State v. Dominguez

This opinion is subject to revision before final
publication in the Pacific Reporter.
2011 UT 11
IN THE
SUPREME C OURT OF THE STATE OF UTAH
——————
STATE OF UTAH,
Plaintiff and Petitioner,
v.
WILLIAM T HOMAS DOMINGUEZ,
Defendant and Respondent.
——————
No. 20090410
Filed March 1, 2011
——————
Second District Court, Ogden Dep’t
The Honorable Pamela G. Heffernan
No. 071901654
On Certiorari to the Utah Court of Appeals
——————
Attorneys:
Mark L. Shurtleff, Att’y Gen., Jeffrey S. Gray, Asst. Att’y Gen.,
Salt Lake City, for plaintiff
Randall W. Richards, Ogden, for defendant
——————
J USTICE LEE, opinion of the Court:
¶1 	The State challenges a decision of the court of appeals re-
versing the district court’s denial of William Dominguez’s motion
to suppress evidence obtained pursuant to a warrant authorizing
a blood draw. The court of appeals held that evidence obtained
from the blood draw should have been suppressed because the
warrant-issuing magistrate failed to comply with Rule 40 of the
Utah Rules of Criminal Procedure when granting a telephonic
search warrant. We reverse on the ground that Dominguez has
not demonstrated that the magistrate’s Rule 40 violation affected
his substantial rights.
I
¶2 	Shortly after 1:00 a.m. on June 3, 2007, Utah Highway Pa-
trol Trooper Chris Turley pulled William Dominguez over for rac-

STATE v. DOMINGUEZ
Opinion of the Court
No. 20090410 	2
ing with another car. In speaking with Dominguez, Turley noticed
that Dominguez “had red, bloodshot, glassy looking eyes” and
“that his speech was noticeably slurred.” When a records check
revealed that Dominguez’s driver’s license had been revoked for
alcohol-related offenses, Turley arrested him. Turley reported that
during the course of the arrest he smelled a “strong odor” of alco-
hol on Dominguez’s breath. Turley asked Dominguez to blow into
a portable breathalyzer, but Dominguez refused. He also refused
to submit to field sobriety tests.
¶3 	After transporting Dominguez to the police station, Turley
prepared a written affidavit in support of a search warrant autho-
rizing a blood draw. Shortly after 2:00 a.m., Turley telephoned
Judge Brent West and informed him of the reason for the stop, “all
of the clues [he] observed,” and the arrest. After being placed un-
der oath, Turley read the probable cause statement contained in
the written affidavit. Turley testified that he did not read every
line of the affidavit, but that he read the following portion “estab-
lishing the grounds for issuance of [the] search warrant”:
On June 3[,] 2007, at approximately [1:02 a.m.], I ob-
served a red Honda Civic . . . racing a silver passen-
ger car. The vehicle was stopped by the activation of
my emergency lights. I approached the vehicle and
William Dominguez was in the driver seat not wear-
ing a seat belt. Dominguez had red, bloodshot, glas-
sy looking eyes. As I spoke with Dominguez, I no-
ticed that his speech was noticeably slurred. I con-
ducted a records check on Dominguez using his
name and date of birth. This information revealed
that Dominguez had a[n] alcohol[-]revoked license
and was an alcohol[-]restricted driver. Dominguez
denied consuming any alcohol. I placed Dominguez
under arrest and could smell a strong odor of an al-
cohol beverage coming from his breath in the open
air.
I 	requested 	Dominguez 	blow 	into 	a 	portable
breath tester[;] however he refused to blow. When
asked if he would allow me to conduct [a] field so-
briety test, Dominguez said no and that he had been
through this before. Dominguez refused to submit to
any DUI field sobriety tests. I read Dominguez his

