State v. Sanchez

2020 UT App 158THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
LUIS FERNANDO SANCHEZ,
Appellant.
Opinion
No. 20190250-CA
Filed November 19, 2020
Third District Court, West Jordan Department
The Honorable L. Douglas Hogan
No. 151400466
Emily Adams, Attorney for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES DAVID N. MORTENSEN and DIANA HAGEN
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Luis Fernando Sanchez appeals the district court’s denial
of his motion to suppress and his motion for an evidentiary
hearing. We affirm.
BACKGROUND
¶2 A police officer (Officer) investigated a loud house party
after several neighbors called to complain about the noise. As
Officer drove to the location, neighbors further reported that the
party had spilled onto the street and a fight had ensued.
State v. Sanchez
¶3 Still in his patrol car, Officer approached the house and
saw fifteen to twenty people in the street and on the nearby
sidewalk. Several partygoers were getting in their cars to leave,
and others were fleeing on foot. A few of the cars headed toward
Officer, and he activated his red and blue overhead lights and
stopped his marked patrol car. He got out of his car and raised
his hands in the air to signal the drivers to stop. Officer
positioned his vehicle at an angle in the middle of the road to
convey the message that “the road was blocked and [the drivers]
were not to proceed past the patrol car.”
¶4 Sanchez, who was driving one of the approaching
vehicles, ignored Officer’s hand signals and shouts to stop, the
angled patrol car, and the flashing lights and drove around the
patrol car. Officer reported that he made eye contact with
Sanchez and that Sanchez was aware of his presence. Officer
even slapped the hood of Sanchez’s car—“making a fairly loud
audible noise”—in an effort to persuade Sanchez to stop and to
send the message that Sanchez was “not free to go.”
¶5 Sanchez continued his drive about a block to a nearby
intersection, where other officers had blocked the road. Officer
approached Sanchez’s vehicle after hearing the other officers
yelling at Sanchez to stop his vehicle, turn off the engine, and
put his hands on the steering wheel. Three women were in the
vehicle with Sanchez. Sanchez did not cooperate with police
commands and refused to exit the vehicle because he “didn’t feel
that [the police] had legal grounds to be contacting him.” Officer
observed that Sanchez seemed “upset” and “agitated.” Sanchez
shouted profanities at the officers and suggested that they
should pepper spray him.
¶6 As Officer stood near Sanchez’s lowered driver-side
window, he detected the odor of alcohol. Officer opened the
driver-side door and ordered Sanchez out, and Sanchez finally
complied. As Officer stood near Sanchez, he could smell the
“very strong odor of alcohol from [Sanchez’s] breath” and
20190250-CA 2 2020 UT App 158State v. Sanchez
deduced that Sanchez had been drinking. Officer also observed
that Sanchez’s “eyes appeared to be kind of glossed or glazed
over,” which Officer’s experience suggested was a common sign
of intoxication.
¶7 Officer handcuffed Sanchez and walked him toward the
patrol car. Sanchez refused to proceed, insisting that Officer had
“no reason to arrest him” and that he would not get in the patrol
car. Officer then asked Sanchez to complete some field sobriety
tests. Sanchez failed the horizontal gaze nystagmus test (HGN
test) that Officer performed on Sanchez’s eyes, showing six out
of six possible clues indicating that Sanchez might be impaired.
At this point, Sanchez informed Officer that “he wouldn’t have
the ability to complete the other [field sobriety] tests.”
¶8 Officer told Sanchez that he was under arrest for driving
under the influence of alcohol (DUI) and transported him to the
local police station. At the station, Officer attempted to
administer other field sobriety tests but was unable because
Sanchez was, in Officer’s words, “passively” uncooperative.
¶9 Officer then requested a search warrant to obtain a blood
sample from Sanchez. Officer listed the following facts in his
affidavit in support of the search warrant request: (1) He was
dispatched on a report of fighting in the street. (2) A neighbor
had reported that those involved in the fight were leaving.
