This amended opinion is subject to revision before
publication in the Pacific Reporter.
IN THE UTAH COURT OF APPEALS
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State of Utah,
)
AMENDED OPINION1
)
(For Official Publication)
Plaintiff and Appellant,
)
)
Case No. 20040835-CA
v.
)
F I L E D
)
(November 10, 2005)
Lloyd Max Ranquist,
)
)
2005 UT App 482
Defendant and Appellee.
)
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Fourth District, Provo Department, 041400613
The Honorable Claudia Laycock
Attorneys:
Mark L. Shurtleff and Marian Decker, Salt Lake City,
for Appellant
Michael D. Esplin, Provo, for Appellee
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Before Judges Billings, Davis, and McHugh.
McHUGH, Judge:
¶1
The State appeals from an order dismissing, with prejudice,
charges against Defendant Lloyd Ranquist for possession of a
controlled substance (methamphetamine), a first degree felony,
and possession of drug paraphernalia, a class A misdemeanor. See
Utah Code Ann. §§ 58-37-8(2), (4), 58-37a-5 (2002 & Supp. 2004).
The State contends that the trial court improperly suppressed
evidence obtained upon execution of a warrant issued on the basis
of amphetamine residue found in Defendant's curbside garbage five
days before the warrant was issued. Because we conclude that the
passage of five days did not render the information upon which
the warrant was based stale, we reverse.
BACKGROUND
¶2
Defendant shared a home with his daughter, Jessica Vest, in
Provo, Utah. Vest was arrested by Orem City Police on January
15, 2004, for possession of methamphetamine and drug
_________________________________________________________________
1. This Amended Opinion replaces the Opinion in Case No.
20040835-CA issued on September 15, 2005.

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paraphernalia. On January 21, 2004, the Orem City Police
forwarded information regarding Vest's arrest to Officer Luthy of
the Provo City Police Department. That same day, Officer Luthy
located the trash container stenciled with Defendant's house
number and conducted a search of its contents. The search
revealed five small, clear plastic bags, one of which tested
positive for amphetamine residue. The search also produced five
items of correspondence addressed to Defendant. Officer Luthy
then checked Defendant's record and confirmed that he had a prior
criminal history involving possession of methamphetamine.
¶3
On January 26, 2004, five days after his search of the trash
container, Office Luthy obtained a warrant to search Defendant's
residence. The warrant was issued on the basis of Officer
Luthy's five-paragraph affidavit, which set forth Officer Luthy's
training and experience, Vest's recent arrest, the fact that
Defendant "has a criminal history for possession of
methamphetamine," the results of the trash container search, and
a description of the premises. The warrant was executed on
February 3, 2004, and methamphetamine and drug paraphernalia were
seized from Defendant's residence.
¶4
Defendant moved to suppress the evidence on the grounds that
Vest's arrest and Defendant's criminal history were irrelevant
and that the trash container evidence was stale. The trial court
agreed and also rejected the State's reliance on the good faith
exception to the warrant requirement. The trial court then
entered an order dismissing, with prejudice, the charges against
Defendant. The State filed this appeal.
ISSUE AND STANDARD OF REVIEW
¶5
The issue before this court is "whether the magistrate had a
substantial basis to conclude that in the totality of the
circumstances, the affidavit adequately established probable
cause for the issuance of a search warrant." State v. Hansen,
732 P.2d 127, 129 (Utah 1987) (per curiam). In search and
seizure cases, we review the district court's factual findings
"under a clearly erroneous standard." State v. Brake, 2004 UT
95,¶15, 103 P.3d 699. We review the trial court's legal
conclusions for correctness, giving no deference to the court's
application of the law to the facts. See id. at ¶¶12-15; see
also State v. Markland, 2005 UT 26,¶8, 112 P.3d 507.
ANALYSIS
¶6
The facts of this case are quite similar to those addressed
by this court in State v. Jackson, 937 P.2d 545 (Utah Ct. App.
20040835-CA
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1997). In Jackson, the police obtained a search warrant on the
basis of items seized in a search of the defendants' curbside
garbage. See id. at 546. The affidavit in support of the search
warrant issued in Jackson provided information about (1) the
affiant's training in the identification of narcotics and drug-
related paraphernalia, (2) the past drug activity of one of the
defendants, (3) the garbage collection system employed by the
city in which the defendants resided, (4) the search of the
defendants' garbage, and (5) the evidence found during that
search. See id. at 547. The affidavit also included information
about a break-in at the defendants' home approximately two months
prior to the garbage search, during which several unidentified
men demanded drugs and money. See id. at 546. The defendants
challenged the sufficiency of the affidavit on the grounds that
there was no indication when the containers were taken to the
street, that a passer-by could have disposed of the incriminating
evidence, and that the evidence about the defendants' drug
history and about the prior break-in were irrelevant and stale.
See id. at 547-48.
¶7
This court agreed that the warrant in Jackson could not be
based on the break-in evidence or the past drug activity of one
of the defendants. See id. at 548. Nevertheless, it upheld the
finding of probable cause, stating:
Defendants also argue that the April 1994
forced break-in incident and the prior
criminal conviction of defendant Smith
constitute stale and irrelevant information,
which should not have been considered by the
magistrate in making his probable cause
determination. We largely agree with
defendants in this respect. However, we are
persuaded that the magistrate would have
found probable cause even absent any
information about the April 1994 incident and
Smith's prior conviction. Thus, defendants'
staleness argument, even if well-taken, is
not dispositive.