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Opinion of the Court
3 	No. 20090410
DUI admonitions 1 advising him of the consequences
of 	not 	submitting 	to 	my 	tests. 	Dominguez 	still
would not cooperate and refused to give a chemical
test.
Dominguez has at least 4 prior DUI convictions in
the past 10 years and he is currently on parole for a
felony DUI conviction.
At the direction of the magistrate, Turley signed the magistrate’s
name to the warrant authorizing the blood draw at 2:27 a.m.2
¶4 	The magistrate did not obtain a copy of the affidavit from
Turley. Nor did the magistrate make or retain a copy of the search
warrant.
1 “A person operating a motor vehicle” in Utah “is considered to
have given the person’s consent to a chemical test or tests of the
person’s breath, blood, urine, or oral fluids” to determine whether
the individual is operating the vehicle under the influence of
drugs or alcohol. UTAH C ODE A NN. § 41-6a-520(1)(a) (2010). A po-
lice officer requesting such tests
shall warn a person that refusal to submit to the test
or tests may result in revocation of the person’s li-
cense to operate a motor vehicle, a five or ten-year
prohibition of driving with any measurable or de-
tectable amount of alcohol in the person’s body de-
pending on the person’s prior driving history, and a
three-year prohibition of driving without an ignition
interlock device if the person:
(i) has been placed under arrest;
(ii) has then been requested by a peace officer to
submit to any one or more of the chemical tests un-
der Subsection (1); and
(iii) refuses to submit to any chemical test requested.
Id. § 41-6a-520(2)(a).
2 “Upon approval, the magistrate may direct the peace officer . . .
requesting a warrant from a remote location to sign the magi-
strate’s name on a warrant at a remote location.” UTAH R. C RIM . P.
40(l)(4).

STATE v. DOMINGUEZ
Opinion of the Court
No. 20090410 	4
¶5 	Dominguez was charged with driving under the influence
of alcohol, driving with alcohol in his body with a no-alcohol li-
cense, driving on a revoked license, driving a vehicle without
proof of insurance, and engaging in a speed contest or exhibition.
Dominguez filed a motion to suppress evidence, arguing that the
warrant had been issued in violation of Rule 40(i)(1) of the Utah
Rules of Criminal Procedure, which requires a magistrate, “[a]t
the time of issuance, . . . [to] retain and seal a copy of the search
warrant, the application and all affidavits or other recorded testi-
mony on which the warrant [was] based.” Dominguez did not
challenge the probable cause element or the truth of any of the
evidence contained in Turley’s affidavit. See State v. Dominguez,
2009 UT App 73, ¶ 17, 206 P.3d 640.
¶6 	The district court denied Dominguez’s motion to suppress,
and Dominguez entered a conditional plea to driving under the
influence. Dominguez appealed.
¶7 	The court of appeals reversed. It treated the appeal as pre-
senting two questions: (1) “whether there was an error” in the ap-
plication of Rule 40(i)(1), and (2), if so, “whether the error caused
harm sufficient to merit suppressing the evidence.” Id. ¶ 5.
¶8 	As to the first question, the court of appeals concluded that
the magistrate’s failure to “make and keep a copy of the search
warrant and supporting documents” violated Rule 40. Id. ¶ 11. As
to the second question, the court noted that Rule 40(i)(1) had been
implemented in direct response to this court’s decision in Ander-
son v. Taylor, which mandated retention and filing of warrants and
warrant-application 	materials 	and 	testimony 	by 	the 	warrant-
issuing magistrate. 2006 UT 79, ¶¶ 22–23, 149 P.3d 352. The court
then “assume[d] that the Utah Supreme Court wishes this rule to
be followed strictly now that it has been implemented” and ac-
cordingly held that a violation of Rule 40(i)(1) justifies suppres-
sion. Dominguez, 2009 UT App 73, ¶ 17.
¶9 	On certiorari, we review the decision of the court of ap-
peals for correctness. State v. Visser, 2000 UT 88, ¶ 9, 22 P.3d 1242.
II
¶10 Rule 40(i)(1) requires the magistrate, “[a]t the time of is-
suance” of a search warrant, to “retain and seal a copy of the
search warrant, the application and all affidavits or other recorded
testimony on which the warrant is based” and to “file those sealed

