State v. Nihells

               THE UTAH COURT OF APPEALS

                        STATE OF UTAH,
                          Appellant,
                              v.
                       TYLER A. NIHELLS,
                          Appellee.

                            Opinion
                        No. 20180678-CA
                    Filed December 27, 2019

           Third District Court, Salt Lake Department
               The Honorable Andrew H. Stone
                          No. 181903545

          Sean D. Reyes and Jeffrey D. Mann, Attorneys
                         for Appellant
              Sarah Carlquist, Attorney for Appellee

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

ORME, Judge:

¶1      Having determined that the State had not presented
sufficient evidence at a preliminary hearing to establish probable
cause to believe that defendant Tyler A. Nihells committed two
drug-related offenses, the magistrate declined to bind him over
for trial on either charge. The State appeals, and we reverse.
                          State v. Nihells


                        BACKGROUND 1

¶2     Prompted by an expired registration, a state trooper
(Trooper) pulled over a vehicle containing two occupants:
Nihells, the driver, and Thomas A. Burzak Jr., the passenger
and owner of the vehicle. After obtaining a driver license
from each of them, Trooper asked Nihells to accompany him to
his patrol car while he ran a records check. Trooper also
approached Burzak, who declined to speak with Trooper.
Burzak was nervous, “breathing really heavily and just seemed
uneasy.”

¶3     As soon as Trooper and Nihells were in the patrol car,
Trooper immediately “noticed a strong odor of marijuana
emitting from [Nihells].” Trooper later described Nihells’s
demeanor as “overly nervous” and “uneasy with [Trooper’s]
presence.” Trooper also testified that Nihells avoided eye
contact and was “breathing heavily.” Trooper noted that
Nihells’s “carotid artery was pumping in his neck.” Nihells
told Trooper that he and Burzak were returning home from
San Francisco, where they had spent a few weeks visiting
friends. He also told Trooper that they were both unemployed
and “had been for an amount of time,” but they had been able
to pay for the trip with savings. When Trooper informed
Nihells that he “could smell marijuana,” Nihells explained that
“it was probably coming from his clothes.” Trooper asked
whether “he had used recently,” and Nihells answered that “it
had been a little bit—a little while.” But Nihells denied
having any marijuana on his person, and Trooper did not search
him.


1. “In reviewing a magistrate’s bindover decision, we view all
evidence in the light most favorable to the prosecution,” “draw
all reasonable inferences in favor of the prosecution,” and “recite
the facts with that standard in mind.” State v. Clyde, 

, ¶ 2 n.1, 

 (quotation simplified).




20180678-CA                     2               

                          State v. Nihells


¶4     While still waiting for dispatch to respond on the records
check Trooper requested, he deployed his canine around
Burzak’s vehicle. The canine alerted on both the front
passenger’s and driver’s side doors, but it did not alert on the
trunk. Prior to conducting a physical search of the vehicle with
two other troopers who had arrived on the scene, Trooper asked
Nihells and Burzak whether the contents of the vehicle belonged
to them, and they “said everything belonged to them.” 2

¶5     A search of the car revealed “two backpacks that were
stuffed in the front of the trunk completely surrounded by other
belongings.” In the backpacks, Trooper found “11 packages of
marijuana” with a cumulative weight of 11.15 pounds. Based on
Trooper’s training and experience, he testified that this
represented a distributable amount. The search also revealed
“marijuana fragments throughout the car and some rolling
papers.” Trooper did not ask who owned the backpacks, which
did not contain any tags or other markings identifying their
owner. Based on both Nihells’s and Burzak’s presence in the
vehicle and their prior comments confirming ownership of all
the car’s contents, Trooper assumed that the backpacks belonged
to both of them and placed the two under arrest.

¶6     The State charged Nihells and Burzak with one count
each of possession of a controlled substance with intent to
distribute and possession of drug paraphernalia. A district court
judge, acting as a magistrate, held a joint preliminary hearing, at
which Trooper was the only witness to testify. Following


2. Trooper did not recall the exact wording of his question or
whether he posed it to Nihells and Burzak together or to each
separately. But he testified that he “typically do[es] that
separate,” and “typically will ask . . . about the vehicle and . . .
does everything in the vehicle belong to you.” Trooper also
acknowledged that the question “presumes that they know
exactly what’s in the vehicle.”




