author: DAVIS, Judge:

text:
    2003 UT App 77
    Claude Theadore ROSE, Plaintiff and Appellant, v. PROVO CITY, a political subdivision of the State of Utah; Elmer and Georgina Barrientos; Edward S. Hunt; Araceli V. Hunt; John and Jane Does I through X; and XYZ entities, Defendants and Appellees.
    No. 20010168-CA.
    Court of Appeals of Utah.
    March 20, 2003.

      Mark T. Flickinger, Kathleen S. Phinney and Kevin J. Sutterfield, Flickinger & Sut-terfield, PC, Provo, for Appellant.
    David C. Dixon, Provo City Attorney's Office, and Edward W. McBride Jr. and Donald J. Purser, Salt Lake City, for Appellees.
    Before Judges DAVIS, GREENWOOD, and THORNE. &
   OPINION

DAVIS, Judge:

{1 Claude Theodore Rose (Rose) appeals from directed verdicts in favor of Elmer and Georgina Barrientos (collectively the Bar-rientoses) and Provo City (the City). We reverse and remand.

BACKGROUND

{2 The Barrientoses own a restaurant in Provo City, including the parking lot next to the restaurant. The City owns a sidewalk that borders the parking lot and owns the area between the sidewalk and the street (the planter strip).

13 Before the Barrientoses purchased the restaurant, the planter strip was asphalted to the street. At trial, Elmer Barrientos testified that "everyone" uses the planter strip as a driveway to the street although the City has not issued a driveway permit and the planter strip does not comply with Provo City driveway specifications. The Barrien-toses indicated that they sweep and remove snow from the area. A second driveway, recognized by the City as a proper driveway, also provides access to the restaurant parking lot.

T4 A City-owned ditch runs almost the entire width of the end of the asphailted planter strip. When the Barrientoses purchased the restaurant, a pipe covered the ditch. At trial, Elmer Barrientos testified that between 1989 and the date of Rose's injuries in 1995, the City removed the pipe twice. The first time the City removed the pipe, Elmer Barrientos replaced it. The see-ond time, Elmer Barrientos called the City. Thereafter, the Barrientoses continued to use the asphalted planter strip as a driveway although the ditch remained uncovered.

[ 5 In August 1995, Rose and his wife rode their bikes through the restaurant parking lot. At trial, Rose testified that although he had previously patronized the Barrientoses' restaurant, he had not ridden through the "back" part of the parking lot. Rose further testified that he proceeded slightly ahead of his wife through the lot at about ten miles per hour. Rose and his wife testified that as they egressed from the parking lot, the asphalted planter strip appeared to be a driveway that ran straight into the road. At trial, the parties offered photo exhibits that, depending on the camera angle, either contradicted or supported Rose's position. Rose testified that when he approached the sidewalk between the parking lot and the asphalted planter strip, he looked left around a "blind" corner for traffic. Rose's wife testified that as Rose was crossing the sidewalk, she yelled, "Watch out!" Rose testified that he believed a car was coming and continued to look left for cars. He testified that he did not recall seeing the ditch and he did not apply his brakes. Although Rose's wife testified that she was able to turn her bike and stop without riding into the ditch, Rose rode into the ditch and was injured.

T6 Rose filed a negligence action against the Barrientoses and the City. After Rose presented his case, the trial court granted directed verdicts for the Barrientoses and the City. The trial court ruled the evidence did not establish that either the Barrientoses or the City breached "any duty" to Rose. Rose appeals the directed verdicts.

ANALYSIS

%7 Rose maintains the trial court erred by concluding that the evidence was not sufficient to establish that either the Barrientoses or the City breached "any duty" to Rose and erred by granting directed verdicts for the Barrientoses and the City. Whether the evidence at trial was sufficient to preclude directed verdicts for the Barrien-toses and the City is a question of law that we review for correctness. See, e.g., Mahmood v. Ross, 1999 UT 104,¶ 16, 990 P.2d 933. "A plaintiff must present sufficient evidence to establish a prima facie case [of negligence] ... to have his cause submitted for consideration by the jury. If [the] plaintiff fails to do so, [the] defendant is entitled to have the verdict directed in his favor." Lindsay v. Gibbons & Reed, 27 Utah 2d 419, 497 P.2d 28, 30 (1972). "If reasonable persons could reach differing conclusions on [an] issue in controversy," or the evidence raises a question of material fact, "a jury question exists and the motion [for a directed verdict] should be denied." Kilpack v. Wignall, 604 P.2d 462, 463 (Utah 1979) (quotations and citation omitted). To establish negligence, a plaintiff must show: "the defendant owed the plaintiff a duty, [the] defendant breached the duty (negligence), the breach of the duty was the proximate cause of [the] plaintiff's injury, and there was in fact injury." Lamarr v. Utah State Dep't of Transp., 828 P.2d 535, 537 (Utah Ct.App.1992).

