Layton City v. Brierley

2015 UT App 207

THE UTAH COURT OF APPEALS

LAYTON CITY,

Plaintiff and Appellant,

v.

CHELSE MARIE BRIERLEY,

Defendant and Appellee.

Opinion

No. 20140496-CA

Filed August 13, 2015

Second District Court, Layton Department

The Honorable David R. Hamilton

No. 135605273

Marlesse D. Jones and Gary R. Crane, Attorneys

for Appellant

Mark W. Brown and Russell S. Pietryga, Attorneys

for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES

JAMES Z. DAVIS and STEPHEN L. ROTH concurred.

TOOMEY, Judge:

¶1 In this interlocutory appeal, Layton City appeals from the

district court’s grant of Defendant Chelse Marie Brierley’s

motion to suppress evidence obtained after the warrantless entry

of her residence. Because we agree with the City that the

inevitable discovery doctrine applies to the suppressed evidence

in this case, we reverse and remand.

BACKGROUND

¶2 On September 30, 2013, police officers received a report

that a black Mercedes SUV, driven by a “blonde female,” was

Layton City v. Brierley

seen leaving the site of a hit-and-run accident. 1 Dispatch gave

the officers the reported license plate number for the vehicle and

a home address for its registered owner. Sergeant Andrew

Joseph went to this address and saw a black SUV parked in the

open garage. Another officer, Sergeant Roger James Dixon,

arrived around the same time.

¶3 The officers saw a woman (Housekeeper) standing inside

the garage. When the officers walked up the driveway,

Housekeeper stepped out of the garage to greet them. Sergeant

Joseph asked her whether she had been driving the vehicle, to

which Housekeeper responded that she had not. When asked

who had been driving the vehicle, Housekeeper responded that

she thought Brierley, the homeowners’ daughter, had been

driving it.

¶4 During this conversation, Housekeeper expressed concern

that the vehicle parked in the garage might be on fire. Both

officers entered the garage to check on it. Sergeant Joseph

smelled hot fluid and noticed that the vehicle was steaming and

had front end damage. Housekeeper stated that while she was

inside the house, she had heard a loud noise. When she walked

toward the location of the noise, Housekeeper saw Brierley come

into the house from the garage and go downstairs to her

bedroom. Housekeeper stated that Brierley “looked like she was

in a bad way.” To clarify, Joseph asked whether Brierley

appeared to be under the influence of alcohol or drugs, and

Housekeeper answered, “Yes.”

¶5 In the garage, Housekeeper invited the officers into the

residence to speak with Brierley, but they declined because they

1. In reviewing a trial court’s ruling on a motion to suppress,

“we consider the facts in a light most favorable to the trial

court’s findings and recite them accordingly.” State v. Mitchell,

2013 UT App 289, ¶ 2, 318 P.3d 238 (citations and internal

quotation marks omitted).

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did not “feel that [they] had enough to enter the residence at that

time without any exigent circumstances.” But Sergeant Joseph

told Housekeeper they needed to speak with Brierley and

Housekeeper went downstairs to see if she could coax Brierley to

come upstairs to talk with the officers. Meanwhile, they called

the Layton City Attorney for legal advice on how to make

contact with Brierley. During this call, the officers and the City

Attorney all agreed that they “needed a warrant to proceed into

the house.”

¶6 When Housekeeper returned upstairs, she heard the

officers pounding on the front door. Housekeeper opened it and

relayed that Brierley had asked her to tell them she was not at

home. The officers asked Housekeeper for the phone number for

Brierley’s father so they could get permission to enter the

residence. Housekeeper left the front door open while she went

to find the phone number. Meanwhile, Sergeant Joseph went to

retrieve his computer for the purpose of drafting a search

warrant request.

¶7 Sergeant Dixon stepped through the open front door into

the residence and informed Housekeeper the house was under

lock down and no one was allowed to leave. Dixon told

Housekeeper she could tell Brierley they were in the process of

getting a search warrant that would allow them to look for her.