20180678-CA                     3                

                          State v. Nihells


Trooper’s testimony, Burzak’s counsel argued that insufficient
evidence supported bindover on the charges against his client
because “this is a construct[ive] possession case where it’s
multiple passengers in the vehicle and it seems with [Burzak] all
the state has been able to present has been mere presence” of
marijuana and rolling papers because no contraband was “near
[Burzak’s] immediate control or where he had immediate
access.” He also argued that Nihells’s and Burzak’s answer to
Trooper’s “blanket question” of whether they owned everything
in the vehicle was insufficient to establish the element of intent.
Nihells’s counsel “join[ed] most [of] those comments” and
argued that “there’s simply nothing tying [Nihells] to those
backpacks.” The State responded, asserting that the totality of
the evidence, when viewed “in the light most favorable to the
state,” supported bindover for both defendants.

¶7      The magistrate concluded there was “[n]o probable cause
as to any of the charges” because “it’s probably a legal
impossibility for each of [the defendants] to own everything in
the vehicle” and “[t]here isn’t anything tying either defendant to
the materials found in the trunk.” He stated that the “vague
reference to fragments [of marijuana] without any quantification
or location within the car other than to say it’s throughout the
car” was insufficient to establish knowledge and that “[o]dor by
itself doesn’t reflect knowledge of the contraband being there or
raise an inference of that.” The magistrate also determined that
“nervousness” does not raise an inference of guilt. Accordingly,
the magistrate declined to bind either defendant over for trial on
either charge.

¶8     The State appeals the magistrate’s denial of bindover for
Nihells. 3 See 

-18a-1(3)(a) (LexisNexis 2017).



3. The State also challenges the magistrate’s denial of bindover
for Burzak in a separate appeal, see State v. Burzak, 2019 UT App
                                                     (continued…)


20180678-CA                     4               

                         State v. Nihells


             ISSUE AND STANDARD OF REVIEW

¶9    The State argues that the magistrate erroneously
concluded that insufficient evidence supported bindover for
possession of a controlled substance with intent to distribute and
for   possession     of    drug    paraphernalia.     “[B]indover
determinations are mixed questions of law and fact.” State v.
Schmidt, 

, 

. And although “we
grant some deference” to a magistrate’s bindover ruling, “any
departure from the correct legal standard will always exceed”
the magistrate’s “limited discretion” to rule in such matters. 

(quotation simplified).


                           ANALYSIS

¶10 Preliminary hearings present an opportunity for
“magistrates to ferret out groundless and improvident
prosecutions without usurping the jury’s role as the principal
fact-finder.” State v. Schmidt, 

, 

(quotation simplified). Thus, to support bindover of a criminal
defendant for trial, the State must satisfy the “relatively low”
probable cause standard. Id. ¶ 17 (quotation simplified). See Utah
R. Crim. P. 7B(b); State v. Maughan, 

, 

 (referring to probable cause as “a lenient standard”). To
establish probable cause, all that is required is “that there is
evidence that could sustain a reasonable inference in the
prosecution’s favor on each element of the crime(s) in question.”
State v. Ramirez, 

, 

.


(…continued)
211, which denial we likewise reverse for essentially the same
reasons articulated in the current appeal, see id. ¶ 2. For
efficiency’s sake, in Burzak we address only Burzak’s arguments
made in addition to the arguments Nihells advances in this
appeal. Id.




20180678-CA                     5              

                          State v. Nihells


¶11 At this stage of a criminal proceeding, the State need not
“eliminate alternative inferences that could be drawn from the
evidence in favor of the defense,” id. ¶ 9, and in reaching a
bindover decision, magistrates must refrain from assessing
“whether [the State’s] inference is more plausible than an
alternative that cuts in favor of the defense,” id. ¶ 10. Instead,
magistrates “must view all evidence in the light most favorable
to the prosecution and must draw all reasonable inferences in
favor of the prosecution,” Maughan, 

 (quotation
simplified), and “may disregard evidence as incredible only
where it is so contradictory, inconsistent, or unbelievable that it
is unreasonable to base belief of an element of the prosecutor’s
claim on that evidence,” Schmidt, 

 (quotation
simplified).

