State v. Hoffman

2021 UT App 143
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JAYCE REID HOFFMAN,
Appellant.
Opinion
No. 20191048-CA
Filed December 23, 2021
Third District Court, Salt Lake Department
The Honorable Kara Pettit
No. 181913065
Janet Lawrence, Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES JILL M. POHLMAN and RYAN D. TENNEY concurred.
HARRIS, Judge:
¶1 Jayce Reid Hoffman placed a cell phone under the bottom
of the bathroom door while his girlfriend’s fifteen-year-old
daughter (Sarah1) was in the shower. For this and other acts,
Hoffman was charged with voyeurism and attempted sexual
exploitation of a minor. After a trial, a jury acquitted Hoffman of
voyeurism but convicted him of attempted sexual exploitation of
a minor. Hoffman now appeals that conviction, asserting that the
trial court erred by denying his motion to suppress video
evidence taken from his cell phone, and by denying his motion
for directed verdict. We affirm.
1. A pseudonym.

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BACKGROUND2
¶2 On the morning of December 17, 2018, after her mother
(Mother) and older brother (Brother) had left the house to go to
work, Sarah—who was fifteen years old at the time—took a
shower before school. Upon exiting the shower, Sarah noticed
that a cell phone was visible through the space between the floor
and the bottom of the bathroom door, placed upside-down and
resting against the outside of the door, with its top edge resting
on the floor and its camera apparently trained to view into the
bathroom from under the door.3 Sarah wrapped a towel around
her and loudly asked, “Is that a camera underneath the door?”
Moments later, someone lifted the phone off the ground and
Sarah heard footsteps outside the bathroom. After dressing in
her bedroom, Sarah was summoned into Mother’s room by
Hoffman—Mother’s boyfriend—who not only admitted that he
had placed a cell phone camera underneath the bathroom door,
but also told Sarah that he “wanted” her and that he had been
experiencing these feelings “for months.” He told her that he
had “peeked” in her bedroom window before, and he identified
scars on her legs that he would not have known about had he
not seen her without pants on. He also explained to Sarah that,
2. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence only as necessary to understand issues raised on
appeal.” Layton City v. Carr, 2014 UT App 227, ¶ 2 n.2, 336 P.3d
587 (quotation simplified).
3. In their briefing, the parties describe the placement of the cell
phone in various ways but, for ease of reference, in the
remainder of this opinion we will refer to this placement—just
like Sarah did in her initial response to noticing the phone,
described in the next textual sentence—as “underneath” the
bathroom door.

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20191048-CA 3 2021 UT App 143
because of his feelings for her, he had found it necessary to stop
looking at pornography involving step-families because “it was
tempting for him.”
¶3 Hoffman himself acknowledged, in a subsequent
interview with the police, that during this conversation he told
Sarah that he viewed his “urges” for her as natural and “human”
because Sarah was “50 percent [her] mother who [Hoffman] was
in love with and attracted to.” In that same interview, Hoffman
admitted that he had placed a cell phone underneath the
bathroom door while Sarah was in the shower, but he
maintained that he had not taken any pictures or videos. He
explained that he put the phone underneath the door, without
activating its camera, to try to overcome his urges and give
himself “a pat on the back afterwards” when he resisted the
temptation to take photos.
¶4 After their discussion in Mother’s room, Hoffman drove
Sarah to school, where she began feeling “stressed” and “scared”
and subsequently called Brother and asked him to come pick her
up. Sarah told Brother what had happened, at which point they
returned home and Brother confronted Hoffman and asked him
to leave. Brother then called the police.
¶5 When the police arrived, the responding officer (Officer)
took written statements from Sarah and Brother. In her
statement, Sarah wrote:
My mother’s boyfriend put his phone camera on
the bottom of the door and took pictures or a video
of me, naked, after the shower[.] After I walked out
of the shower, I saw the camera and called it out!
He then lifted it and walked off. He talked to me
after about it and told me that he had desires to do
it for 9 months and that he caught peaks [sic] of me
naked and had a lot of chances to do something to
me but he had control of it. He explained that he

State v. Hoffman
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couldn’t watch pornhub because the popular
videos were all about step families[.] He suggested
that my mother might’ve known[.]
In her statement, Sarah did not describe the phone she had seen
underneath the door. After obtaining the witness statements,
Officer took some photographs and left the scene.
¶6 Later that day, Officer was informed that Hoffman had
returned to the house. When Officer arrived on scene, he had an
interaction with Hoffman, which was recorded on Officer’s body
camera. During the interaction, Hoffman stated, in part:
But I was sitting there, like, head in my hands, like,
why . . . am I doing this? What is wrong with me?
And I wasn’t even paying attention to what was
going on. And then I just heard her yell, “Is that a
phone?” I was like, oh, oh, hey, stuff’s happening.
Grabbed the phone and chucked it. But, uh, it was
just on the camera screen. It wasn’t like—there’s no
pictures taken. There’s no nothing.
(Emphasis added.) Officer then took Hoffman into custody and
transported him to the police station for further questioning. At
the station, officers found a gray LG-brand cell phone (the gray
phone4) on Hoffman’s person, and took possession of that
phone.
4. During these proceedings, the phone seized from Hoffman’s
person has been variously referred to as “gray,” “silver,”
“black,” “black-ish/gray-ish,” and the “LG phone.” In briefing
before this court, Hoffman refers to it as “the gray phone,” while
the State refers to it as “the silver phone.” Having viewed the
phone ourselves, we believe the phone is more gray than silver,
and will therefore refer to it as such throughout this opinion.

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¶7 After being advised of his right to remain silent, Hoffman
assented to an interview—the same one already alluded to, supra
¶ 3—conducted by a police detective (Detective). During that
interview, as noted, Hoffman admitted to placing a phone
underneath the bathroom door during Sarah’s shower, and
offered his reasons for doing so, but denied taking any photos or
videos.5 Hoffman also admitted to having seen Sarah naked on
at least one occasion in the past, when she was lying on her bed
with the blinds open and he was outside on the balcony
smoking, although he claimed it happened accidentally. Near
the beginning of the interview, in the context of explaining this
earlier incident, and as he was describing the discussion he had
with Sarah after she discovered the phone while getting out of
the shower, Hoffman indicated—or at least strongly implied—
that the phone he placed underneath the bathroom door was the
gray phone:
And I explained a couple of things to [Sarah]
before about why I had that urge [to photograph or
record her] and about how you know she, without
me even trying like, you know, naked stuff of her
came up, right? I never was looking for it or
5. Most references herein to Hoffman’s interview with Detective
are taken verbatim from the trial transcript, which was created
from a recording of a recording (that is, from the audio
recording of the trial, at which the audio of the interview was
played for the jury in court). The original audio recording of the
interview is also part of the record, and we have listened to it.
For the most part, the interview was correctly transcribed in the
trial transcript. At times, however, the trial transcript does not
accurately reflect what was said during the interview. The
quotes we use in this opinion sometimes include edits we have
made to the trial transcript, after listening to the actual audio
recording.

