Wednesday, January 27, 2010

Consent Search Extends to All Property Not Clearly that of a Third Party

State of Utah v. Tina Harding, 2010 UT App. 8, (Utah Court of Appeals, January 22, 2010).

Tina Harding was a passenger in a car that was stopped by on officer for an equipment violation. The officer checked the driver’s documents and learned that neither she nor any of the car’s occupants held a valid license. The officer cited the driver and told her she was free to go. The driver then asked the officer a question and he requested to search the vehicle. The driver consented. Two bags were in the rear storage area. Without asking whom they belonged to the officer searched the bags. In Defendant’s bag, he found drugs and drug paraphernalia. He arrested Defendant, who later moved to have the evidence suppressed. The trial court denied the motion. Defendant appealed.

The Court of Appeals affirmed the trial court finding that the officer could have objectively concluded that the bags belonged to the driver and thus subject to the consent-search. The Court continued and stated that any belief that the bags belonged to one of the other passengers would have been speculation.

Dissent: Trial court found that the officer had “no way of knowing to whose bags they were.” The state bears the burden of showing that the one who consents to the sear has authority to do so. The officer could have easily ascertained whom the bags belonged to and sought proper consent, but he failed to do so.

Full Decision available at

One Eyewitness Is Enough

State of Utah v. Brandon Lee Sandoval, 2010 UT App. 3, (Utah Court of Appeals, January 14, 2010).

Brandon Lee Sandoval was convicted of aggravated burglary and now appeals based on a jury instruction given by the trial court that stated that conviction can be based on the uncorroborated testimony of a single eyewitness. The Utah Court of Appeals affirmed the conviction finding that such an instruction did not give additional credibility to any one witness at trial. “The instruction merely told the jury that, if it chose to believe the eyewitness, it could convict Sandoval without concern that the eyewitness testimony was not corroborated.”

Full Decision available at

Tuesday, January 12, 2010

If the Court Considered all the Factors the Sentence will be Upheld.

State of Utah v. Magness, 2009 UT App. 402, (Utah Court of Appeals, December 31, 2009).
Magness pleaded guilty to three amended counts of sexual abuse of a child.  At sentencing, Defendant was sentenced to three incarceration terms, two of which the court ordered to be served consecutively.  Defendant appealed the sentence arguing that based on the facts, he was entitled to serve all sentences concurrently.  The Utah Court of Appeals disagreed with the defendant, finding that the court had indeed considered all the required factors prior to making its ruling.  However, because of Defendant’s argument that because a different charge was listed on the judgment, the Court of Appeals Reversed the trial court’s sentence and Remanded the case to the trial court to have the trial court consider whether the misstatement as to the charges influenced the sentence (particularly as to consecutive terms) and to adjust the sentence accordingly.

If The Jury Instruction is Superfluous, It is not Error to Exclude It.

State of Utah v. Malcolm, 2009 UT App. 399, (Utah Court of Appeals, December 31, 2009).
Defendant was convicted of murder.  Defendant appealed because the trial court refused to give certain jury instructions.  The first instruction instructed as to the use of force when making a citizen’s arrest.  The second, instructed as to the use force when reclaiming property.  Because neither instruction would have supported defendant’s theory of the case, the Court of Appeals affirmed the decision of the trial court.

Believable Evidence of All Elements of the Crime is Required to Bind Over

State of Utah v. M.F., 2009 UT App. 398, (Utah Court of Appeals, December 31, 2009).

M.F. was bound over for charges of aggravated assault with intent to cause serious bodily injury.  This was based on the facts that the alleged victim suffered sufficient injuries to require several surgical screws and plates to reconstruct his face.  He also suffered damage to his orbital nerve, which resulted in the loss of sensitivity in areas of his face.  The trial court found this evidence was enough to meet the level of serious bodily injury.  Defendant appealed and argued that there was insufficient believable evidence of intent to cause serious injury.  The Court of Appeals Disagreed and found that the injuries were sufficient to substantiate the charge of serious bodily injury and the alleged statement by the defendant “he dropped me, so I dropped him,” was enough to substantiate Defendant’s intent.

Orange Rinds + Lysol + Armor All (i.e. Masking Odors) = Reasonable Suspicion

State of Utah v. Heather Richards, 2009 UT App. 397, (Utah Court of Appeals, December 31, 2009).
Heather Richards was pulled-over for allegedly crossing over the fog line. When the officer approached the vehicle, he noticed the smell of oranges and air fresheners. After checking Defendant’s license and registration, he returned to the vehicle and noticed the orange rinds, and Armor All and Lysol brand cleaners. He also noticed multiple cell phones. After seeing these items, the officer believed that Defendant might be masking other odors. Defendant refused the officer’s request to search the car. In order to dispel or confirm his suspicions, he called for a drug sniffing canine to do a canine sniff of the vehicle. While performing the canine sniff, the dog signaled on the trunk. The officers opened the trunk and found 40lbs of marijuana.
At trial, defendant moved to suppress the evidence alleging that there were insufficient grounds to support the extended detention and the canine sniff. The Trial denied the motion and found that the orange rinds, Armor All, and Lysol were sufficient reasonable suspicion. Defendant appealed.
The Court of appeals affirmed the trial court’s admittance of the evidence, finding that the multiple masking agents and multiple cell phones was sufficient reasonable suspicion to warrant the canine sniff.

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