¶12 Denial of bindover is appropriate “only where the facts
presented by the prosecution provide no more than a basis for
speculation.” State v. Jones, 

, 

(quotation simplified). In other words, denial of bindover is
appropriate only when “there is no underlying evidence to
support the conclusion” of probable cause. Salt Lake City v.
Carrera, 

, 

. See 

 (“[T]he difference
between an inference and speculation depends on whether the
underlying facts support the conclusion.”).

¶13 To support bindover for possession of a controlled
substance with intent to distribute, the State had the burden of
establishing probable cause to believe that Nihells “knowingly
and intentionally . . . possess[ed] a controlled or counterfeit
substance with intent to distribute.” Utah Code Ann.
§ 58­37­8(1)(a) (LexisNexis Supp. 2019). 4 And for possession of


4. Because the statutory provisions in effect at the relevant time
do not differ in any way material to our analysis from those now
in effect, we cite the current version of the Utah Code for
convenience.




20180678-CA                     6                

                           State v. Nihells


drug paraphernalia, the State had the burden of establishing
probable cause to believe that Nihells “possess[ed] with intent to
use, drug paraphernalia to . . . introduce a controlled substance
into the human body.” 

 § 58­37a-5(1)(a) (2016). Importantly,
contraband may be possessed either individually or jointly with
others.5 See id. § 58­37­2(1)(ii).

¶14 At issue in the current case is whether the State
established probable cause to believe that Nihells was in
constructive possession of the marijuana and the rolling papers.
“To prove that a defendant was in knowing and intentional
possession of a controlled substance, the prosecution need only
establish that the produced contraband was found in a place or
under circumstances indicating that the accused had the ability
and the intent to exercise dominion and control over it.” State v.
Hansen, 

 (Utah 1987) (per curiam). See 

(1)(ii) (“For a person to be a possessor or
user of a controlled substance, . . . it is sufficient if it is shown
that . . . the controlled substance is found in a place or under
circumstances indicating that the person had the ability and the
intent to exercise dominion and control over it.”). Having
reviewed the evidence presented at the preliminary hearing, we
conclude that the State satisfied the lenient probable cause
standard to support bindover for trial on each charge. 6



5. Unlike chapter 37, chapter 37a—the chapter prohibiting the
possession of drug paraphernalia—does not define “possession.”
But courts have generally treated the term to be the same as for
“possession” of controlled substances as used in chapter 37. See,
e.g., State v. Ashcraft, 

, 

; State v.
Ramirez, 

, ¶ 11 & n.2, 

; State v. Layman,

, 

.

6. Nihells argues that the State failed to carry its burden of
persuasion as concerns the possession­of­paraphernalia charge
                                                 (continued…)


20180678-CA                      7               

                          State v. Nihells


¶15 The Utah Supreme Court has repeatedly stated that the
probable cause standard applied at preliminary hearings is
identical to the probable cause standard applied on review of
arrest warrants, see, e.g., Jones, 

; Schmidt, 

; Ramirez, 

, and has specifically declined
to distinguish one standard from the other, see State v. Clark, 

, 

. Accordingly, at the preliminary hearing
stage of criminal proceedings, we ask “simply whether a
reasonable officer, viewing the evidence in the light most
favorable to the prosecution, could possibly conclude that each
element of the offense in question was committed by the
defendant.” Jones, 

. See id. ¶ 22. And employing
this standard, the United States Supreme Court held that a police
officer had probable cause to arrest a defendant under
circumstances quite similar to those in this case. See Maryland v.
Pringle, 

, 371–72 (2003).

¶16 In Pringle, a police officer stopped a speeding vehicle that
contained defendant Pringle, who was sitting in the front
passenger seat, and two other men. 

. A subsequent
search of the car revealed $763 in cash in the glove compartment
and five baggies of cocaine behind the back-seat armrest. 

(…continued)
because it did not analyze the charge independently from the
possession­with­intent­to­distribute charge. But Nihells has not
distinguished possession—the element at issue on appeal—of
the paraphernalia (rolling papers) from that of the controlled
substance (marijuana) with intent to distribute. Indeed, as
previously noted, courts have generally treated the possession
elements of both offenses to be one and the same. See supra
note 5. Accordingly, the State’s argument that, based on the
evidence, “[i]t was reasonable to infer that each of the
defendants . . . individually or jointly possessed . . . the drug
paraphernalia” does not fail on the ground that it lumped
together its constructive possession analysis for both charges.




