Layton v. Brierley

2015 UT App 207
THE UTAH COURT OF APPEALS
LAYTON C ITY ,
Plaintiff and Appellant,
v.
C HELSE M ARIE BRIERLEY ,
Defendant and Appellee.
Opinion
No. 20140496-CA
Filed August 13, 2015
Second District Court, Layton Department
The Honorable David R. Hamilton
No. 135605273
Marlesse D. Jones and Gary R. Crane, Attorneys
for Appellant
Mark W. Brown and Russell S. Pietryga, Attorneys
for Appellee
JUDGE K ATE A. TOOMEY authored this Opinion, in which J UDGES
JAMES Z. DAVIS and S TEPHEN L. R OTH concurred.
TOOMEY, Judge:
¶1 	In this interlocutory appeal, Layton City appeals from the
district 	court’s 	grant 	of 	Defendant 	Chelse 	Marie 	Brierley’s
motion to suppress evidence obtained after the warrantless entry
of her residence. Because we 	agree with 	the City that the
inevitable discovery doctrine applies to the suppressed evidence
in this case, we reverse and remand.
BACKGROUND
¶2 	On September 30, 2013, police officers received a report
that a black Mercedes SUV, driven by a “blonde female,” was

Layton City v. Brierley
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seen leaving the site of a hit-and-run accident.1 Dispatch gave
the officers the reported license plate number for the vehicle and
a home address for its registered owner. Sergeant Andrew
Joseph went to this address and saw a black SUV parked in the
open 	garage. 	Another 	officer, 	Sergeant 	Roger 	James 	Dixon,
arrived around the same time.
¶3 	The officers saw a woman (Housekeeper) standing inside
the 	garage. 	When 	the 	officers 	walked 	up 	the 	driveway,
Housekeeper stepped out of the garage to greet them. Sergeant
Joseph asked her whether she had been driving the vehicle, to
which Housekeeper responded that she had not. When asked
who had been driving the vehicle, Housekeeper responded that
she 	thought 	Brierley, 	the 	homeowners’ 	daughter, 	had 	been
driving it.
¶4 	During this conversation, Housekeeper expressed concern
that the vehicle parked in the garage might be on fire. Both
officers entered the garage to check on it. Sergeant Joseph
smelled hot fluid and noticed that the vehicle was steaming and
had front end damage. Housekeeper stated that while she was
inside the house, she had heard a loud noise. When she walked
toward the location of the noise, Housekeeper saw Brierley come
into 	the 	house 	from 	the 	garage 	and 	go 	downstairs to 	her
bedroom. Housekeeper stated that Brierley “looked like she was
in 	a 	bad 	way.” 	To 	clarify, 	Joseph 	asked 	whether 	Brierley
appeared to be under the influence of alcohol or drugs, and
Housekeeper answered, “Yes.”
¶5 	In the garage, Housekeeper invited the officers into the
residence to speak with Brierley, but they declined because they
1. In reviewing a trial court’s ruling on a motion to suppress,
“we consider the facts in a light most favorable to the trial
court’s findings and recite them accordingly.” State v. Mitchell,
2013 UT App 289, ¶ 2, 318 P.3d 238 (citations and internal
quotation marks omitted).

Layton City v. Brierley
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did not “feel that [they] had enough to enter the residence at that
time without any exigent circumstances.” But Sergeant Joseph
told 	Housekeeper 	they 	needed 	to 	speak 	with 	Brierley 	and
Housekeeper went downstairs to see if she could coax Brierley to
come upstairs to talk with the officers. Meanwhile, they called
the Layton City Attorney for legal advice on how to make
contact with Brierley. During this call, the officers and the City
Attorney all agreed that they “needed a warrant to proceed into
the house.”
¶6 	When 	Housekeeper 	returned 	upstairs, 	she 	heard 	the
officers pounding on the front door. Housekeeper opened it and
relayed that Brierley had asked her to tell them she was not at
home. The officers asked Housekeeper for the phone number for
Brierley’s father 	so 	they 	could 	get 	permission 	to 	enter 	the
residence. Housekeeper left the front door open while she went
to find the phone number. Meanwhile, Sergeant Joseph went to
retrieve his computer for the purpose of drafting a 	search
warrant request.
¶7 	Sergeant Dixon stepped through the open front door into
the residence and informed Housekeeper the house was under
lock 	down 	and 	no 	one 	was 	allowed 	to 	leave. 	Dixon 	told
Housekeeper she could tell Brierley they were in the process of
getting a search warrant that would allow them to look for her.
In response, Housekeeper went downstairs to persuade Brierley
to come speak with the officers. Sergeant Joseph arrived at the
front door with his computer and, upon seeing Dixon inside,
also entered the residence. Joseph placed his computer on a table
in 	the 	entryway 	and 	began 	drafting 	the 	search 	warrant
documents. As he was preparing these, Brierley, Housekeeper,
and a male individual came up the stairs from the basement. At
this point, Dixon asked Brierley to step outside to discuss the
situation. Brierley nodded and they went to the garage, where
Dixon questioned her. During the investigation, Dixon did a
license check and obtained Brierley’s date of birth and full name.
He also obtained a statement from Brierley and conducted tests

