2021 UT App 83

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellant,

v.

JONATHAN A. GONZALEZ,

Appellee.

Opinion

No. 20190810-CA

Filed July 29, 2021

Second District Court, Farmington Department

The Honorable David R. Hamilton

No. 181702012

Sean D. Reyes and Jeffrey S. Gray, Attorneys

for Appellant

Joseph Jardine and Peter D. Goodall, Attorneys

for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES

GREGORY K. ORME and DAVID N. MORTENSEN concurred.

POHLMAN, Judge:

¶1 In the middle of the night, an intruder entered Christina’s1

bedroom while she and her baby slept. He performed a lewd act

while holding his cell phone and then left without further 

incident. After an investigation, the police believed Jonathan A. 

Gonzalez was the intruder and applied for a search warrant to 

obtain the cell tower location data for his cell phone. Based on an 

officer’s supporting affidavit, a magistrate granted the request. 

Armed with evidence obtained as a result of the search and its 

fruits, the State charged Gonzalez with burglary, lewdness 

 

1. A pseudonym.
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involving a child, and lewdness. Gonzalez moved to suppress 

that evidence, arguing that the attesting officer had recklessly 

omitted material facts from the search warrant affidavit and that 

with the omitted material included, the affidavit did not support 

a finding of probable cause. The district court agreed with 

Gonzalez and granted his motion. Because we conclude that 

probable cause still exists with the inclusion of the omitted facts 

identified by the district court, we reverse.

BACKGROUND

¶2 After tossing and turning for several hours late at night, 

Christina finally dozed off while her baby lay sleeping in the 

same room. Christina’s husband was away, working a twelvehour shift. When he returned home early the next morning, he 

noticed that several things appeared to be amiss. With his 

curiosity piqued, Christina’s husband checked the surveillance 

footage on the couple’s nanny cam, which was positioned in 

their bedroom. The nanny cam footage showed, at 3:42 a.m., a 

figure walking through the dark bedroom where Christina and 

the baby slept.

¶3 While the intruder moved through the room, he removed 

his penis from his pants and proceeded to masturbate in the 

presence of Christina and the baby. While performing the lewd 

act, the intruder held a cell phone in his left hand, possibly 

taking pictures or recording a video. Also visible on the footage 

was a wedding ring worn on the intruder’s left hand. Then, as 

abruptly as he entered, the intruder left.

¶4 The nanny cam never captured the intruder’s face; he 

could be seen only from the chest down, wearing what appeared 

to be a light-colored hoodie and dark pants. Christina slept 

unaware of the entire incident and remained asleep until her 

husband woke her up. After viewing the footage, the couple 

reported the incident to the police.
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20190810-CA 3 2021 UT App 83

¶5 From the beginning of their investigation, the police 

suspected that the intruder was someone familiar with Christina

and her home. For one thing, there was no sign of forced entry; 

all the exterior windows and doors were locked. Also, another 

person living in the home reported hearing the garage door open 

and close multiple times during the same early-morning time 

frame over the prior month, but Christina’s husband stated that 

he had “never repeatedly opened and closed the garage door” 

when coming home from work. And when the police first 

arrived at the scene, the cover to the garage keypad was partially 

opened, leading the police to suspect that the intruder gained 

access to the home through the garage.

¶6 A police lieutenant (Lieutenant) reviewed the nanny cam 

footage with Christina and asked her if she had any idea who 

the intruder might be. Christina first suggested her brother-inlaw, stating that the intruder “looks similar to her brother-inlaw, but that he doesn’t wear a wedding ring, which the intruder 

wore.” Next, she identified Gonzalez, a close family friend. She 

revealed to Lieutenant that “several years” ago she had fallen 

asleep on the couch and that she had woken up to find Gonzalez

“snuggled up to her,” in a “spooning-type position.” She also 

said that “she believed” that Gonzalez’s wife, also a close friend,

“would have had the garage code to her home.”

¶7 Later that day, Lieutenant visited the Gonzalezes’

residence and met with Gonzalez’s wife. Gonzalez’s wife had 

seen the nanny cam footage and was concerned for her friend. 