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anything. It just—in other situations it happened.
You know, I was just trying to explain from those
situations that happened, where the urge came
from, but I didn’t do anything. I didn’t take a
picture. You guys have my phone. It’s not on it.
There’s, you know, no evidence whatsoever of
anything.
(Emphasis added.) Hoffman told Detective that the phone he
had used that morning was not “even in like photo screen” and
“was just sitting there black,” a claim that contradicted his
statement, made earlier that same day to Officer, that his phone
had been “just on the camera screen.” Detective asked various
follow-up questions, sometimes asking Hoffman to clarify where
“your phone” had been placed, and Hoffman responded by
describing where he had placed “my phone.” Later in the
interview, however, Hoffman told Detective that the phone he
had placed underneath the bathroom door was not “my phone”
but, instead, was “a spare dead” white HTC-brand phone (the
white phone) that was “not even charged” at the time.
¶8 On December 18, 2018—the day after the incident and
Hoffman’s interview—a search warrant for the gray phone was
approved, which authorized the police to search that phone for
“[d]igital data to include, but not limited to photographs, videos,
text messages, and memory SD card(s).” The warrant also stated
that this “property and evidence . . . is evidence of the crime or
crimes of Sexual Exploitation of a Minor and Voyeurism.” In the
affidavit supporting the search warrant application, officers did
not mention that Hoffman had, later in his interview, identified
the white phone as the one he had used. When the police
attempted to execute the warrant, however, Hoffman “failed to
unlock the phone” and the police were unable to bypass the
“security feature” to gain access, so “[n]o data was obtained”
that day from the gray phone.

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20191048-CA 7 2021 UT App 143
¶9 The next day, December 19, 2018, Detective interviewed
Sarah at the Children’s Justice Center; the interview began at
3:26 p.m. and lasted approximately forty minutes. In her written
statement signed on the day of the incident, Sarah had not
described the phone she had seen underneath the bathroom
door, and when Detective asked about that during this
interview, Sarah described the phone as a white phone, with “a
black area on the phone cover where the camera was located.”
After the interview, Detective and Sarah both went to Sarah’s
house, where Mother located a white phone and Sarah
specifically identified it as the phone she had seen underneath
the bathroom door; Sarah and Mother then surrendered
possession of the white phone to Detective. At 6:04 p.m., Mother
signed a form consenting to a search of the white phone.
¶10 At 4:29 p.m. that same day, while Detective was finishing
up his interview with Sarah and making his way over to the
house, other officers in Detective’s department submitted an
application for a second search warrant regarding the gray
phone, this time asking for authority to submit the phone to a
third party for a “chip off,” a procedure that “physically
dismantle[s] the phone in order to obtain the digital data stored”
on it. In the affidavit supporting the search warrant application,
officers again did not mention Hoffman’s statement—from the
latter part of his earlier interview with Detective—that the phone
he claimed to have used was the white phone. And likely
because the officers submitting the warrant application did not
yet know what Sarah had said during her interview with
Detective, officers also did not inform the magistrate that Sarah
had identified the white phone as the phone she saw under the
bathroom door. A short time later, the second search warrant for
the gray phone was approved.
¶11 The next day, on December 20, officers were able to
search the contents of both the white phone and the gray phone.
In their search of the white phone, officers found no

State v. Hoffman
20191048-CA 8 2021 UT App 143
photographs or videos of any kind, other than factory-generated
images. In their search of the gray phone, however, officers
found three short video recordings, all made on December 17,
that appeared relevant. All three videos appear to have been
filmed by placing a phone camera up against a door, and they
record what can be seen through the gap between the floor and
the door. Two of the videos show Sarah’s bedroom, and the
other shows Sarah’s bathroom. No person is visible in any of the
videos. The third video—the one of Sarah’s bathroom—appears
to have been generated in the exact manner Sarah and Hoffman
described; in the video, which lasts about fifteen seconds, one
can see a shower curtain as well as a pile of clothes on the
bathroom floor, and one can hear the sound of running water as
though someone is in the shower. Sarah testified at trial that the
clothes visible on the bathroom floor in the third video belong to
her, and she inferred therefrom that the video had been recorded
while she was in the shower, as her clothes would not have been
on the floor unless she was in the shower.
¶12 The State charged Hoffman with voyeurism (a class B
misdemeanor, for peeking in Sarah’s bedroom window) and
attempted sexual exploitation of a minor (a third-degree felony,
for attempting to record Sarah while she was in the bathroom).
Before trial, Hoffman filed a motion to suppress the three videos
found on the gray phone. In this motion, Hoffman asserted that,
because the information originally presented to the magistrate
had not included Sarah’s statement that the phone in question
was the white phone, the search warrant affidavits were at least
recklessly misleading. The trial court denied the motion.
¶13 Soon after, Hoffman filed a second motion to suppress the
three videos. This time, he argued that, even if the search
warrant affidavits had not been misleading when they were
signed, officers had learned additional material information later
(but before the second warrant was executed) when Sarah
identified the white phone as the one she saw. Hoffman thus

State v. Hoffman
20191048-CA 9 2021 UT App 143
asserted that the officers should not have proceeded with
execution of the second warrant in light of the new information.
The trial court denied Hoffman’s second motion to suppress, as
well as a motion to reconsider the denial of that motion,
concluding (among other things) that, even if officers had
included the new information in a supplemental affidavit, there
still would have been probable cause to search the gray phone.
¶14 The case then proceeded to a two-day jury trial, in which
the State introduced into evidence the three videos found on the
gray phone. At the conclusion of the State’s case, Hoffman asked
the court to direct a verdict on the attempted sexual exploitation
of a minor charge. In particular, Hoffman argued that, based on
the position of the phone, it was impossible for him to have
taken photos or video of anything but the “feet, ankles, and the
lower portion of anyone’s leg,” and therefore impossible for him
to have captured any image that could qualify as child
pornography. In addition, Hoffman asserted that he had not
taken a substantial step toward commission of the crime, as
required for an attempt charge, because he claimed that he had
merely placed the phone underneath the door but had not
activated it. The court denied the motion, concluding that the
State had met its burden of presenting evidence from which a
jury could reasonably convict Hoffman. And at the conclusion of
the trial, the jury convicted Hoffman of attempted sexual
exploitation of a minor, although it acquitted him on the
voyeurism charge.
¶15 A few weeks after the jury’s verdict, Hoffman filed a
motion for a new trial, again raising the issue of suppression of
the three videos found on the gray phone. The court denied the
motion, again determining that, even taking the new information
from Sarah’s interview into account, officers still had probable
cause to search the gray phone when they executed the second
search warrant. Later, the court sentenced Hoffman to a
suspended prison term and forty-eight months’ probation.