(3) Officer arrived on the scene, activated the emergency lights of
his patrol car, and pulled in front of Sanchez’s vehicle. (4) As
Officer approached Sanchez’s vehicle, Sanchez drove forward
and around Officer’s patrol car. (5) Officer made eye contact
with Sanchez, raised both hands motioning him to stop, and
yelled, “Stop, Police!” (6) Sanchez continued to drive forward
and forced Officer to step to the side. (7) Officer placed his hands
on the hood of Sanchez’s moving vehicle. (8) Sanchez continued
to ignore Officer’s verbal commands to stop and accelerated
rapidly away from the scene. (9) Officer radioed to other patrol
units, who were able to block Sanchez at a nearby intersection.
20190250-CA 3 2020 UT App 158State v. Sanchez
(10) Sanchez disobeyed commands to place his hands in the air
and resisted attempts to place him in custody after he exited the
vehicle. (11) Officer smelled the “strong odor of alcohol coming
from the breath” of Sanchez. (12) Sanchez’s speech was slurred
and his eyes were red and bloodshot. (13) Sanchez admitted to
consuming alcohol. (14) Open containers of beer were located
under the driver seat. (15) Sanchez failed field sobriety tests.
(16) Sanchez refused to submit to a breath test.
¶10 The warrant was approved, and the blood test revealed
Sanchez’s blood alcohol content to be .13%. The State charged
Sanchez with failure to stop at the command of a police officer,
interference with an arresting officer, DUI, and having an open
container in his vehicle.
¶11 Sanchez filed two motions to suppress the results of the
HGN test and the blood test. First, Sanchez moved to suppress
all the evidence on the ground that Officer did not have probable
cause to arrest him for DUI. The district court denied the motion,
concluding that Sanchez’s failure of the HGN test, when
combined with the odor of alcohol on Sanchez and his
“belligerence and fleeing,” gave Officer probable cause to arrest
Sanchez for DUI. The court also determined that Officer had
“probable cause to arrest for failing to stop at the command of a
police officer” and “that [arrest] would have allowed the
impound of the vehicle and the resulting seizure.” See Utah
Code Ann. § 76-8-305.5 (LexisNexis Supp. 2020). The court
concluded, “The vehicle was searched incident to arrest and
empty alcohol containers were found in the driver’s area. That
search was permissible under these facts.” Thus, the district
court denied the motion on two grounds when it concluded that
Officer had (1) probable cause to arrest Sanchez for DUI and
(2) probable cause to arrest him for failing to stop.
¶12 Second, Sanchez requested an evidentiary hearing to
suppress the results of the blood draw, arguing that Officer had
misrepresented and omitted certain facts in the affidavit
20190250-CA 4 2020 UT App 158State v. Sanchez
supporting the warrant request. Among the more significant
discrepancies Sanchez identified were (1) that Officer said
Sanchez had slurred speech in the affidavit, but he made no
mention of slurred speech in his police report or court testimony;
(2) that Officer indicated open containers were found under
Sanchez’s driver seat, but police found only two empty glass
beer bottles under the seat; and (3) that Officer represented that
Sanchez had failed multiple field sobriety tests, when he had
failed only one. Sanchez argued that under Franks v. Delaware,
438 U.S. 154 (1978), the search warrant was invalid because the
affidavit supporting it “included materially false and misleading
information.” See id. at 165 (“[A] warrant affidavit must set forth
particular facts and circumstances underlying the existence of
probable cause, so as to allow the magistrate to make an
independent evaluation of the matter.”); see also State v. Garcia,
2007 UT App 228, ¶ 8, 164 P.3d 1264 (“In Franks, the Supreme
Court held that a search warrant based on deliberate falsehoods
or a reckless disregard for the truth must be evaluated to
determine whether the affidavit supporting the warrant would
still support probable cause once the false information is
removed.” (quotation simplified)). The district court denied the
motion, concluding that the “discrepancies between the affidavit
and the other ‘facts’ [were] not substantial enough to justify
a finding” that Officer’s “statements were intentionally false
or misleading” such that the search warrant was unlawfully
issued.
¶13 Sanchez pleaded guilty to failure to stop at the command
of a police officer and DUI, while preserving his right to
challenge the denial of his suppression motions on appeal. See
State v. Tirado, 2018 UT App 132, ¶ 11 n.2, 428 P.3d 70 (“With the
consent of the prosecution and the approval of the judge, a
defendant may enter a conditional guilty plea, while preserving
a suppression issue for appeal.” (quotation simplified)); Utah R.
Crim. P. 11 (“A defendant who prevails on appeal [after entering
a conditional plea of guilty] shall be allowed to withdraw the
plea.”). Sanchez appeals.
