State v. Burzak

2019 UT App 211

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellant,
v.
THOMAS A. BURZAK JR.,
Appellee.

Opinion
No. 20180679-CA
Filed December 27, 2019

Third District Court, Salt Lake Department
The Honorable Andrew H. Stone
No. 181903550

Sean D. Reyes and Jeffrey D. Mann, Attorneys
for Appellant
Brett J. DelPorto, Attorney for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred.

ORME, Judge:

¶1 Thomas A. Burzak Jr. and his travel companion, Tyler A.
Nihells, were arrested by a state trooper (Trooper) and charged
with one count each of possession of a controlled substance with
intent to distribute and possession of drug paraphernalia. At
their joint preliminary hearing, a district court judge, acting as a
magistrate, declined to bind either defendant over for trial on the
ground that the State had not provided sufficient evidence
supporting a determination of probable cause on the element of
constructive possession for each crime. In this appeal, the State
challenges the magistrate’s decision as concerns Burzak.

¶2 A detailed recounting of the facts of this case and a
discussion of the probable cause standard governing bindover is
State v. Burzak

provided in this appeal’s companion case, State v. Nihells, 2019
UT App 210, in which the State challenged the magistrate’s
denial of bindover for Nihells, Burzak’s co­defendant. Although
we reverse the magistrate’s decision in the current appeal for
essentially the same reasons articulated in Nihells, additional
arguments raised by Burzak merit comment.

¶3 Burzak argues that his case is distinguishable from
Maryland v. Pringle, 540 U.S. 366 (2003), which is pivotal in our
resolution of both cases, see Nihells, 2019 UT App 210, ¶¶ 15–19,
because (1) the marijuana was not accessible to Burzak and
Nihells and (2) the evidence proffered by the State singled out
Nihells, thereby shifting the probable cause analysis away from
Burzak. We address each argument in turn.

¶4 Burzak first argues that “Pringle would be directly
applicable [to his case] only if the marijuana in the trunk was
somehow within reach of Burzak and Nihells.” See 540 U.S. at
371–72 (listing the fact that the cocaine was “accessible to all
three men” occupying the vehicle as one of the reasons it was
“entirely reasonable” to infer “that any or all three of the
occupants had knowledge of, and exercised dominion and
control over, the cocaine”). And because Trooper found the
marijuana in the trunk and not the passenger compartment of
the vehicle, as was the case in Pringle, see id. at 368, the
contraband “was not accessible to Burzak or Nihells—not, at
least, without stopping the car and getting out.”

¶5 But Pringle does not require that the contraband be
“within reach” of the vehicle’s occupants to be accessible, as
Burzak argues. Indeed, the Supreme Court held that it was
reasonable to infer that all three of the vehicle’s occupants,
including the driver, “had knowledge of, and exercised
dominion and control over, the cocaine,” id. at 372, which was
located “between the back-seat armrest and the back seat,” id. at
368. Because the driver would not have been within reach of the
drugs while he was driving, we read Pringle to require only that

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State v. Burzak

the occupants of the vehicle have general access to the area of the
vehicle in which the contraband is discovered. And Burzak, by
virtue of owning the vehicle, had access to the contents of the
trunk—which access he acknowledges he “presumably” had. See
also Nihells, 2019 UT App 210, ¶ 18 (stating that “it is entirely
reasonable to infer that Nihells,” the driver in possession of the
keys to the vehicle, “had access to the trunk and constructively
possessed the drugs either individually or jointly with Burzak”).

¶6 Next, Burzak argues that under United States v. Di Re, 332
U.S. 581 (1948)—discussed and distinguished in Pringle, 540 U.S.
at 373–74—there is no probable cause to believe he was in
possession of the marijuana because the evidence proffered by
the State singled out Nihells as the guilty party. In Di Re, an
informant notified a federal investigator that he had arranged to
buy counterfeit gasoline ration coupons from the driver of a
vehicle at a specified location. 332 U.S. at 583. The investigator
followed the vehicle and approached it after it had stopped at
the aforementioned location. The investigator found the driver,
the informant, and defendant Di Re inside the vehicle. Id. The
informant was holding two counterfeit coupons in his hand, and
when asked about them, he said he had obtained them from the
driver. The informant did not implicate Di Re in any way. Id. The
investigator took all three men into custody and a later search of
Di Re revealed one hundred counterfeit coupons “in an envelope
concealed between his shirt and underwear,” id., and Di Re was
subsequently convicted of possession of counterfeit gasoline
ration coupons, id. at 582. The Second Circuit reversed Di Re’s
conviction, and the Supreme Court affirmed. Id. at 582, 595. The
Supreme Court held that the search of Di Re was not justified as
a search incident to arrest because the investigator lacked
probable cause to believe that Di Re was involved in the crime at
the time of his arrest. The Court stated: “Any inference that
everyone on the scene of a crime is a party to it must disappear if
the Government informer singles out the guilty person.” Id. at
594. In Pringle, the Supreme Court distinguished Di Re because