20180678-CA                     8                

                          State v. Nihells


When none of the occupants admitted to ownership of the
drugs, the officer arrested all three. 

 at 368–69. The Supreme
Court held that the officer had probable cause to arrest Pringle. It
stated that under those circumstances—i.e., where he was one of
three occupants of a vehicle containing cash in the glove
compartment and cocaine in a location “accessible to all three
men,” and where all three denied ownership of the contraband,

 at 371–72—it was “an entirely reasonable inference from these
facts that any or all three of the occupants had knowledge of,
and exercised dominion and control over, the cocaine,” id. at 372,
thereby satisfying the required showing of constructive
possession for probable cause purposes.

¶17     Similarly, in the case at hand, Trooper arrested Nihells
and Burzak because the two were the sole occupants of a vehicle
containing scattered marijuana fragments 7 and rolling papers in
the vehicle’s interior and more than eleven pounds of marijuana
in the trunk. Moreover, both claimed ownership of everything in
the vehicle. And as in Pringle, neither occupant claimed


7. The magistrate minimized the significance of the marijuana
fragments, referring to it as “vague references . . . without any
quantification or location within the car other than to say it’s
throughout the car.” But Trooper testified that his canine alerted
to marijuana on the driver’s and front passenger’s side doors,
thereby indicating that the fragments were at the very least
located in the two locations where the defendants were seated.
And we struggle to see how further explanation about the
marijuana fragments would affect the probable cause finding
because the fragments were not the basis for the
possession­with­intent­to­distribute charge. Their evidentiary
relevance is tied to supporting an inference that Nihells and
Burzak were aware of the drugs in their trunk and that the
rolling papers were used as drug paraphernalia rather than for
smoking tobacco. As such, even a miniscule amount would be
relevant.




20180678-CA                     9                

                          State v. Nihells


exclusive ownership of the contraband. Furthermore, in addition
to the considerations discussed in Pringle, Nihells was “overly
nervous,” strongly smelled of marijuana, and admitted to recent
marijuana use. 8




8. At the preliminary hearing, the magistrate stated that
“nervousness” does not raise an inference of guilt. While the
magistrate is right about run-of-the-mill nervousness—our
Supreme Court has pointed out that “it is not uncommon for
drivers and passengers alike to be nervous and excited” when
pulled over by law enforcement, see State v. Schlosser, 

 (Utah 1989)—such factors are not properly viewed in
isolation. Rather, they should be evaluated as part of the totality
of the circumstances. See Maryland v. Pringle, 

(2003) (“The probable­cause standard . . . depends on the totality
of the circumstances.”); State v. Roberts, 

, 

 (“Probable cause determinations are governed by a
totality­of-the-circumstances analysis.”) (quotation simplified).
See also State v. Yoder, 

 (Utah Ct. App. 1997)
(“Although defendant’s nervous or suspicious behavior is
insufficient by itself to establish probable cause, it may . . . be
considered in conjunction with other relevant and objective
facts.”).
   Much the same analysis applies to the magistrate’s statement
that “[o]dor by itself doesn’t reflect knowledge of the contraband
being there or raise an inference of that.” Although we express
some doubt as to the accuracy of the statement, see State v.
Spurgeon, 

 (Utah Ct. App. 1995) (“Probable
cause for arrest may arise from an officer’s sense of smell.”)
(quotation simplified), the magistrate’s reasoning fails in any
event because the odor should have been viewed in light of the
totality of the circumstances—i.e., the odor plus the marijuana
fragments, the rolling papers, Nihells’s admission to recent
marijuana use, Nihells’s and Burzak’s statements that they
                                                     (continued…)