In response, Housekeeper went downstairs to persuade Brierley

to come speak with the officers. Sergeant Joseph arrived at the

front door with his computer and, upon seeing Dixon inside,

also entered the residence. Joseph placed his computer on a table

in the entryway and began drafting the search warrant

documents. As he was preparing these, Brierley, Housekeeper,

and a male individual came up the stairs from the basement. At

this point, Dixon asked Brierley to step outside to discuss the

situation. Brierley nodded and they went to the garage, where

Dixon questioned her. During the investigation, Dixon did a

license check and obtained Brierley’s date of birth and full name.

He also obtained a statement from Brierley and conducted tests

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Layton City v. Brierley

to determine whether she was under the influence of alcohol

including field sobriety tests 2 and a portable breath test. A

different breath test was administered to Brierley at the police

station, revealing a blood alcohol level of .143.

¶8 The City ultimately charged Brierley with driving under

the influence of alcohol and/or drugs, violation of operator

duties for accident involving property damage, and driving on

denied operator’s license, all misdemeanors. Before trial, Brierley

moved to suppress the evidence resulting from the officers’

warrantless entry into her home. The City opposed the motion,

arguing that the mere presence of officers in a house while

securing a warrant is not unlawful and that, in any event, the

inevitable discovery doctrine applied to allow the admission of

the evidence. 3

¶9 After a suppression hearing and oral arguments on the

motion, the district court rejected the City’s arguments. It

concluded that “[w]ithout probable cause and exigent

circumstances, the police’s warrantless search and seizure cannot

be upheld on an officer’s need to secure a home in preparation of

obtaining a warrant.” The court reasoned that application of the

inevitable discovery doctrine was not justified in this case

because “[w]hether Sergeant Joseph’s warrant request would

have actually been granted and whether the same evidence

would have inevitably been discovered remains speculative.”

Consequently, the court granted Brierley’s motion and

suppressed all evidence obtained following the warrantless

2. The nature of these tests is not identified in the record.

3. The City also contended there was no evidence to be

suppressed because no evidence discovered was in the residence

where an unlawful entry was alleged to have occurred. The

district court rejected this argument on the basis that the City did

not provide any legal support.

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Layton City v. Brierley

entry into the house. The City filed a petition for interlocutory

review, which we granted.

ISSUE AND STANDARDS OF REVIEW

¶10 The City argues the district court erred by granting

Brierley’s motion to suppress. We review the grant of a motion

to suppress as a mixed question of law and fact. State v.

Worwood, 2007 UT 47, ¶ 12, 164 P.3d 397. We review the district

court’s underlying factual findings for clear error and its legal

conclusions for correctness. Id.

ANALYSIS

¶11 The City challenges the district court’s grant of Brierley’s

motion to suppress the evidence obtained following the officers’

warrantless entry into her residence. For purposes of our analysis,

we assume without deciding that the officers’ presence in

Brierley’s home was unlawful 4 and we proceed to analyze the

City’s alternative argument, namely, whether the inevitable

discovery doctrine should be applied.

¶12 The City asserts that “based on the probable cause

established for the search warrant that the officers were in the

process of obtaining” when Brierley came upstairs, “the warrant

would have been obtained, officers would have served it and

detained [Brierley], and the evidence would have inevitably

been discovered.” In contrast, Brierley contends the challenged

evidence would not have been obtained but for the warrantless

entry into Brierley’s home. For this reason, Brierley specifically

4. At oral argument, the City conceded there were no exigent

circumstances justifying the officers’ entry into the house, and

asked us to assume arguendo that it was unlawful for the

officers to be in the house.

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asserts the “field sobriety tests, breath tests, statements made,

[and] license checks” should be suppressed.

¶13 “Until a valid warrant has issued, citizens are entitled to

shield ‘their persons, houses, papers, and effects’ . . . from the

government’s scrutiny.” Hudson v. Michigan, 547 U.S. 586, 593

(2006) (quoting U.S. Const. amend. IV). “The exclusionary rule

prohibits the use at trial of evidence . . . obtained in violation of

an individual’s constitutional and statutory rights.” State v.

