UT: Failure to record telephonic warrant application required suppression

A Utah telephonic warrant was not recorded, and there was no record of its issuance. This violated the state requirement that warrant applications be preserved, which the court determines is a mandate to enable challenges to the warrant process. In Anderson v. Taylor (2006), the Utah Supreme Court mandated preservation of search warrant applications because one district was not. This situation violated Anderson. State v. Dominguez, 2009 UT App 73, 626 Utah Adv. Rep. 3, 206 P.3d 640 (2009):

[*P17] Because this is an issue of first impression, we are left to decide for the first time how strictly rule 40 should be enforced in Utah. Although we recognize that Defendant has not challenged the warrant on probable cause grounds or otherwise contested it, we take Anderson‘s mandate seriously. Indeed, without a recording, any attempt by Defendant to challenge probable cause may require him to forfeit his Fifth Amendment right to remain silent. We assume that the Utah Supreme Court wishes this rule to be followed strictly now that it has been implemented. Anderson offered clear public policy support for its mandate, and the result of the Fourth District Court’s procedure had no different effect than the result here. Similarly, the potential problems of mishandling or alteration identified in Anderson also exist in telephonic warrant requests. We interpret Anderson to mean that the Utah Supreme Court intended to take a strong position on the issue. Thus, rule 40 is unambiguous in setting forth the courts’ responsibility when issuing search warrants, including those sought telephonically. Accordingly, we reverse and instruct the trial court to grant Defendant’s motion to suppress.

Defendant took her purse as she got out of car, after being warned that taking the purse would require it be searched. She then reached into it, and that justified the officer searching the purse for weapons. State v. Morgan, 226 Ore. App. 515, 203 P.3d 927 (2009):

In State v. Bates, 304 Ore. 519, 524, 747 P.2d 991 (1987), the court noted that

“it is not our function to uncharitably second-guess an officer’s judgment. A police officer in the field frequently must make life-or-death decisions in a matter of seconds. There may be little or no time in which to weigh the magnitude of a potential safety risk against the intrusiveness of protective measures. An officer must be allowed considerable latitude to take safety precautions in such situations.”

In light of defendant’s actions that were presented to Lance, we conclude that the general principle from Bates that it is not a court’s function to second-guess an officer’s judgment who has to make what could be a life-or-death decision in a matter of seconds is applicable to the circumstances of this case. We note that the car was in the de facto legal custody of the officer–he did not have to turn it over to defendant; rather, he could have lawfully continued with the impoundment process. Moreover, defendant had voluntarily given Lance permission to search the car. In order to search the car, it was necessary that defendant leave the car. The execution of the search of the car also meant that the officer would be required to turn his back on defendant, that she could be out of his line of sight, and that he would be preoccupied with the details of the search.

Lance told defendant that she could leave the purse in the car or take it with her, but if she took it with her, he would have to search it. There is no evidence that the purse would have been searched had defendant left it in the car.

[But query, if the car was going to be impounded, then wouldn’t the purse be searched as a matter of course? Or would it?]