Identical Syringes + Proximity and Association to Known Drug Users – Medical Kit=Lawful Arrest

State v. Nimer, 2010 UT App 376 (Utah Court of Appeals December 23, 2010).

Nimer entered a conditional plea preserving his right to appeal his denied motion to suppress the evidence of drug paraphernalia found on his person after he was arrested.  He argued that the officer did not have probable cause to arrest and therefore the evidence obtained in the search incident to arrest should be suppressed. 

The Court of Appeals found that the officer did have probable cause to arrest Nimer because he was reported to have been seen with a woman in the parking lot who was witnessed by the officer to be using drugs.  When the officer approached Nimer, who was still in the area, and asked if he had any weapons, Nimer disclosed the syringes.  The officer noted the syringes were identical to those of the woman whom the officer just arrested for drug use, and the syringes were not in a medical kit. Affirmed

Full Decision available at http://www.utcourts.gov/opinions/appopin/nimer122310.pdf

Determining the Credibility of Credible but Conflicting Testimony is Properly Reserved for the Jury

State of Utah Droesbeke, 2010 UT 275, (Utah Court of Appeals, October 7, 2010).

Defendant was charged with sodomy of a child, aggravates sexual abuse of a child, and dealing harmful material to a minor.  At the bindover hearing, the eight-year-old victim gave completely conflicting testimony as to the underlying events of the charges.  The magistrate judge found probable cause to bindover the charges.  Because the testimony was so conflicting, Defendant moved to quash the bindover.  The district court affirmed the bindover and Defendant appealed.

The Court of Appeals affirmed finding that when credible testimony conflicts, the determination of which testimony is more credible is left with the jury; even when the credible testimony is from the same witness.

Full Decision available at http://www.utcourts.gov/opinions/appopin/Droesbeke100710.pdf