State v. Roberts

2018 UT App 92
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
JEREMY R OBERTS,
Appellant.
Opinion
No. 20170133-CA
Filed May 24, 2018
Sixth District Court, Manti Department
The Honorable Marvin D. Bagley
No. 151600122
Ryan N. Holtan, Attorney for Appellant
Sean D. Reyes and Nathan D. Anderson, Attorneys
for Appellee
JUDGE R YAN M. HARRIS authored this Opinion, in which J UDGES
GREGORY K. O RME and DIANA H AGEN concurred.
HARRIS, Judge:
¶1 	In the course of executing a search warrant for a stolen
cell phone at Defendant Jeremy Roberts’s home, a police officer
(Officer) discovered three prescription pill bottles that contained
various pills and that were labeled with names other than
Defendant’s. A short time later, Officer sought and received a
second warrant to search Defendant’s property for drugs and, in
the course of executing that second warrant, Officer discovered
methamphetamine, heroin, marijuana, and drug paraphernalia.
After 	being 	charged 	with 	various 	drug-related 	crimes,
Defendant moved to suppress the evidence discovered pursuant
to the second warrant, but the district court denied his motion.
Defendant eventually pleaded guilty to one count of possession
or use of a controlled substance, while reserving the right to

State v. Roberts
20170133-CA 	2 	2018 UT App 92
appeal the denial of his motion to suppress. After review, we
conclude that the district court correctly denied Defendant’s
motion to suppress, and therefore affirm.
BACKGROUND
¶2 	A shopper’s cell phone was stolen from a supermarket in
Gunnison, Utah. The shopper contacted local law enforcement
officers, who arranged to send a signal to the phone and thereby
determined 	that 	its 	SIM 	card1 	had 	last 	been 	located 	at
Defendant’s residence. Thereafter, local law enforcement officers
visited Defendant’s residence and questioned Defendant about
the phone and, while he initially denied any knowledge of the
phone, 	Defendant 	eventually 	stated 	that 	“some 	kids 	from
Fillmore” had arrived at his residence with a phone and that he
had recommended they return the phone to the supermarket.
¶3 	The officers then contacted the supermarket and learned
that someone had returned a phone matching the description of
the shopper’s cell phone. The returned phone, which was the
same model as the shopper’s phone, was damaged and missing
its SIM card. The officers showed the phone to the shopper, who
was unable to identify the returned phone as his. Officer then
returned to Defendant’s residence and questioned him about the
phone for a second time. Defendant again began by denying that
he knew anything about the phone, then repeated his assertion
that “some kids from Fillmore” had shown up with the phone,
then began to give “vague” and “very inconsistent” answers to
Officer’s questions about both the “kids from Fillmore” and the
1. A “subscriber identification module” or “SIM card” is a small
circuit that stores the information necessary to identify and
authenticate subscribers on a mobile network. SIM cards are
transferable between mobile devices, allowing users to use their
specific 	mobile 	plan 	subscriptions 	with 	a 	new 	device 	by
transferring their SIM card into that device.

State v. Roberts
20170133-CA 	3 	2018 UT App 92
phone. Suspicious of Defendant’s answers, Officer electronically
applied 	for, 	and 	received, 	a 	warrant 	to search 	Defendant’s
residence for the phone and its SIM card. Officer served the
warrant on Defendant and began the search.
¶4 	Officer entered the front door of Defendant’s residence,
which 	opened 	directly 	into 	a 	kitchen. 	While 	searching 	the
kitchen, Officer opened a cabinet and found several prescription
bottles. Some of the bottles were labeled, but none of the labels
bore Defendant’s name; indeed, the medications had apparently
been prescribed to three different people, none of whom lived in
Defendant’s residence. The label for one of the bottles indicated
that 	it 	contained 	“duloxetine,” 	an 	anti-depressant 	and 	pain
reliever. Two of the bottles contained unlabeled mixed pills.
¶5 	After 	finding 	these 	bottles, 	Officer 	was 	informed 	by
another officer on the scene that the SIM card for the missing
phone had been found on Defendant’s lawn. At that point,
Officer ceased his search for the phone, exited Defendant’s
residence, 	and 	electronically 	applied 	for 	a 	second 	search
warrant. In his affidavit supporting this application, Officer
indicated that he had reason to believe that, due to Defendant’s
possession of “several prescription bottles with pills inside that
are 	prescribed 	to 	people 	that 	do 	not 	live 	at 	[Defendant’s]
residence,” Officer would find additional “[p]rescription drugs,
drug 	paraphernalia,” 	and/or 	“drugs” 	inside 	Defendant’s
residence. A magistrate promptly granted Officer’s request for a
second 	search 	warrant. 	Soon 	thereafter, 	Officer 	served 	the
second warrant on Defendant, and during the search Officer
found heroin, methamphetamine, marijuana, and various items
of drug paraphernalia in Defendant’s house.
¶6 	The State charged Defendant with use or possession of
heroin, 	use 	or 	possession 	of 	methamphetamine, 	use 	or
possession of marijuana, and two counts of use or possession of
drug paraphernalia. Defendant moved to suppress all of the
evidence obtained by the execution of the second search warrant,
arguing that the second search warrant was not supported by