Layton City v. Brierley
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to determine whether she was under the influence of alcohol
including field sobriety tests2 and a portable breath test. A
different breath test was administered to Brierley at the police
station, revealing a blood alcohol level of .143.
¶8 	The City ultimately charged Brierley with driving under
the influence of alcohol and/or drugs, violation of operator
duties for accident involving property damage, and driving on
denied operator’s license, all misdemeanors. Before trial, Brierley
moved to suppress the evidence resulting from the officers’
warrantless entry into her home. The City opposed the motion,
arguing that the mere presence of officers in a house while
securing a warrant is not unlawful and that, in any event, the
inevitable discovery doctrine applied to allow the admission of
the evidence.3
¶9 	After a suppression hearing and oral arguments on the
motion, 	the 	district 	court 	rejected 	the 	City’s 	arguments. 	It
concluded 	that 	“[w]ithout 	probable 	cause 	and 	exigent
circumstances, the police’s warrantless search and seizure cannot
be upheld on an officer’s need to secure a home in preparation of
obtaining a warrant.” The court reasoned that application of the
inevitable 	discovery 	doctrine 	was 	not 	justified 	in 	this 	case
because “[w]hether Sergeant Joseph’s warrant request would
have actually been granted and whether the same evidence
would have inevitably been discovered remains speculative.”
Consequently, 	the 	court 	granted 	Brierley’s 	motion 	and
suppressed 	all 	evidence 	obtained 	following 	the 	warrantless
2. The nature of these tests is not identified in the record.
3. The 	City 	also 	contended 	there 	was 	no 	evidence 	to 	be
suppressed because no evidence discovered was in the residence
where an unlawful entry was alleged to have occurred. The
district court rejected this argument on the basis that the City did
not provide any legal support.

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entry into the house. The City filed a petition for interlocutory
review, which we granted.
ISSUE AND STANDARDS OF REVIEW
¶10 	The 	City 	argues 	the 	district 	court 	erred 	by 	granting
Brierley’s motion to suppress. We review the grant of a motion
to 	suppress 	as 	a 	mixed 	question 	of 	law 	and 	fact. 	State 	v.
Worwood, 2007 UT 47, ¶ 12, 164 P.3d 397. We review the district
court’s underlying factual findings for clear error and its legal
conclusions for correctness. Id.
ANALYSIS
¶11 	The City challenges the district court’s grant of Brierley’s
motion to suppress the evidence obtained following the officers’
warrantless entry into her residence. For purposes of our analysis,
we 	assume 	without 	deciding 	that 	the 	officers’ 	presence 	in
Brierley’s home was unlawful4 and we proceed to analyze the
City’s 	alternative 	argument, 	namely, 	whether 	the 	inevitable
discovery doctrine should be applied.
¶12 	The 	City 	asserts 	that 	“based 	on 	the 	probable 	cause
established for the search warrant that the officers were in the
process of obtaining” when Brierley came upstairs, “the warrant
would have been obtained, officers would have served it and
detained [Brierley], and the evidence would have inevitably
been discovered.” In contrast, Brierley contends the challenged
evidence would not have been obtained but for the warrantless
entry into Brierley’s home. For this reason, Brierley specifically
4. At oral argument, the City conceded there were no exigent
circumstances justifying the officers’ entry into the house, and
asked us to assume arguendo that it was unlawful for the
officers to be in the house.

