State v. Gonzalez

2021 UT App 83

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellant,
v.
JONATHAN A. GONZALEZ,
Appellee.

Opinion
No. 20190810-CA
Filed July 29, 2021

Second District Court, Farmington Department
The Honorable David R. Hamilton
No. 181702012

Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellant
Joseph Jardine and Peter D. Goodall, Attorneys
for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES
GREGORY K. ORME and DAVID N. MORTENSEN concurred.

POHLMAN, Judge:

¶1 In the middle of the night, an intruder entered Christina’s1
bedroom while she and her baby slept. He performed a lewd act
while holding his cell phone and then left without further
incident. After an investigation, the police believed Jonathan A.
Gonzalez was the intruder and applied for a search warrant to
obtain the cell tower location data for his cell phone. Based on an
officer’s supporting affidavit, a magistrate granted the request.
Armed with evidence obtained as a result of the search and its
fruits, the State charged Gonzalez with burglary, lewdness

1. A pseudonym.
 State v. Gonzalez

involving a child, and lewdness. Gonzalez moved to suppress
that evidence, arguing that the attesting officer had recklessly
omitted material facts from the search warrant affidavit and that
with the omitted material included, the affidavit did not support
a finding of probable cause. The district court agreed with
Gonzalez and granted his motion. Because we conclude that
probable cause still exists with the inclusion of the omitted facts
identified by the district court, we reverse.

BACKGROUND

¶2 After tossing and turning for several hours late at night,
Christina finally dozed off while her baby lay sleeping in the
same room. Christina’s husband was away, working a twelve-
hour shift. When he returned home early the next morning, he
noticed that several things appeared to be amiss. With his
curiosity piqued, Christina’s husband checked the surveillance
footage on the couple’s nanny cam, which was positioned in
their bedroom. The nanny cam footage showed, at 3:42 a.m., a
figure walking through the dark bedroom where Christina and
the baby slept.

¶3 While the intruder moved through the room, he removed
his penis from his pants and proceeded to masturbate in the
presence of Christina and the baby. While performing the lewd
act, the intruder held a cell phone in his left hand, possibly
taking pictures or recording a video. Also visible on the footage
was a wedding ring worn on the intruder’s left hand. Then, as
abruptly as he entered, the intruder left.

¶4 The nanny cam never captured the intruder’s face; he
could be seen only from the chest down, wearing what appeared
to be a light-colored hoodie and dark pants. Christina slept
unaware of the entire incident and remained asleep until her
husband woke her up. After viewing the footage, the couple
reported the incident to the police.

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¶5 From the beginning of their investigation, the police
suspected that the intruder was someone familiar with Christina
and her home. For one thing, there was no sign of forced entry;
all the exterior windows and doors were locked. Also, another
person living in the home reported hearing the garage door open
and close multiple times during the same early-morning time
frame over the prior month, but Christina’s husband stated that
he had “never repeatedly opened and closed the garage door”
when coming home from work. And when the police first
arrived at the scene, the cover to the garage keypad was partially
opened, leading the police to suspect that the intruder gained
access to the home through the garage.

¶6 A police lieutenant (Lieutenant) reviewed the nanny cam
footage with Christina and asked her if she had any idea who
the intruder might be. Christina first suggested her brother-in-
law, stating that the intruder “looks similar to her brother-in-
law, but that he doesn’t wear a wedding ring, which the intruder
wore.” Next, she identified Gonzalez, a close family friend. She
revealed to Lieutenant that “several years” ago she had fallen
asleep on the couch and that she had woken up to find Gonzalez
“snuggled up to her,” in a “spooning-type position.” She also
said that “she believed” that Gonzalez’s wife, also a close friend,
“would have had the garage code to her home.”

¶7 Later that day, Lieutenant visited the Gonzalezes’
residence and met with Gonzalez’s wife. Gonzalez’s wife had
seen the nanny cam footage and was concerned for her friend.
She gave Lieutenant permission to search areas of the home
where Gonzalez had clothing, and Lieutenant looked for
clothing items matching what he thought the intruder was
wearing in the nanny cam footage—very dark pants and a light-
colored hoodie. Lieutenant performed a brief search of two
separate closets where he took “quick, cursory glances through
the clothing,” but he did not find any items that matched the
intruder’s clothing. Because Lieutenant wanted to keep the

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interaction “low-key,” he spent less than a minute searching
each closet.

