State v. Nielsen

2013 UT App 178
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
BENJAMIN CRAIG NIELSEN,
Defendant and Appellant.

Memorandum Decision
No. 20110962‐CA
Filed July 18, 2013

Second District, Ogden Department
The Honorable Michael D. DiReda
No. 081902131

H. Don Sharp, Attorney for Appellant
John E. Swallow and Jeanne B. Inouye, Attorneys
for Appellee

JUDGE WILLIAM A. THORNE JR. authored this Memorandum
Decision, in which JUDGES CAROLYN B. MCHUGH and
J. FREDERIC VOROS JR. concurred.

THORNE, Judge:

¶1 Defendant Benjamin Craig Nielsen appeals from his
convictions for production of marijuana, see Utah Code Ann. § 58‐
37‐8(1)(a)(i) (LexisNexis 2012);1 possession of marijuana with intent
to distribute, see id. § 58‐37‐8(1)(a)(iii); unlawful possession of a
handgun, see id. § 76‐10‐503(3)(a); and possession of drug
paraphernalia, see id. § 58‐37a‐5(1). Defendant asserts that the
district court erred in denying his motion to suppress the evidence

1
Because the various amendments to the Utah Code since
2008 did not substantively change the relevant provisions of the
code, we cite the current version for the reader’s convenience.
State v. Nielsen

because the affidavit supporting the search warrant was
insufficient to establish probable cause.

¶2 In particular, Defendant argues that the confidential source
was an unreliable anonymous source and the affidavit contained
misleading statements and unlawfully obtained information.
Although the affidavit is problematic, we do not disturb the district
court’s suppression order because we agree with the court’s
alternate ruling that even if the affidavit did not properly establish
probable cause, the evidence seized during the search is admissible
under the “good faith reliance” exception set forth in United States
v. Leon, 468 U.S. 897, 918–21 (1984). “A trial court’s finding that an
officer relied on a defective search warrant in good faith is subject
to a de novo review by this court.” State v. Horton, 848 P.2d 708, 711
(Utah Ct. App. 1993).

¶3 In Leon, the Supreme Court held that the exclusionary rule,
which is aimed at deterring unlawful police conduct, does not bar
evidence obtained by officers acting in good faith reliance on a
defective warrant. 468 U.S. at 918–21. Suppression, however,
remains an appropriate remedy if the magistrate or judge issuing
the warrant was misled by information in the affidavit that the
affiant knew or would have known was false except for his or her
reckless disregard for the truth. Id. at 923.

¶4 Defendant argues that the officer who executed the affidavit
(Affiant) misled the magistrate through two misstatements in the
factual allegations that were asserted either to intentionally
misinform the magistrate or with reckless disregard for the truth.
Defendant asserts that the following statements in the affidavit are
misleading:

On 9‐29‐08, Your Affiant watched the location . . . .
Your Affiant observed two vehicles during that time
showed up at [the location] and were there only for a few
minutes before leaving. Your Affiant viewed this

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State v. Nielsen

behavior as being possible illegal drug [sales]. Your
Affiant has witnessed this behavior on several
occasions where the vehicle was stopped away from
the location and illegal drugs were found. One of the
two vehicles that Your Affiant saw was a Beige 1998
Chevy S‐10 pickup . . . . Your Affiant ran a history
check on the registered owner and found the owner
to have a criminal history of Distribution of
Methamphetamine.

....

Your Affiant has attempted to do a trash run at this
address in hopes that the suspect throws away
anything that would indicate illegal drug [sales] or
use. The suspects living at this address never placed
their garbage out for normal pick up. Your Affiant
has seen this behavior in past investigations where
the suspect has knowledge that it is legal for law
enforcement officers to take trash and they also know
that evidence of illegal narcotics [sales] or use are
found in the garbage collected.

(Emphasis added.)

¶5 Defendant first argues that Affiant included the language
that the two vehicles “showed up” in his affidavit to recklessly
mislead the magistrate into inferring that the occupant of each
of the two vehicles went into the house, bought drugs, and left
when Affiant never actually saw the occupant of either car go
into the house. Although the sentence in question could have been
more clear, the phrase “showed up” is not necessarily misleading.
To show up means to arrive or appear, see Merriam‐Webster Online,
http://www.merriam‐webster.com/dictionary/show%20up
(last visited April 1, 2013). The use of this phrase accurately
represents that Affiant observed two vehicles arrive and stay only

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State v. Nielsen

for a few minutes before leaving. The phrase show up does not by
itself, as Defendant asserts, reflect an intent by Affiant to mislead
the magistrate into inferring that the vehicle’s occupants went into
the house. Instead, the sentence indicates only what Affiant
observed, i.e., the short term visits by each occupant of the two
vehicles.

¶6 Defendant next argues that Affiant recklessly misled the
magistrate when he attested in his affidavit, “The suspects living
at this address never place their garbage out for normal pickup.”
(Second emphasis added.) Defendant misquotes Affiant’s
statement regarding the attempted “trash run.” Affiant averred
that he “attempted to do a trash run” and that the suspects living
at this address “never placed their garbage out for normal pick up.”
(Emphasis added.) Although the exact duration of the attempted
trash run is not readily apparent from this statement, read in
context with the rest of the affidavit, the short term duration of the
trash run is understood.

¶7 The affidavit reveals that Affiant received information that
Defendant had been growing marijuana from a confidential source
on September 29, 2008. That same day, Affiant began his
observation of Defendant’s house and attempted a trash run
between September 29 and October 6, 2008. Affiant noted that he
has seen other suspects refrain from placing their garbage out for
normal pick up in past drug investigations. Based on the entirety
of the affidavit, Defendant has made allegations that Affiant
intentionally or recklessly misled the magistrate into believing that
Defendant did not put the trash out over a long period of time, but
Defendant has not adequately supported those allegations.

¶8 Neither of the statements Defendant asserts were averred to
mislead the magistrate actually misinformed the magistrate about
Affiant’s observations. Nor does Defendant allege any other
support to demonstrate that Affiant misled the magistrate.
Accordingly, we affirm the district court’s ruling that the evidence
seized during the search is admissible under the “good faith

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State v. Nielsen

reliance” exception set forth in United States v. Leon, 468 U.S. 897
(1984).2

2
Defendant argues that under United States v. Charles, 290
F. Supp. 2d 610, 614 (D. V.I. 1999), Affiant’s swab of his front
doorknob and the submission of the Ionscan test results of the
swab without a search warrant was itself an unconstitutional
search and seizure and therefore not permissible information in
the affidavit. The State argues that Affiant’s swab of Defendant’s
front doorknob was constitutional and cites a United States
District Court decision stating that an officer’s swabbing the
front door of a house for residue and running an Ionscan test on
the residue was constitutionally permissible. See United States v.
Daybell, 2:04‐CR‐242 TC (D. Utah July 20, 2004). We note that the
law was not settled at the time of Affiant’s “search” of the door‐
knob. See Florida v. Jardines, 133 S. Ct. 1409 (2013) (holding that
officers’ use of a drug‐sniffing dog on front porch of home, to
investigate an unverified tip that marijuana was being grown in
the home, was a trespassory invasion of the curtilage, which
constituted a “search” for Fourth Amendment purposes, and
that officers did not have an implied license for the physical
invasion of the curtilage). On this state of the law, the warrant
was not “so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable.” United States
v. Leon, 468 U.S. 897, 923 (1984) (citation and internal quotation
marks omitted).

20110962‐CA 5 2013 UT App 178