State v. Romero

WILKINS, Justice

(dissenting):*

I respectfully dissent. I disagree with the disposition by the majority of several of the issues raised by this appeal.

The majority opinion proceeds on the basis that it is assumed, without deciding, that the search of the truck in question was illegal in that the search exceeded the proper limits of an inventory search. In my view, there is no doubt that the search was not a bona fide inventory procedure. This is most strongly evidenced by the fact that the investigating officer opened a sealed envelope found in the truck and thereafter made extensive use of the contents of the envelope as well as the envelope itself in his continuing investigation.

Neither can I agree with the majority’s assertion, made without so deciding, “that defendant may not have had the possessory or proprietary right needed to assert a Fourth Amendment claim.” (Emphasis *705added). Defendant’s name appeared on the title to the vehicle and he was clearly in possession of the truck. I believe that under Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), defendant here had a sufficient possessory interest in the truck to assert Fourth Amendment claims relating to the search of the truck and seizure of items found therein. Furthermore, this defendant had an expectation of privacy in connection with the truck and its contents which would clearly result in his having standing to assert his claims. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

Moving now to the substance of the majority opinion, I am unable to agree that, in this case, the testimony of the live witnesses was “so attenuated from the taint of evidence obtained by the illegal search that [it] is not the ‘fruit of the poisonous tree.’ United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978).” Applying Ceccolini to the facts before us, I believe that there was no such attenuation here.

The majority in Ceccolini was impressed by the fact that there was an independent motivation by the witness there to disclose the information she had. Here, with respect to the confidential informant, the disclosure by that informant was inextricably connected to the envelope and other papers that had been illegally seized. Likewise, with respect to the information disclosed by Ron Lyle, there is nothing in the record to suggest that his disclosures were independently motivated or somehow insulated from the same illegally seized documents. Finally, there is no independent motivation for the disclosure made by the owner of ABC Storage because that disclosure was made at the request of the investigator after showing the illegally seized papers to the owner.

It appears that the majority requires a showing of a preconceived plan on the part of investigators to bootstrap illegally seized evidence into independent disclosure by live witnesses before those disclosures will be considered tainted by an illegal search or seizure. I submit that the situation is no less egregious when, as here, the entire framework of the investigation, including disclosures by live witnesses, finds its foundation in and is intimately connected with an illegal search and seizure.

I now discuss the sufficiency of the affidavit in support of the search warrant which was issued. I believe that the basic test as to the sufficiency of an affidavit as laid down by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and reaffirmed by United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), shows the affidavit here to be defective. Those cases require that an affidavit show (1) underlying circumstances to demonstrate the validity of an informant’s conclusion of illegal activity and, (2) a basis for relying on the credibility and reliability of the informant.

With respect to the confidential informant here, neither prong of the test is met. As to the information supplied by Ron Lyle, there is no showing of credibility or reliability, but a great many underlying circumstances are set forth. However, the problem with Lyle’s information is that it was over year old. I believe that the lapse of time was too great to permit any conclusion that the information was, at the time the warrant was applied for, reliable.

Finally, I am unconvinced by the majority’s treatment of the issues of the refusal of the District Court to require the disclosure of the identity of the confidential informant and whether that informant provided information which came from a privileged attorney-client communication. These two issues are actually interconnected in that disclosure of the identity of the confidential informant was crucial to a determination of whether privileged information was provided to the investigators. I believe that it was “essential to assure a fair determination of [these] issues” that the identity of the confidential informant be disclosed. Rule 36, Utah Rules of Evidence.

*706I would reverse and remand for a new trial.

MAUGHAN, C. J., concurs with the dissenting opinion of WILKINS, J.

WILKINS, Justice, wrote his dissenting opinion prior to his resignation.