¶8 Eventually, a detective (Detective) took over the
investigation. Lieutenant briefed him on its status, including
Lieutenant’s search of the Gonzalezes’ home. Lieutenant also
told Detective about the incident of Christina waking up to find
Gonzalez lying next to her. After familiarizing himself with the
rest of the case, Detective went to interview Christina.

¶9 During their conversation, Christina again suggested both
her brother-in-law and Gonzalez as possible suspects. Referring
to her brother-in-law, she told Detective that “the body type [in
the footage] looks like his.” But she also expressed doubt that the
intruder could be her brother-in-law because he was not married
and the intruder wore a wedding ring. In addition, she noted
that her brother-in-law did not own a cell phone like the one the
intruder was seen holding in the footage. Finally, Christina
stated that her brother-in-law “is just not that kind of person.”

¶10 Referring to Gonzalez, Christina pointed out
characteristics that suggested he could be the intruder, such as
“his features are long and his hands look long.” But she further
observed that the intruder’s “legs looked too short to be”
Gonzalez’s, while also speculating that the angle of the nanny
cam may be to blame. She also led Detective to believe that she
was “very apprehensive” about pointing the finger solely at
Gonzalez for fear of harming her friendship with his wife.

¶11 On the same day Detective interviewed Christina, he
discovered that the nanny cam inverted colors of clothing
depicted in its footage—light-colored items appeared dark and
dark-colored items appeared light. For example, the nanny cam
reflected the black slacks worn by Detective as “pretty much
pure white.”

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¶12 The next day, Detective found Gonzalez in his driveway
and asked to speak with him. Detective observed that Gonzalez’s
physical “body type seemed very similar” to that of the
intruder’s and that “[h]is hands . . . appeared to be very similar,
[including] the way that the ring sat on the ring finger.”
Detective also noticed that Gonzalez used his left hand to hold
his cell phone, the same way the intruder did in the nanny cam
footage.

¶13 After the encounter with Gonzalez, and after learning that
the nanny cam inverted colors, Detective viewed photographs of
Gonzalez on Gonzalez’s wife’s Facebook page. Detective
observed from the photos that Gonzalez’s body type was similar
to that of the intruder in the nanny cam footage, Gonzalez and
the intruder shared the same hand structure, and Gonzalez wore
his wedding ring in the same location on his finger as the
intruder.

¶14 Having concluded that Gonzalez was the intruder in the
nanny cam footage, Detective drafted an affidavit to secure,
among other things, the addresses of cell towers that “ping[ed]”
Gonzalez’s cell phone during and around the time that the
intruder had broken into Christina’s home. In that affidavit,
Detective stated,

On 05/14/18, Layton City Police began to
investigate a residential burglary. At
approximately 0342 hours, the suspect unlawfully
entered the residence and walked into a
downstairs bedroom where a woman and her
infant child were sleeping. The suspect was
captured on surveillance (never showing the
suspect’s face) performing what appears to be lewd
acts with his penis. The suspect was holding a cell
phone in his left hand near his penis during the

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lewd act and it appeared the suspect was taking
photographs inside the room or video recording.

There wasn’t any forced entry into the residence
and the doors and windows were still locked.
Based on the circumstances of the burglary it is
believed that the suspect was familiar with the
victim and also the residence. Another resident
reported hearing the garage door opening and
closing multiple times during the same time frame
for approximately the last month. This resident
talked to the victim’s husband who stated he never
repeatedly opened and closed the garage door
while arriving home from work during these time
frames. When officers initially arrived on scene to
check for any suspects, the cover to the garage key
pad was partially opened and it is believed the
suspect may have used the garage code to access
the residence.

It is believed a close family friend, Jonathan
Gonzalez, may be the suspect in this case. This
belief is based on a previous inappropriate incident
provided to police by the victim, which involves
Jonathan. Jonathan also matches the physical
description of the suspect captured on surveillance.
Jonathan’s wife and the victim’s husband also
work together and are on opposite shifts.
Jonathan’s wife works 4 AM to 4 PM and the
victim’s husband works 4 PM to 4 AM. This
conflicting work schedule would provide Jonathan
the ability to be at the victim’s residence without
his wife or the victim’s husband being home.
Jonathan also lives approximately two miles from
the victim’s residence.

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A check was done of Jonathan’s wife’s public
Facebook photograph page. There was an image
that showed Jonathan’s wedding ring. There was
also an image that showed Jonathan’s right hand.
Jonathan’s wedding ring on the Facebook
photograph page and position of the ring on the
finger was similar to the suspect’s ring on the left
hand and its position on his finger. Jonathan’s right
hand structure and finger length is also similar to
the suspect’s left hand and finger length as it is
depicted in the video surveillance.