She gave Lieutenant permission to search areas of the home 

where Gonzalez had clothing, and Lieutenant looked for 

clothing items matching what he thought the intruder was 

wearing in the nanny cam footage—very dark pants and a lightcolored hoodie. Lieutenant performed a brief search of two 

separate closets where he took “quick, cursory glances through 

the clothing,” but he did not find any items that matched the 

intruder’s clothing. Because Lieutenant wanted to keep the 
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20190810-CA 4 2021 UT App 83

interaction “low-key,” he spent less than a minute searching 

each closet.

¶8 Eventually, a detective (Detective) took over the 

investigation. Lieutenant briefed him on its status, including 

Lieutenant’s search of the Gonzalezes’ home. Lieutenant also 

told Detective about the incident of Christina waking up to find 

Gonzalez lying next to her. After familiarizing himself with the 

rest of the case, Detective went to interview Christina.

¶9 During their conversation, Christina again suggested both 

her brother-in-law and Gonzalez as possible suspects. Referring 

to her brother-in-law, she told Detective that “the body type [in 

the footage] looks like his.” But she also expressed doubt that the 

intruder could be her brother-in-law because he was not married 

and the intruder wore a wedding ring. In addition, she noted 

that her brother-in-law did not own a cell phone like the one the 

intruder was seen holding in the footage. Finally, Christina

stated that her brother-in-law “is just not that kind of person.”

¶10 Referring to Gonzalez, Christina pointed out 

characteristics that suggested he could be the intruder, such as 

“his features are long and his hands look long.” But she further

observed that the intruder’s “legs looked too short to be” 

Gonzalez’s, while also speculating that the angle of the nanny 

cam may be to blame. She also led Detective to believe that she 

was “very apprehensive” about pointing the finger solely at 

Gonzalez for fear of harming her friendship with his wife.

¶11 On the same day Detective interviewed Christina, he

discovered that the nanny cam inverted colors of clothing 

depicted in its footage—light-colored items appeared dark and 

dark-colored items appeared light. For example, the nanny cam 

reflected the black slacks worn by Detective as “pretty much 

pure white.”
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20190810-CA 5 2021 UT App 83

¶12 The next day, Detective found Gonzalez in his driveway

and asked to speak with him. Detective observed that Gonzalez’s 

physical “body type seemed very similar” to that of the 

intruder’s and that “[h]is hands . . . appeared to be very similar, 

[including] the way that the ring sat on the ring finger.”

Detective also noticed that Gonzalez used his left hand to hold 

his cell phone, the same way the intruder did in the nanny cam 

footage.

¶13 After the encounter with Gonzalez, and after learning that 

the nanny cam inverted colors, Detective viewed photographs of 

Gonzalez on Gonzalez’s wife’s Facebook page. Detective

observed from the photos that Gonzalez’s body type was similar 

to that of the intruder in the nanny cam footage, Gonzalez and 

the intruder shared the same hand structure, and Gonzalez wore 

his wedding ring in the same location on his finger as the 

intruder.

¶14 Having concluded that Gonzalez was the intruder in the 

nanny cam footage, Detective drafted an affidavit to secure, 

among other things, the addresses of cell towers that “ping[ed]” 

Gonzalez’s cell phone during and around the time that the 

intruder had broken into Christina’s home. In that affidavit, 

Detective stated,

On 05/14/18, Layton City Police began to 

investigate a residential burglary. At 

approximately 0342 hours, the suspect unlawfully 

entered the residence and walked into a 

downstairs bedroom where a woman and her 

infant child were sleeping. The suspect was 

captured on surveillance (never showing the 

suspect’s face) performing what appears to be lewd 

acts with his penis. The suspect was holding a cell 

phone in his left hand near his penis during the
State v. Gonzalez

20190810-CA 6 2021 UT App 83

lewd act and it appeared the suspect was taking 

photographs inside the room or video recording.

There wasn’t any forced entry into the residence 

and the doors and windows were still locked. 

Based on the circumstances of the burglary it is 

believed that the suspect was familiar with the 

victim and also the residence. Another resident 

reported hearing the garage door opening and 

closing multiple times during the same time frame 

for approximately the last month. This resident 

talked to the victim’s husband who stated he never 

repeatedly opened and closed the garage door 

while arriving home from work during these time 

frames. When officers initially arrived on scene to 

check for any suspects, the cover to the garage key

pad was partially opened and it is believed the 

suspect may have used the garage code to access 

the residence.