20190250-CA 5 2020 UT App 158State v. Sanchez
ISSUES AND STANDARDS OF REVIEW
¶14 Sanchez first alleges that the district court erred in
denying his first motion to suppress, arguing that Officer lacked
the probable cause necessary to arrest him. Sanchez next asserts
that the district court erred in denying his request for a Franks
evidentiary hearing, see supra ¶ 12, to explore the alleged false
and misleading statements in the search warrant affidavit, which
supported the issuance of the warrant.1 “We review a denial of a
1. Sanchez also filed a motion for remand under rule 23B of the
Utah Rules of Appellate Procedure, arguing that his trial counsel
was ineffective for improperly advising “Sanchez to plead guilty
when the State did not preserve exculpatory evidence”—namely,
video from the patrol car’s dash camera and video taken at the
police station of the attempted field sobriety tests—thereby
violating his due process rights. We decline to consider this
aspect of the motion because we lack jurisdiction to do so. This
aspect of his rule 23B motion does not deal with the suppression
of evidence; rather, it is essentially a request to withdraw his
plea. But the plea withdrawal statute requires that “a request to
withdraw a plea of guilty . . . be made by motion before sentence
is announced.” Utah Code Ann. § 77-13-6(2)(b) (LexisNexis
2017). And any challenge to a guilty plea not made before
sentence is imposed must be pursued in a post-conviction
proceeding. Id. § 77-13-6(2)(c). “[F]ailure to withdraw a guilty
plea within the time frame dictated by [the plea withdrawal
statute] deprives the trial court and appellate courts of
jurisdiction to review the validity of the plea.” State v. Ott, 2010
UT 1, ¶ 18, 247 P.3d 344. Furthermore, “a defendant may not
overcome a failure to timely withdraw his guilty plea even if the
failure is styled as a claim of ineffective assistance of counsel.”
Id. (quotation simplified); see also State v. Badikyan, 2020 UT 3,
¶ 12, 459 P.3d 967 (“[T]he [plea withdrawal] statute prohibits
appellate review of all unpreserved plea challenges raised on
(continued…)
20190250-CA 6 2020 UT App 158State v. Sanchez
motion to suppress as a mixed question of law and fact and will
disturb the district court’s factual findings only when they are
clearly erroneous, but we afford no deference to the district
court’s application of law to the underlying factual findings.”
State v. Paredez, 2017 UT App 220, ¶ 11, 409 P.3d 125 (quotation
simplified).
ANALYSIS
I. Probable Cause
¶15 Sanchez argues that his arrest violated the Fourth
Amendment because Officer did not have probable cause to
arrest him for DUI and that, consequently, the district court
erred in denying his motion to suppress the evidence (namely,
the results of the HGN test and the blood draw) gathered as a
result of the arrest. We conclude that Officer did have probable
cause to make the arrest.
¶16 Officer had probable cause to detain and arrest Sanchez
after he failed to stop and fled, a point that Sanchez admits on
appeal when he acknowledges that “the district court correctly
reasoned that . . . [O]fficer could have arrested . . . Sanchez for
failure to stop.” Sanchez, however, argues that failure to stop
was “not the reason” Officer arrested him; rather, Sanchez
argues that Officer arrested him “for DUI . . . [when Officer] did
not have probable cause to arrest” him for DUI.
¶17 But an officer’s subjective reason for making an arrest is
irrelevant to the question of probable cause, a principle explicitly
articulated by the United States Supreme Court and reiterated by
(…continued)
untimely motions to withdraw, including those that fall within
the traditional exceptions to the preservation doctrine.”).
20190250-CA 7 2020 UT App 158State v. Sanchez
Utah’s appellate courts. In Devenpeck v. Alford, 543 U.S. 146(2004), the Supreme Court considered the issue of probable
cause involving the arrest of a defendant for a different crime
from the one with which he was later charged. The court
reasoned,
An arresting officer’s state of mind (except for the
facts that he knows) is irrelevant to the existence of
probable cause. That is to say, [the] subjective
reason for making the arrest need not be the
criminal offense as to which the known facts
provide probable cause. . . . The fact that the officer
does not have the state of mind which is
hypothecated by the reasons which provide the
legal justification for the officer’s action does not
invalidate the action taken as long as the
circumstances, viewed objectively, justify that
action. The Fourth Amendment’s concern with
reasonableness allows certain actions to be taken in
certain circumstances, whatever the subjective
intent. Evenhanded law enforcement is best
achieved by the application of objective standards
of conduct, rather than standards that depend
upon the subjective state of mind of the officer.