18 The first issue in the present case is whether Rose established that he was owed a duty. See AMS Salt Indus., Inc. v. Magnesium Corp. of Am., 942 P.2d 315, 320 (Utah 1997) ("Absent a showing of duty, [the plaintiff] cannot recover." (alteration in original). A duty is " 'an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.? " Id. at 820-21 (citation omitted). Generally, whether a duty of care is owed is " 'entirely a question of law to be determined by the court'" Lamarr, 828 P.2d at 538 (quoting Ferree v. State, 784 P.2d 149, 151 (Utah 1989)); see AMS Salt Indus., Inc., 942 P.2d at 320 ("[If ... reasonable minds could not differ as to the conclusion to draw from the evidence or that the evidence adduced was simply insufficient to sustain the legal claim, then the trial court should rule on the issue as a matter of law.").

[5,6] 19 If Rose was owed a duty, the second issue is whether Rose presented sufficient evidence upon which a jury could find that the required standard of care was breached. "Whether a defendant has breached the required standard of care is generally a question for the jury, to be determined by whether the injury which occurred was of the type that fell within the zone of risk created by the defendant's negligent conduct." Williams v. Melby, 699 P.2d 723, 727 (Utah 1985) (citation omitted). "The care to be exercised in any particular case depends upon the cireumstances of that case and on the extent of foreseeable danger involved. . .." Id. (quotations and citation omitted).

110 Finally, given ambiguity in the trial court's ruling, we consider whether Rose presented sufficient evidence that any negligence by the Barrientoses or the City was the proximate cause of his injuries. Proximate cause is ordinarily a question of fact for the jury. See Steffensen v. Smith's Mgmt. Corp., 820 P.2d 482, 487 (Utah Ct. App.1991), aff'd, 862 P.2d 1342 (Utah 1993).

I. Duty and Breach of Duty by the Barrvientoses

1 11 Rose argues the evidence presented at trial was sufficient to establish that the Bar-rientoses had a duty and to raise material issues of fact as to whether the Barrientoses negligently maintained the asphalted planter strip as a business driveway, after the City removed a pipe, leaving an uncovered ditch that extended almost the entire width of the planter strip.

112 When an abutting landowner makes "special use" of a public sidewalk, or as in the present case, a planter strip, he has a duty that runs with the land to use "due care" to keep it in a "suitable and safe" condition for the public to travel over. Salt Lake City v. Schubach, 108 Utah 266, 159 P.2d 149, 153 (1945); see Conrad v. Walker Bank & Trust Co., 542 P.2d 1090, 1090 (Utah 1975) ("By utilizing [and maintaining] the area between the street and sidewalk" an owner of land abutting a public way becomes "charged with a duty to do so in a nonnegli-gent manner the same as if [he] ... owned the land."); Tripp v. Granite Holding Co., 22 Utah 2d 175, 450 P.2d 99, 100 (1969) (noting an abutting landowner's obligation to keep sidewalk adjoining premises in repair " 'can only arise where he creates through use or otherwise some unsafe or dangerous condition' " (citation omitted)). An abutting landowner makes "special use" of a public sidewalk or a planter strip, when he uses it " 'for some other purpose than merely using [it] as a public sidewalk [or a planter strip], such as a driveway. " Dorlon v. City of Springfield, 843 S.W.2d 934, 945 (Mo.Ct.App.1992) (quoting Rauh v. Interco, Inc., 702 S.W.2d 497, 501 (Mo.Ct.App.1985)); accord Wylie v. New York, 286 A.D. 720, 146 N.Y.S.2d 207, 209 (N.Y.App.Div.1955).

118 At trial, Elmer Barrientos testified that when he began working at the restaurant, the planter strip was already as-phailted. Although it is unclear who asphalted the planter strip, no driveway permit had been issued and the planter strip did 'not comply with Provo City driveway specifications. Elmer Barrientos further testified that "everyone" used the planter strip as a driveway to the restaurant. The Barrientos-es indicated that they maintained the planter strip by sweeping it and removing snow. We conclude this evidence was sufficient to establish that the Barrientoses specially used the asphalted planter strip and therefore had a duty to maintain it in a suitable and safe condition for ingress and egress by foreseeable travelers.

#14 The Barrientoses argue they had no duty to Rose because the unsafe condition was not the planter strip, but was the uncovered ditch in the gutter and Provo, Utah, City Ordinances § 15.10.090 (1995) provided the City with the "sole prerogative" "to determine the necessity and the extent of the construction, extraordinary repairs, or replacements" of defective sidewalks, curbs, and gutters. Although this ordinance provided the City with the "sole prerogative" to determine the necessity of such repairs, the ordinance did not relieve the Barrientoses' duty with respect to foreseeable travelers using the asphalted planter strip.

