2015 UT App 207

THE UTAH COURT OF APPEALS

LAYTON CITY,

Plaintiff and Appellant,

v.

CHELSE MARIE 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 KATE A. TOOMEY authored this Opinion, in which JUDGES

JAMES Z. DAVIS and STEPHEN L. ROTH 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

20140496-CA 2 2015 UT App 207

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

20140496-CA 3 2015 UT App 207

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

20140496-CA 4 2015 UT App 207

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.
Layton City v. Brierley

20140496-CA 5 2015 UT App 207

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.
Layton City v. Brierley

20140496-CA 6 2015 UT App 207

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...)
Layton City v. Brierley

20140496-CA 7 2015 UT App 207

¶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

20140496-CA 8 2015 UT App 207

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.
Layton City v. Brierley

20140496-CA 9 2015 UT App 207

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 
Layton City v. Brierley

20140496-CA 11 2015 UT App 207

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.
Layton City v. Brierley

20140496-CA 12 2015 UT App 207

¶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.