Id. at 153 (quotation simplified); accord Whren v. United States, 517
U.S. 806, 812–13 (1996); see also State v. Applegate, 2008 UT 63,
¶ 17, 194 P.3d 925 (“[A] police officer’s subjective intent and
thoughts are irrelevant to the reasonable suspicion inquiry, as
well as an improper basis for invalidating an arrest.”); State v.
Roberts, 2018 UT App 92, ¶ 13, 427 P.3d 416 (“[T]he crime with
which a suspect is eventually charged is irrelevant to the
question of whether probable cause existed in the first place.”).
¶18 Devenpeck, along with Utah appellate law, is controlling
here. Whether Officer possessed probable cause to arrest
Sanchez for DUI is irrelevant. What is relevant is whether the
20190250-CA 8 2020 UT App 158State v. Sanchez
objective circumstances—the “known facts,” see Devenpeck, 543
U.S. at 153—provided probable cause for Sanchez’s arrest.
Officer’s “subjective reason for arresting” Sanchez—the belief
that Sanchez was driving while intoxicated—“does not
undermine the district court’s conclusion that the arrest was
nevertheless constitutional” on the ground that Officer had
probable cause to arrest Sanchez for failure to stop. See State v.
McLeod, 2018 UT App 52, ¶ 17, 424 P.3d 1039. And Sanchez does
not address this alternative ground identified by the district
court for denying his motion to suppress. To the contrary, he
admits on appeal that the district court correctly reasoned that
Officer could have arrested him for failure to stop. An appellate
court “will not reverse a ruling of the district court that rests on
independent alternative grounds where the appellant challenges
only one of those grounds.” State v. Simmons, 2017 UT App 224,
¶ 19, 409 P.3d 129; see also State v. Roberts, 2015 UT 24, ¶ 38, 345
P.3d 1226; State v. Thornock, 2020 UT App 138, ¶ 29.
¶19 Because Sanchez concedes that Officer had probable cause
to arrest him for failure to stop, we conclude the district court
did not err in denying Sanchez’s first motion to suppress.
II. Search Warrant
¶20 Sanchez also complains that defects in certain information
provided in Officer’s search warrant affidavit required the
district court to hold an evidentiary hearing and that the court
erred in denying his motion to that effect. Specifically, Sanchez
argues that certain statements in the affidavit were “intentionally
or knowingly false or made with a reckless disregard for the
truth.” We disagree that an evidentiary hearing was required
because, even if the challenged statements are omitted, the
affidavit still established probable cause for the blood draw
warrant.
¶21 Where a defendant makes a “showing that a false
statement knowingly and intentionally, or with reckless
20190250-CA 9 2020 UT App 158State v. Sanchez
disregard for the truth, was included by the affiant in the
warrant affidavit, and if the allegedly false statement is
necessary to the finding of probable cause, the Fourth
Amendment requires that a hearing be held at the defendant’s
request.” Franks v. Delaware, 438 U.S. 154, 155–56 (1978). Thus,
three conditions must be satisfied to obtain a Franks hearing:
(1) a false statement must have been made, (2) it must have been
made knowingly and intentionally or with reckless disregard for
the truth, and (3) it must have been necessary to the finding of
probable cause. See United States v. White, 850 F.3d 667, 673 (4th
Cir. 2017). If all three conditions are met, the “warrant must be
voided and the fruits of the search excluded to the same extent
as if probable cause was lacking on the face of the affidavit.” See
State v. Krukowski, 2004 UT 94, ¶ 14, 100 P.3d 1222 (quotation
simplified). Furthermore, “the Franks threshold is even higher
for defendants making claims of omissions rather than
affirmative false statements because of the myriad inferences
that can be drawn from an omission. Indeed, the mere fact that
the affiant did not list every conceivable conclusion does not
taint the validity of the affidavit.” State v. Fuller, 2014 UT 29,
¶ 27, 332 P.3d 937 (quotation simplified).
