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Show THE DAILY RECORD PAGI TWO & & 11 ' i 'TUESDAY, AUGUST 21, 1973 - i In The Supreme Court Of The State Of Utah The State of Utah, Plaintiff and Respondent, August 13, 1973 David Kaae, Keith Wayne Ewer and Michael Horne, Defendants and Appellants. 376 U.S. 364; Cooper v. Calif., 386 U.S. 58; Utah 2d 272, 444 P.2d 517. 4. See Ker v. Calif. , 374 U.S. 23; State v. Richards, 26 Utah 2d 318, ' , 489 P. 2d 442. ,5. State v. Tuttle, 16 Utah 2d 288, 399 P.2d 580; State v. Sherrick, 98 Aris. 46, 402 P.2d 1; and cf. , Johnson v. U.S. , 333 U.S. 10; People v. Duren, 107 Cal. Rptr. 157, 507 P. 2d 1365. U. C. A. 1953, states: . . A peace officer may . . . 6. Sec. without a warrant, arrest a person: (4) When a felony has in fact been and he cause has reasonable for committed, believing the person arrested to " have committed it. 7. Harris v. U. S. , 390 U.S. 234, 88 S. Ct. 992 (I960); State v. Eastmond, 28 Utah 2d 129, 499 P.2d 276. 8. Citing Wong Sun v. U. S. , 371 U.S. 471. 9. State v. Ringo, 14 Utah 2d 79, 377 P. 2d 646. State v. Criscola, FILED v. Preston v. United States, 3. No. 12904 . . Clerk L. M. Cummings, 77-13- CROCKETT. Justice: x David Kaae, Keith Ewer and Michael Horne, were e burglary and grand larceny in connection n break-iat "Keith's Market" in Logan, Utah, and of merchandise a theft with on August 31, 1971. Prior to trial, the defendants moved to suppress certain evidence seised by the Logan police, and the statements they made to the police about it, on the ground thalt their constitutional rights had been violated. The trial court denied the motions. Thereafter, Keith Ewer pled burglary charge guilty to the charge of grand larceny and the second-degre- e was dropped as to him. Defendants Kaae and Horne agreed to submit their cases to the court on stipulated evidence, and were found guilty on both The defendants, each charged with 21 second-degre- ... -3, WE CONCUR: E. R. Callister, Jr. , Chief Justice counts. Defendants appeal, challenging the denial of their motions to suppress, stating two points: that the evidence was taken by an illegal search; x and that inasmuch as their confessions arose out of the claimed illegal search, 2 they should be deemed involuntary and inadmissible. F. Henri Henriod, Justice R. L. Tuckett, Justice On the morning of August 31, 1971, Keith Plowman discovered that f during the night the front door of his store had been broken into and that various merchandise was missing, including cigarettes, beer, toilet articles, razor blades, pencils and glue, valued in excess of $50. Three days later (September 3, 1971), Leon Wursten and Richard Wright, Logan police officers, acting on an informant's tip, went to the apartment rented and occupied by the defendant David Kaae. When they knocked at the door they were admitted by defendant Keith Ewer. They informed him they were police officers and that they would like to talk with David Kaae. A number of young people were in the apartment. Defendant Ewer took the officers to David Kaae, who was in the kitchen sitting beside a table. The officers noticed items lying on the kitchen table the same as some of the merchandise taken from "Keith's Market. " Officer Wursten then told David Kaae that they were aware of what was going on, and asked him if he wanted to show them where the rest of the stolen merchandise was. The officer's testimony was that defendant Kaae unhesitatingly and willingly agreed: . He took us around and showed where the different things were. He was pulling things out of the cabinets and taking the contraband out of the cabinets and starting to stack it up on the kitchen counter. ELLETT. Justice: (Concurring) concur but do not wish to be understood as believing that the defendants had any rights under the first eight amendments to the Federal Constitution. Those amendments were adopted solely as limitations on the newly created Federal Entity and were not applicable to the sovereign states; nor did the Fourteenth Amendment change that relationship in any manner whatsoever. I See cases cited in the annotation in 19 A. L. R. at pages Dyett v. Turner, 20 Utah 2d 403, 439 P.2d 266 (1968). 1. I - Leona Mae Keans Hagman, My ton Ut secretary, Intrmntn Mobile Sales; Liab, $6812.95; Asset, $5167.00; Ex, $3465. 00; 649 650 - Rulon S. Ball, 4290 U. 5700 S. Krns; watch repairmn; the burglary. 