115 We also conclude Rose presented sufficient evidence to raise an issue of material fact as to whether the Barrientoses failed to exercise due care by maintaining an unsafe condition-a driveway into an uncovered ditch. Contrary to the Barrientoses' assertion that Rose presented no evidence of an unsafe condition or that they had knowledge of such a condition, Rose and his wife testified that as they egressed from the restaurant parking lot, the asphalted planter strip appeared to be a driveway that ran straight into the road. Although in some of the photo exhibits the ditch is apparent, in others the asphalted planter strip appears to run straight into the road. Further, Elmer Barrientos acknowledged that the area was not safe. After the first time the City removed the pipe from the ditch, he replaced it. The second time the City removed the pipe, he called the City. Although the Barrientoses testified that they were unaware of any injuries to other travelers egressing via the driveway, "[the mere fact that a particular kind of accident has not happened before does not ... show that such accident is one which might not reasonably have been anticipated." Williams v. Melby, 699 P.2d 723, 728 (Utah 1985) (quotations and citations omitted). Elmer Barrientos' testimony suggests that children ride bicycles in the area. Moreover, testimony indicated that the asphalted planter strip was an alternate exit from the restaurant, and other than calling the City, the Barrientoses took no action in regard to the planter strip after the City removed the pipe a second time.

1 16 Because Rose presented sufficient evidence to allow a jury to find that the Bar-rientoses failed to exercise due care by maintaining a business driveway so situated, cf. Keith v. Beard, 219 Ga.App. 190, 464 S.E.2d 633, 637 (1995) (concluding jury question existed as to whether landowner negligently maintained "unpermitted" business driveway where landowner had notice of sight distance problem), we conclude the trial court erred by directing a verdict for the Barrientoses.

II. Duty and Breach of Duty by the City

17 Rose next claims the trial court erred by granting a directed verdict for the City as the evidence presented at trial was sufficient to raise material issues of fact as to whether the City breached its nondelegable duty to maintain the asphalted planter strip and negligently removed the pipe, leaving an uncovered ditch at the end of a business driveway.

118 " [It has long been the law in Utah ... that a [city] has a duty to exercise ordinary care to keep streets which it has opened for travel and which it has invited the public to use in a reasonably safe condition for travel" Braithwaite v. West Valley City Corp., 921 P.2d 997, 998 (Utah 1996) (quoting Braithwaite v. West Valley City Corp., 860 P.2d 336, 338 (Utah 1993). This rule "is most frequently applied to accidents on city sidewalks, but also applies to [city] ways." Pollari v. Salt Lake City, 111 Utah 25, 176 P.2d 111, 116 (1947) (quotations and citations omitted). A city's duty to maintain such ways is nondelegable. See, e.g., Murray v. Ogden City Corp., 548 P.2d 896, 897 (Utah 1976).

T19 Rose relies on Ingram v. Salt Lake City, 733 P.2d 126 (Utah 1987), in arguing that the City had a nondelegable duty to monitor the Barrientoses' use of the asphalted planter area. In Ingram, the Utah Supreme Court noted that "[sitreets from side to side, including the sidewalks and all area between, are primarily for the public use." Id. at 127. The court further noted that "[the [planter strips] are part of the public streets designed for the use of the public." Id. However, at issue in Ingram was whether the Governmental Immunity Act provided Salt Lake City with immunity from suit by a plaintiff injured by a defective manhole cover in a planter strip. See id. The Governmental Immunity Act "does not create any liability where none would have theretofore existed." Stevens v. Salt Lake County, 25 Utah 2d 168, 478 P.2d 496, 499 (1970). Although the supreme court did not determine whether cities have a duty to monitor planter strips, Ingram suggests that cities have some duty with respect to users of planter strips. See Ingram, 733 P.2d at 127; see also Kling v. City of Austin, 62 S.W.2d 689, 690-91 (Tex.Civ.App.1933) (noting that city could "refuse to construct or allow a driveway at any point where requisites of safety would not admit" in concluding city had a duty to maintain planter strip used as business driveway "in [the same] reasonably safe condition as applied to other portions of the public street").

120 The City argues the issue here is not the maintenance of the planter strip, but the maintenance of a ditch and it had no duty to maintain a ditch for bicyclists. Although decided before our present comparative negli-genee scheme was enacted, Ward v. Salt Lake City, 46 Utah 616, 151 P. 905 (1915) is instructive. In Ward, the Utah Supreme Court noted that a city "is not liable for personal injuries caused by a fall into an uncovered gutter at a street crossing, where it appears that the gutter was reasonably safe, and that the open gutter is a common, approved method of construction at crossings in cities." 151 P. at 907 (quotations and citation omitted). In the present case, the jury could find from some of the photo exhibits that a ditch, at the end of what appears to be a driveway, was not reasonably safe for foreseeable travel to the public street.

121 The City further argues that it had no duty to a bicyclist who entered the street from private property over a ditch. A city "responsible for safe condition of [the street] is ordinarily not bound to remedy conditions existing on [adjacent] private lands." Stevens, 478 P.2d at 499 n. 12. "It would place a wholly impractical burden upon [cities] if they had to assume the duty of correcting such conditions with respect to every private way that enters upon a public road." Id. at 499. We recognize that the ditch in isolation is not defective; but the ditch does not exist in isolation. There are "some cireumstances where a public road is so positioned and/or maintained in relation to adjacent conditions that there is created such a hazard as to create a 'defective, unsafe or dangerous condition of the [street]'" Id. (emphasis omitted) (quoting 19 MceQuillin, Municipal Corporations, § 54.69). Moreover, here it is undisputed that after Rose crossed the Barrientoses' parking lot, Rose crossed the City-owned sidewalk and the City-owned asphalted planter strip before riding into the City-owned ditch.