State v. Hoffman
20191048-CA 10 2021 UT App 143
ISSUES AND STANDARDS OF REVIEW
¶16 Hoffman now appeals his conviction, and asks us to
consider two issues. First, he asserts that the trial court erred
when it denied his motion for directed verdict, which was
premised on the claim that the evidence presented at trial was
insufficient to support his conviction. “We review a trial court’s
ruling on a motion for directed verdict for correctness.” State v.
Carrick, 2020 UT App 18, ¶ 22, 458 P.3d 1167 (quotation
simplified). “In reviewing the denial of a motion for a directed
verdict based on a claim of insufficiency of the evidence, we will
uphold the trial court’s decision if, upon reviewing the evidence
and all inferences that can be reasonably drawn from it, we
conclude that some evidence exists from which a reasonable jury
could find that the elements of the crime had been proven
beyond a reasonable doubt.” Id. (quotation simplified).
¶17 Second, Hoffman asserts that the trial court erred when it
denied his motion to suppress the three videos taken from the
gray phone. On appeal, Hoffman advances two different legal
theories in support of suppression. First, he asserts that the
search warrant affidavits were overbroad and lacked
particularity. Second, he asserts that whatever probable cause
officers might have had upon obtaining the search warrants had
dissipated by the time they executed the second warrant, given
the new information officers obtained from Sarah’s interview. As
we explain below, see infra Part II.A, only the second of these
legal theories was raised before the trial court; the first is
therefore unpreserved. With regard to the unpreserved legal
theory, Hoffman invites us to apply plain error review. “To
demonstrate plain error, a defendant must establish that (i) an
error exists; (ii) the error should have been obvious to the [trial]
court; and (iii) the error is harmful.” State v. Hedgcock, 2019 UT
App 93, ¶ 11, 443 P.3d 1288 (quotation simplified). With regard
to the preserved legal theory, we review the trial court’s decision
to deny the motion to suppress “as a mixed question of law and

State v. Hoffman
20191048-CA 11 2021 UT App 143
fact,” reviewing the court’s factual findings for clear error and its
legal conclusions “for correctness, including its application of
law to the facts of the case.” State v. Fuller, 2014 UT 29, ¶ 17, 332
P.3d 937.
ANALYSIS
I
¶18 Hoffman challenges the trial court’s denial of his motion
for directed verdict, claiming that the evidence presented at trial
was insufficient to support his conviction for attempted sexual
exploitation of a minor. In support of this challenge, Hoffman
makes two arguments. First, he asserts that he did not take a
“substantial step” toward commission of the charged crime, as
required by the attempt statute. Second, he asserts that, due to
the position of the phone, it was impossible for him to have
captured any images that would qualify as child pornography.
We address Hoffman’s two arguments in turn.
A
¶19 A person commits the crime of sexual exploitation of a
minor when that person “knowingly produces, possesses, or
possesses with intent to distribute child pornography.” Utah
Code Ann. § 76-5b-201(1)(a)(i) (LexisNexis Supp. 2021). And a
person is guilty of “an attempt to commit a crime” when that
person “intends to commit the crime” and “engages in conduct
constituting a substantial step toward commission of the crime.”
Id. § 76-4-101(1)(a), (1)(b)(i) (2017). Thus, to obtain a conviction
on the charge of attempted sexual exploitation of a minor, the
State had to prove beyond a reasonable doubt that Hoffman
intended to “produce[] or possess[] . . . child pornography,” see
id. § 76-4-101(1)(b)(i); see also id. §§ 76-1-503(2), 76-5b-201(1)(a)(i),
and that Hoffman “engage[d] in conduct constituting a

State v. Hoffman
20191048-CA 12 2021 UT App 143
substantial step” toward commission of that crime, see id. § 76-4-
101(1)(a).
¶20 Our legislature has explained that “conduct constitutes a
substantial step if it strongly corroborates the actor’s mental
state.” See id. § 76-4-101(2). Our supreme court, interpreting this
statute, has explained that a substantial step requires “significant
conduct” in the form of an “overt act.” See State v. Arave, 2011 UT
84, ¶ 30, 268 P.3d 163 (quotation simplified). That act must be
“something more than mere preparation”; it must be “a tangible
step toward commission of a crime that transcends intent, yet
fails to culminate in its planned accomplishment.” Id. (quotation
simplified).
¶21 Hoffman told both Sarah and the police that he had
“urges” to see Sarah naked, and that he had placed a phone
underneath the bathroom door while Sarah was in the bathroom,
but he denied that he had actually taken any photos or videos.
However, the State presented evidence to the contrary; indeed,
the evidence recovered from the gray phone indicated that, on
December 17, Hoffman had actually taken a fifteen-second video
of whatever could be seen from underneath the door while Sarah
was in the shower.6 Thus, while the State certainly presented
6. We necessarily include the evidence found on the gray phone
as part of our analysis in evaluating the denial of Hoffman’s
motion for a directed verdict. As we explain, infra Part II, the
trial court did not err in denying Hoffman’s motion to suppress
the videos found on the gray phone, and therefore the jury
properly considered them. But in any event, the propriety of
directed verdict rulings must be evaluated on the basis of the
evidence actually presented, including even evidence that is
later, on appeal, determined to have been inappropriately
admitted. See Franklin v. Stevenson, 1999 UT 61, ¶ 7, 987 P.2d 22
(stating that a motion for a directed verdict “does not raise
(continued…)

