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Show MONDAY, APRIL 8, 1974 PAGE FIVE INTERMOUNTAIN COMMERCIAL RECORD In The Supreme Court of The State Of Utah No Merit to Claimed Lower Court Error following instruction given by the court: The State of .Utah, Plaintiff and Respondent, No. 13518 Counsel: Vernon B. Romney William W. Barrett v. Jack Tolman Campbell, All persons concerned in the commission of a crime .who either directly and actively commit the act constituting the offense or who knowingly and with criminal intent aid and abet in its commission, or whether present or not, who advise and encourage its commission, are regarded by the law as principals in the crime thus committed and are equally guilty thereof. FILED March 21, 1974 Defendant and Appellant. Counsel: t BLEDegaLJJefendel,s L. M. Cummings, Clerk ELLETT. Justice: to the issues is Ordinarily an abstract statement of law not related 2 to the an instruction not proper to be given as jury. However, the The defendant appeals from a conviction of forgery and the sentence based thereon. He does not claim that the crime of forgery'was not proved but makes only the following assignments of error: 1. 2. U. C.A. 1953. 47 Utah 7. 151 P. 518 (19151. State v. Baum, Section 76-26-- 6, instruction given in the instant case was not prejudicial and could not have adversely affected the verdict. The fact that the defendant told the officer that the companion found the check and they went into the House of Music to cash it might give a basis for an inference that he was only assisting his The court below committed prejudicial error when it instructed the jury on aiding and abetting because there was no evidence to support the 1. instruction. companion. 2. The court below committed reversible error in failing to instruct the jury on appellant's theory or position of the case. As to the second assignment of error, the defendant requested that the following instruction be given to the jury: check for some merchandise to The defendant presented a two-par- ty a clerk in a retail store, and the clerk took the check to the manager for approval. The manager called the police, and when the clerk explained to the defendant that the manager was talking on the phone and that there would be a slight delay, the defendant demanded the return of the check saying.he could cash it elsewhere. Another man was with the defendant but left the Evidence has been presented in this case that Mr. Campbell did not have any intent to defraud the House of Music. This evidence does not have to be proved by Mr. Campbell to any particular degree, as the burden remains with the State throughout to prove each element reasonable doubt. However, if because of the alleged offense beyond of the circumstances of the cashing of the instrument, you have a reasonable doubt that Mr. Campbell had the necessary intent to defraud the House of Music, you must acquit him. . i store just moments before the clerk returned from the manager's office. As the defendant was leaving the store, two policemen arrived, and the companion of defendant who was standing outside began to run. He was captured by one of the policemen. The defendant was accosted and requested to return to the store. The officer testified that the defendant told him that the companion told him (the defendant) that he had found the check. The court sufficiently covered this point, and there is no merit to this claim of error. The judgment and sentence are affirmed. The information under which the defendant was charged alleged that the defendant and his companion "did have in his sic possession a forged bank bill, knowing the same to be forged with intent to pass the same, with intent to defraud the House of Music, Inc. 1,1 To that charge the defendant entered a plea of not guilty. panion entered a' guilty plea and is not a party to this appeal. first As to the assignment of His com-- FILED March Diane Spieak, j Defendant and Appellant. Counsel: J. Francis Valerga" ' R. L. Tuckett, Justice Search Justified No. 13454 Vernon B. Romney Earl P. Dorius 21 . 1974 L. M. Cummings, Clerk CALLISTER, Chief Justice: Defendant appeals from her conviction by the court of the crime of manufacturing a Schedule I controlled substance, marijuana. She was sentenced to five years imprisonment, but the trial court suspended the execution of the sentence and placed her on probation for two years. Pursuant to a search warrant, the police entered the dwelling where defendant was present and seized three containers in which six marijuana plants were growing. Defendant filed a motion to suppress this evidence on the ground that it was the product of an unreasonable search. Defendant's U. C. A. 1953, claim was predicated on the theory that Section as amended 1967, was unconstitutional, wherein the issuing magistrate is authorized to insert a direction in a search warrant that the officer executing it shall not be required to give notice. The trial court denied the motion and ruled that said statute did not violate defendant's rights under the Fourth Amendment of the Constitution of the United States, Defendant appeals there 77-54-9- (2), 3 In People v. DeLago, the defendant, as in the instant case, urged that the search warrant was void under the Fourth Amendment for dispensing with the need for notification. Under Section 799, Code of Criminal Procedure (New York), a judge issuing a warrant may direct that the officer executing it shall not be required to give notice, however, "only upon proof under oath, to his satisfaction, that the property sought may be easily and quickly destroyed or disposed of, . . . if such notice were to be