does not threaten the right the Jardines majority
sought to protect—“the right of a man to retreat into his own home
and there be free from unreasonable governmental intrusion.” See
133 S. Ct. at 1414 (citation and internal quotation marks omitted).
But cf. State v. Campbell, 300 P.3d 72, 78–79 (Kan. 2013) (applying
Jardines and concluding that an officer who covered a peephole

State v. Hoffmann
2. The State also urges us to reject the district court’s ruling that the
officers’ initial entry into Hoffmann’s apartment was unlawful. If
the officers’ initial entry was legal, the State argues, Hoffmann can
point to no unlawful search and therefore can make no argument
(continued...)
20111039-CA 11 2013 UT App 290
“exceed[ed] the scope of a knock and talk” and “engaged in
conduct that violated the Fourth Amendment”).
¶31 Jardines therefore does not change our conclusion that the
apartment’s occupants made “an essentially free and unconstrained
choice” when they opened the door to the officers. See Schneckloth
v. Bustamonte, 412 U.S. 218, 225 (1973). Because the district court
properly ruled that the officers lawfully observed the
overwhelming odor of burnt marijuana wafting out the open door,
we analyze Hoffmann’s remaining contentions in light of this
ruling.
II. The Warrant Search
¶32 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).
¶33 The State responds that Hoffmann “did not preserve his
claim that the officers were prompted to obtain a warrant by what
they discovered” after their warrantless entry. The State adds that
even with the tainted evidence removed from the warrant affidavit,
“the remaining untainted evidence . . . was sufficient to establish
probable cause.” Therefore, the State argues, the tainted evidence
did not affect the magistrate’s decision to issue a warrant.2

State v. Hoffmann
2. (...continued)
for exclusion. See Murray v. United States, 487 U.S. 533, 536–37
(1988).
Specifically, the State argues that an officer’s warrantless
entry into a home may be legal even without the consent of the
homeowner if “the police reasonably, but mistakenly, believe that
a third party consenting to a search has the authority to do so.”
State v. Harding, 2011 UT 78, ¶ 12, 282 P.3d 31 (citing Illinois v.
Rodriguez, 497 U.S. 177, 186 (1990)). Because we conclude that the
district court properly denied Hoffmann’s motion to suppress
under Murray v. United States, we need not consider whether the
officers’ initial entry was unlawful.
20111039-CA 12 2013 UT App 290
¶34 “The exclusionary rule prohibits introduction into evidence
of tangible materials seized during an unlawful search . . . .”
Murray, 487 U.S. at 536. “[T]he exclusionary rule also prohibits the
introduction of derivative evidence . . . that is the product of the
primary evidence, or that is otherwise acquired as an indirect result
of the unlawful search . . . .” Id. at 536–37. However, derivative
evidence remains admissible when its “connection with the
unlawful search becomes so attenuated as to dissipate the taint.” Id.
at 537 (citation and internal quotation marks omitted); see also Wong
Sun v. United States, 371 U.S. 471, 487–88 (1963).
¶35 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.

State v. Hoffmann
20111039-CA 13 2013 UT App 290
¶36 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.
¶37 Our supreme court recognized and applied the two-pronged
Murray test in State v. Krukowski, 2004 UT 94, 100 P.3d 1222. In
Krukowski, the defendant argued that Murray “require[s] an officer
to inform a magistrate of [a] prior illegal entry” to convince the
magistrate “that whatever was found during that initial illegal
entry was not used to establish probable cause.” Id. ¶ 8 (alterations
in original). The court rejected that argument and reaffirmed the
traditional formulation of the Murray test: “Under Murray, a
warrant-based seizure that follows an unlawful entry is not subject
to the exclusionary rule if the State establishes that neither the
officer’s decision to seek the warrant nor the magistrate’s probable
cause determination was prompted by observations made during
the unlawful entry.” Id. ¶ 7.
A. The Officers’ Decision to Seek a Warrant
¶38 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.
¶39 To preserve an issue for appeal, a party must present it “to
the trial court in such a way that the trial court has an opportunity
to rule on that issue.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72,
¶ 51, 99 P.3d 801 (citation and internal quotation marks omitted).
To fulfill that requirement, “(1) the issue must be raised in a timely
fashion[,] (2) the issue must be specifically raised[,] and (3) the
challenging party must introduce supporting evidence or relevant