Topanotes, 2003 UT 30, ¶ 13, 76 P.3d 1159. Moreover, it deters

unlawful police behavior by “prevent[ing] the police from

benefitting from their illegalities.” Id. But these “harsh

consequences” are “tempered somewhat by the exceptions to the

exclusionary rule.” Id. “The exceptions allow prosecutors to use

the challenged evidence at trial when the ‘taint’ of illegality is

sufficiently cleansed.” Id.

¶14 One such exception is embodied in the inevitable

discovery doctrine, which allows tainted evidence to be

admitted at trial if it “would have been discovered by lawful

means.” State v. Strieff, 2015 UT 2, ¶ 24. This doctrine seeks to

“put[] the police in the same . . . position . . . they would have

been in if no police error or misconduct had occurred.” Nix v.

Williams, 467 U.S. 431, 443 (1984). The Utah Supreme Court has

instructed that “‘[i]f the prosecution can establish by a

preponderance of the evidence that the information ultimately or

inevitably would have been discovered by lawful means . . . then

the deterrence rationale has so little basis that the evidence

should be received.’” Topanotes, 2003 UT 30, ¶ 14 (omission in

original) (quoting Nix, 467 U.S. at 444). 5

5. The City also contends on appeal that another exception to the

exclusionary rule, the attenuation doctrine, applies to allow

the admission of the challenged evidence against Brierley. The

City asserts that Brierley’s independent act of voluntarily

coming upstairs and engaging with the officers broke the causal

(continued…)

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Layton City v. Brierley

¶15 Utah appellate courts have addressed the application of

the inevitable discovery doctrine on several occasions. See, e.g.,

State v. Tripp, 2010 UT 9, ¶¶ 57–59, 227 P.3d 1251 (refusing to

apply the inevitable discovery doctrine because the police lacked

probable cause and the investigating officer “took no steps

whatsoever to obtain” a search warrant); State v. Worwood, 2007

UT 47, ¶¶ 47–51, 164 P.3d 397 (ruling that the inevitable

discovery doctrine was inapplicable because the “field sobriety

tests would not have been obtained absent the illegality or

different choices” by the investigating officer); Topanotes, 2003

UT 30, ¶¶ 19–21 (holding that evidence was not admissible

under the inevitable discovery doctrine where the police

performed a warrants check while illegally detaining the

defendant); State v. Mitchell, 2013 UT App 289, ¶¶ 23–24, 318

P.3d 238 (affirming the trial court’s admission of evidence under

the inevitable discovery doctrine because “the valid search

warrant was an independent basis for discovery that would have

(…continued)

chain between the officers’ illegal entry and their discovery of

incriminating evidence. The attenuation doctrine “is limited to

circumstances . . . involving a defendant’s independent acts of

free will” and is “distinct” from the other exceptions to the

exclusionary rule. State v. Strieff, 2015 UT 2, ¶¶ 25, 42. “[T]o

preserve an issue for appeal[,] the issue must be presented in

such a way that the trial court has an opportunity to rule on that

issue.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d

801 (second alteration in original) (citation and internal

quotation marks omitted). Here, the City asked the district court

to apply only one exception to the exclusionary rule, explaining,

“[W]e do hang our hat on inevitable discovery, that inevitably it

would have happened had she not come up the stairs.” Because

we conclude the City did not present the attenuation doctrine in

such a way that the district court had the opportunity to rule on

the issue, the City has not preserved it for appeal and we do not

further address it.

