Opinion
Case No. 20080733-CA.
Filed December 17, 2009. Not For Official Publication
Appeal from the Third District, Salt Lake Department, 061904466, The Honorable Paul G. Maughan.
Jason A. Schatz, Salt Lake City, for Appellant.
Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee.
Before Judges Greenwood, Orme, and McHugh.
MEMORANDUM DECISION
We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3). Moreover, the issues presented are readily resolved under applicable law.
Whatever may be said about the omissions and misstatements in the affidavit and Defendant's entitlement to an evidentiary hearing to explore the same, Defendant's claim ultimately fails because the district court properly concluded that even without the alleged misstatements and omissions, the affidavit still had sufficient information for the magistrate to determine that probable cause existed to issue a search warrant for the residence. See State v. Garcia, 2007 UT App 228, ¶¶ 5-6, 13, 15, 164 P.3d 1264 (reversing the suppression of evidence after determining that sufficient evidence established probable cause even without evidence "obtained during an unlawful search of [a] duffle bag" that contained drugs, and stating that "under the Franks doctrine and its progeny, courts should examine whether a search affidavit supports probable cause for a search warrant after reference to suppressed evidence is removed"). As the State points out, and Defendant fails to rebut, the search warrant pertained to the residence and not to any particular individual, and the affidavit unambiguously stated that the garbage from the residence contained a marijuana stem. See generally State v. Jackson, 937 P.2d 545, 546, 550 (Utah Ct. App.) (determining that the Utah Constitution, consistent with the United States Constitution, "does not prohibit the warrantless search and seizure of garbage left for streetside collection"), cert. denied, 945 P.2d 1118 (Utah 1997). Because the discovery of marijuana was enough to establish probable cause, the search warrant would be valid even without the alleged misstatements or omissions pertaining to the earlier controlled buy. See generally Illinois v. Gates, 462 U.S. 213, 238 (1983) ("The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.").
Much the same rationale disposes of Defendant's second argument. Defendant was not charged in connection with any events related to the controlled buy, and the controlled buy was wholly unnecessary to establish probable cause for the search warrant. Thus, any police report regarding the controlled buy would be entirely irrelevant.
Affirmed.
WE CONCUR: Pamela T. Greenwood, Presiding Judge, Carolyn B. McHugh, Judge