122 Rose argues that the evidence was sufficient to establish that the City breached its duty to provide reasonably safe conditions for travel over public ways by removing the pipe from the ditch. The City responds that Rose presented no evidence that it breached its nondelegable duty to maintain streets and sidewalks. The City emphasizes that it issued no driveway permit for the planter strip and Rose presented no evidence that it recognized the planter strip as a driveway. The City therefore maintains there was no evidence that it was negligent.

123 We disagree with the City. That the City had not issued a driveway permit does not necessarily relieve the City of liability for conditions existing on and below the asphalted planter strip. This court has recognized that " Tonee a governmental entity creates a condition [in the public way] that it knows or should know is dangerous, it must avert the danger or notify the public'" Jones v. Bountiful City Corp., 834 P.2d 556, 560 n. 2 (Utah Ct.App.1992) (emphasis added) (citation omitted); cf. Morris v. Salt Lake City, 35 Utah 474, 101 P. 873, 377-78 (1909) (noting even "[ilf a mere stranger ... erected a large pole ... in the margin of the street, . .. it would have been the duty of the city to exercise reasonable diligence to discover it, and to exercise ordinary care to remove it or to make it reasonably safe"). See generally Pollari, 176 P.2d at 117 ("[Wlhether the city exercised proper vigilance to discover defects depends on the element of time, the nature and extent of the defect, its prominence in location and other factors bearing on what could reasonably be expected of a reasonably acting [entity] charged with the duty of supervising miles of streets and sidewalks."). Thus, notice of a dangerous condition may be constructive. See Fishbaugh v. Utah Power & Light, 969 P.2d 408, 407 (Utah 1998) (noting that to establish negligence, plaintiff must show that city knew or should have known of dangerous condition); Ray v. Salt Lake City, 92 Utah 412, 69 P.2d 256, 257 (1937) (recognizing defect in sidewalk that "having existed so long, in view of the location, should have attracted the attention of the city ... and caused [it], in the exercise of ordinary care, to correct the defect").

[ 24 In the present case, Elmer Barrientos testified that photo exhibits accurately represented the area from 1989 to the date of Rose's accident in 1995, the period during which the City twice removed the pipe. Because in some of the photos the planter strip appears to be a business driveway, and based on Elmer Barrientos testimony that he called the City, the jury could find that the City was constructively, if not actually, aware that travelers were accessing the City's street via the planter strip and uncovered ditch. The jury could also infer from the photos that the asphalted planter strip into a ditch presented a dangerous condition and a foreseeable risk of injury to travelers. Cf. Braithwaite v. West Valley City Corp., 860 P.2d 336, 339 (Utah 1998) (concluding material issue of fact would exist as to whether city discharged obligation to provide reasonably safe conditions for pedestrian travel if plaintiffs established that child was forced into traffic lane due to abutting landowner's en-eroaching fence); Herndon v. Salt Lake City, 34 Utah 65, 95 P. 646, 652 (1908) (noting that a city is required to put up barriers "where an obstruction or excavation is placed or made in the traveled part of the street" and whether a city street is "reasonably safe in view of all the surrounding cireumstances is always a question of fact"). Accordingly, we conclude the trial court erred in directing a verdict for the City.

III. Proximate Cause

125 The Barrientoses and the City argue that Rose's negligence-his failure to maintain a proper lookout-was the sole proximate cause of his injuries. "Proximate cause is that cause which, in natural and continuous sequence[ ] (unbroken by an efficient intervening cause), produces the injury and without which the result would not have occurred. It is the efficient cause-the one that necessarily sets in operation the factors that accomplish the injury." Harline v. Barker, 912 P.2d 483, 439 (Utah 1996) (alterations in original) (quotations and citations omitted). "[T]he issue of proximate cause should be taken from the jury only where: (1) there is no evidence to establish a causal connection, thus leaving causation to jury speculation, or (2) where reasonable persons could not differ on the inferences to be derived from the evidence on proximate causation." Steffensen v. Smith's Mgmt. Corp., 820 P.2d 482, 487 (Utah Ct.App.1991), aff'd, 862 P.2d 1342 (Utah 1998).

126 Utah is a comparative negligence state. Thus, "elven though [Rose] may have been negligent, [a directed verdict] is [ordinarily] an altogether inappropriate procedure for assessing [his] degree of negligence against the negligence of the defendants." Williams v. Melby, 699 P.2d 728, 728 (Utah 1985).

127 At trial, Rose testified that although he had previously patronized the Bar-rientoses' restaurant, he had not ridden through the "back" part of the parking lot. Rose further testified that he proceeded slightly ahead of his wife through the lot at about ten miles per hour. Although it is unclear from what point, Rose and his wife testified that the asphalted planter strip appeared to be a driveway that ran straight to the road. Some of the photo exhibits indicate a concrete pedestrian bridge a few feet from the driveway, but it is unclear whether either Rose or his wife saw the bridge. Rose testified that when he approached the sidewalk between the parking lot and the asphalted planter strip, he looked left around a "blind" corner for traffic. Rose's wife testified that as Rose was crossing the sidewalk, she yelled, "Watch out!" Rose testified that he believed a car was coming and continued to look left for cars. He testified that he did not recall seeing the ditch and he did not apply his brakes. Although Rose rode into the ditch, his wife testified that she was able to turn her bike and stop without riding into the ditch.