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Layton City v. Brierley

inevitably led to the computer evidence independent of the

constitutional violation” (citation and internal quotation marks

omitted)); State v. Callahan, 2004 UT App 164, ¶¶ 9–11, 93 P.3d

103 (reversing a conviction resulting from the trial court’s denial

of a motion to suppress because “[i]n view of the Task Force’s

adoption of a plan that included an illegal entry from the

outset,” this court could not conclude that “an independent,

legal avenue for discovery was ever available” (citation and

internal quotation marks omitted)). But these decisions do not

address whether the doctrine applies where, as here, the police

began efforts to obtain a search warrant before making an illegal

entry or search and then abandoned the warrant process when

circumstances changed.

¶16 The Tenth Circuit, however, has analyzed the

applicability of the doctrine in a similar scenario. In United States

v. Souza, 223 F.3d 1197 (10th Cir. 2000), it explained, “While the

inevitable discovery doctrine does not apply in situations where

the government’s only argument is that it had probable cause for

the search, [it] may apply where, in addition to the existence of

probable cause, the police had taken steps in an attempt to

obtain a search warrant.” Id. at 1203 (emphasis added) (footnote

omitted). To determine “how likely it is that a warrant would

have been issued and that the evidence would have been found

pursuant to the warrant,” the Tenth Circuit identified four

factors to aid in its analysis:

[1] the extent to which the warrant process has

been completed at the time those seeking the

warrant learn of the search; [2] the strength of

the showing of probable cause at the time the

search occurred; [3] whether the warrant ultimately

was obtained, albeit after the illegal entry; and [4]

evidence that law enforcement agents “jumped the

gun” because they lacked confidence in their

showing of probable cause and wanted to force the

issue by creating a fait accompli.

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Layton City v. Brierley

Id. at 1204 (citations and internal quotation marks omitted). “The

more contingencies there are, and the lower the probability that

each would have been resolved in the government’s favor, the

lower the probability that the evidence would have been found

by lawful means.” Id. at 1205. Thus, after evaluating these

factors, “a court may apply the inevitable discovery exception

only when it has a high level of confidence[ 6] that the warrant

in fact would have been issued and that the specific evidence in

question would have been obtained by lawful means.” Id.

Although we do not formally adopt this test, we find it useful to

our analysis in this case.

¶17 Here, the officers took steps toward obtaining a search

warrant, including contacting the City Attorney, deciding to

apply for a warrant, and retrieving a computer to complete the

required documents. This factor weighs in the City’s favor.

¶18 The record demonstrates that the probable-cause showing

was strong and a warrant in all likelihood would have been

issued based on information known to the officers before they

entered the house. In particular, the officers received reports of a

blonde female driving a black Mercedes SUV away from the

scene of a hit-and-run accident. They had the reported license

6. Unlike the Second and Tenth Circuits, which use a “high level

of confidence” standard, some circuits require only a “reasonable

probability” that the challenged evidence would have been

discovered lawfully. Compare, e.g., United States v. Marrocco, 578

F.3d 627, 639–40 & n.24 (7th Cir. 2009) (using an “intermediate

standard” in concluding that the inevitable discovery rule

applies where “investigating officers undoubtedly would have

followed routine” to obtain evidence), with United States v. Heath,

455 F.3d 52, 60 (2d Cir. 2006) (concluding that the inevitable

discovery rule will be applicable only where the court can

conclude “with a high level of confidence that each of the

contingencies necessary to the legal discovery of the contested

evidence would be resolved in the government’s favor”).

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plate number for the fleeing vehicle and, upon arriving at the

home address for its registered owner, saw a black SUV parked

in the open garage. When the officers talked to Housekeeper,

who was standing next to the SUV, she told them Brierley had

been driving the vehicle and that it might be on fire. When the

officers checked on the vehicle, they saw that it was steaming

and its front end was damaged. Moreover, Housekeeper also

mentioned that Brierley went into the house and “looked like

she was in a bad way,” meaning she appeared to be under the

influence of alcohol or drugs. Based on these facts, the officers

had probable cause to believe Brierley had committed an

offense. This factor weighs in the City’s favor.