State v. Roberts
20170133-CA 	4 	2018 UT App 92
probable cause. The district court denied Defendant’s motion to
suppress, holding that the facts in Officer’s second affidavit were
sufficient to support the magistrate’s determination that the
warrant was based on probable cause. After the denial of his
motion to suppress, Defendant pled guilty to one count of use or
possession of a controlled substance, a third degree felony, while
reserving 	the 	right 	to 	appeal 	the 	denial 	of 	his 	motion 	to
suppress.2
ISSUE AND STANDARD OF REVIEW
¶7 	The sole issue on appeal is whether the district court erred
in 	denying 	Defendant’s motion 	to 	suppress. 	“We 	review 	a
[district] 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
¶8 	The 	United 	States 	Constitution 	requires 	that 	search
warrants “be 	issued 	only 	‘upon 	probable 	cause.’” 	Id. 	¶ 	22
(quoting U.S. Const. amend. IV). Probable cause is “a fluid
concept—turning on the assessment of probabilities in particular
factual contexts—[that is] not readily, or even usefully, reduced
2. With the consent of the prosecution and the acceptance of the
trial judge, a defendant may enter a conditional guilty plea,
while “preserv[ing] [a] suppression issue for appeal.” State v.
Sery, 758 P.2d 935, 938–40 (Utah Ct. App. 1988), disagreed with on
other grounds by State v. Pena, 869 P.2d 932 (Utah 1994). “A
defendant who prevails on appeal [after entering a Sery plea]
shall be allowed to withdraw the plea.” Utah R. Crim. P. 11(j).

State v. Roberts
20170133-CA 	5 	2018 UT App 92
to a neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232
(1983). Instead, probable cause determinations are governed by a
“totality-of-the-circumstances analysis.” Id. at 233. “The task of
the issuing magistrate is simply to make a practical, common-
sense decision whether, given all the circumstances set forth in
the affidavit before him, . . . there is a fair probability that
contraband or evidence of a crime will be found in a particular
place.” Id. at 238. “[P]robable cause is a low standard.” See State
v. Goins, 2017 UT 61, ¶ 35 (citation and internal quotation marks
omitted). Indeed, the probable cause standard “requires only a
probability or substantial chance of criminal activity, not an
actual showing of such activity.” Gates, 462 U.S. at 243 n.13; see
also State v. Bartley, 784 P.2d 1231, 1235 (Utah Ct. App. 1989)
(stating that “[t]he quantum of evidence needed for probable
cause is significantly less than that needed to prove guilt”).
¶9 	“Where a search warrant supported by an affidavit is
challenged as having been issued without an adequate showing
of 	probable 	cause, 	our 	review 	focuses 	on 	the 	magistrate’s
probable cause determination.” State v. Walker, 2011 UT 53, ¶ 13,
267 P.3d 210 (emphasis omitted) (citation and internal quotation
marks 	omitted). 	Specifically, 	we 	examine 	“whether 	the
magistrate had a substantial basis for determining that probable
cause 	existed.” 	Id. 	(citation 	and 	internal 	quotation 	marks
omitted). On appeal, we afford a magistrate’s decision “great
deference 	and 	consider 	the 	affidavit 	relied 	upon 	by 	the
magistrate in its entirety and in a common sense fashion.” Id.
(citation and internal quotation marks omitted).
¶10 	Defendant asserts that the second search warrant lacked
probable 	cause 	because 	the 	allegations 	in 	the 	supporting
affidavit, 	“even 	if 	true,” 	did 	not 	describe 	criminal 	activity.
Specifically, 	Defendant 	maintains 	that 	“[t]he 	possession 	of
prescription drugs prescribed to another is not a crime unless the
prescription 	is 	for 	a 	controlled 	substance,” 	and 	notes 	that
Officer’s 	affidavit 	“makes 	no 	mention 	of 	the 	type 	of
prescriptions alleged to have been present.” Defendant argues
that “[t]he mere presence of a prescription bottle with a label for

State v. Roberts
20170133-CA 	6 	2018 UT App 92
an individual not currently residing in the home” is insufficient
to constitute grounds for a search warrant.3 We do not find
Defendant’s arguments persuasive.
¶11 	As an initial matter, “probable cause requires only a
probability or substantial chance of criminal activity, not an
actual showing of such activity.” Gates, 462 U.S. at 243 n.13. But
even 	if 	proof 	of 	criminal 	activity 	were 	required, 	it 	was
undoubtedly 	present 	in 	this 	case. 	Defendant 	simply
misapprehends the law when he states that it is not a crime to
possess 	someone 	else’s 	prescription 	drugs 	unless 	the
prescription is for a controlled substance. In fact, under Utah law
it is unlawful either to possess a prescription drug for any
unlawful purpose, or to use a prescription drug prescribed to
another, regardless of whether the drug in question is listed as a
controlled substance. See Utah Code Ann. § 58-17b-501(9), (12)
(LexisNexis Supp. 2017) (making “unlawful” the “possession of
a prescription drug for an unlawful purpose,” and making
3. Defendant also points out that the judge who (acting as a
magistrate) issued both search warrants was the same judge who
ultimately signed the order denying the motion to suppress,
even though that judge did not preside over the evidentiary
hearing 	held 	in 	connection 	with 	the 	motion 	to 	suppress.
Defendant infers from these facts that “the procedural posture of
the ruling” on his motion to suppress “raises concerns about the
sufficiency of the evidence.” We see no inherent problem in
having a judge who issued the original search warrant sign an
order denying a motion to suppress the evidence gathered
pursuant to that warrant. Indeed, a district court judge may act
as both a magistrate and as a judge within the same case. See
State v. Black, 2015 UT 54, ¶ 19, 355 P.3d 981 (stating that “we
have recognized that a judge may switch between a magistrate
role and a judicial role in the same case”). Defendant cites to no
authority 	for 	the 	proposition 	that 	these 	procedural 	facts
somehow infected the process in this case, and we are certainly
aware of none.