State v. Hoffmann
20111039-CA 14 2013 UT App 290
legal authority.” Id. (alterations in original) (citation and internal
quotation marks omitted).
¶40 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.
¶41 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.
¶42 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

State v. Hoffmann
3. We note that the fact that the officers collected more evidence
after an illegal entry does not end the analysis—indeed, if this fact
were dispositive it would defeat the independent-source doctrine
in every case. See United States v. Herrold, 962 F.2d 1131, 1141–42 (3d
Cir. 1992) (“[T]he fact that an application for a warrant contains
information obtained through an unlawful entry does not per force
indicate that the improper information ‘affected’ the justice’s
decision to issue the warrant and thereby vitiate the applicability
of the independent source doctrine.”).
Although Murray allowed admission of evidence collected
after an illegal entry, it rejected the idea that the test it established
would foster a “‘search first, warrant later’ mentality.” Murray v.
United States, 487 U.S. 533, 540 n.2 (1988). Though the independent-
source doctrine permits the introduction of evidence that would
otherwise be suppressed by the exclusionary rule, it does not
provide an incentive for “law enforcement officers [to] routinely
enter without a warrant to make sure that what they expect to be
on the premises is in fact there.” Id. at 539. Because the “burden of
convincing a trial court” of Murray’s two prongs exceeds “the
(continued...)
20111039-CA 15 2013 UT App 290
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.3

State v. Hoffmann
3. (...continued)
normal burden of convincing a magistrate that there is probable
cause,” officers still have a clear incentive to seek a warrant before
entering. Id. at 540.
Murray does not excuse calculating officers seeking to
subvert the warrant requirement. Rather, Murray recognizes that
the exclusionary rule is unlikely to deter unlawful police conduct
when agents simply “misjudged the existence of sufficient exigent
circumstances to justify the warrantless entry”—or, as in this case,
when the officers may have misjudged the existence of consent to
enter the apartment. See id. at 540 n.2; see also United States v. Leon,
468 U.S. 897, 918–21 (1984). Here, as in Murray, nothing suggests
that the officers entered “merely to see if there was anything worth
getting a warrant for.” See Murray, 487 U.S. at 540 n.2.
20111039-CA 16 2013 UT App 290
B. The Magistrate’s Decision to Issue the Warrant
¶43 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.”
¶44 The second prong of Murray has two parts. It asks first
whether unlawfully obtained information was presented to the
magistrate. Murray v. United States, 487 U.S. 533, 542 (1988). The
State does not dispute that tainted information was contained in
Officer Francom’s affidavit and presented to the magistrate. For
example, Officer Francom included in his affidavit the discovery of
the bong and his conversation with Hoffmann. He also included
two other pieces of evidence that the district court later excluded
in its Murray analysis: a prior complaint about marijuana smoke
coming from Hoffmann’s apartment, and the fact that several

State v. Hoffmann
4. The bong and Officer Francom’s conversation with Hoffmann
are more closely related to the officers’ entry than are the discovery
of the prior complaint and the arrival of potential buyers. But the
State does not challenge the district court’s decision to strike “all
mention of evidence obtained as a direct result of the initial illegal
search.” Accordingly, we likewise exclude the prior complaint and
the potential buyers from the probable cause analysis.
20111039-CA 17 2013 UT App 290
potential buyers arrived at Hoffmann’s apartment after Officer
Francom left to obtain the warrant.4
¶45 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).
¶46 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.
¶47 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. Hoffmann
argues that an informant’s tip and the faint smell of marijuana
outside a closed door are not sufficient to establish probable cause.

