State v. Vasquez-Marquez

THORNE, Associate

Presiding Judge (dissenting):

11 I agree with the majority opinion that the probable cause necessary to support a search warrant requires a nexus between suspected criminal activity and the place to be searched. See supra 15. The probable cause affidavit justifying a search warrant must support the magistrate's decision that there is a "fair probability" that evidence of the crime will be found in the place named in the warrant. And I agree that in determining whether there is a fair probability that evidence of a crime will be found in the place to be searched, the magistrate may draw "reasonable inferences" from the information presented in the search warrant, which inferences must be based on specific facts and cannot be the result of broad generalizations. See supra 1 6.

112 Nevertheless, I respectfully dissent because I do not agree with the majority that the probable cause affidavit had no information to show the nexus between the drugs and Vasquez's home. Rather, I conclude that the affidavit in support of the search warrant provided enough facts for the trial court to properly decide that the affidavit demonstrated "a sufficient nexus" between Vasquez's cocaine distribution and his home "to support the issuance of the search warrant." " [T]he task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the cirenmstances set forth in the affidavit ... there is a fair probability that contraband or evidence of a crime will be found in a particular place." State v. Penn, 2004 UT App 212, ¶13, 94 P.3d 308 (alteration and omission in original) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 LEd2d 527 (1983)). "Common sense" is the hallmark in determining the propriety of the issuance of the search warrant. See State v.. Williamson, 674 P.2d 182, 133 (Utah 1983).

T13 In my opinion, under the totality of the circumstances set forth in the affidavit, there is a fair probability that cocaine or evidence of Vasquez's cocaine distribution would be found in his residence.¹ Here, Vasquez and an unidentified Hispanic male were involved in five controlled buys, three times using a vehicle registered to Vasquez at his home address. On two occasions, immediately after the controlled buys, Vasquez and the unidentified Hispanic male returned to Vasquez's residence. The affidavit identified that cash was one of a number of items to be secured by the search warrant. It is reasonable to infer from these cireumstances that Vasquez would require a secure place to store any cash obtained from the controlled buys as well as other items indicative of the distribution of controlled substances such as buy/owe sheets, scales, packaging materials, paraphernalia, cocaine, ete. It is also reasonable to infer that Vasquez would store said items in his residence since it was a secure and accessible storage place which Vasquez returned to after two of the controlled buys. These inferences provide an adequate basis to connect the suspected eriminal activity to Vasquez's residence and are based on specific facts articulated in the affidavit.

1] 14 I, like the majority, do not believe that an affidavit that details only facts showing that the accused was involved in selling drugs allows a reasonable inference that those drugs are stored in the accused's residence.. See supra 16. I acknowledge that the information in the probable cause affidavit is marginal; however, it is enough to show the nexus between the drug contraband and Vasquez's residence. Although I conclude that the affidavit information in this case is enough to support probable cause, I note that this is a very close question. See Gates, 462 U.S. at 286-37 & n. 10, 108 S.Ct. 2817 ("[Allthough in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." (internal quotation marks omitted)). Anything less than the information provided in this case and I would likely reach the opposite conclusion.

115 Based on the reasonable inferences derived from the information provided in the affidavit, I conclude that there was probable cause to issue the search warrant in the instant case. Such a conclusion is fortified by the preference for warrants in doubtful or marginal cases, see id., and the requirement that we "afford the magistrate great deference and consider the affidavit relied upon by the magistrate in its entirety and in a common sense fashion," State v. Saddler, 2004 UT 105, ¶ 7, 104 P.3d 1265 (mternal quotation marks omitted).

1 . The affidavit provided that

affiant and officers expect to locate controlled substances to include cocaine, paraphernalia, cash, buy/owe sheets, scales, packaging material, correspondence and other controlled substances and items indicative of the use/distribution of controlled substances to include electronic messaging devices such as pagers, cell phones, caller id equipment and dangerous weapons.