128 Although the evidence may suggest Rose negligently failed to keep a proper lookout, the evidence presented was sufficient to raise "[a] question of fact for the jury ... as to whether his distribution of attention was reasonable." Smith v. Bennett, 1 Utah 2d 224, 265 P.2d 401, 404 (1953). Further, a jury could find that a bicyclist could reasonably choose to exit over an apparent driveway rather than a pedestrian bridge. Because "reasonable persons could ... differ on the inferences to be derived from the evidence on proximate causation," Steffensen, 820 P.2d at 487, we conclude proximate cause presented a jury question.

CONCLUSION

[29 In sum, we conclude Rose presented sufficient evidence on each element to establish a prima facie case of negligence. We therefore reverse the directed verdicts in favor of the Barrientoses and the City and remand.

130 WE CONCUR: PAMELA T. GREENWOOD, Judge and WILLIAM A. THORNE JR., Judge.

      . "In reviewing a trial court's [decision to grant] motions for a directed verdict[,] ... this court reviews the evidence in the light most favorable to the non-moving party and ... afford[s] him the benefit of all inferences which the evidence fairly supports." Kilpack v. Wignall, 604 P.2d 462, 463 (Utah 1979) (quotations and citation omitted).

      . Rose also claims that the Barrientoses are strictly liable for unlawfully creating a hazardous condition in the street. See Utah Code Ann. § 76-10-803 (1999); Erickson v. Sorensen, 877 P.2d 144 (Utah Ct.App.1994). However, this claim was not raised below; therefore, we do not consider it. See Shayne v. Stanley & Sons, Inc., 605 P.2d 775, 776 (Utah 1980).

      . At trial, Rose claimed that he was a business invitee. However, while Rose was riding through the Barrientoses' parking lot, he was at best a licensee, see Stevens v. Salt Lake County, 25 Utah 2d 168, 478 P.2d 496, 498-99 (1970), and was arguably a trespasser. See Schulz v. Quintana, 576 P.2d 855, 856 (Utah 1978). On appeal it is not clear what Rose claims the governing standard of care is and whether he is claiming that his status changed after he left the Barrientoses' parking lot. Accordingly, for purposes of our analysis and without binding the trial court on remand, we apply the standard owed by landowners who make "special use" of abutting public land, which is a duty of "due care" to keep such land in a "suitable and safe condition" for travelers. Salt Lake City v. Schubach, 108 Utah 266, 159 P.2d 149, 153 (1945) (noting that when an abutting landowner makes "special use" of a public sidewalk, he has a continuing duty that runs with the land to use "due care" to keep it in a "suitable and safe" condition for the public to travel over); see also Schulz, 576 P.2d at 856 ("Once a [street] has been established there is an obligation upon the occupiers of abutting land to use ordinary care to see that the passage way is reasonably safe for travel."); McKinley v. Fanning, 100 Idaho 189, 595 P.2d 1084, 1086 (1979) (noting that "panoply of rules concerning the landowner's duties to persons on the property and the classification of those persons, such as trespassers, invitees, [and] licensees" were inapposite where injury was sustained due to dangerous condition on public sidewalk rather than on business premises) (citing Tripp v. Granite Holding Co., 22 Utah 2d 175, 450 P.2d 99 (1969).

      . The Barrientoses argue the ditch was an "open and obvious condition." We have previously noted that "the open and obvious danger rule is fundamentally incompatible with [Utah's] comparative negligence scheme." Donahue v. Durfee, 780 P.2d 1275, 1279 (Utah Ct.App.1989) (concluding plaintiff was entitled to have jury assess his negligence against that of defendant's in allowing dangerous condition to exist).

      . Rose also argues Provo, Utah, City Ordinances § 15.10.090 (1995) required the City to repair the ditch and that Provo, Utah, City Ordinances § 15.10.050 (1995) and Utah Code Ann. § 72-7-104 (2001) required the City to require the Bar-rientoses to alter the asphalted planter strip. Although these provisions authorized the City to make or order changes, they did not require the City to do so under the facts of this case. Cf. Braithwaite v. West Valley City Corp., 860 P.2d 336, 338 (Utah 1993) (concluding city had no duty to build sidewalks under statute granting city discretion to build sidewalks, but concluding city had duty to provide reasonably safe conditions for pedestrian travel).


source: Caselaw Access Project

author: DAVIS, Judge: BILLINGS, Associate Presiding Judge

license: Public Domain

text:
    2003 UT App 82
    STATE of Utah, Plaintiff and Appellee, v. Anthony A. SADDLER, Defendant and Appellant.
    No. 20020119-CA.
    Court of Appeals of Utah.
    March 20, 2003.