State v. Hoffmann
5. However, the smell of burnt marijuana does not, without more,
provide the exigent circumstances justifying a warrantless search.
“The aroma of burning marijuana must be accompanied by some
evidence that the suspects are disposing of the evidence, as
opposed to casually consuming it, before law enforcement officials
may be lawfully justified in claiming the benefits of the exigent
circumstances exception” to the warrant requirement. State v.
Duran, 2007 UT 23, ¶ 8, 156 P.3d 795.
6. In support of his argument that the smell of marijuana alone
cannot establish probable cause, Hoffmann cites People v. Taylor, a
1997 Michigan Supreme Court vehicle-search case that concluded
that courts should be “more cautious when basing probable cause
(continued...)
20111039-CA 18 2013 UT App 290
However, the district court—properly, in our view—relied not just
on those two items of evidence but also on the overwhelming odor
of burnt marijuana wafting out when the door was opened. See
supra Part I. We analyze the point in that light.
¶48 Utah case law holds that when a trained officer who is
lawfully present detects “the plain smell of marijuana emanating
from a private residence, [that discovery] provides law
enforcement officials with probable cause to conduct a search of the
premises.” State v. South, 885 P.2d 795, 799 (Utah Ct. App. 1994),
rev’d on other grounds, 924 P.2d 354 (Utah 1996); see also State v.
Duran, 2005 UT App 409, ¶ 22, 131 P.3d 246 (“[T]he smell of
burning marijuana provided . . . officers probable cause that a
crime was being committed.”), aff’d, 2007 UT 53, 156 P.3d 795.5
¶49 Officer Francom had training and experience in detecting
marijuana. He was lawfully on Hoffmann’s doorstep when he first
detected the odor of marijuana. See supra Part I. And with the door
open, the odor was plain—overwhelming, in fact. Under Utah law,
the plain smell of marijuana detected by a trained officer who is
lawfully present provides probable cause sufficient to support a
warrant. South, 885 P.2d at 799. In addition, other evidence also6

State v. Hoffmann
6. (...continued)
on smell” and “use smell as one factor in a totality of circumstances
[analysis].” 564 N.W.2d 24, 30 (Mich. 1997). But the Michigan
Supreme Court has since overruled Taylor and brought Michigan’s
law in line with our own. See People v. Kazmierczak, 605 N.W.2d 667,
668 (Mich. 2000) (“[W]e overrule Taylor, and hold that the smell of
marijuana alone by a person qualified to know the odor may
establish probable cause to search a motor vehicle, pursuant to the
motor vehicle exception to the warrant requirement.”).
20111039-CA 19 2013 UT App 290
contributed to a finding of probable cause—the informant’s tip,
corroborated in part by the peephole exercise. We therefore
conclude that the issuing judge had a substantial basis for ruling
that probable cause existed, and we affirm the district court’s
determination that the search warrant was properly issued.
¶50 The district court properly ruled that the tainted evidence
did not affect the officers’ decision to seek the warrant or the
magistrate’s decision to issue it. We therefore hold that the trial
court correctly applied the independent-source doctrine and affirm
its denial of Hoffmann’s motion to suppress on that ground.
III. The Utah Constitution
¶51 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).
¶52 The standard for briefing a state constitutional claim is
admittedly flexible. Our supreme court has “reject[ed] the . . .
suggestion . . . that there is a formula of some kind for adequate