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asserts the “field sobriety tests, breath tests, statements made,
[and] license checks” should be suppressed.
¶13 	“Until a valid warrant has issued, citizens are entitled to
shield ‘their persons, houses, papers, and effects’ . . . from the
government’s scrutiny.” Hudson v. Michigan, 547 U.S. 586, 593
(2006) (quoting U.S. Const. amend. IV). “The exclusionary rule
prohibits the use at trial of evidence . . . obtained in violation of
an 	individual’s constitutional 	and 	statutory 	rights.” 	State 	v.
Topanotes, 2003 UT 30, ¶ 13, 76 P.3d 1159. Moreover, it deters
unlawful 	police 	behavior 	by 	“prevent[ing] 	the 	police 	from
benefitting 	from 	their 	illegalities.” 	Id. 	But 	these 	“harsh
consequences” are “tempered somewhat by the exceptions to the
exclusionary rule.” Id. “The exceptions allow prosecutors to use
the challenged evidence at trial when the ‘taint’ of illegality is
sufficiently cleansed.” Id.
¶14 	One 	such 	exception 	is 	embodied 	in 	the 	inevitable
discovery 	doctrine, 	which 	allows 	tainted 	evidence 	to 	be
admitted at trial if it “would have been discovered by lawful
means.” State v. Strieff, 2015 UT 2, ¶ 24. This doctrine seeks to
“put[] the police in the same . . . position . . . they would have
been in if no police error or misconduct had occurred.” Nix v.
Williams, 467 U.S. 431, 443 (1984). The Utah Supreme Court has
instructed 	that 	“‘[i]f 	the 	prosecution 	can 	establish 	by 	a
preponderance of the evidence that the information ultimately or
inevitably would have been discovered by lawful means . . . then
the deterrence rationale has so little basis that the evidence
should be received.’” Topanotes, 2003 UT 30, ¶ 14 (omission in
original) (quoting Nix, 467 U.S. at 444).5
5. The City also contends on appeal that another exception to the
exclusionary rule, the attenuation doctrine, applies to allow
the admission of the challenged evidence against Brierley. The
City 	asserts 	that 	Brierley’s 	independent 	act 	of 	voluntarily
coming upstairs and engaging with the officers broke the causal
(continued…)

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¶15 	Utah appellate courts have addressed the application of
the inevitable discovery doctrine on several occasions. See, e.g.,
State v. Tripp, 2010 UT 9, ¶¶ 57–59, 227 P.3d 1251 (refusing to
apply the inevitable discovery doctrine because the police lacked
probable cause and the investigating officer “took no steps
whatsoever to obtain” a search warrant); State v. Worwood, 2007
UT 	47, 	¶¶ 	47–51, 	164 	P.3d 	397 	(ruling 	that 	the 	inevitable
discovery doctrine was inapplicable because the “field sobriety
tests would not have been obtained absent the illegality or
different choices” by the investigating officer); Topanotes, 2003
UT 30, ¶¶ 19–21 (holding that evidence was not admissible
under 	the 	inevitable 	discovery 	doctrine 	where 	the 	police
performed 	a 	warrants 	check 	while 	illegally 	detaining 	the
defendant); State v. Mitchell, 2013 UT App 289, ¶¶ 23–24, 318
P.3d 238 (affirming the trial court’s admission of evidence under
the 	inevitable 	discovery 	doctrine 	because 	“the 	valid 	search
warrant was an independent basis for discovery that would have
(…continued)
chain between the officers’ illegal entry and their discovery of
incriminating evidence. The attenuation doctrine “is limited to
circumstances . . . involving a defendant’s independent acts of
free will” and is “distinct” from the other exceptions to the
exclusionary rule. State v. Strieff, 2015 UT 2, ¶¶ 25, 42. “[T]o
preserve an issue for appeal[,] the issue must be presented in
such a way that the trial court has an opportunity to rule on that
issue.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d
801 	(second 	alteration 	in 	original) 	(citation 	and 	internal
quotation marks omitted). Here, the City asked the district court
to apply only one exception to the exclusionary rule, explaining,
“[W]e do hang our hat on inevitable discovery, that inevitably it
would have happened had she not come up the stairs.” Because
we conclude the City did not present the attenuation doctrine in
such a way that the district court had the opportunity to rule on
the issue, the City has not preserved it for appeal and we do not
further address it.