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Opinion of the Court
5 	No. 20090410
documents in court files which are secured against access by the
public.” U TAH R. C RIM . P. 40(i)(1). This rule implements our hold-
ing in Anderson v. Taylor, 2006 UT 79, 149 P.3d 352. In Anderson,
we reviewed a district court’s practice for issuing search warrants.
Prior to Anderson, the district court customarily did not retain cop-
ies of search warrants or their supporting documentation. Instead,
after issuing a warrant, the issuing magistrate re-
turn[ed] both the warrant and the supporting ma-
terial to the law enforcement officer seeking the war-
rant. After the warrant [was] executed, the officer
deliver[ed] the original warrant, the supporting ma-
terial, the return, and the inventory of items seized
in the search to the magistrate, who then review[ed]
it and either file[d] it with the court or return[ed] it
to law enforcement with a request that law enforce-
ment file it with the court.
Id. ¶ 2.
¶11 In Anderson, we found this practice “sufficiently troubling”
to warrant the exercise of our “inherent supervisory authority
over all courts of this state.” Id. ¶ 20 (internal quotation marks
omitted). We accordingly held that “magistrates issuing search
warrants” are required to “retain in their custody copies of all
search warrants issued, as well as the material supporting search
warrant applications, rather than surrendering to law enforce-
ment the only copies of such material.” Id. ¶ 22.
¶12 We were concerned in Anderson with “[g]iving law en-
forcement sole custody of all affidavits and warrants up through
the point where the warrant has been executed and a return
filed,” for two reasons:
First, it leaves the court without any record of the
[warrant] or the materials supporting its issuance
until after the [warrant] is executed and a return
filed. Second, it allows for the possibility that affida-
vits and other court records may be mishandled or
even altered without detection. When the records
upon which the magistrate acts in issuing a warrant
are handled by persons other than court personnel
prior to being filed with the court, the court has no

STATE v. DOMINGUEZ
Opinion of the Court
No. 20090410 	6
basis for confidence in the accuracy, authenticity, or
completeness of those documents.
Id.
¶13 Despite our discomfort with the district court’s prior prac-
tice, we declined in Anderson “to prescribe the particular proce-
dures to be followed in maintaining and disclosing such records.”
Id. ¶ 23. Nor did we provide a remedy in the event a magistrate
fails to retain warrant records. Instead, we referred the matter to
our Advisory Committee on the Rules of Criminal Procedure. Id.
The committee proposed Rule 40(i), which we adopted on April
30, 2007, less than five months after our decision in Anderson. See
U TAH R. C RIM. P. 40(i)(1) advisory committee’s note (i). In so
doing, we left in place other provisions of Rule 40, including a
provision that allows for remotely communicated search war-
rants, like the one requested by Officer Turley, 3 and requirements
that the “testimony and content of the warrant . . . be recorded”4
and “be retained by and filed with the court.” 5
¶14 The State argues that the recording requirement of Rule
40(l)(2) was satisfied when Trooper Turley reduced the search
3 Rule 40(l)(1) of the Utah Rules of Criminal Procedure provides:
When reasonable under the circumstances, a search
warrant may be issued upon sworn or affirmed tes-
timony of a person who is not in the physical pres-
ence of the magistrate, provided the magistrate is sa-
tisfied that probable cause exists for the issuance of
the warrant. All communication between the magi-
strate and the peace officer or prosecuting attorney
requesting the warrant may be remotely transmitted
by voice, image, text, or any combination of those, or
by other means.
4 Rule 40(l)(2) of the Utah Rules of Criminal Procedure provides:
“All testimony upon which the magistrate relies for a finding of
probable cause shall be on oath or affirmation. The testimony and
content of the warrant shall be recorded. Recording shall be by
writing or by mechanical, magnetic, electronic, photographic sto-
rage or by other means.”
5 Id. 40(l)(5).