State v. Hoffmann
7. We read this sentence as including the court of appeals as well
as the supreme court and district courts.
8. This statement contrasts with the interpretive model described
in American Bush v. City of South Salt Lake, 2006 UT 40, 140 P.3d
1235, issued the year before Tiedemann. There, a majority of our
supreme court stated that “in interpreting the Utah Constitution,
prior case law guides us to analyze its text, historical evidence of
the state of the law when it was drafted, and Utah’s particular
traditions at the time of drafting.” Id. ¶ 12 (emphases added). “The
goal of this analysis,” the court stated, “is to discern the intent and
purpose of both the drafters of our constitution and, more
importantly, the citizens who voted it into effect.” Id. Accordingly,
the court “intentionally excluded the consideration of policy
arguments.” Id. ¶ 12 n.3.
At least one justice of our supreme court has resisted the
court’s apparent retreat from the interpretive approach discussed
in American Bush. Justice Lee has urged the court to “categorically
repudiate our precedents . . . that treat the original meaning of the
law as merely one of several ‘persuasive’ grounds for judicial
construction and that open the door to any ‘sister state law’ or
good ‘policy’ that we deem relevant.” State v. Walker, 2011 UT 53,
¶ 32 n.9, 267 P.3d 210 (Lee, J., concurring).
20111039-CA 20 2013 UT App 290
framing and briefing of state constitutional issues before district
courts and [the supreme] court.” State v. Tiedemann, 2007 UT 49,
¶ 37, 162 P.3d 1106. “Independent analysis must begin with the7
constitutional text and rely on whatever assistance legitimate
sources may provide in the interpretive process.” Id. These may
include “‘historical and textual evidence, sister state law, and
policy arguments in the form of economic and sociological
materials to assist us in arriving at a proper interpretation of the
provision in question.’” Id. (quoting State v. Gardner, 947 P.2d 630,
633 (Utah 1997)); see also Society of Separationists v. Whitehead, 870
P.2d 916, 921 n.6 (Utah 1993). “Historical arguments may be
persuasive in some cases, but they do not represent a sine qua non
in constitutional analysis.” Tiedemann, 2007 UT 49, ¶ 37.8

State v. Hoffmann
20111039-CA 21 2013 UT App 290
¶53 Finally, while “[a]rguments based . . . on historical context,
the constitution’s text, public policy, or persuasive authority would
all meet [our] briefing requirements” for state constitutional
arguments, State v. Worwood, 2007 UT 47, ¶ 18, 164 P.3d 397, “state
constitutional analysis . . . limited to the truism that article I, section
14 may provide greater protections to Utah citizens than the Fourth
Amendment” fails to advance an adequate state constitutional
analysis, id. ¶ 19.
¶54 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.
¶55 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. For
example, citing State v. Larocco, 794 P.2d 460, 464 (Utah 1990)
(plurality opinion), he asserts that article I, section 14 “has been
applied to require police to stay within the traditional justification
for the exceptions to the warrant requirement or otherwise seek a
warrant before they search.” Hoffmann also cites a Utah case
applying Larocco, see State v. Yount, 2008 UT App 102, ¶¶ 23–24, 182
P.3d 405, and two Utah cases interpreting article I, section 14 in the
context of police roadblocks, see Sims v. State Tax Comm’n, 841 P.2d
6, 13–15 (Utah 1992); State v. DeBooy, 2000 UT 32, ¶ 19, 996 P.2d 546.
The remaining cases cited by Hoffmann interpret the Fourth
Amendment, not the Utah Constitution. See Murray v. United States,
487 U.S. 533, 537 (1988); Payton v. New York, 445 U.S. 573, 576 (1980);
Terry v. Ohio, 392 U.S. 1, 8 (1968); Wong Sun v. United States, 371
U.S. 471, 477–78 (1963); State v. Harris, 671 P.2d 175, 179–80 (Utah
1983); State v. Kent, 432 P.2d 64, 66–67 (Utah 1967).
¶56 Of course, a litigant advocating a novel application of a state
constitutional provision cannot be expected to cite controlling law.

State v. Hoffmann
20111039-CA 22 2013 UT App 290
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).
¶57 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.
CONCLUSION
¶58 When the officers covered Hoffmann’s peephole during a
knock-and-talk visit, they did not coerce the apartment’s occupants
to open the door. Because the occupants voluntarily opened the
door, the district court properly refused to suppress the evidence
of the overwhelming odor of burnt marijuana that wafted out the
open door.
¶59 That overwhelming odor of burnt marijuana supports the
magistrate’s probable cause determination. The district court
correctly concluded that neither the officers’ decision to seek a
warrant nor the magistrate’s decision to issue a warrant were

State v. Hoffmann
20111039-CA 23 2013 UT App 290
motivated by tainted evidence. The district court appropriately
refused to exclude the evidence obtained using that warrant. We
therefore affirm the district court’s denial of Hoffmann’s motion to
suppress.