Layton City v. Brierley
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inevitably led to the computer evidence independent of the
constitutional violation” (citation and internal quotation marks
omitted)); State v. Callahan, 2004 UT App 164, ¶¶ 9–11, 93 P.3d
103 (reversing a conviction resulting from the trial court’s denial
of a motion to suppress because “[i]n view of the Task Force’s
adoption of a plan that included an illegal entry from the
outset,” this court could not conclude that “an independent,
legal avenue for discovery was ever available” (citation and
internal quotation marks omitted)). But these decisions do not
address whether the doctrine applies where, as here, the police
began efforts to obtain a search warrant before making an illegal
entry or search and then abandoned the warrant process when
circumstances changed.
¶16 	The 	Tenth 	Circuit, 	however, 	has 	analyzed 	the
applicability of the doctrine in a similar scenario. In United States
v. Souza, 223 F.3d 1197 (10th Cir. 2000), it explained, “While the
inevitable discovery doctrine does not apply in situations where
the government’s only argument is that it had probable cause for
the search, [it] may apply where, in addition to the existence of
probable cause, the police had taken steps in an attempt to
obtain a search warrant.” Id. at 1203 (emphasis added) (footnote
omitted). To determine “how likely it is that a warrant would
have been issued and that the evidence would have been found
pursuant to the warrant,” the Tenth Circuit identified four
factors to aid in its analysis:
[1] the extent to which the warrant process has
been 	completed 	at 	the 	time 	those 	seeking 	the
warrant learn of the search; [2] the strength of
the showing 	of 	probable 	cause 	at 	the 	time 	the
search occurred; [3] whether the warrant ultimately
was obtained, albeit after the illegal entry; and [4]
evidence that law enforcement agents “jumped the
gun” 	because 	they 	lacked 	confidence 	in 	their
showing of probable cause and wanted to force the
issue by creating a fait accompli.

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Id. at 1204 (citations and internal quotation marks omitted). “The
more contingencies there are, and the lower the probability that
each would have been resolved in the government’s favor, the
lower the probability that the evidence would have been found
by lawful means.” Id. at 1205. Thus, after evaluating these
factors, “a court may apply the inevitable discovery exception
only when it has a high level of confidence[6] that the warrant
in fact would have been issued and that the specific evidence in
question 	would 	have 	been 	obtained 	by 	lawful 	means.” 	Id.
Although we do not formally adopt this test, we find it useful to
our analysis in this case.
¶17 	Here, the officers took steps toward obtaining a search
warrant, including contacting the City Attorney, deciding to
apply for a warrant, and retrieving a computer to complete the
required documents. This factor weighs in the City’s favor.
¶18 	The record demonstrates that the probable-cause showing
was strong and a warrant in all likelihood would have been
issued based on information known to the officers before they
entered the house. In particular, the officers received reports of a
blonde female driving a black Mercedes SUV away from the
scene of a hit-and-run accident. They had the reported license
6. Unlike the Second and Tenth Circuits, which use a “high level
of confidence” standard, some circuits require only a “reasonable
probability” that the challenged evidence 	would have been
discovered lawfully. Compare, e.g., United States v. Marrocco, 578
F.3d 627, 639–40 & n.24 (7th Cir. 2009) (using an “intermediate
standard” 	in 	concluding 	that 	the 	inevitable 	discovery 	rule
applies where “investigating officers undoubtedly would have
followed routine” to obtain evidence), with United States v. Heath,
455 F.3d 52, 60 (2d Cir. 2006) (concluding that the inevitable
discovery rule will be applicable only where the court can
conclude “with a high level of confidence that each of the
contingencies necessary to the legal discovery of the contested
evidence would be resolved in the government’s favor”).