      Linda M. Jones and Shannon N. Romero, Salt Lake Legal Defender Association, for Appellant.
    Mark L. Shurtleff, Attorney General, and Jeffrey T. Colemere, Assistant Attorney General, for Appellee.
    Before BILLINGS, Associate Presiding Judge, DAVIS and GREENWOOD, JJ.
   OPINION

DAVIS, Judge:

{1 Anthony A. Saddler (Saddler) appeals his conviction for unlawful possession of a controlled substance with intent to distribute, a third degree felony in violation of Utah Code Ann. $ 58-87-8 (Supp.2000). Saddler challenges the trial court's order denying his motion to suppress evidence and upholding the constitutionality of the search warrant. We reverse and remand.

BACKGROUND

12 On June 15, 2000, Detective Bill McCarthy (McCarthy) obtained a warrant to search Saddler's residence for marijuana, cocaine, and related items. In issuing the search warrant, the magistrate relied on an affidavit provided by McCarthy, who prepared the affidavit using information from a confidential informant (CT). The affidavit established McCarthy's nineteen years of general police experience and his specific experience and training in narcotics investigation. It also stated "CI has not been promised nor paid for any of the information provided," and claimed "CI ... provided the information out of a sense of guilt and desire to stop the sales and usage of controlled substances into the community." Further, it requested "the courts not ... require [MeCarthy] to publish the CI's name," for McCarthy "believe[d] ... the CI [could] be harmed if CT's name were published."

13 According to the affidavit, CI told McCarthy the following:

CI has known the suspect, Saddler for over one year;
CI has observed the suspect use cocaine and marijuana on numerous occasions during the last year;
CI has used marijuana with the suspect on several occasions;
CI has been to the premises numerous times, the most recent being within the last week to ten days, and observed approximately three to four pounds of mariJuana;
CI has observed three scales inside the home, that the suspect uses to weigh out repackaged marijuana for resale;
CI has observed cocaine inside the premises, along with packaging material;
CI has observed the suspect carry mariJuana and cocaine on his person;
The suspect has told CI that the suspect sells marijuana and cocaine;
CI has observed the suspect sell and use controlled substances, inside the named premises;
CI has been told by the suspect that the suspect recently purchased the listed premises;
CI states that the suspect's only legitimate source of income is from a part-time waiter's job at a Salt Lake City restaurant, BACT's;
CI states that the suspect sells controlled substances to be able to afford his own usage and as a separate source of income;
CI provided a description of the home, a vehicle frequently used by the suspect (female companion of suspect), and hours of operation for the suspect;
CI states that the suspect is home infrequently and usually during the late evening hours.

[ 4 The affidavit also describes McCarthy's corroboration efforts. On June 14 and 15, 2000, McCarthy conducted surveillance of Saddler's home between 8:00 p.m. and 6:00 am. and did not observe anyone. At an unspecified time on June 15, McCarthy observed some "short term traffic," which he believed was "drug related." West Valley Police stopped one of the vehicles leaving the premises and found the driver in possession of one-half ounce of marijuana. Police found no drug paraphernalia in the vehicle or on the driver's person, which indicated to McCarthy "the marijuana was purchased from [Saddler's] premises."

T5 McCarthy also "observed vehicles de-seribed by CI at [Saddler's] premises and the registered owner was a[sic] described by CI." Finally, MeCarthy checked BACI's restaurant on June 15, and Saddler "was not at work and it was unknown when he was scheduled to return."

T6 After obtaining and executing the search warrant, on June 15, police seized approximately ten ounces of marijuana and one gram of cocaine, along with drug packaging material, triple beam scales, and $478.00 in cash. Saddler subsequently filed a motion to suppress the evidence. After the trial court denied the motion, Saddler pleaded guilty to unlawful possession of a controlled substance with intent to distribute, conditional upon his right to appeal the suppression issue. See State v. Sery, 758 P.2d 935, 938-39 (Utah Ct.App.1988).

ISSUE AND STANDARD OF REVIEW

T7 The sole issue is whether the trial court erred by denying Saddler's motion to suppress evidence and concluding MeCar-thy's affidavit established probable cause to search Saddler's residence. "[TJhis court, like the reviewing court below, is bound by the contents of the affidavit, we therefore need not defer to the trial court's finding. ..." State v. Deluna, 2001 UT App 401, ¶9, 40 P.3d 1136 (quotations and citation omitted), cert. denied, 2002 Utah LEXIS 150. Instead, " 'we make an independent review of the trial court's determination of the sufficiency of the written evidence'" Id. (quoting State v. Weaver, 817 P.2d 830, 833 (Utah Ct.App.1991)). "However, 'the [Flourth [AJmendment does not require that the reviewing court conduct a de novo review of the magistrate's probable cause determination[.] [Instead, it requires only that the reviewing court conclude "that the magistrate had a substantial basis for ... [determining] that probable cause existed." *' " Id. (alterations in original) (quoting State v. Babbell, 770 P.2d 987, 991 (Utah 1989) (quoting v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983))). We therefore "pay great deference to the magistrate's determination." State v. Vigh, 871 P.2d 1030, 1033 (Utah Ct.App.1994).

ANALYSIS

18 Saddler argues McCarthy's affidavit supporting the search warrant did not establish probable cause for the search. We agree.