State v. Roberts
20170133-CA 	7 	2018 UT App 92
“unlawful” the use of any “prescription drug or controlled
substance that was not lawfully prescribed for the person by a
practitioner”); 	see 	also 	id. 	§ 	58-17b-504(2) 	(LexisNexis 	2016)
(stating that violations of the above-cited provisions are class A
misdemeanors).
¶12 	Given that Defendant possessed several bottles of pills
prescribed to three different people who did not live with
Defendant, two of which contained unidentified “mixed pills,”
the 	magistrate 	could 	very 	reasonably 	have 	inferred 	that
Defendant intended to either use the drugs himself or provide
them to a third party (arguably an unlawful purpose). This alone
provided the magistrate with a substantial basis to determine
that probable cause existed to issue the second warrant. While
innocent 	explanations 	may 	have 	existed 	for 	Defendant’s
possession of the pill bottles, the magistrate was not required to
eliminate all such explanations before issuing the warrant. See
State 	v. 	Poole, 	871 	P.2d 	531, 	535 	(Utah 	1994) 	(stating 	that,
“[a]lthough there might be innocent explanations for particular
conduct, it is not necessary that all legitimate reasons be absent
before an officer finds probable cause”).4
4. Defendant further argues that the magistrate’s determination
should be viewed with skepticism because the magistrate issued
the warrant “less than five minutes” after the application was
electronically sent. We find this argument unpersuasive. Judges
take turns acting as the “on-call” magistrate for the purpose of
electronically reviewing search warrant applications, and receive
a 	text 	message 	(or 	other 	electronic 	alert) 	the 	moment 	an
application 	comes 	in. 	Often, 	the 	applications 	are 	reviewed
immediately 	upon 	receipt 	of 	the 	electronic 	alert. 	In 	this
particular case, Officer’s search warrant affidavit was only two
pages long, with the probable cause statement—where all of the
operative 	facts 	were 	contained—taking 	up 	only 	three
paragraphs on the second page. Moreover, the magistrate was
already familiar with some of the relevant facts (the identity and
(continued…)

State v. Roberts
20170133-CA 	8 	2018 UT App 92
¶13 	Defendant 	attempts 	to 	undermine 	this 	conclusion 	by
pointing out that he was never charged with any crime related to
the 	prescription 	drugs 	found 	in 	his 	residence 	prior 	to 	the
issuance of the second warrant, but instead was charged with
crimes related to other drugs (heroin, methamphetamine, and
marijuana) 	found 	at 	his 	residence 	pursuant 	to 	the 	second
warrant. This argument is unavailing, however, because the
crime with which a suspect is eventually charged is irrelevant to
the question of whether probable cause existed in the first place.
See Devenpeck v. Alford, 543 U.S. 146, 152–53 (2004) (noting that
there is no rule that “the offense establishing probable cause
must be ‘closely related’ to . . . the offense identified . . . at the
time of arrest”). So long as probable cause existed for the
magistrate to believe Officer’s search of Defendant’s residence
would uncover evidence of a crime, it does not matter that
Defendant was later charged with a different, more serious
crime.
¶14 	Accordingly, 	the 	magistrate 	correctly 	determined 	that
probable 	cause 	existed 	for 	Officer 	to 	search 	Defendant’s
residence pursuant to the second search warrant.5 Thus, the
(…continued)
experience of the officer, the location of the residence) from
issuing 	the 	first 	warrant 	earlier 	that 	day. 	Under 	the
circumstances, five minutes was not an unreasonably short time
for a diligent magistrate to read, review, and comprehend the
submitted material. Time is often of the essence in reviewing
warrant applications. In some cases, the suspect is detained
pending issuance of the warrant. Expeditious consideration of
warrant 	applications 	serves 	the 	interest 	of 	justice, 	and 	we
commend the magistrate in this case for his promptness.
5. The parties also briefed the issue of whether the “good faith
exception” to the exclusionary rule applies here. We need not
reach that issue, however, due to our conclusion that probable
cause existed to support issuance of the search warrant.

State v. Roberts
20170133-CA 	9 	2018 UT App 92
district court did not err when it denied Defendant’s motion to
suppress the evidence obtained from execution of that warrant.
¶15 	Affirmed.