It is believed a close family friend, Jonathan 

Gonzalez, may be the suspect in this case. This 

belief is based on a previous inappropriate incident 

provided to police by the victim, which involves 

Jonathan. Jonathan also matches the physical 

description of the suspect captured on surveillance. 

Jonathan’s wife and the victim’s husband also 

work together and are on opposite shifts. 

Jonathan’s wife works 4 AM to 4 PM and the 

victim’s husband works 4 PM to 4 AM. This 

conflicting work schedule would provide Jonathan

the ability to be at the victim’s residence without 

his wife or the victim’s husband being home. 

Jonathan also lives approximately two miles from 

the victim’s residence. 
State v. Gonzalez

20190810-CA 7 2021 UT App 83

A check was done of Jonathan’s wife’s public 

Facebook photograph page. There was an image 

that showed Jonathan’s wedding ring. There was 

also an image that showed Jonathan’s right hand. 

Jonathan’s wedding ring on the Facebook 

photograph page and position of the ring on the 

finger was similar to the suspect’s ring on the left 

hand and its position on his finger. Jonathan’s right 

hand structure and finger length is also similar to 

the suspect’s left hand and finger length as it is 

depicted in the video surveillance.

I later met with Jonathan to conduct an interview. 

While trying to talk with him, he was using his left 

hand to hold his cell phone. The suspect in the 

surveillance footage used his left hand to hold the 

cell phone while committing the lewd acts.

¶15 Detective did not provide in this affidavit any additional 

details about the “previous inappropriate incident” Christina 

had described. Nor did he divulge that Lieutenant had engaged 

in an unsuccessful search for clothing at Gonzalez’s home. 

Detective also omitted any mention of Christina naming her 

brother-in-law as a possible suspect or her statement that the 

intruder’s legs appeared to be shorter than Gonzalez’s.

¶16 Based on the affidavit, the magistrate issued a search 

warrant, and the police obtained the cell tower location data for 

Gonzalez’s cell phone. Using those records, the police 

determined that Gonzalez was “at or near” Christina’s home 

during the time of the burglary. With this new information, the 

police obtained a second search warrant allowing them to search 

Gonzalez’s home. With evidence gathered from both searches, 

the State charged Gonzalez with burglary, lewdness involving a 

child, and lewdness.
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20190810-CA 8 2021 UT App 83

¶17 Gonzalez subsequently moved to suppress the evidence 

gathered through execution of the two warrants. He argued that 

the supporting affidavit for the first warrant was misleading

because it omitted relevant evidence that negated probable 

cause. After hearing argument on the motion, the district court 

ordered an evidentiary hearing (Franks hearing) as provided in 

Franks v. Delaware, 438 U.S. 154 (1978), and State v. Fuller, 2014 

UT 29, 332 P.3d 937. See State v. Garcia, 2007 UT App 228, ¶ 8, 164 

P.3d 1264 (“In Franks, the Supreme Court held that a search 

warrant based on deliberate falsehoods or a reckless disregard 

for the truth must be evaluated to determine whether the 

affidavit supporting the warrant would still support probable 

cause once the false information is removed.” (cleaned up)).

¶18 Following the Franks hearing and additional argument, 

the district court granted Gonzalez’s motion to suppress. It 

found that Detective had “recklessly omitted” three pieces of 

“material information” that affected the probable cause 

determination. “First, the affidavit omitted the prior consensual 

search of [Gonzalez’s] home . . . .” “Second, the affidavit omitted 

both [Christina’s] statements of equivocation and her 

identification of a brother-in-law as matching the physical 

description of the suspect.” “Third, the affidavit cryptically 

explains that [Gonzalez] is a suspect in this case because of ‘a 

previous inappropriate incident provided to police by 

[Christina], which involves [Gonzalez]’ and omitted relevant 

information that this ‘previous inappropriate incident’ occurred 

several years prior and what was the actual conduct.” The court 

concluded that had the omitted information been included in the 

cell tower warrant affidavit, it “would have failed to support a 

finding of probable cause.” The court thus voided both search 

warrants and suppressed all evidence obtained under them.

