State v. Vigil

BENCH, Judge

(concurring in the result):

Because of the way the issues were framed in this case, I join the majority in remanding in order to obtain adequate factual findings that will enable us to determine whether the search was constitutional by reason of Salazar’s consent.1 The additional findings are necessary essentially for the reasons noted in the majority opinion and in State v. Lovegren, 798 P.2d 767 (Utah Ct.App.1990). Findings must encompass all material issues and “show that the court’s judgment or decree 'follows logically from, and is supported by, the evidence.’ ” Acton v. Deliran, 737 P.2d 996, 999 (Utah 1987) (quoting Smith v. Smith, 726 P.2d 423, 426 (Utah 1986)); Linam v. King, 804 P.2d 1235, 1238-39 (Utah Ct.App.1991). The findings should also “be sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” Acton, 737 P.2d at 999; State v. Marshall, 791 P.2d 880, 882 n. 1 (Utah Ct.App.1990). In fact-sensitive situations such as search and seizure, the evidence is ordinarily not clear enough to fill gaps in the underlying findings to a degree that this court can perform its reviewing function. See State v. Ramirez, 817 P.2d 774, 789 (1991). In this case, the findings concerning consent are so conclu-sory that there is nothing that this court can meaningfully review — regardless of the standard of review.

*1303As the majority holds, this case must be remanded for additional findings. The majority’s statements concerning how we should review those findings are therefore dicta. Since the standard of review is not an issue in this case, it need not be mentioned at all. If any discussion is necessary, I would not depart from the longstanding practice of Utah courts to treat the voluntariness of a consent to search as a question of fact reviewable under the clearly-erroneous standard. See, e.g., State v. Arroyo, 796 P.2d 684, 687 (Utah 1990); State v. Sterger, 808 P.2d 122, 126-27 n. 5 (Utah Ct.App.1991); State v. Grovier, 808 P.2d 133, 137 (Utah Ct.App.1991); Marshall, 791 P.2d 880, 882 (Utah Ct.App.1990).

Because I do not agree with dicta in the main opinion concerning the standard of review, I concur only in the result.

. The State equivocates somewhat on the question of whether the stop was an improper pre-textual stop. It then assumes a pretextual stop, but only for the sake of argument. The State also questions whether Vigil had standing (the trial court held he had no standing), and again assumes for the sake of argument that he did. The State thereupon turns its attention to the question of Salazar’s consent. It is discomfiting to assume so many threshold issues arguendo then to reach the principal issue and find the factual basis for review to be lacking.