I later met with Jonathan to conduct an interview.
While trying to talk with him, he was using his left
hand to hold his cell phone. The suspect in the
surveillance footage used his left hand to hold the
cell phone while committing the lewd acts.

¶15 Detective did not provide in this affidavit any additional
details about the “previous inappropriate incident” Christina
had described. Nor did he divulge that Lieutenant had engaged
in an unsuccessful search for clothing at Gonzalez’s home.
Detective also omitted any mention of Christina naming her
brother-in-law as a possible suspect or her statement that the
intruder’s legs appeared to be shorter than Gonzalez’s.

¶16 Based on the affidavit, the magistrate issued a search
warrant, and the police obtained the cell tower location data for
Gonzalez’s cell phone. Using those records, the police
determined that Gonzalez was “at or near” Christina’s home
during the time of the burglary. With this new information, the
police obtained a second search warrant allowing them to search
Gonzalez’s home. With evidence gathered from both searches,
the State charged Gonzalez with burglary, lewdness involving a
child, and lewdness.

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 State v. Gonzalez

¶17 Gonzalez subsequently moved to suppress the evidence
gathered through execution of the two warrants. He argued that
the supporting affidavit for the first warrant was misleading
because it omitted relevant evidence that negated probable
cause. After hearing argument on the motion, the district court
ordered an evidentiary hearing (Franks hearing) as provided in
Franks v. Delaware, 438 U.S. 154 (1978), and State v. Fuller, 2014
UT 29, 332 P.3d 937. See 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.” (cleaned up)).

¶18 Following the Franks hearing and additional argument,
the district court granted Gonzalez’s motion to suppress. It
found that Detective had “recklessly omitted” three pieces of
“material information” that affected the probable cause
determination. “First, the affidavit omitted the prior consensual
search of [Gonzalez’s] home . . . .” “Second, the affidavit omitted
both [Christina’s] statements of equivocation and her
identification of a brother-in-law as matching the physical
description of the suspect.” “Third, the affidavit cryptically
explains that [Gonzalez] is a suspect in this case because of ‘a
previous inappropriate incident provided to police by
[Christina], which involves [Gonzalez]’ and omitted relevant
information that this ‘previous inappropriate incident’ occurred
several years prior and what was the actual conduct.” The court
concluded that had the omitted information been included in the
cell tower warrant affidavit, it “would have failed to support a
finding of probable cause.” The court thus voided both search
warrants and suppressed all evidence obtained under them.

¶19 Without the evidence from the two searches, the case was
dismissed. The State now appeals.

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ISSUE AND STANDARDS OF REVIEW

¶20 On appeal, the State contends that the district court erred
by granting Gonzalez’s motion to suppress evidence for two
reasons. First, the State argues that Detective was not reckless in
omitting the three pieces of information identified by the district
court. Second, the State argues that even if Detective’s omission
was reckless, probable cause for the search of the cell tower
records still exists when those facts are included. This court
reviews a district court’s ruling on a motion to suppress for an
alleged Fourth Amendment violation as a mixed question of law
and fact. State v. Fuller, 2014 UT 29, ¶ 17, 332 P.3d 937. Its factual
findings are reviewed for clear error, and its legal conclusions,
including whether the affidavit in support of a search warrant
was sufficient to support a probable cause determination, are
reviewed for correctness. See id.; see also State v. Tripp, 2010 UT 9,
¶ 23, 227 P.3d 1251 (reviewing a district court’s ruling on a
motion to suppress, “including its application of the law to the
facts,” for correctness).

ANALYSIS

¶21 The Fourth Amendment to the United States Constitution
protects “against unreasonable searches and seizures” and
mandates that “no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to
be seized.” U.S. Const. amend. IV.

¶22 “The responsibility for issuing warrants and for meeting
the pertinent constitutional requirements that underlie their
issuance rests with the magistrate, a neutral and detached party
who independently determines whether probable cause exists to
support a search.” State v. Nielsen, 727 P.2d 188, 190 (Utah 1986).
A magistrate, however, must rely on the representations of the
investigating officer, who sets forth in the warrant affidavit the

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facts the officer contends are sufficient to meet the probable
cause standard. See id.; see also Franks v. Delaware, 438 U.S. 154,
164–65 (1978). Although it is not necessary that every fact recited
be correct, the affidavit must be truthful “in the sense that the
information put forth is believed or appropriately accepted by
the affiant as true.” Franks, 438 U.S. at 165.