Id. (emphasis added); see also State v. Vigh, 871 P.2d 1030, 1033
(Utah Ct. App. 1994) (stating that presence of stale information
about prior convictions not fatal to warrant if affidavit read
with that information deleted "nonetheless demonstrates that 'the
issuing magistrate had a substantial basis for concluding that
there were enough facts within the affidavit to find that
probable cause existed'" (citation omitted)).
20040835-CA
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¶8
The issue before this court is whether, reading the
affidavit with the information about Vest's arrest and
Defendant's prior criminal history deleted, there were enough
facts to find that probable cause existed. See State v. Dable,
2003 UT App 389,¶8, 81 P.3d 783 (concluding that arrest of the
defendant in Wyoming for possession of methamphetamine, without
more, failed to establish probable cause that drugs were located
in her home in Utah); State v. Brooks, 849 P.2d 640, 644 (Utah
Ct. App. 1993) (holding that the arrest of the defendant two
years prior to the warrant did nothing to establish that he was
now dealing in controlled substances from his home).2
¶9
Application of the Jackson holding to the facts of this case
leads to the conclusion that the results of the trash container
search could form the basis of a finding of probable cause
without consideration of Vest's arrest or Defendant's criminal
history. The only significant differences between the facts
considered in Jackson and those in this case are the time between
the garbage search and the request for a warrant and the evidence
found in the subject trash containers.
¶10
In Jackson, the search of the defendants' trash revealed
marijuana stems and seeds, a marijuana cigarette, a small amount
of marijuana, and "Zig-Zag" papers for rolling cigarettes.
Jackson, 937 P.2d at 546. The quantity of marijuana found in the
trash container was "indicative of personal use." Id. The
search of Defendant's trash in this case resulted in the
discovery of five clear plastic bags, one of which tested
positive for amphetamine residue. Because only residue was
found, there is no way to determine what quantity of the
2This court rejects the State's invitation to overrule State
v. Brooks, 849 P.2d 640 (Utah Ct. App. 1993), wherein we held
that a defendant's criminal record from two years prior to the
determination of probable cause does nothing to establish that
controlled substances are likely to be found at the defendant's
residence today. See id. at 644. Because we hold that there was
probable cause to support the warrant here, even without
consideration of the prior criminal histories of Vest and
Defendant, we need not address that issue. We do note, however,
that the vague information provided about Defendant's "criminal
history" here is particularly unhelpful because it gives no
details that would allow the magistrate to determine the time
that has elapsed between the request for a warrant and
Defendant's prior arrest for possession of methamphetamine.
20040835-CA
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controlled substance might have been present at the residence.
Consequently, information in the affidavit about the residue when
considered in a "common sense fashion" can establish no more than
the probability of personal use. State v. DeCorso, 1999 UT
57,¶59, 993 P.2d 837; see id. at ¶¶62-63 (concluding that warrant
to search storage unit issued more than a year after murder was
reasonable, when considered in a common sense fashion, because
nature of the items sought were of the type likely to be kept for
long periods).
¶11
Without the information about the break-in and the prior
conviction, the affidavit in Jackson provided facts consistent
only with an incident of personal use at the residence. See 937
P.2d at 546. This court concluded that was enough to provide
probable cause that controlled substances were present on the
premises the same day as the trash container search. See id. at
548. In this case, however, Officer Luthy waited five days after
the search of Defendant's trash container to seek a search
warrant. Thus, we must determine whether the passing of that
five days rendered the evidence obtained during the search of
Defendant's garbage stale. "Staleness issues usually arise when
a significant lapse of time occurs between the discovery of
information suggesting that evidence of the crime can be found at
a particular locale and the magistrate's finding of probable
cause or the execution of the warrant." State v. Thurman, 846
P.2d 1256, 1260 (Utah 1993) (concluding that evidence of the
defendant's motive to commit murder not stale) (citing State v.
Hansen, 732 P.2d 127, 131 (Utah 1987) (per curiam); State v.
Stromberg, 783 P.2d 54, 56-57 (Utah Ct. App. 1989) (holding that
informant's personal observation of drug use by defendant six
weeks prior to warrant not stale where affidavit included facts
consistent with protracted and continuous use)). Furthermore,
"[a] mere passage of time does not necessarily invalidate the
supporting basis for the warrant." Hansen, 732 P.2d at 131.
¶12
Although the better practice would have been to seek a
search warrant immediately upon the discovery of the amphetamine
residue in Defendant's trash, we conclude that the passage of an
additional five days is not fatal to a finding of probable cause.
CONCLUSION
¶13
Based on the foregoing, we conclude that the order of the
trial court granting the motion to suppress is reversed and the
20040835-CA
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matter is remanded to the district court for further proceedings
consistent with this ruling.
______________________________
Carolyn B. McHugh, Judge
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¶14
I CONCUR:
______________________________
Judith M. Billings,
Presiding Judge
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¶15
I CONCUR IN THE RESULT:
______________________________
James Z. Davis, Judge
20040835-CA
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