1. Art. I, Sec. 2. Art. 1, Sec. 651 f ' ' Const. Const. Const. ; Amendment In regard to his view of the evidence and his ruling upon the motion to 14, Utah 12, Utah Const.; Amendment IV, U. S. V, U. S. suppress, the trial court stated in part: think . . . that there was a consent and in fact an assistance in accomplishing the turning up of other evidence m the house, and on that basis I would deny the motion to suppress the evidence But 1 .... In considering the defendant's challenge to the view thus expressed, and the ruling made by the trial court, there are some principles to be had in mind. The constitutional safeguard against searches and seizures arose in order to protect the citizenry from highhanded and despotic intrusions into their privacy. When this charge is made the inquiry should be whether under persons, taking into the circumstances the seizure is one which affected individuals the of not by the search, but consideration only the rights and criminals, crime also the interests of the public in being 3protected from would regard it as being unreasonable. fair-jnind- Applying what has been said above, it appears that the trial court could adreasonably have regarded the evidence as showing: that the officers were mitted to tiie apartment, and did what they did therein, by consent;5 that they had knowledge that a felony had been committed, and that there was reasonable cause to believe that it had been committed by the defendant David Kaae. There was, therefore, justification for his arrest; and under the well- - ' inrecognized "plain sight" doctrine, there was justification for taking the We have perceived nothing to persuade us to upset the criminating evidence. ruling of the trial court that the evidence was lawfully seized. The second point argued by defendants is that their confessions arose out of the claimed illegal search and seizure and were therefore like unto the "fruit of a poison tree" and were not properly admissible in evidence. Two observations are pertinent. .First, the finding that there was no illegal search or arrest eliminates any "poison tree" upon which to predicate this aspect of - Marvin Ray Allle, 550 Sunset St. Tooele; pollcemn; Llab, $5147.08 ; Asset, $950.00 Ex, $400. Aug. 16 Manufacturing; Llab, $2,888.11; Asset, $330.00; Ex, $330.00; Aug. 16 657 - Wallace 1442 S. 600 E bility of a confession is whether under all of the circumstances shown it There is substantial and reasonable basis appears to have been voluntary. in the evidence to support the trial court's refusal to find otherwise as contended by the defendants. The convictions are each affirmed. No costs awarded. 4 William Holt, Bntfl; mechanc Pearson's Tire Co; Llab, $33,374.19; Asset, $10,265.64; Ex, $7,251.30; Aug. 17 tax Liens 521 809 811 812 259 Thomas 604 Ttey Inc $744.27 2550 152 Vestell L. Wright $3411.99 Engineering Service $634.97 635 Richard G, Doss $687.41 836 Richard Boss etux $931.01 NGTEt All tax liens are made to the United States Treasury Department tlynn Tlay Kan Jstell R, Ayre Kay Flynn $700.00 951 2551 052 Lyle T. Down to fiuttars to Insul Carp $400,00 June A. Robbins to Down Carp $430.00 053 . 098 2550 957 $3. 50 $914.14 John Elwood Dennett $412.10 $38285.00 153 Gamble Ilorendi etux to 050 254 etal Cross etux to David li. Jvdd to Robert R15 John Elwood Bennett $257.14 H, Dunworth i. liont A. Cowers $226,33 Capitol Enterprises to Larry Thornton $587. 12 Zions Security Ccrp to kartells Co Gordon Jones to etux $122.51 662 Insul Kenneth K. Hardman to Insul Down Corp $476,00 The 656 etal Doan 0RP David J. Wagstaff $6400.00 Sleverts to Lauren Gatehouse Const to Arlo 511 Herbert R, Hanks 055 . $73.00 Durt Inc $387.00 054 $53.33 .97 Dr James 236 Western Community Construction $4332.21 John Elwood llennett Jl ) J. Johnson etal to Manufacturing I etux to Engineerin'' and A Cr.e $904.08 810 Industries Donald 183 J. 652 - Ray McCarty, 4336 S. Main Murray, framer, Lofgren their argument. Second, and more fundamental: the test as to the admissi- v Kay Aug. 16 ed Inherent in the nature of the judge's role in charge of the trial is the necessity that he have the prerogative of making preliminary determinations upon questions of fact upon which the admissibility of evidence depends. In reviewing his rulings we assume that he believed those aspects of the evidence, and drew the inferences that could reasonably be drawn therefrom which support his conclusions. 4 141 Aug. 16 valley jewelry & watch Repair; Llab, $19,414.79; Asset, $18,211.20; Ex, $.,311.52; . Liens itorer j. Taylor Bankruptcies The officers then arrested Kaae and gave him the "Miranda warning"; and took possession of the stolen merchandise. Defendant Kaae subsequently gave a written statement as to his part in the burglary. Ewer and Horne were arrested at a later time and also gave written statements as to their parts in - see also 644-- 6; Dan Fogle Ralph Peterson etux to David W. Taylor $1580.00 Financing Statements 890 - SLC to quality Accept Don Vosa Co, 633 3rd Ave Corp; equip 891 - Sweetwater Reaorta, 555 E.2nd S. SLC to Deaeret Lea sin; Co; equip 892 - Clifford R. 3302 Highland Dr. Leaning ; Phlppa, SLC to KFT equip 893 - Clinton Carrier, 2220 Unlv Clb Bldg SLCto MET Lea a In; equip 895 235 - P.C, "Greg" Gregaon S. 500 E. SLC to Deaeret Leaning Co; equip I I a. |