¶23 A defendant may seek to invalidate a search warrant for
lack of probable cause based on false statements in the
supporting affidavit made “knowingly and intentionally, or with
reckless disregard for the truth,” by requesting an evidentiary
hearing—a Franks hearing—to prove that claim. Id. at 155–56.
The same is true if the affidavit is misleading due to the
intentional or reckless omission of material facts. See Nielsen, 727
P.2d at 191 (“By an extension of reasoning, the same test applies
when a misstatement occurs because information is omitted
. . . .”); see also State v. Fuller, 2014 UT 29, ¶ 25, 332 P.3d 937.

¶24 To receive a Franks hearing for an alleged factual
omission, a defendant must, by a “detailed offer of proof,” (1)
make a “substantial showing that the affiant intentionally or
recklessly omitted facts required to prevent technically true
statements in the affidavit from being misleading” and (2)
demonstrate “that the affidavit if supplemented by the omitted
information would not have been sufficient to support a finding
of probable cause.” Fuller, 2014 UT 29, ¶ 25 (cleaned up). If a
defendant satisfies this threshold burden, the defendant is
entitled to a hearing but then “must prove by a preponderance
of the evidence both that the omission in the affidavit was
material and that the critical information was intentionally or
recklessly excluded.” Id. ¶ 26. In other words, even if a
defendant proves that an affiant intentionally or recklessly
omitted material information from a search warrant affidavit,
the resulting warrant is still valid unless the defendant also
proves that probable cause would not exist with the inclusion of
the omitted information. See Nielsen, 727 P.2d at 191 (“The

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obvious purpose of Franks and its progeny is to avoid
suppressing evidence when the actual facts, if known to the
magistrate, would have resulted in a finding of probable
cause.”).

¶25 Here, the district court granted Gonzalez’s request for a
Franks hearing and voided the search warrants issued in this case
based on its determination that Detective “recklessly omitted
material information that would have been critical to the finding
of probable cause.” Pointing to the three omissions mentioned
previously, see supra ¶ 18, the court reasoned that “had the
omitted information been provided the affidavit would have
failed to support a finding of probable cause.”

¶26 The State challenges the district court’s determination on
two grounds. First, the State argues that Detective did not
recklessly mislead the magistrate by omitting the three pieces of
information identified by the district court. Second, the State
maintains that even if information was recklessly omitted, “the
affidavit establishes probable cause even when the omitted facts
are considered.” Without resolving whether the evidence
supported the district court’s determination that Detective was
reckless in his three omissions, we disagree with the court’s
probable cause determination. As explained below, we conclude
that probable cause still exists even if the three omitted facts are
considered as part of the warrant affidavit. To put those
omissions in context, we first describe the probable cause
standard and the basis for the magistrate’s decision that the
standard had been met. We then analyze whether probable
cause exists with the three omissions included.

A

¶27 The probable cause standard imposed by the Fourth
Amendment is not a rigid one. See State v. Moreno, 2009 UT 15,
¶ 37, 203 P.3d 1000; see also Ornelas v. United States, 517 U.S. 690,
696 (1996) (describing probable cause as a fluid concept). The

20190810-CA 11 2021 UT App 83
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standard is satisfied where “the known facts and circumstances”
suffice to permit a person “of reasonable prudence” to believe
that a search will reveal evidence of a crime. Moreno, 2009 UT 15,
¶ 37 (cleaned up); see also Fuller, 2014 UT 29, ¶ 22 (“The
information necessary to show probable cause . . . does not
require proof beyond a reasonable doubt; a magistrate need only
have a substantial basis for concluding that a search would
uncover evidence of wrongdoing.” (cleaned up)). The task of
determining probable cause requires a “totality-of-the-
circumstances analysis”: “whether, given all the circumstances
. . . , there is a fair probability that contraband or evidence of a
crime will be found in a particular place.” Illinois v. Gates, 462
U.S. 213, 238 (1983).

¶28 Detective sought cell tower location data for Gonzalez’s
cell phone, and based on the facts Detective presented, the
magistrate found that there was probable cause to conclude that
a search of the cell phone records would uncover evidence of the
burglary. The affidavit on which the magistrate relied explained
why Detective believed the intruder was familiar with the
residence and then described Gonzalez as a close family friend
who had been involved in “a previous inappropriate incident”
with Christina. Detective also stated that Gonzalez “matches the
physical description of the suspect captured on surveillance,”
and he explained how he had compared Gonzalez’s hand
structure and ring placement to that of the intruder as shown on
the nanny cam footage and found that they were similar.
Detective also explained that when he met Gonzalez, he
observed that Gonzalez held his cell phone in a manner similar
to the intruder. Finally, Detective described how the work
schedule for Christina’s husband would present Gonzalez with
an opportunity to enter Christina’s residence at a time her
husband would not be home.