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20191048-CA 13 2021 UT App 143
evidence of Hoffman’s intent, it also presented much more than
that. In this case, the State presented evidence that Hoffman took
concrete actions to effectuate that intent: he surreptitiously made
his way to the bathroom door while Sarah was in the bathroom,
placed at least one phone—and perhaps two, at different
times7—underneath the door, and hit “record” on at least one
(…continued)
questions relating to the competency or admissibility of
evidence,” and that, in considering such a motion, “the evidence
must be taken as it existed at the close of the trial,” and that
therefore “all evidence submitted to the jury must be considered
by the court in ruling on a motion for [a directed verdict]”
(quotation simplified)); see also Arreguin-Leon v. Hadco Constr.
LLC, 2018 UT App 225, ¶ 29, 438 P.3d 25 (“In considering [a
motion for a directed verdict], we view the evidence as it existed
at the close of evidence, without determining whether it was
properly admitted.”), aff’d, 2020 UT 59, 472 P.3d 927.
Accordingly, it is appropriate to consider the evidence found on
the gray phone in evaluating the soundness of the trial court’s
denial of Hoffman’s motion for a directed verdict.
7. One can reasonably infer, from the video found on the gray
phone, that Hoffman placed the gray phone underneath the
bathroom door on December 17 while Sarah was in the shower,
and that he hit the “record” button on that phone in an effort to
capture images of the interior of the bathroom. And one can
reasonably infer, from both Hoffman’s interview and Sarah’s
testimony, that the white phone was underneath the bathroom
door at the moment when Sarah emerged from the shower, even
if Hoffman did not record any images with it. See State v. Nielsen,
2014 UT 10, ¶ 49, 326 P.3d 645 (“[W]e must view th[e] evidence
and all reasonable inferences drawn therefrom in a light most
favorable to the verdict.” (quotation simplified)).

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phone in an effort to capture video of the interior of the
bathroom.
¶22 In our view, these actions easily qualify as a “substantial
step” toward the commission of the relevant crime. These
actions are significant, and constitute more than mere intent or
even preparation. Indeed, by placing the phone underneath the
door and hitting the “record” button, Hoffman had done
everything he needed to do to commit the crime; at that point, it
was only a question of whether Sarah was going to exit the
shower and position herself in a way that would have resulted in
the capture of images that would qualify as child pornography.
Thus, Hoffman’s actions clearly indicate an intent to commit the
crime of sexual exploitation of a minor and constituted a
“tangible step toward commission” of that crime. See Arave, 2011
UT 84, ¶ 30.
B
¶23 Hoffman also argues that the trial court erred in denying
his motion for directed verdict because creating child
pornography was an impossibility under the circumstances as he
believed them to be. See Utah Code Ann. § 76-4-101(3)(b)
(LexisNexis 2017) (“A defense to the offense of attempt does not
arise . . . due to factual or legal impossibility if the offense could
have been committed if the attendant circumstances had been as
the actor believed them to be.”). Specifically, Hoffman argues
that, due to the position of the phone, “the camera could only
capture pictures under the door of [Sarah’s] feet and ankles and
maybe part of her calves,” and that any pictures or videos taken
would thus not have qualified as child pornography. This
argument fails for two reasons.
¶24 First, while we acknowledge Hoffman’s point that the
camera angle limited the phone’s field of view, it was quite
possible for Sarah to have entered the frame of the video, had
she emerged from the shower while the camera was recording,

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20191048-CA 15 2021 UT App 143
and it would certainly have been possible for her to have
performed some action (e.g., bending over to towel off, or
crouching down to pick up her clothes on the floor) that would
have resulted in Hoffman’s camera capturing images of her
breasts, buttocks, or genitalia. In this case, given the other
evidence of Hoffman’s intent, such images could have qualified
as child pornography. See id. § 76-5b-103(1)(b), (8), (10)(f)
(defining “[c]hild pornography” as “any visual depiction . . . of a
minor engaging in sexually explicit conduct”; defining
“[s]exually explicit conduct” as “the visual depiction of nudity
or partial nudity for the purpose of causing sexual arousal of any
person”; and defining “[n]udity or partial nudity” as “any state
of dress or undress in which the human genitals, pubic region,
buttocks, or the female breast, at a point below the top of the
areola, is less than completely and opaquely covered”).
¶25 Second, it was for the jury to determine Hoffman’s state
of mind based on the evidence presented, including whether the
circumstances of the situation, as Hoffman “believed them to
be,” would have rendered the creation of child pornography
impossible. See id. § 76-4-101(3)(b). A reasonable jury could have
determined that Hoffman anticipated that Sarah, when emerging
from the shower, could position herself in a way that would
facilitate the capture of nudity or partial nudity.
¶26 Thus, the State presented sufficient evidence from which
a reasonable jury could find, beyond a reasonable doubt, that
Hoffman took substantial steps toward commission of the
charged crime, and that the commission of the crime was not an
impossibility under the circumstances as Hoffman believed them
to be. In this situation, the trial court did not err by denying
Hoffman’s motion for a directed verdict.
II
¶27 Hoffman next challenges the trial court’s denial of his
motion to suppress the videos found on the gray phone and, in

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20191048-CA 16 2021 UT App 143
support of that challenge, raises two independent legal theories.
First, he argues that the court should have granted his motion to
suppress because the warrants authorizing the search of the gray
phone were “overbroad” and “lacked particularity.” Second,
Hoffman asserts that any probable cause that may have initially
supported the issuance of the warrants had dissipated by the
time the second warrant was executed. We address each of
Hoffman’s theories, in turn.
A
¶28 Hoffman first argues that the search warrants for the gray
phone were unconstitutional because they were overbroad and
lacked particularity. But Hoffman did not preserve this legal
theory for appellate review: although Hoffman filed several
motions to suppress, he did not advance this particular theory in
connection with any of them. See Donovan v. Sutton, 2021 UT 58,
¶¶ 20–23, 498 P.3d 382 (noting that parties “advancing a new
legal theory” must preserve that theory in the trial court, and
concluding that a party who had opposed a motion on several
grounds, but not the one in question, had not preserved that
theory for appellate review). In his first motion to suppress,
Hoffman asserted that the search warrant affidavits were
misleading, but he did not argue that they were overbroad or
lacking particularity. And in his second and successive motions,
Hoffman asserted that, even if the search warrant affidavits were
not misleading when they were signed, the officers learned
additional material information later (but before the second
warrant was executed) when Sarah identified the white phone as
the one used in the incident. But at no point did he assert that
the warrants were overbroad or lacking particularity. Thus,
Hoffman did not present this legal theory to the trial court in a
way that gave the court an opportunity to rule on it. See State v.
Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443 (“An issue is preserved
for appeal when it has been presented to the [trial] court in such