¶19 Without the evidence from the two searches, the case was 

dismissed. The State now appeals.
State v. Gonzalez

20190810-CA 9 2021 UT App 83

ISSUE AND STANDARDS OF REVIEW

¶20 On appeal, the State contends that the district court erred 

by granting Gonzalez’s motion to suppress evidence for two 

reasons. First, the State argues that Detective was not reckless in 

omitting the three pieces of information identified by the district 

court. Second, the State argues that even if Detective’s omission 

was reckless, probable cause for the search of the cell tower

records still exists when those facts are included. This court 

reviews a district court’s ruling on a motion to suppress for an 

alleged Fourth Amendment violation as a mixed question of law 

and fact. State v. Fuller, 2014 UT 29, ¶ 17, 332 P.3d 937. Its factual 

findings are reviewed for clear error, and its legal conclusions, 

including whether the affidavit in support of a search warrant 

was sufficient to support a probable cause determination, are

reviewed for correctness. See id.; see also State v. Tripp, 2010 UT 9, 

¶ 23, 227 P.3d 1251 (reviewing a district court’s ruling on a 

motion to suppress, “including its application of the law to the 

facts,” for correctness).

ANALYSIS

¶21 The Fourth Amendment to the United States Constitution 

protects “against unreasonable searches and seizures” and 

mandates that “no Warrants shall issue, but upon probable 

cause, supported by Oath or affirmation, and particularly 

describing the place to be searched, and the persons or things to 

be seized.” U.S. Const. amend. IV.

¶22 “The responsibility for issuing warrants and for meeting 

the pertinent constitutional requirements that underlie their 

issuance rests with the magistrate, a neutral and detached party 

who independently determines whether probable cause exists to 

support a search.” State v. Nielsen, 727 P.2d 188, 190 (Utah 1986).

A magistrate, however, must rely on the representations of the 

investigating officer, who sets forth in the warrant affidavit the 
State v. Gonzalez

20190810-CA 10 2021 UT App 83

facts the officer contends are sufficient to meet the probable 

cause standard. See id.; see also Franks v. Delaware, 438 U.S. 154,

164–65 (1978). Although it is not necessary that every fact recited 

be correct, the affidavit must be truthful “in the sense that the 

information put forth is believed or appropriately accepted by 

the affiant as true.” Franks, 438 U.S. at 165.

¶23 A defendant may seek to invalidate a search warrant for 

lack of probable cause based on false statements in the 

supporting affidavit made “knowingly and intentionally, or with

reckless disregard for the truth,” by requesting an evidentiary 

hearing—a Franks hearing—to prove that claim. Id. at 155–56. 

The same is true if the affidavit is misleading due to the 

intentional or reckless omission of material facts. See Nielsen, 727 

P.2d at 191 (“By an extension of reasoning, the same test applies 

when a misstatement occurs because information is omitted

. . . .”); see also State v. Fuller, 2014 UT 29, ¶ 25, 332 P.3d 937.

¶24 To receive a Franks hearing for an alleged factual 

omission, a defendant must, by a “detailed offer of proof,” (1) 

make a “substantial showing that the affiant intentionally or 

recklessly omitted facts required to prevent technically true 

statements in the affidavit from being misleading” and (2) 

demonstrate “that the affidavit if supplemented by the omitted 

information would not have been sufficient to support a finding 

of probable cause.” Fuller, 2014 UT 29, ¶ 25 (cleaned up). If a 

defendant satisfies this threshold burden, the defendant is 

entitled to a hearing but then “must prove by a preponderance 

of the evidence both that the omission in the affidavit was 

material and that the critical information was intentionally or 

recklessly excluded.” Id. ¶ 26. In other words, even if a

defendant proves that an affiant intentionally or recklessly 

omitted material information from a search warrant affidavit, 

the resulting warrant is still valid unless the defendant also 

proves that probable cause would not exist with the inclusion of 

the omitted information. See Nielsen, 727 P.2d at 191 (“The 
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20190810-CA 11 2021 UT App 83

obvious purpose of Franks and its progeny is to avoid 

suppressing evidence when the actual facts, if known to the 

magistrate, would have resulted in a finding of probable 

cause.”).