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State v. Burzak

“[n]o such singling out occurred in [Pringle]; none of the three
men provided information with respect to the ownership of the
cocaine or money” as the informant had done in Di Re. 540 U.S.
at 374.

¶7 Relying on Di Re, Burzak argues that “the evidence
proffered by the State ‘singles out’ co-defendant Nihells and, by
implication shifts the probable cause calculus away from [him].”
Specifically, Trooper testified at the preliminary hearing that he
detected “a strong odor of marijuana emitting from [Nihells’s]
person,” and after asking him about it, Nihells stated that the
smell “was probably coming from his clothes” and admitted to
recently using marijuana. Additionally, Nihells was “overly
nervous,” was “breathing heavily,” and “avoided eye contact”;
“his carotid artery was pounding in his neck,” and he “just
seemed uneasy with [Trooper’s] presence.” Based on this,
Burzak contends that “the probable cause analysis points almost
exclusively at Nihells,” and “there [was] nothing to support
probable cause” to believe that Burzak was also engaged in
criminal activity. We disagree.

¶8 As an initial matter, the Supreme Court expressly stated
in Pringle that “it was reasonable for the officer to infer a
common enterprise among the three men” because the officers
uncovered sufficient facts to suspect drug dealing and “a dealer
would be unlikely to admit an innocent person with the
potential to furnish evidence against him.” 540 U.S. at 373. See id.
(“‘[A] car passenger . . . will often be engaged in a common
enterprise with the driver, and have the same interest in
concealing the fruits or the evidence of their wrongdoing.’”)
(quoting Wyoming v. Houghton, 526 U.S. 295, 304–05 (1999)).
Here, Trooper uncovered more than eleven pounds of
marijuana. Based on his training and experience, he testified that
this was a distributable amount rather than a quantity consistent
with personal use. As such, Burzak’s presence in the vehicle with
Nihells is sufficient to suggest a common enterprise between the
two, especially given their joint travels on a long trip. And as in

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State v. Burzak

Pringle, no “singling out occurred” in this case because neither
occupant “provided information with respect to [exclusive]
ownership of the [contraband],” as the informant had done in Di
Re. See id. at 374.

¶9 Furthermore, Burzak contradicts his own assertion that
“nothing” in the State’s evidence supported a finding of
probable cause against him by acknowledging that he “owned
the vehicle; he was in the car when the drugs were found . . . ;
and he presumably had access to the trunk.” See State v.
Workman, 2005 UT 66, ¶ 32, 122 P.3d 639 (listing “ownership
and/or occupancy of the . . . vehicle where the drugs were found,
presence of defendant at the time drugs were found, defendant’s
proximity to the drugs, previous drug use, [and] incriminating
statements or behavior” as some of the factors that “may be
important in determining whether” there is a nexus sufficient to
convict a defendant for constructive possession of the drugs).
And in addition to these admissions, (1) Trooper’s canine alerted
on the front passenger’s side door next to where Burzak had
been sitting, (2) Trooper found fragments of marijuana and
rolling papers throughout the vehicle, (3) the backpacks were
comingled with Burzak’s and Nihells’s belongings, (4) Burzak
and Nihells claimed ownership of everything in the vehicle, and
(5) Trooper testified that Burzak “was breathing really heavily
and just seemed uneasy.” When viewing these facts in their
totality, it is not unreasonable to infer that Burzak possessed the
drugs either individually or jointly with Nihells, even though
certain factors may point more strongly toward Nihells.
Accordingly, Burzak has not shown any meaningful distinction
between Pringle and the facts of this case.

¶10 For these reasons and the analysis set forth in in State v.
Nihells, 2019 UT App 210, we reverse the magistrate’s decision
and remand with instructions to bind Burzak over for trial on
both charges.

20180679-CA 5 2019 UT App 211