¶29 Gonzalez does not contend that Detective’s affidavit, if
truthful, failed to satisfy the probable cause standard with

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regard to cell tower location data from the day of the burglary.2
Instead, he contends that because certain facts were omitted
from the affidavit, it was misleading and failed to establish
probable cause.

B

¶30 The district court shared Gonzalez’s view that the
affidavit was misleading and concluded that Detective’s
omission of three facts altered the probable cause equation. We
disagree with Gonzalez and the district court. We conclude that
even with the omitted facts added, the affidavit still readily
supports the determination that there is probable cause to
believe Gonzalez was the intruder and that evidence of his crime
would be found in the cell tower location data for Gonzalez’s cell
phone.

2. As part of an apparent invitation to this court to affirm on
alternative grounds, Gonzalez argues that the search warrant
lacked probable cause to the extent it authorized the collection of
prospective cell tower location data for Gonzalez’s phone (data
the State never analyzed). We decline to affirm on this basis
because Gonzalez has not shown that the proper remedy for an
alleged overbreadth infirmity is to suppress data seized
pursuant to the valid portions of the warrant. See generally United
States v. Richards, 659 F.3d 527, 537 (6th Cir. 2011) (“Infirmity due
to overbreadth does not doom the entire warrant; rather, it
requires the suppression of evidence seized pursuant to that part
of the warrant, but does not require the suppression of anything
described in the valid portions of the warrant.” (cleaned up));
State v. Romero, 660 P.2d 715, 717 (Utah 1983) (“The exclusionary
rule does not require the suppression of otherwise legally seized
evidence merely because it was obtained in the same search as
evidence illegally seized. Only the evidence that was illegally
seized should be suppressed.” (cleaned up)).

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 State v. Gonzalez

1

¶31 The first omission the district court identified as material
to the probable cause determination was the consensual search
of two closets in Gonzalez’s home. The court found that
Lieutenant had made Detective aware that Gonzalez’s wife had
given him permission to search “areas of the home where
[Gonzalez] had clothing”3 and that Lieutenant had made “quick,
cursory glances through the clothing.” The court also found that
after the search, police officers discovered that the nanny cam
“inverted colors so the clothes Lieutenant . . . had been searching
for were the wrong colors.”

¶32 The affidavit may have been more complete had Detective
informed the magistrate about the unsuccessful, consensual
search, but once the circumstances of the search are put in
context, the fact of the search does not undermine the probable
cause determination. After all, Lieutenant’s search was limited in
scope and, even more importantly, he was searching for the
wrong color of clothes. Lieutenant was unaware when he was
glancing through Gonzalez’s closets that the nanny cam inverted
colors. As a result, when he should have been looking for light-
colored pants and a dark hoodie, he was searching for the exact
opposite. Thus, because Lieutenant was not looking for the right
clothing, the fact that he searched but did not find what he was

3. The district court found that Lieutenant looked through “a
hallway closet, bedroom closet, and dresser.” The State
challenges the court’s finding that Lieutenant looked through a
dresser as against the clear weight of the evidence. Although not
critical to our analysis, we agree with the State’s assessment of
the evidence. Lieutenant testified that he briefly looked through
two closets, but he never mentioned a dresser. Accordingly, we
set aside the court’s finding that a dresser was part of
Lieutenant’s search.

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 State v. Gonzalez

looking for is immaterial and does not alter the probable cause
determination.

2

¶33 The second omission the district court identified as
material was Christina’s “statements of equivocation” regarding
Gonzalez and her suggestion that her brother-in-law matched
the intruder’s physical description. Specifically, the court found
that Christina had expressed uncertainty to Detective about
whether Gonzalez was the intruder, citing her doubt about
whether the length of Gonzalez’s legs matched that of the
intruder. The court also found that Christina had explained that
the intruder looked similar to her brother-in-law except that
unlike the intruder, her brother-in-law did not wear a wedding
ring.4

