Opinion
Case No. 20050542-CA.
Filed October 26, 2006. (Not For Official Publication).
Appeal from the Fourth District, Provo Department, 041403521 The Honorable Claudia Laycock.
Margaret P. Lindsay, Provo, for Appellant.
Mark L. Shurtleff and Matthew D. Bates, Salt Lake City, for Appellee.
Before Judges Greenwood, Davis, and Thorne.
MEMORANDUM DECISION
Jack A. Powell appeals his conviction for possession of a controlled substance. Powell entered a conditional guilty plea pursuant to State v. Sery, 758 P.2d 935 (Utah Ct.App. 1988), that allowed him to appeal the district court's ruling denying his motion to suppress.
Powell filed a motion to suppress evidence obtained during a search authorized by a warrant. Powell alleged that the affidavit used to support the warrant contained false information, and as such, the warrant should have been stricken and all evidence obtained during the search suppressed. The district court agreed with Powell that the affidavit contained false information. As a result, it struck the offending provisions in the affidavit. However, the district court went on to conclude that even without the offending provisions, the affidavit was sufficient to establish probable cause to support the issuance of the warrant. Powell appeals this ruling.
When an affidavit in support of a search warrant makes a "false statement intentionally, knowingly, or with reckless disregard for the truth," a district court may properly strike the offending provisions from the affidavit. See State v. Nielsen, 727 P.2d 188, 191 (Utah 1986). The district court must then decide anew whether the affidavit, minus the offending provisions, creates probable cause to support the issuance of a warrant. See id. "If an affidavit fails to support a finding of probable cause after the false statements are excised or the omitted information is added, i.e., if the omission or misstatement materially affects the finding of probable cause, any evidence obtained under the improperly issued warrant must be suppressed." Id. Here, the district court determined that even after the false information was excised, there was sufficient information to support a finding of probable cause. In reviewing this decision, we grant the district court "great deference."See State v. Thurman, 846 P.2d 1256, 1259-60 (Utah 1993). More particularly,
we will find the warrant invalid only if the [district court], given the totality of the circumstances, lacked a "substantial basis" for determining that probable cause existed. In conducting this review, we will consider the search warrant affidavit in "`its entirety and in a common sense fashion'" and give "great deference" to the magistrate's decision.
Id. (citations omitted).
Under the totality of the circumstances presented in the affidavit, the district court had a substantial basis for concluding that probable cause existed for the issuance of the warrant after the false statements concerning Powell's criminal history were excised. The affidavit detailed information from a confidential informant. In the week prior to the filing of the affidavit, the informant had made two controlled purchases of methamphetamine from Powell and observed drug paraphernalia in Powell's home. The affidavit also detailed the reliability of the information provided by the confidential informant in the past. Further, the confidential informant's information was corroborated by other information in the affidavit. First, the affiant stated that he personally observed individuals entering Powell's home and staying for only a short period of time. Such traffic was described as "consistent" with the information provided by the affiant. Second, the affidavit detailed information provided by another officer. This other officer informed the affiant that he had observed a hand to hand transaction between Powell and a female. The officer later executed a traffic stop of the female and found methamphetamine in her possession. The female informed the officer that she had obtained the drugs from Powell.
Powell argues that such information is hearsay and, as such, cannot be used to support the warrant because the information is unreliable. However, Utah recognizes a "presumption that law enforcement officers will convey information to each other truthfully. . . . Therefore, double hearsay between police officers is not fatal on its face to the validity of the warrant." State v. Nielsen, 727 P.2d 188, 192 (Utah 1986) (citations omitted).
Under these and other facts presented in the affidavit, the district court had a substantial basis for concluding that probable cause existed to issue the warrant even after the false statements were excised. Therefore, it did not err in denying Powell's motion to suppress.
Affirmed.
Pamela T. Greenwood, Associate Presiding Judge, James Z. Davis, Judge and William A. Thorne Jr., Judge.