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Opinion of the Court
7 	No. 20090410
warrant affidavit to writing, because a recording “includes the
original recording of testimony,” id. 40(a)(2) (emphasis added),
and may be “by writing,” id. 40(l)(2). The State further argues that
the availability of a telephonic warrant in Rule 40(l) implicitly ex-
cused compliance with Rule 40(i) because magistrates generally
have no means of retaining and documenting the warrant and af-
fidavit when they are contacted at home in the middle of the
night. Anderson did not address telephonic warrants, leaving the
drafters of Rule 40(i), the State argues, with no clear method of
reconciling them with this court’s retention mandate.
¶15 The court of appeals acknowledged that Rule 40(l)(2) “does
not specify by whom the recording must be made.” Dominguez,
2009 UT App 73, ¶ 9. The court noted, however, that Rule 40(l)(5)
“requires compliance with” Rule 40(i), and Rule 40(i)(1) assigns
the responsibility of retaining and filing recorded testimony to the
court. Id. Accordingly, the court concluded that Rule 40(i) “re-
quires the magistrate to make and keep a copy of the search war-
rant and supporting documents,” including recorded testimony.
Id. ¶ 11. Moreover, the court resolved that “it is not sufficient for
the peace officer alone to retain this information and subsequently
supply it to the court.” Id.
¶16 We agree with the court of appeals that it is insufficient for
the officer to retain search-warrant materials only to subsequently
provide them to the court. This does not resolve the question,
however, of whether an officer’s affidavit could qualify as a re-
cording under Rule 40(a)(2), assuming, of course, that the officer
provides the affidavit to the magistrate “[a]t the time of issuance”
of the search warrant. We need not determine that question in this
case. Regardless of whether Turley’s written affidavit satisfies the
recording requirement of Rule 40(a)(2), the magistrate did not re-
tain it or any warrant-application materials as required by Rule
40(i)(1). All such materials were retained, instead, by Trooper Tur-
ley. We were concerned in Anderson with allowing a police officer
to retain the only copies of warrant-application materials, includ-
ing recorded testimony. With that concern in mind, we adopted
Rule 40(i)(1), which requires “the magistrate,” not the officer seek-
ing the warrant, to “retain and seal a copy of the search warrant,
the application and all affidavits or other recorded testimony on
which the warrant is based.” U TAH R. C RIM . P. 40(i)(1) (emphasis
added). Because Rule 40 draws no distinction between telephonic

STATE v. DOMINGUEZ
Opinion of the Court
No. 20090410 	8
and in-person warrants and because the magistrate did not retain
any warrant materials, the warrant in this case was not issued in
compliance with the retention requirement of Rule 40(i)(1).
III
¶17 Our finding of error still leaves open the question of the
appropriate remedy. That question is not resolved by Anderson,
which addressed only the substance of the retention requirement
and not the remedy for its violation. The remedy of suppression is
not required in this case under the Fourth Amendment to the
United States Constitution or under state law. We accordingly re-
verse the determination of the court of appeals requiring suppres-
sion of the results of Dominguez’s toxicology test.
A
¶18 “‘[W]hether or not a search is reasonable within the mean-
ing of the Fourth Amendment’ . . . has never ‘depend[ed] on the
law of the particular State in which the search occurs.’” Virginia v.
Moore, 553 U.S. 164, 172 (2008) (first and third alterations in origi-
nal) (quoting California v. Greenwood, 486 U.S. 35, 43 (1998)). “A
State is free to prefer one search-and-seizure policy among the
range of constitutionally permissible options, but its choice of a
more restrictive option does not render the less restrictive ones
unreasonable, and hence unconstitutional.” Id. at 174; see also State
v. Harker, 2010 UT 56, ¶ 20, 240 P.3d 780 (“[A] state law requiring
an officer’s presence does not impact the constitutionality of such
an arrest.” (emphasis added)). Moreover, not all constitutional er-
rors trigger exclusion: “the exclusionary rule is designed to deter
police misconduct rather than to punish the errors of judges and
magistrates.” United States v. Leon, 468 U.S. 897, 916 (1984) (em-
phasis added). Thus, this case implicates two questions under the
Fourth Amendment: Did the magistrate’s failure to retain copies
of the warrant and its supporting materials (1) violate the Fourth
Amendment (2) such that suppression is required?
¶19 Dominguez argues that the warrant-retention requirements
of Rule 40(i)(1) are compelled by the Fourth Amendment, and that
the magistrate’s failure to retain the warrant materials in this case
violated the Fourth Amendment and triggered the exclusionary
rule. Dominguez fails to cite any authority for the proposition that
the retention requirement articulated in Anderson and adopted in
Rule 40 is mandated by the Fourth Amendment. We decline to so