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a way that the court has an opportunity to rule on it.” (quotation
simplified)). It is therefore unpreserved.
¶29 Nevertheless, Hoffman asks us to review this issue for
plain error, an exception to the preservation requirement. See id.
¶ 19 (describing plain error as one of the “three distinct
exceptions to preservation”). “To demonstrate plain error, a
defendant must establish that (i) an error exists; (ii) the error
should have been obvious to the trial court; and (iii) the error is
harmful. If any one of these requirements is not met, plain error
is not established.” Id. ¶ 20 (quotation simplified). “For an error
to be obvious[,] the law governing the error must be clear or
plainly settled at the time the alleged error was made.” State v.
Hedgcock, 2019 UT App 93, ¶ 15, 443 P.3d 1288 (quotation
simplified). Additionally, for an error to be harmful, it “must be
shown to have been of such a magnitude that there is a
reasonable likelihood of a more favorable outcome for the
defendant” if the alleged error had not occurred. See Johnson,
2017 UT 76, ¶ 21 (quotation simplified). Hoffman cannot meet
this standard, because the trial court committed no obvious
harmful error.
¶30 The United States Constitution provides that “no
Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” U.S. Const.
amend. IV. “In order to accurately describe the ‘things to be
seized,’ a warrant must achieve two objectives: first, it must
supply adequate information to guide officers in selecting what
items to seize; and second, the category of items specified in the
warrant cannot be too broad so that it includes articles that
should not be seized.” State v. Fuller, 2014 UT 29, ¶ 37, 332 P.3d
937 (quotation simplified). How particular a specific warrant
must be, however, “necessarily depends on the circumstances
and the nature of the activity under investigation.” Id. (quotation
simplified).

State v. Hoffman
20191048-CA 18 2021 UT App 143
¶31 Our supreme court has warned that, with the advent of
technological innovation, including the ubiquity of smartphones,
“law enforcement must be increasingly cautious with respect to
the particularity requirement because access to a huge array of
one’s personal papers in a single place increases law
enforcement’s ability to conduct a wide-ranging search into a
person’s private affairs.” Id. ¶ 38 (quotation simplified). “Judges
must be careful in drafting the scope of the warrant, especially in
determining whether the device is considered contraband, and
thus subject to seizure, or whether only particular information on
the device is properly subject to seizure.” Id. (quotation
simplified). Nevertheless, when a warrant authorizes a search
“for child pornography, the computers or other devices used to
store child pornography may be considered contraband or an
instrumentality of the crime,” and “thorough searches of
multiple devices may be required . . . since criminals can—and
often do—hide, mislabel, or manipulate files to conceal criminal
activity.” Id. ¶ 39 (quotation simplified).
¶32 In the present case, the search warrants for the gray
phone authorized the officers to search the phone for “[d]igital
data to include, but not limited to photographs, videos, text
messages, and memory SD card(s).” This language, standing
alone, might be cause for concern regarding overbreadth,
because it arguably allows a search of anything contained on the
entire phone. But the warrants also made clear that they were
authorizing a search for “evidence of the crime or crimes of
Sexual Exploitation of a Minor and Voyeurism”; this language
could arguably be construed to limit the warrants’ scope to
authorizing only a search of those items on the phone that might
contain child pornography. And as noted, when child
pornography is at issue, the terms of the search of computers or
other electronic devices are necessarily quite broad and require
“thorough searches” because purveyors of child pornography
might mislabel files to cloak their contents or hide them to avoid
discovery. See id. In this situation, we do not view the terms of

State v. Hoffman
20191048-CA 19 2021 UT App 143
these search warrants as being so obviously overbroad as to
trigger an obligation on the part of the trial court to intervene,
without being asked, to address the issue.
¶33 We therefore conclude that the trial court did not plainly
err by not intervening, sua sponte, to declare the search warrants
invalid on grounds of overbreadth and lack of particularity. On
this basis, we reject Hoffman’s first suppression argument.
B
¶34 Next, Hoffman argues that, even if the search warrants for
the gray phone were supported by probable cause at the time
they were approved, any such probable cause had dissipated by
the time the second warrant was executed. Hoffman asserts that
new information received by the police—specifically, Sarah’s
identification of the white phone, not the gray phone, as the one
that Hoffman had placed underneath the door—after the
issuance of the second search warrant but before its execution
operated to erase any probable cause the police might have had
earlier, and he asserts that, under such circumstances, the second
warrant’s execution was unlawful. Hoffman is correct that new
information acquired after issuance but before execution of a
search warrant can—in theory—operate to dissipate probable
cause, but in this case the new information did not have that
effect. That is, we conclude that, even after taking the new
information into account, officers still had probable cause to
believe that incriminating evidence would be found on the gray
phone, and therefore the execution of the second warrant was
proper.
¶35 As noted above, the United States Constitution mandates
that “no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation.” U.S. Const. amend. IV. For a
search warrant to be valid, it must be based on probable cause.
See United States v. Ventresca, 380 U.S. 102, 107 (1965). But
probable cause is not a particularly high standard: it “exists

State v. Hoffman
20191048-CA 20 2021 UT App 143
when there is a fair probability that contraband or evidence of a
crime will be found in a particular place.” United States v. Grubbs,
547 U.S. 90, 95 (2006) (quotation simplified); see also Kaley v.
United States, 571 U.S. 320, 338 (2014) (stating that the probable
cause standard “is not a high bar”). “The information necessary
to show probable cause must be contained within a written
affidavit given under oath” and submitted to a neutral
magistrate who ultimately determines whether probable cause
exists. State v. Fuller, 2014 UT 29, ¶ 22, 332 P.3d 937 (quotation
simplified); see also State v. Gonzalez, 2021 UT App 83, ¶ 22, 494
P.3d 1066.
¶36 Probable cause must of course exist at the time the
warrant is issued, but in order for the search to be valid, it must
also continue to exist “from the issuance of a search warrant to
its execution.” United States v. Garcia, 707 F.3d 1190, 1195–96
(10th Cir. 2013); see also Grubbs, 547 U.S. at 95 n.2 (“[P]robable
cause may cease to exist after a warrant is issued. The police may
learn, for instance, that contraband is no longer located at the
place to be searched.” (citing United States v. Bowling, 900 F.2d
926, 932 (6th Cir. 1990))); United States v. Ortiz-Hernandez, 427
F.3d 567, 574 (9th Cir. 2005) (“If probable cause is established at
any early stage of the investigation, it may be dissipated if the
investigating officer later learns additional information that
decreases the likelihood that the defendant has engaged, or is
engaging, in criminal activity.”); Bigford v. Taylor, 834 F.2d 1213,
1218 (5th Cir. 1988) (“As a corollary, moreover, of the rule that
the police may rely on the totality of facts available to them in
establishing probable cause, they also may not disregard facts
tending to dissipate probable cause.” (quotation simplified)). If
probable cause is no longer present when the warrant is
executed, the search is improper, even if probable cause existed
when the warrant was issued.
¶37 Hoffman’s first motion to suppress asserted that the
affidavits submitted by officers in support of their request for a