4. The district court also found that at the time she was
interviewed by the police, Christina “believed the physical
description [of the intruder] more closely aligned with her
brother-in-law.” Once again, the State asks that we set this
finding aside as clearly erroneous because it is against the clear
weight of the evidence. Although we agree with the State that
there is no direct evidence that Christina expressed the opinion
attributed to her by the district court, it may be that the court
drew this inference based on her testimony about the differences
in body type. Because this inference is not an unreasonable one
to make, we decline to set the finding aside. See State v. Maestas,
2012 UT 46, ¶ 201, 299 P.3d 892 (“In those instances in which the
trial court’s findings include inferences drawn from the
evidence, we will not take issue with those inferences unless the
logic upon which their extrapolation from the evidence is based
is so flawed as to render the inference clearly erroneous.”
(continued…)

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¶34 In isolation, this omission weighs against the probable
cause determination. Detective should have advised the
magistrate that Christina had identified a second potential
suspect and questioned whether the intruder’s legs were “too
short” to be Gonzalez’s. But in determining probable cause,
Christina’s statements must be considered in context and with
the totality of all the relevant facts. And when properly
considered and viewed alongside all the other evidence,
Detective’s omissions do not undermine probable cause.

¶35 First, although Christina observed that the intruder’s legs
looked “too short” to be Gonzalez’s, she offered a reasonable
explanation for the discrepancy: the angle of the nanny cam.
Also, in her interview with Detective, Christina identified
physical characteristics of the intruder that did match
Gonzalez’s, such as his long features and his long hands. And
despite Christina’s reservation regarding the length of the
intruder’s legs, she did not retreat from her suspicion that the
intruder could be Gonzalez. She expressed reservation only
about accusing a close family friend.

¶36 Second, Detective had his own observations to rely on as
well. He met with Gonzalez and noticed that he held his cell
phone in his left hand just like the intruder. Detective also
viewed photographs of Gonzalez on Facebook and believed that
Gonzalez’s hand was similar to the intruder’s, including the way
he wore his wedding ring.

¶37 Third, although Christina suggested her brother-in-law as
a potential suspect because “the body type [in the nanny cam
footage] looks like his,” her own suspicion was dispelled by her

(…continued)
(cleaned up)). Our analysis, however, does not turn on this
detail.

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acknowledgment of two significant facts: unlike the intruder, her
brother-in-law did not wear a wedding ring, nor did he own a
cell phone like the one the intruder was seen holding.

¶38 Taken together, Christina’s comments reflect a lack of
certainty about the identity of the intruder. But certainty is not
the hallmark of probable cause. See State v. Griffith, 2006 UT App
291, ¶ 7, 141 P.3d 602 (noting that for the purposes of assessing
probable cause, “[t]he officer’s belief need not be characterized
as a certainty”); see also Texas v. Brown, 460 U.S. 730, 742 (1983)
(plurality opinion) (explaining that probable cause “does not
demand any showing that such a belief be correct or more likely
true than false”). And Christina’s comments, taken in context,
are not so consequential as to undermine the weight of the other
evidence pointing to Gonzalez.

3

¶39 The third omission the district court identified as material
was the lack of detail provided for the prior “inappropriate
incident” involving Christina and Gonzalez. The court explained
that the affidavit “omitted relevant information that this
‘previous inappropriate incident’ occurred several years prior
and what was the actual conduct.” Once again, we disagree with
the district court that these additional details diminished
probable cause. On the contrary, we agree with the State that
“[t]he omitted details . . . serve only to strengthen the force of
that inappropriate incident.”

¶40 When the magistrate issued the search warrant, he did
not know that a few years before the incident with the intruder,
Christina woke up to find Gonzalez snuggled up behind her in a
spooning position. Learning these details of what was otherwise
simply described as an “inappropriate incident” did not make it
less likely that Gonzalez was the intruder—it made it more
likely. Indeed, such conduct is indicative of Gonzalez’s desire to
be close (affectionately if not sexually) to Christina and his

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willingness to fulfill that desire while she is asleep. Further, the
fact that it occurred “several years” before the incident does not
significantly diminish the force of his motive. Thus, the inclusion
of these details only increases the likelihood that Gonzalez was
the intruder and therefore does not undermine the original
probable cause determination.

CONCLUSION

¶41 Under the totality of the circumstances, the search
warrant affidavit still supports a finding of probable cause with
the inclusion of the three omitted facts identified by the district
court. Thus, the district court erred when it granted Gonzalez’s
motion to suppress evidence. We therefore reverse the district
court’s ruling suppressing the evidence, vacate the order of
dismissal, and remand for trial or such other proceedings as may
now be in order.

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