Opinion
Case No. 20050112-CA.
Filed April 13, 2006. (Not For Official Publication).
Appeal from the Fifth District, Cedar City Department, 041500206 The Honorable G. Michael Westfall.
J. Bryan Jackson, Cedar City, for Appellant.
Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee.
Before Judges Greenwood, McHugh, and Orme.
MEMORANDUM DECISION
Defendant John Edwards appeals his conviction for possession of a clandestine drug laboratory, a first degree felony. See Utah Code Ann. §§ 58-37d-4, -5(d)-(f) (Supp. 2005). We affirm.
Defendant first argues that the trial court erred in failing to suppress evidence seized pursuant to a search warrant because the warrant was based on information obtained by a confidential informant (the Confidential Informant) in violation of Defendant's Fourth Amendment right to privacy. We review for clear error the factual findings underlying a trial court's decision to grant or deny a motion to suppress. See State v. Krukowski, 2004 UT 94, ¶ 11, 100 P.3d 1222.
"The [F]ourth [A]mendment guarantee against unreasonable searches and seizures protects only against governmental actions and does not extend to the independent acts of private citizens."State v. Watts, 750 P.2d 1219, 1220 (Utah 1988). Significantly, however, a search conducted by a private person acting as the agent of the government is not a private search and in that circumstance, the protections of the Fourth Amendment apply.See id. at 1221. To determine whether an informant who conducts a search acts as a private individual or an agent of the government, courts have identified two areas of inquiry. See id. We first determine whether the government knew of or acquiesced to the search. See State v. Koury, 824 P.2d 474, 477 (Utah Ct.App. 1991). Next, we consider "the person's intent and purpose in conducting the search and decide whether the person was acting in the person's own interest or to further law enforcement." Id.
In the instant case, the record establishes that the Confidential Informant was acting as a private citizen when he decided to "target" Defendant. The Task Force was unaware of Defendant's activities until the Confidential Informant notified it that Defendant was operating a methamphetamine lab. Moreover, the Task Force did not supervise the Confidential Informant's actions as he undertook gaining Defendant's confidence and trust. Significantly, the Task Force instructed the Confidential Informant not to provide Defendant with iodine, a precursor element for creating methamphetamine, because the Task Force did not want to enable Defendant to manufacture drugs. Despite that instruction, the Confidential Informant nonetheless bought iodine for Defendant. Finally, the Task Force did not reward or compensate the Confidential Informant for his efforts, other than to promise him that his parole violation would be dismissed or otherwise discharged.
Based on this evidence, we conclude that the trial court did not err in denying Defendant's motion to suppress. The Confidential Informant's "specific actions were for the most part his own and were not substantially motivated by the prompting of the [Task Force]." Watts, 750 P.2d at 1223. Consequently, Defendant's argument on this issue fails.
Similarly, Defendant also argues that the Confidential Informant's warrantless search of his home implicated the Fourth Amendment. Because the Confidential Informant had permission to enter Defendant's home, this argument also fails. See State v. Koury, 824 P.2d 474, 478 (Utah Ct.App. 1991) ("It is not illegal for a private individual, even if acting as a government agent, to enter another's home if he or she does so with the owner's permission.").
Defendant next alleges that the evidence seized under the search warrant should be suppressed or limited because the allegations presented to the magistrate to secure the warrant were uncorroborated and unverified by an independent source. We review a search warrant affidavit "'in its entirety and in a common-sense fashion,' deferring to the magistrate's decision on whether the search warrant is supported by probable cause."State v. Dable, 2003 UT App 389, ¶ 4, 81 P.3d 783 (citation omitted). "'In making a probable-cause determination, the issuing magistrate must examine the totality of the circumstances set forth in the affidavit, including an informant's veracity and basis of knowledge.'" Id. at ¶ 5 (quoting United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir. 2000)).
In the instant case, the search warrant affidavit set forth a number of relevant facts. Although the trial court stated that it was troubled by the affidavit's failure to disclose why the Confidential Informant was cooperating with the Task Force, the court noted that even if it had been aware that the Confidential Informant was attempting to strike a deal to avoid returning to prison, it still would have found probable cause to conduct the search given the balance of the affidavit. On review, we pay great deference to the magistrate's determination. See id. at ¶ 4. Thus, we conclude that under the totality of the circumstances, the affidavit established probable cause of illegal activity within Defendant's residence.
Finally, Defendant argues that the trial court erred by not suppressing the evidence on grounds of entrapment as a matter of law. Defendant's argument actually presents a mixed question of fact and law. See State v. Beddoes, 890 P.2d 1, 3 (Utah Ct.App. 1995). "Although we review factual findings for clear error and legal conclusions for correctness, due to the factually sensitive nature of entrapment cases we will affirm the trial court's decision" unless reasonable minds could not differ as to whether entrapment occurred. State v. Haltom, 2005 UT App 348, ¶ 7, 121 P.3d 42.
Defendant alleges that he was entrapped because the Confidential Informant provided the iodine necessary for creating methamphetamine. However, the record shows that Defendant was already engaged in manufacturing methamphetamine when he met the Confidential Informant. Therefore, the Confidential Informant's providing iodine to Defendant was not entrapment as a matter of law. "[W]here it is known or suspected that a person is engaged in criminal activities, or is desiring to do so, it is not entrapment to provide an opportunity to carry out his criminal intentions." State v. Curtis, 542 P.2d 744, 746 (Utah 1975).
Defendant alternatively argues that because both he and the Confidential Informant were members of a white separatist organization, he was "more likely to succumb to appeals" to engage in criminal activity suggested by the Confidential Informant. However, even assuming that Defendant and the Confidential Informant bonded because of their common membership, more is required for Defendant to prove entrapment. See State v. Martinez, 848 P.2d 702, 707 (Utah Ct.App. 1993) (explaining that "the mere existence of a personal friendship does not establish entrapment"). Rather, to establish entrapment, Defendant must show that the Confidential Informant exploited his relationship with Defendant in an appeal to Defendant's sympathy, pity, or friendship. See State v. Torres, 2000 UT 100, ¶ 9, 16 P.3d 1242. Based on the facts of the instant case, this argument, too, fails.
Accordingly, we affirm.
Carolyn B. McHugh, Judge, and Gregory K. Orme, Judge, concur.