20180678-CA                     10              

                           State v. Nihells


¶18 Nihells argues that the marijuana was “not accessible to
all the passengers like [it was] in Pringle” because Trooper found
the marijuana in the trunk, as opposed to the passenger
compartment of the vehicle, and the State did not present
“evidence that he could access the trunk without [Burzak’s]
permission or without [Burzak’s] keys to the car.” But Nihells
overlooks the facts that he was driving the vehicle at the time
Trooper pulled him and Burzak over and that he was therefore
in possession of the keys. In that context, it is entirely reasonable
to infer, at least for probable cause purposes, that Nihells had
access to the trunk and constructively possessed the drugs either
individually or jointly with Burzak. Cf. State v. Harding, 

, 

 (stating, in the context of discussing the
apparent authority of a person to consent to a search of another’s
property, that “the trunk of a vehicle . . . is typically controlled
only by the driver”). And this inference is further bolstered by
the facts that (1) his belongings were located in the trunk;
(2) along with Burzak, he stated that he owned everything in the
vehicle; (3) he and Burzak were on a long trip together; (4) he
was unusually nervous; (5) he smelled of marijuana; (6) the
passenger compartment of the car contained rolling papers and
marijuana fragments; and (7) he admitted to recently using
marijuana.

¶19 Nihells further argues that this case is distinguishable
from Pringle because “Trooper never asked Nihells or [Burzak]
who the drugs in the trunk belonged to but in Pringle the officer
did.” And because all three men in Pringle denied possession of
the drugs, Nihells asserts that the officer “could reasonably infer
that at least one of the passengers was lying about who owned
the drugs.” But here, Nihells argues, Trooper’s question whether
he and Burzak owned everything in the car assumed that Nihells


(…continued)
owned everything in the vehicle, and their nervous demeanors—
not “by itself.”




20180678-CA                      11              

                           State v. Nihells


knew what was in the trunk, and therefore their answers could
not support a reasonable inference of constructive possession.
We do not read Pringle as narrowly as Nihells does. We view
both cases as situations in which none of the occupants claimed
exclusive possession of the discovered contraband. In Pringle,
none of the three occupants offered information concerning
ownership of the contraband. In the current case, both occupants
stated that they owned all of the vehicle’s contents. 9 And after
discovery of the 11.15 pounds of marijuana, nothing prevented
either occupant from claiming or denying exclusive ownership
of the contraband. Furthermore, the Supreme Court stated in
Pringle that law enforcement may reasonably infer that
passengers in a vehicle are engaged in a common drug-dealing
enterprise, unless the guilty person is somehow singled out. See
540 U.S. at 373–74. See also State v. Burzak, 

.
And as previously discussed, although Nihells did not deny
possessing the marijuana, the odor emanating from Nihells as


9. The magistrate was mistaken in characterizing joint ownership
of the vehicle’s contents as “probably a legal impossibility.” In
reaching bindover decisions, magistrates “must view all
evidence in the light most favorable to the prosecution and must
draw all reasonable inferences in favor of the prosecution.” State
v. Maughan, 

, 

 (quotation
simplified). Under this standard, the magistrate should have
construed the statement that Nihells and Burzak owned
everything in the vehicle—including the backpacks—to mean
not that all items in the car were owned by them jointly but that
all items in the car were owned by them collectively, i.e., they
were not hauling items to be delivered to another when they
were back home, they had not retrieved something from the
roadside that they hoped to reunite with its rightful owner, and
they had not dropped off a friend in Reno only to discover hours
later that he inadvertently left his briefcase in the car. That said,
it is not beyond the realm of possibility that the two had jointly
purchased the car’s contents for their shared journey.




20180678-CA                      12              

                          State v. Nihells


well as the paraphernalia and traces of marijuana found
throughout the vehicle’s interior are more than sufficient to
support a reasonable inference of his possession of the marijuana
for bindover purposes.


                         CONCLUSION

¶20 We hold that the magistrate exceeded his discretion by
not applying a totality-of-the-circumstances analysis, in the
course of which he should have “draw[n] all reasonable
inferences in favor of the prosecution,” see State v. Maughan, 

, 

 (quotation simplified), and instead
concluding that there was not “anything tying either defendant
to the materials found in the trunk.” The totality of the evidence
presented by the State at the preliminary hearing was sufficient
to sustain the lenient probable cause standard to support
bindover of Nihells for trial on both charges. We accordingly
reverse the magistrate’s decision and remand with instruction to
bind Nihells over for trial on both charges.




20180678-CA                     13