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Opinion of the Court
9 	No. 20090410
hold now. The Fourth Amendment’s protection “against unrea-
sonable searches and seizures” encompasses the core require-
ments of a reasonable search and of probable cause for an arrest.
See New Jersey v. T.L.O., 469 U.S. 325, 337 (1985) (“[T]he underlying
command of the Fourth Amendment is always that searches and
seizures be reasonable . . . .”); State v. Moreno, 2009 UT 15, ¶ 22,
203 P.3d 1000 (“[R]easonableness is the touchstone of the constitu-
tionality of a governmental search.” (internal quotation marks
omitted)). Individual states may adopt “additional protections” or
prophylactic 	measures 	aimed 	at 	safeguarding 	the 	values 	ad-
vanced by the Fourth Amendment, but such rules do not alter the
federal constitutional calculus. Moore, 553 U.S. at 171; see also
Whren v. United States, 517 U.S. 806, 815 (1996) (Fourth Amend-
ment’s limitations on seizure by plainclothes officers are not “so
variable” as to “turn upon” requirements of state or local rules).
The retention requirement of our Rule 40 is a prophylactic rule of
this court’s making, not a universal requirement of federal consti-
tutional magnitude. Even assuming for the sake of argument that
the Fourth Amendment itself somehow required retention (and
we know of no basis for so holding), suppression still would not
be required. As noted above, “[t]he exclusionary rule was crafted
to curb police . . . misconduct,” not the sort of judicial misstep im-
plicated in this case. Herring v. United States, 129 S. Ct. 695, 701
(2009).
¶20 Here, Dominguez has alleged no misconduct on the part of
Trooper Turley. He complains only that the magistrate failed to
comply with Rule 40(i)(1). Everything Turley did was authorized
by the rules: securing a telephonic warrant, UTAH R. C RIM. P.
40(l)(1); signing the magistrate’s name to the warrant, id. 40(l)(4);
and filing a return the next morning, id. 40(g).6 Dominguez has
not asserted that Turley was even aware that the magistrate was
not recording the warrant application. For these reasons, we have
no reason to conclude that Turley did anything warranting sup-
pression under the Fourth Amendment, and no basis for imposing
6 Rule 40(g) of the Utah Rules of Criminal Procedure provides:
“The officer, after execution of the warrant, shall promptly make a
signed return of the warrant to a magistrate of the issuing court
and deliver a written or recorded inventory of anything seized,
stating the place where it is being held.”

STATE v. DOMINGUEZ
Opinion of the Court
No. 20090410 	10
the strong remedy of suppression for a magistrate’s failure to
comply with the prophylactic requirements of Rule 40.
B
¶21 Under Rule 30(a) of the Utah Rules of Criminal Procedure,
“[a]ny error, defect, irregularity or variance which does not affect
the substantial rights of a party shall be disregarded.” We applied
this rule in State v. Anderton, 668 P.2d 1258 (Utah 1983), where, as
here, a magistrate had committed error in the issuance of a search
warrant. “[I]n the absence of any contention on the part of [the]
defendants” in Anderton that the magistrate’s error “in any way
infringed upon their substantial rights,” we found that we were
“obliged to disregard the ‘defect’ in the affidavit by reason of the
content of Rule 30.” Id. at 1261–62. We concluded that the magi-
strate’s error therefore “constituted nothing more than the failure
to perform a ministerial act which did not affect the validity of the
search warrant and the search conducted thereunder.” Id. at 1262.
¶22 Elsewhere, we have construed Rule 30(a) to foreclose re-
versal of a conviction “unless the error is substantial and prejudicial
in the sense that there is a reasonable likelihood that in its absence
there would have been a more favorable result for the defendant.”
State v. Johnson, 771 P.2d 1071, 1073 (Utah 1989) (emphases add-
ed). Considering the uncontested facts provided in Trooper Tur-
ley’s affidavit, “there is no reasonable likelihood the result would
have been different,” id., had the magistrate complied with the
retention requirement of Rule 40(i)(1). Accordingly, we hold that
suppression is not appropriate in this case.
¶23 This conclusion is consistent with federal case law examin-
ing judicial error under the federal counterpart to Rule 40, Federal
Rule of Criminal Procedure 41. The vast majority of federal courts
that have examined Rule 41 violations have concluded that sup-
pression for judicial error in the application of Rule 41 is not war-
ranted absent a showing of prejudice or evidence of intentional
and deliberate disregard of a provision of the rule by police.7
7 See United States v. Antrim, 389 F.3d 276, 282 (1st Cir. 2004)
(“[A] defendant may suppress evidence only if [Rule 41] noncom-
pliance caused him demonstrable legal prejudice . . . or if police
noncompliance was deliberate and in bad faith.” (internal quota-
tion marks omitted)); United States v. Nichols, 344 F.3d 793, 799 (8th