Layton City v. Brierley
20140496-CA 	10 	2015 UT App 207
plate number for the fleeing vehicle and, upon arriving at the
home address for its registered owner, saw a black SUV parked
in the open garage. When the officers talked to Housekeeper,
who was standing next to the SUV, she told them Brierley had
been driving the vehicle and that it might be on fire. When the
officers checked on the vehicle, they saw that it was steaming
and its front end was damaged. Moreover, Housekeeper also
mentioned that Brierley went into the house and “looked like
she was in a bad way,” meaning she appeared to be under the
influence of alcohol or drugs. Based on these facts, the officers
had 	probable 	cause 	to 	believe 	Brierley 	had 	committed 	an
offense. This factor weighs in the City’s favor.
¶19 	At this point, the officers intended to secure a search
warrant and initiated the process, but Sergeant Joseph ultimately
abandoned 	his 	efforts 	to 	obtain 	it 	because 	Brierley 	walked
upstairs and met the officers, thus obviating the need for the
warrant. This factor weighs against the City, but not strongly.
¶20 	The testimony of the officers at the suppression hearing
does not suggest that their entry into the house was motivated
by a lack of confidence in their probable-cause showing or a
desire to bypass the warrant requirement. Rather, they seemed
willing to wait for the warrant to talk to Brierley. In addition, the
fact that Sergeant Joseph continued drafting the search warrant
application while standing inside the Brierley residence lends
support to the conclusion that the officers did not intend to force
the issue by entering it in the first place.
¶21 	Taking these factors together, we conclude the City met
its burden to show by a preponderance that the evidence would
have been discovered by lawful means. The police had a strong
showing of probable cause to search the house for Brierley:
witness descriptions of the vehicle and driver involved in the
collision, including a license plate number that brought them to
Brierley’s house; a damaged, steaming vehicle matching the
witness 	descriptions 	parked 	in 	Brierley’s 	open 	garage;
Housekeeper’s statements that she thought Brierley had been

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driving the car, had seen her exit the garage, and thought she
appeared to be under the influence of alcohol or drugs. They had
taken steps to seek a warrant, including contacting the City
Attorney and beginning to draft the necessary documents. As a
consequence, we have a high level of confidence that a search
warrant would have been issued, in which case they would have
searched the house, found Brierley in it, and proceeded with
questioning, field sobriety tests, breath tests, and license checks.7
Moreover, because this evidence would have been inevitably
discovered, “‘the deterrence rationale has so little basis that the
evidence should be received.’” See State v. Topanotes, 2003 UT 30,
¶ 14, 76 P.3d 1159 (quoting Nix v. Williams, 467 U.S. 431, 444
(1984)). We therefore determine that the district court erred in
refusing to apply the inevitable discovery doctrine to allow
the admission of evidence regarding the field sobriety tests, the
breath tests, Brierley’s statements,8 and the license check.
7. Brierley argues the inevitable discovery doctrine is inapplicable
because “there was no independent investigation that would
lead to the discovery of evidence separate from the [warrantless
entry].” 	But 	the 	inevitable 	discovery 	doctrine 	requires 	“an
independent basis for discovery,” not “an entirely independent,
alternate, intervening, appreciably attenuated investigation aside
from the tainted investigation.” State v. Topanotes, 2003 UT 30,
¶¶ 15–16, 76 P.3d 1159 (citations and internal quotation marks
omitted).
8. Although the parties do not describe the statements Brierley is
alleged 	to 	have 	made, 	our 	own 	review 	of 	the 	record 	has
illuminated only one statement: Sergeant Joseph averred in a
probable cause affidavit that “[u]pon contact Brierley denied
driving the vehicle saying the driver was a male adult in his
sixties.” 	We 	note 	that 	this 	statement 	does 	not 	resemble 	a
confession and constitutes only a small piece of the City’s case
against Brierley.

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¶22 	Although we do not condone the officers’ entry into
Brierley’s house before they had obtained a search warrant, we
do not believe their presence on the inside of the threshold,
rather than several feet away on the outside of the threshold,
made a material difference. They had locked down the house—
meaning 	that 	no 	one 	could 	leave—started 	the 	process 	of
obtaining 	a 	search 	warrant 	to 	look 	for 	Brierley, 	and 	were
prepared to wait for it. Once they had a warrant, they would
have located Brierley and the rest of their evidence gathering
would have ensued. Brierley’s emergence from her bedroom
while the officers were still in the process of seeking the search
warrant merely hastened this inevitable process, and we think it
highly unlikely that their presence on one side of the threshold
or the other had an effect on this sequence of events.
CONCLUSION
¶23 	We conclude that the field sobriety tests, the breath tests,
Brierley’s 	statements, 	and 	the 	information 	from 	checking
Brierley’s license would have been discovered by lawful means.
Consequently, the inevitable discovery doctrine should apply to
permit 	the 	City 	to 	offer 	this 	evidence 	notwithstanding 	the
officers’ warrantless entry to Brierley’s house. We therefore
reverse the order suppressing the evidence and remand for
further proceedings.