State v. Hoffman
20191048-CA 21 2021 UT App 143
search warrant were misleading at the time they were submitted,
because they did not inform the magistrate that Sarah had stated
that the phone she saw was the white phone. In support of that
motion, Hoffman relied on Franks v. Delaware, 438 U.S. 154
(1978). In that case, the United States Supreme Court noted that
“when the Fourth Amendment demands a factual showing
sufficient to comprise probable cause, the obvious assumption is
that there will be a truthful showing.” Id. at 164–65 (quotation
simplified). The Court held that, in cases where an officer made
a deliberately or recklessly false statement in a search warrant
affidavit, and that false statement materially affected the
magistrate’s determination of 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. at 156. In this case, the trial court denied
Hoffman’s Franks motion because it was unable to find that
officers had made a deliberately or recklessly false statement in
the search warrant affidavits. On appeal, Hoffman makes no
Franks claim: that is, he does not challenge the court’s denial of
his first motion to suppress, and does not assert that the
affidavits submitted in support of any of the search warrant
requests were false or misleading when made. Indeed, he
acknowledges that the new information to which he points—that
Sarah told officers that the phone she had seen was the white
phone—was obtained late in the afternoon of December 19, and
most likely after the application for the second search warrant
had already been submitted.
¶38 Instead, Hoffman advances the argument he made in his
second and successive motions to suppress: that any probable
cause officers might have had, at the time the second search
warrant was approved, had dissipated by the time that warrant
was executed. As noted above, Hoffman correctly understands
the law: probable cause must exist not only at the time the
warrant is authorized, but also at the time the warrant is
executed. See Garcia, 707 F.3d at 1194 (“[A] warrant remains

State v. Hoffman
20191048-CA 22 2021 UT App 143
valid only as long as the information in the oath or affirmation
supporting its issuance provides probable cause to believe the
items sought will still be found in the place to be searched at the
time the search is conducted.”).
¶39 There are at least two different factors that can cause a
search warrant, valid upon its issuance, to lose its validity by the
time it is executed: the passage of time itself, and new
information received in the interim. See United States v. Dalton,
918 F.3d 1117, 1127 (10th Cir. 2019). “There is a plethora of cases
in nearly every [jurisdiction] explaining the circumstances in
which a time delay will nullify probable cause as found in the
warrant.” Id.; see also Fuller, 2014 UT 29, ¶ 33 (discussing the
potential staleness of information contained in search warrant
affidavits). But “there are far fewer examples of cases where new
information, rather than the passage of time, nullifies the
probable cause articulated in a warrant.” Dalton, 918 F.3d at
1127. We are aware of no such cases issued by Utah appellate
courts.
¶40 In our view, two of the comparatively rare federal cases
discussing this issue are most illustrative. In United States v.
Marin-Buitrago, 734 F.2d 889 (2d Cir. 1984), the court
acknowledged that officers have an obligation to return to the
magistrate “when a definite and material change has occurred in
the facts underlying the magistrate’s determination of probable
cause,” but emphasized that “the duty to report new or
correcting information to the magistrate does not arise unless the
information is material to the magistrate’s determination of
probable cause.” Id. at 894 (quotation simplified). In assessing
the materiality of the omitted information, the appellate court
“assume[d] the role of the issuing magistrate” and evaluated
“whether the affidavit still support[ed] a finding of probable
cause after the inclusion of” the new information. Id. at 895. In
that case, the court concluded that the newly acquired
information was not material, because even if it had been

State v. Hoffman
20191048-CA 23 2021 UT App 143
included in the affidavit, that affidavit “clearly establish[ed], by
a fair probability,” that incriminating evidence would be found
at the location to be searched. Id. at 896.
¶41 And in the second case, United States v. Bowling, 900 F.2d
926 (6th Cir. 1990), officers suspected that the defendants had
been engaged in illegal drug activity and, after some officers left
the scene to obtain a warrant to search the defendants’ trailer,
other officers obtained consent to conduct a “preliminary
search” of the trailer. Id. at 928–29. That search revealed no
incriminating evidence. Id. at 929. Some time later, the other
officers returned, warrant in hand, and conducted a second
search pursuant to the warrant, and this time they found
incriminating evidence. Id. The defendants later moved to
suppress the evidence discovered in the second search, arguing
that information obtained in the first search and not shared with
the magistrate—that the trailer apparently did not contain
incriminating evidence—served to dissipate any probable cause
that had originally supported the search warrant at the time of
its issuance. Id. at 930–31. The court denied the motion, and the
appellate court affirmed. Id. at 935.
¶42 The Bowling court acknowledged the applicable legal rule
that later-acquired information can serve to dissipate the
probable cause that originally supported a search warrant,
stating that “where an initial fruitless consent search dissipates
the probable cause that justified a warrant, new indicia of
probable cause must exist to repeat a search of the same
premises pursuant to the warrant.” Id. at 932. However, the court
declined to suppress the evidence found in the trailer because it
determined that—even taking the new information into
account—probable cause still existed. Id. at 933–34. Notably, the
court stated that “the fruits of the second search are not to be
suppressed if this court finds that a neutral magistrate would
have determined that probable cause existed to conduct a second
search despite [the] prior fruitless consent search.” Id. at 933