¶22 Here, Sanchez specifically identifies three statements in
the warrant affidavit as impacting its validity: (1) Officer said
Sanchez had slurred speech, even though that information was
not included in the police report or court testimony; (2) Officer
said open containers were found under Sanchez’s seat, when
only empty beer bottles were found; and (3) Officer said Sanchez
had failed field sobriety tests, when he had failed only one test.
¶23 Even if we assume that Officer’s affidavit contained
intentionally, knowingly, or recklessly made inaccurate
statements, we are not persuaded that these statements were
necessary for a finding of probable cause for the warrant to
issue. That is, if we excise the challenged statements, the
affidavit still contained ample information supporting a finding
of probable cause, supra ¶ 9, most notably that at the scene of his
20190250-CA 10 2020 UT App 158State v. Sanchez
arrest, Sanchez had the odor of alcohol about him, refused to
take a breath test, refused to stop at Officer’s command,
admitted to having been drinking, 2 was belligerent when
stopped, appeared to have red and bloodshot eyes, and
continued to be uncooperative at the police station when further
field sobriety tests were requested. See State v. Jones, No. M2017-
00577-CCA-R3-CD, 2018 WL 1512063, at *4 (Tenn. Crim. App.
Mar. 27, 2018) (“In order to be essential to the establishment of
probable cause, the false statement must be the only basis for
probable cause or if not, the other bases, standing alone, must
not be sufficient to establish probable cause.” (quotation
simplified)); see also United States v. Blakeney, 949 F.3d 851, 859
(4th Cir. 2020) (determining that driver error, the odor of alcohol
emanating from the vehicle, and a suspect’s combativeness were,
when taken together, “sufficient to establish probable cause” to
support a blood-draw warrant); State v. Barber, 681 A.2d 348,
351–52 (Conn. App. Ct. 1996) (“It was not unreasonable for the
magistrate to believe that a criminal offense had taken place on
the basis of the facts that the defendant was operating a
motorcycle with an unobstructed view of the road, failed to
observe a motor vehicle stopped in the road with its lights on in
time to avoid the collision, had a strong odor of liquor on his
2. In his rule 23B motion, Sanchez denies that he made a
statement to Officer that he had been drinking, and he asserts
that he informed trial counsel of this alleged falsity and that
counsel failed to make that argument in the second motion to
suppress. But we fail to see how this admission would have
made a difference to the probable cause calculation for the
warrant. Even if his trial counsel had successfully argued that
Sanchez’s drinking admission should not have been included in
the affidavit, the other facts set forth in the affidavit that
supported probable cause were still sufficient for the warrant to
be issued. See Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182(stating that “failure to establish” deficient performance and
prejudice “is fatal to an ineffective assistance of counsel claim”).
20190250-CA 11 2020 UT App 158State v. Sanchez
breath and admitted to having been drinking alcohol shortly
before the accident.”); Nava v. State, No. 08-11-00127-CR, 2012
WL 3364230, at *4 (Tex. Ct. App. Aug. 15, 2012) (stating that the
refusal to submit to a breath test and an officer’s notes regarding
field sobriety evaluations, “together with reasonable inferences
derived from those facts, . . . provided the magistrate with a
substantial basis to determine that probable cause existed for the
issuance of the blood draw search warrant”).
¶24 “Here, considering the omitted information and purging
the information claimed to be misleading, we conclude that
[Officer’s] affidavit sufficiently demonstrates probable cause” to
support issuing the blood-draw warrant. See Doyle v. State, 995
P.2d 465, 472 (Nev. 2000). The affidavit had sufficient accurate
information, unchallenged by Sanchez, for the finding of
probable cause necessary for the issuance of the warrant, and the
alleged misstatements were unnecessary to establish probable
cause. Thus, we see no error in the district court’s denial of
Sanchez’s second motion for a Franks hearing to suppress
evidence. See id. (“A defendant is not entitled to suppression of
the fruits of a search warrant, even based on intentional
falsehoods or omissions, unless probable cause is lacking once
the false information is purged and any omitted information is
considered.”).
CONCLUSION
¶25 Because Officer had probable cause to arrest Sanchez, the
district court did not err in denying Sanchez’s motion to
suppress. We also conclude that any alleged inaccuracies in the
warrant affidavit were inconsequential to the issuance of the
warrant.
¶26 Affirmed.
20190250-CA 12 2020 UT App 158