¶25 Here, the district court granted Gonzalez’s request for a 

Franks hearing and voided the search warrants issued in this case 

based on its determination that Detective “recklessly omitted 

material information that would have been critical to the finding 

of probable cause.” Pointing to the three omissions mentioned 

previously, see supra ¶ 18, the court reasoned that “had the 

omitted information been provided the affidavit would have 

failed to support a finding of probable cause.”

¶26 The State challenges the district court’s determination on 

two grounds. First, the State argues that Detective did not 

recklessly mislead the magistrate by omitting the three pieces of 

information identified by the district court. Second, the State 

maintains that even if information was recklessly omitted, “the 

affidavit establishes probable cause even when the omitted facts 

are considered.” Without resolving whether the evidence 

supported the district court’s determination that Detective was 

reckless in his three omissions, we disagree with the court’s 

probable cause determination. As explained below, we conclude 

that probable cause still exists even if the three omitted facts are 

considered as part of the warrant affidavit. To put those 

omissions in context, we first describe the probable cause 

standard and the basis for the magistrate’s decision that the 

standard had been met. We then analyze whether probable 

cause exists with the three omissions included.

A

¶27 The probable cause standard imposed by the Fourth 

Amendment is not a rigid one. See State v. Moreno, 2009 UT 15, 

¶ 37, 203 P.3d 1000; see also Ornelas v. United States, 517 U.S. 690, 

696 (1996) (describing probable cause as a fluid concept). The 
State v. Gonzalez

20190810-CA 12 2021 UT App 83

standard is satisfied where “the known facts and circumstances”

suffice to permit a person “of reasonable prudence” to believe

that a search will reveal evidence of a crime. Moreno, 2009 UT 15, 

¶ 37 (cleaned up); see also Fuller, 2014 UT 29, ¶ 22 (“The 

information necessary to show probable cause . . . does not 

require proof beyond a reasonable doubt; a magistrate need only 

have a substantial basis for concluding that a search would 

uncover evidence of wrongdoing.” (cleaned up)). The task of 

determining probable cause requires a “totality-of-thecircumstances analysis”: “whether, given all the circumstances 

. . . , there is a fair probability that contraband or evidence of a 

crime will be found in a particular place.” Illinois v. Gates, 462 

U.S. 213, 238 (1983).

¶28 Detective sought cell tower location data for Gonzalez’s 

cell phone, and based on the facts Detective presented, the 

magistrate found that there was probable cause to conclude that 

a search of the cell phone records would uncover evidence of the 

burglary. The affidavit on which the magistrate relied explained 

why Detective believed the intruder was familiar with the 

residence and then described Gonzalez as a close family friend 

who had been involved in “a previous inappropriate incident” 

with Christina. Detective also stated that Gonzalez “matches the 

physical description of the suspect captured on surveillance,” 

and he explained how he had compared Gonzalez’s hand 

structure and ring placement to that of the intruder as shown on 

the nanny cam footage and found that they were similar. 

Detective also explained that when he met Gonzalez, he 

observed that Gonzalez held his cell phone in a manner similar 

to the intruder. Finally, Detective described how the work 

schedule for Christina’s husband would present Gonzalez with 

an opportunity to enter Christina’s residence at a time her 

husband would not be home.

¶29 Gonzalez does not contend that Detective’s affidavit, if 

truthful, failed to satisfy the probable cause standard with 
State v. Gonzalez

20190810-CA 13 2021 UT App 83

regard to cell tower location data from the day of the burglary.

2

Instead, he contends that because certain facts were omitted 

from the affidavit, it was misleading and failed to establish 

probable cause.

B

¶30 The district court shared Gonzalez’s view that the 

affidavit was misleading and concluded that Detective’s 

omission of three facts altered the probable cause equation. We 

disagree with Gonzalez and the district court. We conclude that 

even with the omitted facts added, the affidavit still readily 

supports the determination that there is probable cause to 

believe Gonzalez was the intruder and that evidence of his crime 

would be found in the cell tower location data for Gonzalez’s cell 

phone.