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Opinion of the Court
11 	No. 20090410
¶24 Dominguez cites only one federal case, United States v.
Shorter, 600 F.2d 585 (6th Cir. 1979), for the proposition that a ma-
gistrate’s error during the warrant process demands suppression.
In Shorter, the United States Court of Appeals for the Sixth Circuit
held that exclusion was the proper remedy for a judge’s failure to
“immediately” (as then required by Rule 41(c)(2)(D)8 ) administer
the oath on a telephonic warrant request before hearing the offic-
er’s testimony. 600 F.2d at 589. (The judge in Shorter administered
the oath after the officer gave his testimony. Id. at 588.) But Shorter
Cir. 2003) (“Where executing officers fail to abide by the dictates
of Rule 41, suppression is only required if a defendant can dem-
onstrate prejudice.”); United States v. Lipford, 203 F.3d 259, 270 (4th
Cir. 2000) (“Absent a demonstration of prejudice or bad faith . . .
suppression of evidence is not the proper remedy for a violation
of [Rule 41].”); United States v. Chaar, 137 F.3d 359, 362 (6th Cir.
1998) (“[S]uppression is an appropriate remedy only when the vi-
olation is either of constitutional dimensions (i.e. the search be-
came constitutionally unreasonable), is prejudicial, or is intention-
al.”); United States v. Hugoboom, 112 F.3d 1081, 1087 (10th Cir.
1997) (“Unless a clear constitutional violation occurs, noncom-
pliance with Rule 41 requires suppression of evidence only where
(1) there was ‘prejudice’ in the sense that the search might not
have occurred or would not have been so abrasive if the rule had
been followed, or (2) there is evidence of intentional and delibe-
rate disregard of a provision in the Rule.” (emphases and internal
quotation marks omitted)); United States v. Martinez-Zayas, 857
F.2d 122, 136 (3d Cir. 1988) (same); United States v. Stockheimer, 807
F.2d 610, 613 (7th Cir. 1986) (same); United States v. Loyd, 721 F.2d
331, 333 (11th Cir. 1983) (per curiam) (same); United States v. Marx,
635 F.2d 436, 441 (5th Cir. 1981) (same); United States v. Stefanson,
648 F.2d 1231, 1235–36 (9th Cir. 1981) (same); United States v.
Burke, 517 F.2d 377, 386–87 (2d Cir. 1975) (same); see also United
States v. Richardson, 943 F.2d 547, 550 (5th Cir. 1991) (“[I]n the ab-
sence of an allegation that the magistrate abandoned his neutral
and detached role, suppression is appropriate only if the officers
were dishonest or reckless in preparing their affidavit or could not
have harbored an objectively reasonable belief in the existence of
probable cause.” (internal quotation marks omitted)).
8 The word “immediately” has since been removed from the
rule. See FED. R. C RIM. P. 41(d)(3)(B).