¶19 At this point, the officers intended to secure a search

warrant and initiated the process, but Sergeant Joseph ultimately

abandoned his efforts to obtain it because Brierley walked

upstairs and met the officers, thus obviating the need for the

warrant. This factor weighs against the City, but not strongly.

¶20 The testimony of the officers at the suppression hearing

does not suggest that their entry into the house was motivated

by a lack of confidence in their probable-cause showing or a

desire to bypass the warrant requirement. Rather, they seemed

willing to wait for the warrant to talk to Brierley. In addition, the

fact that Sergeant Joseph continued drafting the search warrant

application while standing inside the Brierley residence lends

support to the conclusion that the officers did not intend to force

the issue by entering it in the first place.

¶21 Taking these factors together, we conclude the City met

its burden to show by a preponderance that the evidence would

have been discovered by lawful means. The police had a strong

showing of probable cause to search the house for Brierley:

witness descriptions of the vehicle and driver involved in the

collision, including a license plate number that brought them to

Brierley’s house; a damaged, steaming vehicle matching the

witness descriptions parked in Brierley’s open garage;

Housekeeper’s statements that she thought Brierley had been

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driving the car, had seen her exit the garage, and thought she

appeared to be under the influence of alcohol or drugs. They had

taken steps to seek a warrant, including contacting the City

Attorney and beginning to draft the necessary documents. As a

consequence, we have a high level of confidence that a search

warrant would have been issued, in which case they would have

searched the house, found Brierley in it, and proceeded with

questioning, field sobriety tests, breath tests, and license checks. 7

Moreover, because this evidence would have been inevitably

discovered, “‘the deterrence rationale has so little basis that the

evidence should be received.’” See State v. Topanotes, 2003 UT 30,

¶ 14, 76 P.3d 1159 (quoting Nix v. Williams, 467 U.S. 431, 444

(1984)). We therefore determine that the district court erred in

refusing to apply the inevitable discovery doctrine to allow

the admission of evidence regarding the field sobriety tests, the

breath tests, Brierley’s statements, 8 and the license check.

7. Brierley argues the inevitable discovery doctrine is inapplicable

because “there was no independent investigation that would

lead to the discovery of evidence separate from the [warrantless

entry].” But the inevitable discovery doctrine requires “an

independent basis for discovery,” not “an entirely independent,

alternate, intervening, appreciably attenuated investigation aside

from the tainted investigation.” State v. Topanotes, 2003 UT 30,

¶¶ 15–16, 76 P.3d 1159 (citations and internal quotation marks

omitted).

8. Although the parties do not describe the statements Brierley is

alleged to have made, our own review of the record has

illuminated only one statement: Sergeant Joseph averred in a

probable cause affidavit that “[u]pon contact Brierley denied

driving the vehicle saying the driver was a male adult in his

sixties.” We note that this statement does not resemble a

confession and constitutes only a small piece of the City’s case

against Brierley.

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Layton City v. Brierley

¶22 Although we do not condone the officers’ entry into

Brierley’s house before they had obtained a search warrant, we

do not believe their presence on the inside of the threshold,

rather than several feet away on the outside of the threshold,

made a material difference. They had locked down the house—

meaning that no one could leave—started the process of

obtaining a search warrant to look for Brierley, and were

prepared to wait for it. Once they had a warrant, they would

have located Brierley and the rest of their evidence gathering

would have ensued. Brierley’s emergence from her bedroom

while the officers were still in the process of seeking the search

warrant merely hastened this inevitable process, and we think it

highly unlikely that their presence on one side of the threshold

or the other had an effect on this sequence of events.

CONCLUSION

¶23 We conclude that the field sobriety tests, the breath tests,

Brierley’s statements, and the information from checking

Brierley’s license would have been discovered by lawful means.

Consequently, the inevitable discovery doctrine should apply to

permit the City to offer this evidence notwithstanding the

officers’ warrantless entry to Brierley’s house. We therefore

reverse the order suppressing the evidence and remand for

further proceedings.

20140496-CA 12 2015 UT App 207