T9 The Fourth Amendment of the United States Constitution guarantees that "no [wJjarrants shall issue, but upon probable cause." U.S. Const. amend. IV. "[When a search warrant is issued on the basis of an affidavit, that affidavit must contain specific facts sufficient to support a determination by a neutral magistrate that probable cause exists." State v. Babbell, 770 P.2d 987, 990 (Utah 1989). "It is well settled that Utah courts employ the 'totality-of-the-cireum-stances test' articulated in Ilinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983) to determine the sufficiency of an affidavit supporting a search warrant." State v. Vigh, 871 P.2d 1030, 1033 (Utah Ct.App.1994). Thus, "[pirobable cause is determined by a magistrate who 'make[s] a practical common-sense decision whether, given all the cireumstances set forth in the affidavit,] ... there is a fair probability that contraband or evidence of a crime will be found in a particular place' " Id. (second alteration in original) (emphasis omitted) (quoting Gates, 462 U.S. at 238, 103 S.Ct. at 2332).

110 "Where, as here, information obtained from [an] informant[ ] is the primary support for the search warrant, an analysis of the totality of the cireumstances requires us to consider the three factors articulated by this court in Kaysville City v. Mulcahy, 943 P.2d 231, 235-36 (Utah Ct.App.1997)." State v. Deluna, 2001 UT App 401, ¶ 11, 40 P.3d 1136, cert. denied, 2002 Utah LEXIS 150; see State v. Valenzuela, 2001 UT App 332, ¶¶ 16-17, 37 P.3d 260 (extending application of Mulcahy factors to probable cause determinations). We now consider those three factors.

I. Type of Informant/Basis of Knowledge

111 The first factor is "the type of tip or informant involved." Kaysville City v. Mulcahy, 943 P.2d 231, 285 (Utah Ct.App.1997). "After all, [nlot all tips are of equal value in establishing [probable causel.'" Id. (alteration in original) (citation omitted). "Factors to consider in determining whether probable cause exists include an informant's veracity, reliability and basis of knowledge." State v. Purser, 828 P.2d 515, 517 (Utah Ct.App.1992) (citing Illinois v. Gates, 462 U.S. 213, 233, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527 (1983)) (other citations omitted); see also State v. Droneburg, 781 P.2d 1303, 1306 (Utah Ct.App.1989) ("Although the veracity, reliability, and basis of knowledge of confidential informants are no longer strict prerequisites for establishing probable cause, they are still relevant considerations, among others, in determining the existence of probable cause under a totality-of-the-cireum-stances." (quotations and citations omitted)).

112 In this case, the basis of knowledge portion is satisfied Basis of knowledge is satisfied where the informant speaks from personal observation. See Purser, 828 P.2d at 517. Here, the affidavit sets forth information based on CT's personal observations. For instance, the affidavit notes that CI "observed [Saddler] use cocaine and marijuana," "observed approx. 3 to 4 pounds of marijuana," and "observed cocaine inside [Saddler's] premises."

113 However, the veracity and reliability portions are not satisfied. Generally, "an ordinary citizen-informant needs no independent proof of reliability or veracity." State v. Deluna, 2001 UT App 401,¶ 14, 40 P.3d 1136, cert. denied, 2002 Utah LEXIS 150 (quotations and citations omitted). A citizen-informant is "an average citizen who is in a position to supply information by virtue of having been a crime victim or witness." State v. White, 851 P.2d 1195, 1199 (Utah Ct.App.1993) (quotations and citations omitted). Such an informant "thereafter relates to the police what he knows as a matter of civic duty." State v. Evans, 692 So.2d 216, 219 (Fla.Dist.Ct.App.1997) (quotations and citations omitted) (cited for this proposition by Mulcahy, 943 P.2d at 235 n. 2). Alternatively, a police-informant (or criminal-informant) is "one who gains information through involvement in criminal activity or who is ' "motivated ... by pecuniary gain," '" and thus is "lower on the reliability scale." Mulcahy, 943 P.2d at 235 n. 2 (quoting Evans, 692 So.2d at 219).

T 14 In this case, we do not know whether CI was a citizen- or a police-informant. However, we do know that CI "used marijuana with [Saddler] on several occasions." Thus, we know CI was part of the criminal environment, lowering his veracity and reliability. We also know that CI "provided the information out of a ... desire to stop the sales and usage of controlled substances into the community," and that CI was "[neither] promised nor paid for any of the information provided." Although this information bolsters reliability and veracity in citizen-informants, see Purser, 828 P.2d at 517 (assuming reliability and veracity for citizen-informant who volunteered the information and "receive[d] nothing from police in exchange for the information"), we do not know whether CI qualified as a citizen-informant or volunteered the information to police. Further, we fail to see how the conclusory statement that CI is providing the information out of a sense of guilt and a desire to stop the sale of controlled substances significantly bolsters his veracity and reliability when he is a participant in the criminal environment and has not indicated a remorse for his past participation or a determination to avoid future involvement. See People v. Kershaw, 147 Cal.App.3d 750, 195 Cal.Rptr. 311, 314 (1988) (noting that informants who are "criminals, drug addicts or professional 'stool pigeons'" may be motivated to volunteer information not only for promises or payments, but also for "revenge or the hope of eliminating criminal competition"), superceded by statute on other grounds, People v. Burch, 188 Cal.App.3d 172, 232 Cal.Rptr. 502 (1986).

