State v. Floyd

2014 UT App 53
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
TROY MATHEW FLOYD,
Defendant and Appellant.
Memorandum Decision
No. 20121092-CA
Filed March 6, 2014
Eighth District Court, Vernal Department
The Honorable Edwin T. Peterson
No. 111800110
Colleen K. Coebergh, Attorney for Appellant
Sean D. Reyes and Deborah L. Bulkeley, Attorneys
for Appellee
JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in
which JUDGES J. FREDERIC VOROS JR. and JOHN A. PEARCE
concurred.
ROTH, Judge:
¶1 Defendant Troy Mathew Floyd appeals from convictions
for possession of drugs and drug paraphernalia. He argues that
the warrant police obtained to search his home “was issued on a
probable cause affidavit so deficient on its face that no officer
could rely on it.” Because Floyd did not preserve this issue for
appeal, we affirm.
¶2 In 2011, Floyd stored his belongings in a home that was
also rented by several other individuals. He kept a padlock on
the door to his room. On January 18, 2011, investigators from

State v. Floyd
20121092-CA 2 2014 UT App 53
Adult Probation and Parole, officers from the Uintah County
Sheriff’s Office, and a K-9 unit from the Naples City Police
Department visited the home to arrest one of its other occupants
(the parolee) for a parole violation. After police located and
arrested the parolee, they searched him and found a bag of
methamphetamine. Police then deployed a drug detection dog to
search his room for drugs. The dog found a pipe in the room,
and police then had the dog search the common areas of the
home. While searching the hallway outside the parolee’s room,
the dog stopped in front of Floyd’s nearby room and alerted,
leading its handler to believe that there were drugs inside. The
parolee’s girlfriend, who was on probation at the time, was at
the home when the police arrived. She told them that there were
drugs in Floyd’s room and that she was “not going to take the
fall for that.” Based on the dog’s behavior, the girlfriend’s
statement, and an anonymous source of information that “Floyd
has been involved with the distribution of narcotics,” police
obtained a warrant. They found drugs in Floyd’s room and
arrested him.
¶3 Floyd filed a motion to suppress the drug evidence. He
argued that police obtained the information supporting the
warrant through an illegal search of the home. In particular, he
asserted that police impermissibly continued to search the home
with the drug-detection dog after they had already arrested the
parolee and taken the pipe from the parolee’s room. During a
hearing on the motion, the judge asked Floyd’s counsel if he was
attacking the validity of the warrant on any other basis: “You
don’t find anything about the issuance of the warrant illegal
except for the basis of the use of the dog.” Floyd’s counsel
responded, “That is correct, your Honor.”
¶4 The district court denied the motion to suppress, noting
that police had authorization to search “the common areas of the
home” for drugs “to determine whether or not there [were] other
drugs in the home that would have been available to the
parolee.” The court also found that even though “[t]he warrant

State v. Floyd
20121092-CA 3 2014 UT App 53
wasn’t challenged,” it “was appropriately issued, and . . . all due
precaution to the Constitutional Rights of the individuals was
taken by law enforcement by stopping and obtaining a warrant
prior to a further search.” A jury subsequently convicted Floyd
on all counts.
¶5 On appeal, Floyd does not argue that police wrongly
exceeded the scope of their initial search, as he did in the district
court. Instead, he asserts that because the affidavit supporting
the warrant had no “indicia of reliability,” the magistrate had no
“substantial basis” to issue the warrant and no reasonable police
officer could have relied on it. Specifically, Floyd contends that
the affidavit did not sufficiently detail the drug-detection dog’s
training and deployment history, establish the reliability of the
anonymous informant, or justify reliance on the parolee’s
girlfriend, who Floyd claims “had incentive to blame [the]
presence of narcotics [in Floyd’s room] on someone other than
herself.” We do not address these issues, however, because
Floyd did not preserve them for appeal.
¶6 “To preserve an issue for appeal, the issue must be
presented to the trial court in such a way that the trial court has
an opportunity to rule on the issue.” Pratt v. Nelson, 2007 UT 41,
¶ 15, 164 P.3d 366 (citation and internal quotation marks
omitted). General mention of the issue is not enough; parties
must specifically identify the issue in a timely manner and
provide “supporting evidence or relevant legal authority.” Id.
(citation and internal quotation marks omitted). Appellate courts
generally will not consider an issue raised for the first time on
appeal absent plain error, exceptional circumstances, or
ineffective assistance of counsel. State v. Kozlov, 2012 UT App
114, ¶ 35, 276 P.3d 1207.
¶7 “When a party raises an issue on appeal without having
properly preserved the issue below,” the party must “articulate
an appropriate justification for appellate review.” State v.
Winfield, 2006 UT 4, ¶ 14, 128 P.3d 1171 (citation and internal

State v. Floyd
20121092-CA 4 2014 UT App 53
quotation marks omitted). Otherwise, the issue is waived. See
State v. Pinder, 2005 UT 15, ¶ 47, 114 P.3d 551 (declining to
review the admissibility of a witness’s testimony in a criminal
proceeding because the defendant did not “argue on appeal that
allowing [the witness] to take the stand constituted plain
error . . . or that exceptional circumstances make appellate
review appropriate”). And even where a defendant alleges plain
error or exceptional circumstances, appellate review is still
unavailable if “counsel, either by statement or act, affirmatively
represented to the [trial] court that he or she had no objection to
the [proceedings].” Winfield, 2006 UT 4, ¶ 14 (alterations in
original) (citations and internal quotation marks omitted).
¶8 These rules are designed to promote judicial economy
and fairness by allowing the trial court an opportunity to
address any claimed errors before appeal. State v. Holgate, 2000
UT 74, ¶ 11, 10 P.3d 346. They also encourage the parties to
subject each issue in a case to the rigors of adversarial testing,
State v. King, 2006 UT 3, ¶ 14, 131 P.3d 202, and prevent
defendants from intentionally foregoing objections in hopes of
setting up a reversible issue on appeal, Holgate, 2000 UT 74, ¶ 11.
¶9 Here, although Floyd filed a motion to suppress, he
argued only that the warrant was tainted by information police
gathered with the drug-detection dog after they exceeded the
scope of their initial lawful entry. He did not call into question
any of the information in the affidavit supporting the warrant
that he now challenges on appeal—not the credibility of the
parolee’s girlfriend, the training and experience of the drug-
detection dog, or the reliability of a police informant. Rather, he
affirmatively represented to the district court that his challenge
to the warrant was limited to “the use of the dog.” As a result,
Floyd did not preserve any argument that there was insufficient
evidence to support issuance of the warrant.
¶10 Because Floyd’s argument is unpreserved, appellate
review is available only if he establishes an exception to the

State v. Floyd
20121092-CA 5 2014 UT App 53
preservation rule. See supra ¶¶ 6–7. But on appeal, Floyd does
not argue that his counsel was ineffective, nor does he assert that
plain error or exceptional circumstances permit appellate review.
And even if he had, review for plain error or exceptional
circumstances would not be appropriate because Floyd invited
any error.1 Defense counsel’s affirmative representation that
there were no problems with the warrant beyond the
investigators’ use of a drug-detection dog “fall[s] squarely
within the scope of [the] . . . invited error doctrine,” and we
therefore must decline to review the district court’s decision. See
Winfield, 2006 UT 4, ¶ 18. Accordingly, we affirm Floyd’s
convictions.
__________
1. “Invited error does not . . . preclude our review of a claim of
ineffective assistance of counsel.” State v. Sellers, 2011 UT App
38, ¶ 13, 248 P.3d 70.