STATE v. DOMINGUEZ
Opinion of the Court
No. 20090410 	12
suppression applies only in the oath context. In all other areas of
Rule 41 noncompliance, the Sixth Circuit has since joined the gen-
erally accepted approach that unless a substantial right is in-
fringed or prejudice results, exclusion is an improper remedy. See
Chaar, 137 F.3d at 362.
¶25 Dominguez cites five cases from other jurisdictions in sup-
port of his position that a Rule 40(i)(1) violation requires suppres-
sion: Arizona v. Boniface, 546 P.2d 843 (Ariz. Ct. App. 1976); Bowyer
v. Superior Court, 111 Cal. Rptr. 628 (Dist. Ct. App. 1974); Volz v.
State, 773 N.E.2d 894 (Ind. Ct. App. 2002); State v. Cook, 498
N.W.2d 17 (Minn. 1993); and State v. Reep, 167 P.3d 1156 (Wash.
2007). Two of these cases, Reep and Boniface, required suppression
primarily because of clear constitutional violations (lack of parti-
cularity). These cases say nothing, however, about whether sup-
pression is the appropriate remedy for the sort of stand-alone,
non-constitutional rule violation at issue here. 9 Dominguez’s other
state cases are not persuasive. In both Volz and Cook, the respec-
tive courts recognized that a magistrate’s failure to record a prob-
able cause statement may be excused so long as a substantial con-
temporaneous record, as was made by Trooper Turley in this case,
has been made by the officer requesting the warrant. Volz, 773
N.E.2d at 898; Cook, 498 N.W.2d at 21–22. Notably, the Cook court
emphasized that, in addition to magistrate error, the police officer
had failed to record his telephone conversation with the magi-
strate, as required by state law. The Cook court thus ordered sup-
pression “to persuade police officers,” not magistrates, “to follow
the rules and to act lawfully when searching and seizing private
property.” 498 N.W.2d at 20 (emphasis added). Finally, the tele-
phonic warrant in Bowyer violated state law because neither the
warrant nor any of the warrant-application materials were ever
reduced to writing. 111 Cal. Rptr. at 636. In holding that the error
required suppression, the court reasoned that all “constitutional
and statutory requirement[s] must be fully met, including all for-
9 See Reep, 167 P.3d at 1157 (noting that a warrant was “invalid”
because it was not recorded as required by state law, but requir-
ing suppression for a Fourth Amendment violation, not the rule
violation); Boniface, 546 P.2d at 844–46 (noting that a rule violation
provided “additional grounds,” on top of a Fourth Amendment
violation, for invalidating a warrant).

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Opinion of the Court
13 	No. 20090410
malities required by statute, before a valid search warrant may
issue.” Id. (internal quotation marks omitted)). Utah Rule 30(a), in
contrast, does not require suppression in all instances of error, but
instead compels us to “disregard” any “error, defect, irregularity
or variance which does not affect the substantial rights of a party.”
¶26 This case ultimately is more like the federal cases requiring
prejudice to trigger suppression. There is no basis for a finding
that without the error under Rule 40 there is “a reasonable likelih-
ood of a more favorable result for the defendant.” State v. Hutchi-
son, 655 P.2d 635, 637 (Utah 1982).
¶27 Dominguez has not challenged the veracity of Trooper Tur-
ley’s affidavit, in which Turley described his reasons for stopping
and arresting Dominguez: Dominguez’s racing with another driv-
er; his “red, bloodshot, glassy looking eyes”; his slurred speech;
his alcohol-odorous breath; his history of alcohol-related offenses;
and his refusal to submit to a breath test. As the United States Su-
preme Court has noted, “[t]here is . . . a presumption of validity
with respect to the affidavit supporting [a] search warrant.”
Franks v. Delaware, 438 U.S. 154, 171 (1978). Given this unchal-
lenged presumption, we have little trouble concluding that the
evidence described in Turley’s affidavit constitutes probable cause
justifying 	issuance 	of 	a 	search 	warrant 	authorizing 	a 	blood
draw.10
¶28 Instead of challenging Turley’s affidavit, Dominguez ar-
gues that suppression is warranted because the Rule 40 violation
deprived him of the ability to meaningfully evaluate “the exis-
tence or nonexistence of prejudice.” At bottom, Dominguez com-
plains that he has no way of knowing what, if anything, to chal-
lenge, and that we accordingly should suppress the evidence
seized as a result of the warrant. Yet Dominguez was hardly
without options. If he believed the affidavit was inaccurate, con-
10 See State v. Rodriguez, 2007 UT 15, ¶ 59, 156 P.3d 771 (finding
evidence of probable cause “overwhelming” where officer found
vodka bottle at scene and noted defendant’s “slurred speech,
bloodshot eyes, and odor of alcohol”); Cavaness v. Cox, 598 P.2d
349, 352 (Utah 1979) (“Suspects have no constitutional right to
refuse a test designed to produce physical evidence in the form of
a breath sample . . . .” (internal quotation marks omitted)).