given." The court observed that in the affidavit it was represented that gambling materials were likely to be found at the subject location, and the issuing court could take judicial notice that contraband of that nature was easily secreted or destroyed, if persons in possession thereof were notified in advance that the premises were about to be searched. Under this circumstance the court considered the inclusion of the no notice direction reasonable. The court stated: from. - in a supporting affidavit, pursuant to which the search warrant was issued, the police officer swore that he went to the subject residence, where he observed through the windows marijuana growing. He further saw a young lady with a spoon, spading around the plants and watering them. The affiant further stated that the said narcotic drug might be easily and quickly disposed of. Based thereon, the magistrate issued the search warrant with the direction. The trial court found that the executing officer knocked but did not state his authority. The record indicates that defendant, her family, and a friend were seated in the living room, watching television at approximately. 8:00 p.m. The door was partially open, and the executing officer walked in with three other officers. A search pursuant to the warrant was thereupon conducted, and the plants and their containers were seized. "no-knoc- k" 77-54- -9, U. C. A. 1953, as amended 1967, provides: If, after notice of his authority and purpose, he is refused admittance; or (2) Without notice of his authority and purpose, if the 'judge, justice or magistrate issuing the warrant has inserted a direction therein that the officer executing it shall not be required to give such notice. The. judge, justice or magis- -' trate may so direct only upon proof under oath, to his satisfaction that the property sought is a narcotic, illegal drug, or other similar substance which may be easily and quickly destroyed or disposed of, or that danger to the life or limb of the officer or any other may result, if such notice were to be given. Defendant contends that the foregoing statute is unconstitutional on the direction in a warrant for a particular ground that it authorizes a type of offense, namely, narcotics, rather than requiring proof that destruction or disposal is reasonably probable in the particular case. "no-knoc- k" . . . Even though there is nothing in the affidavit to show specifically how or where these gambling materials would be likely to be destroyed or removed, the likelihood that they would be was an inference of fact which the Judge signing the warrant might draw. The portion of section 799 of the Code of Criminal Procedure authorizing the inclusion of this provision in the search warrant is held to comply with the Fourth Amendment to the Constitution of the United States.4 U. C. A. 1953, as amended 1967, provides for an a neutral party (a magistrate) to determine whether under objective inquiry by the facts, a direction to dispense with notice may be included in a search warrant. In the instant action, the issuing magistrate could reasonably infer from the facts stated in the affidavit that the marijuana observed by the police could be easily and quickly destroyed, thus fulfilling the statutory requirements.' These circumstances provided ample justification to dispense with notice in the Search warrant, and the entry pursuant thereto cannot be deemed unlawful and in violation of the standard of reasonableness of the Fourth Amendment. 5 Section 77-54-9- The judgment of the The officer may break open any outer or inner door or window of a house, or any part of a house or anything therein, to execute the warrant: (1) 1 Ker v. California, the court held that where there was justification' for the officer's failure to give notice under the particular circumstances, this method of entry was not unreasonable under the standards of the Fourth Amendment as applied to the states through the Fourteenth Amendment. The significant factor cited to support justification for the officer's failure to give notice was the belief that Kef was in possession of narcotics, which could be quickly and easily destroyed. There was no indication in the opinion that Ker had' 2 made any plans or attempts to destroy the evidence (marijuana). In American Fork, Utah Section Chief Justice F. Henri Henriod, Justice error, the appellant complains of the Plaintiff and Respondent, Jr., J. Allan Crockett, Justice "No-Knoc- k" v. E. R. Callister, , State of Utah, Counsel: WE CONCUR: trial court is affirmed. WE CONCUR: Ellett, Justice F. Henri Henriod, Justice A. H. J. Allan Crockett, Justice R. L. Tuckett, Justice 1. 2. 374 U.S. 23, 40, 10 L. Ed. 2d 726, 742, 83 S.Ct. 1623 (1963). The opinion of Justice Clark has been subject to criticism as countenancing a "blanket" exception to the announcement. requirement for certain offense categories, 80 Yale L.J. , 139 160, Announcement in Police Entries (1970). Nevertheless, his opinion remains the subsisting law. 3. 16 N. Y. 2d 289. 266 N. Y. S. 2d 353, 213 N. E. 2d 659 (1965), cert. den. 383 U.S. 963, 16 L.Ed. 2d 305, 86 S.Ct. 1235 (1966). 4. Significantly, certiorari was denied in this case, which adhered to the standard set forth by Justice Clark in Ker v. California. 5. Defendant's reliance on decisions from California appears misplaced, since that jurisdiction has no similar statutory enactment. In Parsley v. Superior Court of Riverside County, 109Cal.Rptr. 563, 513 P. 2d 611, 615 (1973), the court held authorization, a magistrate is without power to give prior that, without legislative authorization to make an unannounced entry under a search warrant. |