State v. Hoffman
20191048-CA 24 2021 UT App 143
(emphasis added). Ultimately, although the court chided the
officers for not returning to the magistrate for a reassessment of
probable cause after the preliminary search, see id. (indicating
that the officers “should have refrained” from executing the
search warrant until the magistrate determined that probable
cause “continued to exist”), the court “declin[ed] to suppress the
second search’s fruits” because, in its view, “probable cause for a
second search” still existed at the time of the warrant’s
execution, even taking into account the new information gained
in the preliminary search, see id. at 934.
¶43 In our view, these cases, read together, indicate that
suppression of evidence discovered in the execution of a search
warrant is required when new information comes to light after
issuance of that warrant, but before its execution, that serves to
dissipate the probable cause that once existed to support the
warrant. See Dalton, 918 F.3d at 1128 (stating that “probable
cause becomes stale when new information received by the
police nullifies information critical to the earlier probable cause
determination before the warrant is executed”). Whether new
information was significant enough to result in the dissipation of
probable cause is a question that may be taken up by a
reviewing court, often in the context of adjudicating a motion to
suppress. See Bowling, 900 F.2d at 933; Marin-Buitrago, 734 F.2d at
895 (stating that the reviewing court is to “assume the role of the
issuing magistrate” and determine “whether the affidavit still
supports a finding of probable cause after the inclusion of” the
new information); cf. Franks v. Delaware, 438 U.S. 154, 171–72
(1978) (“[I]f, when material that is the subject of the alleged
falsity or reckless disregard is set to one side, there remains
sufficient content in the warrant affidavit to support a finding of
probable cause, no hearing is required.”).
¶44 The touchstone of the reviewing court’s inquiry is
whether the new information would have been material to the
probable cause determination—that is, whether probable cause

State v. Hoffman
20191048-CA 25 2021 UT App 143
still existed to support the warrant at the time of its execution,
even taking the new information into account. See Marin-
Buitrago, 734 F.2d at 894–95 (explaining that “[t]he duty to report
new or correcting information to the magistrate does not arise
unless the information is material to the magistrate’s
determination of probable cause,” and that “[f]acts omitted from
a warrant affidavit are not material unless they cast doubt on the
existence of probable cause,” and holding that “the addition of
the new information” in that case was not material because it
“would not affect the finding of probable cause”); see also State v.
Schulz, 55 A.3d 933, 940 (N.H. 2012) (stating that “officers must
discontinue a search under the authority of a warrant when an
unambiguous and material change has occurred in the facts,
eliminating probable cause”); cf. In re Guardianship of A.T.I.G.,
2012 UT 88, ¶ 35, 293 P.3d 276 (stating that “a fact is material
only if it is ‘significant or essential to the issue or matter at
hand’” (quoting Black’s Law Dictionary 670 (9th ed. 2009))).
¶45 A corollary to these principles is that officers do not need
to return to the magistrate for a reassessment of probable cause
unless there has been a material change in the facts that serves to
dissipate probable cause. See Marin-Buitrago, 734 F.2d at 895
(“The duty to report new or correcting information to the
magistrate does not arise unless the information is material to
the magistrate’s determination of probable cause.”). In our view,
this arrangement makes sense; search warrants are often issued
in dynamic situations, in which facts can and often do change
between issuance of a warrant and execution of that warrant, but
in which many of the changed facts may turn out to be minor or
inconsequential. It makes little sense—and would strain both
law enforcement and judicial resources—to put in place a policy
that requires officers to return to the magistrate for a
reassessment of probable cause every time there is any change in
the underlying factual situation.

State v. Hoffman
20191048-CA 26 2021 UT App 143
¶46 But if officers deem the new information immaterial, and
therefore decide not to return to the magistrate for a
reassessment of probable cause prior to execution of the warrant,
they run the risk that a reviewing court might later disagree with
their assessment, conclude that the new information was
material after all, and suppress the evidence discovered upon
execution of the warrant. Given these realities, officers would be
wise—especially in cases not involving exigent circumstances—
to return to the magistrate for a reassessment of probable cause
anytime a new piece of information might make a difference to
the probable cause calculus. In our current electronic age,
officers can obtain the input of a magistrate relatively quickly.
See State v. Roberts, 2018 UT App 92, ¶ 12 n.4, 427 P.3d 416
(noting that, in Utah, “[j]udges take turns acting as the ‘on-call’
magistrate for the purpose of electronically reviewing search
warrant applications,” and often review such applications
“immediately upon receipt”). Officers who gamble in these
situations run the risk that evidence discovered during a search
will later be suppressed by a reviewing court. Indeed, we
endorse the admonition given by the New Hampshire Supreme
Court in a similar situation:
To the extent that the police have encountered new
information that casts doubt upon the ongoing
justification for the search, they would be well-
advised to refrain from continuing the search until
a neutral magistrate determines that probable
cause continues to exist. Should they fail to do so,
the remedy of suppression will be warranted if a
reviewing court finds that the magistrate would
not have issued the warrant had the magistrate
known about the new information.
Schulz, 55 A.3d at 940; see also Bowling, 900 F.2d at 933 (offering
the court’s view that, “[b]ecause no exigent circumstances [were]
presented by the facts of this case, the officers should have

State v. Hoffman
20191048-CA 27 2021 UT App 143
refrained from the second search until a neutral magistrate
determined that probable cause continued to exist”).
¶47 We acknowledge that the State, during oral argument
before this court, conceded that officers had a duty in this case to
return to the magistrate for a probable cause reassessment before
executing the second warrant. But this concession was made in
the context of urging us to adopt a two-part framework that
assumed a meaningful difference between relevance and
materiality: (1) that officers have an obligation to return to the
magistrate upon learning any information that is potentially
relevant to the probable cause determination; but (2) officers’
failure to do so will be considered harmless if the new
information was not material, that is, if a reviewing court later
determines that probable cause nevertheless existed, under the
totality of the circumstances, at the time of the execution of the
warrant. Thus, the State conceded only that the new
information—Sarah’s statement about the white phone—was
relevant enough to trigger reassessment under its proposed test;
the State did not concede that the new information was material,
as that term is used in the cited federal cases, or that officers
would have had any duty to return to the magistrate if
materiality (as opposed to relevance) were the test. We
appreciate the State’s limited concession, and agree (as noted
above) that best police practice is for officers to return to the
magistrate in any situation in which there exists reasonable
doubt regarding a new fact’s materiality.
¶48 But we decline to adopt the State’s suggested two-part
framework, for two reasons. First, we do not think it is
supported by a comprehensive reading of the federal cases
discussed above. See, e.g., Marin-Buitrago, 734 F.2d at 895 (“The
duty to report new or correcting information to the magistrate
does not arise unless the information is material to the
magistrate’s determination of probable cause.”). And second, the
State’s proposed analytical framework is arguably inconsistent