 

2. As part of an apparent invitation to this court to affirm on 

alternative grounds, Gonzalez argues that the search warrant 

lacked probable cause to the extent it authorized the collection of 

prospective cell tower location data for Gonzalez’s phone (data

the State never analyzed). We decline to affirm on this basis 

because Gonzalez has not shown that the proper remedy for an 

alleged overbreadth infirmity is to suppress data seized 

pursuant to the valid portions of the warrant. See generally United 

States v. Richards, 659 F.3d 527, 537 (6th Cir. 2011) (“Infirmity due 

to overbreadth does not doom the entire warrant; rather, it 

requires the suppression of evidence seized pursuant to that part 

of the warrant, but does not require the suppression of anything 

described in the valid portions of the warrant.” (cleaned up)); 

State v. Romero, 660 P.2d 715, 717 (Utah 1983) (“The exclusionary 

rule does not require the suppression of otherwise legally seized 

evidence merely because it was obtained in the same search as 

evidence illegally seized. Only the evidence that was illegally 

seized should be suppressed.” (cleaned up)).
State v. Gonzalez

20190810-CA 14 2021 UT App 83

1

¶31 The first omission the district court identified as material 

to the probable cause determination was the consensual search

of two closets in Gonzalez’s home. The court found that 

Lieutenant had made Detective aware that Gonzalez’s wife had 

given him permission to search “areas of the home where 

[Gonzalez] had clothing”3 and that Lieutenant had made “quick, 

cursory glances through the clothing.” The court also found that 

after the search, police officers discovered that the nanny cam 

“inverted colors so the clothes Lieutenant . . . had been searching 

for were the wrong colors.”

¶32 The affidavit may have been more complete had Detective 

informed the magistrate about the unsuccessful, consensual 

search, but once the circumstances of the search are put in 

context, the fact of the search does not undermine the probable 

cause determination. After all, Lieutenant’s search was limited in 

scope and, even more importantly, he was searching for the 

wrong color of clothes. Lieutenant was unaware when he was 

glancing through Gonzalez’s closets that the nanny cam inverted 

colors. As a result, when he should have been looking for lightcolored pants and a dark hoodie, he was searching for the exact 

opposite. Thus, because Lieutenant was not looking for the right 

clothing, the fact that he searched but did not find what he was 

 

3. The district court found that Lieutenant looked through “a 

hallway closet, bedroom closet, and dresser.” The State 

challenges the court’s finding that Lieutenant looked through a 

dresser as against the clear weight of the evidence. Although not 

critical to our analysis, we agree with the State’s assessment of 

the evidence. Lieutenant testified that he briefly looked through 

two closets, but he never mentioned a dresser. Accordingly, we 

set aside the court’s finding that a dresser was part of 

Lieutenant’s search.
State v. Gonzalez

20190810-CA 15 2021 UT App 83

looking for is immaterial and does not alter the probable cause 

determination.

2

¶33 The second omission the district court identified as 

material was Christina’s “statements of equivocation” regarding 

Gonzalez and her suggestion that her brother-in-law matched

the intruder’s physical description. Specifically, the court found 

that Christina had expressed uncertainty to Detective about 

whether Gonzalez was the intruder, citing her doubt about 

whether the length of Gonzalez’s legs matched that of the 

intruder. The court also found that Christina had explained that 

the intruder looked similar to her brother-in-law except that

unlike the intruder, her brother-in-law did not wear a wedding 

ring.

4

 

4. The district court also found that at the time she was 

interviewed by the police, Christina “believed the physical 

description [of the intruder] more closely aligned with her 

brother-in-law.” Once again, the State asks that we set this 

finding aside as clearly erroneous because it is against the clear 

weight of the evidence. Although we agree with the State that 

there is no direct evidence that Christina expressed the opinion 

attributed to her by the district court, it may be that the court 

drew this inference based on her testimony about the differences 

in body type. Because this inference is not an unreasonable one 

to make, we decline to set the finding aside. See State v. Maestas, 

2012 UT 46, ¶ 201, 299 P.3d 892 (“In those instances in which the 

trial court’s findings include inferences drawn from the 

evidence, we will not take issue with those inferences unless the 

logic upon which their extrapolation from the evidence is based 

is so flawed as to render the inference clearly erroneous.”