STATE v. DOMINGUEZ
Opinion of the Court
No. 20090410 	14
tained false statements, or had been tampered with, he could have
sought a hearing as provided by Franks v. Delaware. See 438 U.S. at
171–72; see also State v. Nielsen, 727 P.2d 188, 192–93 (Utah 1986)
(applying Franks). At such a hearing, Dominguez could have testi-
fied on his own behalf, cross-examined Trooper Turley, or called
the magistrate to elicit testimony demonstrating inaccuracies in
the affidavit.
¶29 In testifying at a Franks hearing, Dominguez would not
have had to “forfeit his Fifth Amendment right to remain silent,”
as the court of appeals concluded. State v. Dominguez, 2009 UT
App 73, ¶ 17, 206 P.3d 640. In fact, the law is well settled that
“when a defendant testifies in support of a motion to suppress
evidence on Fourth Amendment grounds, his testimony may not
thereafter be admitted against him at trial on the issue of guilt un-
less he makes no objection.” Simmons v. United States, 390 U.S. 377,
394 (1968). “Without this rule, a defendant would have to sur-
render his Fifth Amendment privilege against self-incrimination
in order to assert a valid Fourth Amendment claim.” State v. Han-
sen, 2002 UT 125, ¶ 49 n.4, 63 P.3d 650.
¶30 Because Dominguez made no attempt to challenge the affi-
davit, he implicitly conceded its truth. “[I]n the absence of any
contention” that the magistrate’s error “in any way infringed
upon [Dominguez’s] substantial rights,” we are “obliged to disre-
gard” the error “by reason of the content of Rule 30.” Anderton,
668 P.2d at 1261–62. As the Sixth Circuit put it: “the fact that there
was no testimony to refute” Trooper Turley’s affidavit, from the
magistrate or anyone present during the arrest, “redounds to
[Dominguez’s] detriment.” Chaar, 137 F.3d at 363. Dominguez
“was free to call any or all of these people as witnesses; he may
well have believed that such testimony would not be helpful to
him, and we will not strain to disagree.” Id. Moreover, “despite
having a full and fair opportunity to cross-examine” Trooper Tur-
ley at the suppression hearing, Dominguez “did not . . . question
[Turley’s] version of the events surrounding the search and ar-
rest.” Id. He thus “made no attempt to show that he was preju-
diced” by the Rule 40(i)(1) violation, “and adduced no evidence to
suggest that [Turley’s] account was incorrect.” Id. Dominguez
thus has failed to establish that his substantial rights were affected
in the sense that the outcome would have been different but for
the magistrate’s failure to comply with Rule 40(i)(1). Accordingly,

Cite as: 2011 UT 11
Opinion of the Court
15 	No. 20090410
there is no basis for the strong medicine of suppression as a reme-
dy for the rule violation in this case.
IV
¶31 The magistrate’s Rule 40(i)(1) violation does not require
suppression in this case under federal or state law. Accordingly,
we reverse the judgment of the court of appeals.
——————
¶32 Chief Justice Durham, Associate Chief Justice Durrant, Jus-
tice Parrish, and Justice Nehring concur in Justice Lee’s opinion.