State v. Hoffman
20191048-CA 28 2021 UT App 143
with our supreme court’s decision in Brierley v. Layton City, 2016
UT 46, 390 P.3d 269. In that case, although officers were in the
process of obtaining a warrant at the time they conducted their
search, they had not yet obtained one. Id. ¶ 12. Had the warrant
application been timely submitted, it would likely have been
granted, because officers had facts at their disposal that would
have amounted to probable cause. Id. ¶¶ 4–12, 28. When the
defendant later moved to suppress the evidence discovered in
the search, prosecutors defended the officers’ actions by
asserting that the evidence would have inevitably been
discovered because the warrant was in process and would
almost certainly have been granted. Id. ¶ 13. The district court
granted the motion to suppress, a ruling our supreme court
found to be correct. Id. ¶ 41. In the supreme court’s view, the
prosecution’s argument amounted simply to an assertion that
“[i]f [officers] hadn’t done it wrong, [they] would have done it
right.” Id. ¶ 26 (quoting State v. Topanotes, 2003 UT 30, ¶ 19, 76
P.3d 1159). Because the officers were obligated to seek the
magistrate’s input regarding probable cause, they could not
evade that requirement simply by asserting that probable cause
existed in any event. Id. ¶¶ 26, 35; see also Bowling, 900 F.2d at 933
(noting that the United States Supreme Court has “emphatically
cautioned that in the absence of urgent circumstances officers
should not rely on their own discretion, but should instead
resort to a neutral magistrate, to determine whether probable
cause to conduct a search exists”).
¶49 Under these precedents, once it is determined that officers
have a duty to seek the magistrate’s input regarding the
probable cause question, officers generally must do so, and their
failure to discharge that duty will not be excused merely
because, at the time of their warrantless search, they happened
to have undisclosed facts at their disposal that would have
amounted to probable cause. Thus, if we were to determine that
the officers had a duty, in this case, to return to the magistrate
for a reassessment of probable cause, and failed to do so, we do

State v. Hoffman
20191048-CA 29 2021 UT App 143
not believe that we could—consistent with Brierley—excuse the
officers’ failure to discharge that duty based upon a type of
harmless error analysis. If they had a duty to return to the
magistrate, they should have done so, and we cannot
countenance the argument that “officers ‘would have done it
right’ if they ‘hadn’t done it wrong.’” See Brierley, 2016 UT 46,
¶ 35 (quoting Topanotes, 2003 UT 30, ¶ 19). Accordingly, we do
not view the State’s proposed framework as consistent with
applicable case law.
¶50 In the present case, however, officers had already gone to
the magistrate once, and not even Hoffman asserts, on appeal,
that probable cause was lacking at the time the warrant issued.
In this important way, the situation here differs from Brierley.
And in this situation, the officers’ duty to return to the
magistrate is triggered only if the facts discovered after issuance
of the warrant, but before its execution, are significant enough to
have dissipated the probable cause that existed at the time of the
warrant’s issuance. See Marin-Buitrago, 734 F.2d at 895.
¶51 Applying these principles to the facts of this case, we
must act as the reviewing court and assess whether, under the
totality of the circumstances as they existed at the time the
search warrant was executed, probable cause continued to exist
in light of the new information officers obtained in Sarah’s
interview. See Schulz, 55 A.3d at 940 (stating that the reviewing
court’s analysis “necessarily involves consideration of new facts
acquired” after the original issuance of the warrant “both insofar
as they are inconsistent with probable cause as well as to the
extent that there are reasonable alternative explanations that
confirm the original grounds of the warrant”). In this case, the
State asserts that, even considering the new information,
probable cause still existed to search the gray phone for videos
or photos of Sarah in the bathroom. Put differently, the State
posits that, if officers had returned to the magistrate for a

State v. Hoffman
20191048-CA 30 2021 UT App 143
reassessment, and explained the entire situation, the magistrate
would have reissued the warrant. We agree with the State.
¶52 Hoffman correctly points out that, had the officers
returned to the magistrate, they would have had to inform the
magistrate that Sarah had identified the white phone—and not
the gray phone—as the one she saw underneath the bathroom
door on December 17. But had the officers returned to the
magistrate, they would also have informed the magistrate of
other evidence—some of which was likewise not included in the
original search warrant affidavits—indicating that Hoffman had
used the gray phone. For instance, Hoffman admitted that he
had placed at least one phone underneath the bathroom door on
the morning in question, and the gray phone was the one
discovered on Hoffman’s person at the time of his arrest, just
hours after the incident. And during the first part of his police
interview, Hoffman stated—or at least strongly implied—that he
had placed the gray phone underneath the bathroom door
during the incident in question; he stated that he had used “my
phone,” that “you guys have my phone” (referring to the gray
phone), and that officers could verify that he had not actually
taken a picture with that phone by checking the phone they had
in their possession. Of course, Hoffman contradicted this
statement further on in the interview when he claimed that he
had used the white phone, rather than the gray phone, but his
claims in this regard—in particular, that the white phone he had
used was “not even charged”—were belied by his statement,
made earlier that same day to Officer, that the phone he had
used had been “on the camera screen” when he placed it
underneath the door.
¶53 As noted, the probable cause standard “is not a high bar.”
See Kaley v. United States, 571 U.S. 320, 338 (2014). Probable cause
is present “when there is a fair probability that contraband or
evidence of a crime will be found in a particular place.” United
States v. Grubbs, 547 U.S. 90, 95 (2006) (quotation simplified). If

State v. Hoffman
20191048-CA 31 2021 UT App 143
officers had returned to the magistrate and fully explained the
situation, we are confident that the magistrate would have
determined that there existed a fair probability that videos or
photos of Sarah in the bathroom would be located on the gray
phone, and that the magistrate would have reauthorized the
warrant on that basis.
¶54 Accordingly, the new information obtained by officers
after issuance of the second search warrant—that Sarah had
identified the white phone as the one she saw underneath the
bathroom door—was not material to the probable cause
determination, because it did not serve to dissipate the probable
cause supporting the warrant. Even taking that information
(along with other evidence, under a totality of the circumstances
analysis) into account, there still existed a fair probability that
child pornography would be found on the gray phone. For these
reasons, the officers were not obligated to return to the
magistrate for reassessment, and the trial court did not err in
denying Hoffman’s second and renewed motions to suppress
the videos discovered on the gray phone.
CONCLUSION
¶55 The trial court did not err when it denied Hoffman’s
motion for directed verdict because the State presented sufficient
evidence from which a reasonable jury could find, beyond a
reasonable doubt, that Hoffman took substantial steps toward
commission of the charged crime, and that commission of the
crime was not an impossibility under the circumstances as
Hoffman believed them to be. The court did not commit plain
error by failing to intervene, sua sponte, to declare the search
warrant overbroad or lacking in particularity. And it did not err
by denying Hoffman’s motions to suppress, because probable
cause sufficient to support the warrant continued to exist even at
execution. Accordingly, we affirm Hoffman’s conviction.