(continued...)
State v. Gonzalez

20190810-CA 16 2021 UT App 83

¶34 In isolation, this omission weighs against the probable 

cause determination. Detective should have advised the 

magistrate that Christina had identified a second potential 

suspect and questioned whether the intruder’s legs were “too 

short” to be Gonzalez’s. But in determining probable cause, 

Christina’s statements must be considered in context and with 

the totality of all the relevant facts. And when properly 

considered and viewed alongside all the other evidence, 

Detective’s omissions do not undermine probable cause.

¶35 First, although Christina observed that the intruder’s legs 

looked “too short” to be Gonzalez’s, she offered a reasonable 

explanation for the discrepancy: the angle of the nanny cam. 

Also, in her interview with Detective, Christina identified

physical characteristics of the intruder that did match 

Gonzalez’s, such as his long features and his long hands. And 

despite Christina’s reservation regarding the length of the 

intruder’s legs, she did not retreat from her suspicion that the 

intruder could be Gonzalez. She expressed reservation only 

about accusing a close family friend.

¶36 Second, Detective had his own observations to rely on as 

well. He met with Gonzalez and noticed that he held his cell 

phone in his left hand just like the intruder. Detective also 

viewed photographs of Gonzalez on Facebook and believed that 

Gonzalez’s hand was similar to the intruder’s, including the way 

he wore his wedding ring.

¶37 Third, although Christina suggested her brother-in-law as 

a potential suspect because “the body type [in the nanny cam 

footage] looks like his,” her own suspicion was dispelled by her 

 

(...continued)

(cleaned up)). Our analysis, however, does not turn on this 

detail.
State v. Gonzalez

20190810-CA 17 2021 UT App 83

acknowledgment of two significant facts: unlike the intruder, her 

brother-in-law did not wear a wedding ring, nor did he own a 

cell phone like the one the intruder was seen holding.

¶38 Taken together, Christina’s comments reflect a lack of 

certainty about the identity of the intruder. But certainty is not 

the hallmark of probable cause. See State v. Griffith, 2006 UT App 

291, ¶ 7, 141 P.3d 602 (noting that for the purposes of assessing 

probable cause, “[t]he officer’s belief need not be characterized 

as a certainty”); see also Texas v. Brown, 460 U.S. 730, 742 (1983) 

(plurality opinion) (explaining that probable cause “does not 

demand any showing that such a belief be correct or more likely 

true than false”). And Christina’s comments, taken in context, 

are not so consequential as to undermine the weight of the other 

evidence pointing to Gonzalez.

3

¶39 The third omission the district court identified as material 

was the lack of detail provided for the prior “inappropriate 

incident” involving Christina and Gonzalez. The court explained 

that the affidavit “omitted relevant information that this 

‘previous inappropriate incident’ occurred several years prior 

and what was the actual conduct.” Once again, we disagree with 

the district court that these additional details diminished 

probable cause. On the contrary, we agree with the State that 

“[t]he omitted details . . . serve only to strengthen the force of 

that inappropriate incident.”

¶40 When the magistrate issued the search warrant, he did 

not know that a few years before the incident with the intruder, 

Christina woke up to find Gonzalez snuggled up behind her in a 

spooning position. Learning these details of what was otherwise 

simply described as an “inappropriate incident” did not make it 

less likely that Gonzalez was the intruder—it made it more 

likely. Indeed, such conduct is indicative of Gonzalez’s desire to 

be close (affectionately if not sexually) to Christina and his 
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20190810-CA 18 2021 UT App 83

willingness to fulfill that desire while she is asleep. Further, the 

fact that it occurred “several years” before the incident does not 

significantly diminish the force of his motive. Thus, the inclusion 

of these details only increases the likelihood that Gonzalez was 

the intruder and therefore does not undermine the original 

probable cause determination.

CONCLUSION

¶41 Under the totality of the circumstances, the search 

warrant affidavit still supports a finding of probable cause with 

the inclusion of the three omitted facts identified by the district 

court. Thus, the district court erred when it granted Gonzalez’s 

motion to suppress evidence. We therefore reverse the district 

court’s ruling suppressing the evidence, vacate the order of 

dismissal, and remand for trial or such other proceedings as may 

now be in order.