115 Also important to veracity and reliability is whether the informant is anonymous. " '[Blecause an anonymous caller's basis of knowledge and veracity are typically unknown, anonymous tips are toward 'the low-end of the reliability scale" " Mulcahy, 943 P.2d at 235 (citation omitted). Informants who "glilve their full names," thus "subject[ing] themselves to a penalty for providing false information," Deluna, 2001 UT App 401 at ¶ 15, 40 P.3d 1136, are more reliable than informants who "hid[e] behind the eloak of telephonic [or other] anonymity" so that their identities cannot be traced. State v. McCloskey, 453 N.W.2d 700, 703-04 (Minn.1990).

] 16 Here, we do not know whether CI and McCarthy met face-to-face or communicated by telephone or letter. Consequently, we do not know whether McCarthy ever, using his police training and experience, had the opportunity to evaluate CI's truthfulness. We also do not know whether CI told McCarthy his name. Consequently, we do not know whether CI subjected himself to the penalty of providing false information. Similarly, we do not know whether CI had ever provided McCarthy information before and whether this information proved reliable. See State v. Batley, 675 P.2d 1203, 1206 (Utah 1984) (noting that information in the affidavit showing "the informant had previously given truthful information to the police concerning the existence of contraband" is "an accepted method for establishing an informant's veracity").

117 Next, an informant's reliability and veracity are improved where he provides information against his penal interest. See United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 2082, 29 L.Ed.2d 723 (1971) (holding statements "against the informant's penal interest" "carr[ied] their own indicia of eredi-bility"); In re Shon Daniel K., 125 N.M. 219, 959 P.2d 553, 558 (Ct.App.1998) (noting statements against penal interest are one indication of informant reliability).

118 Here, CI made no statement against penal interest. Although he did admit to using marijuana with Saddler on several occasions, this admission means nothing if CI did not reveal his identity, thus subjecting himself to the danger of prosecution. Furthermore, even if we knew CI's identity, his statement would still not be an admission against penal interest because there is no other evidence against him. See State v. Archuleta, 850 P.2d 1232, 1241 n. 24 (Utah 1993) (noting the "corpus delicti rule states that a person may not be convicted of a crime if no independent evidence, outside of the defendant's own statement, exists").

{19 Finally, an informant's veracity and reliability may be " 'boosted by the detail with which the informant described his personal observation' of the [crime]." Batley, 675 P.2d at 1206. Here, the affidavit provides little more than an outline of what CI told McCarthy. We do not know the type of relationship CI had with Saddler or how often and for what purpose CI visited Saddler. Also, although CI says he saw marijuana, cocaine, packaging materials, and scales in the home, we do not know how much marijuana and cocaine he saw, when he saw it, or where it was located. Finally, aside from the conclusory statement that CI provided a description of the home, a vehicle frequently used by Saddler, and Saddler's 'hours of operation, we do not know anything about CI's actual description of these facts.

II. Information Detail

120 "The second Mulcahy factor we must consider is whether 'the informant gave enough detail about the observed erimi-nal activity to support a [warrant]! " State v. Deluna, 2001 UT App 401, 519, 40 P.3d 1136 (alteration in original) (citation omitted), cert. denied, 2002 Utah LEXIS 150. "It is well established that a warrant cannot issue solely on the strength of 'a mere conclusory statement that gives the magistrate virtually no basis at all for making a judgment regarding probable cause' " State v. Babbell, 770 P.2d 987, 992 (Utah 1989) (citation omitted). Moreover, judges should be reluctant to base a probable cause determination on poorly drafted affidavits. See id. at 992 n. 3 (noting the finding of probable cause was "a very close question" where the affidavit included the witnesses' description of a truck but not the officer's description of the truck he said matched the witnesses' description). "The better approach would be to require that an affiant take the simple but critical additional step of clearly and unambiguously stating" the detail provided by the informant. Id. "A few short minutes spent in more carefully preparing [an] affidavit would have ensured the protection of the accused's constitutional rights while saving a substantial amount of time for the courts and parties." Id.

T21 Here, we do not know how much detail CI gave. Rather than provide a detailed description of CI's statement in the affidavit, McCarthy provided a conclusory outline of CT's statement. We do not know how CI knew Saddler or when and how often CI visited Saddler's residence. Nor do we know how often or how recently CI observed controlled substances in.Saddler's residence. We also do not know what detail CI gave about Saddler's residence, routine, hours of operation, vehicles, clients, or clients' vehicles.

TII. Confirmation by Police Officer

122 "The final Mulcahy factor is whether the police officer independently confirms the informants' information." State v. Deluna, 2001 UT App 401,¶ 20, 40 P.3d 1136, cert. denied, 2002 Utah LEXIS 150. Corroboration "means, in light of the cireumstances, [the officer] confirms enough facts so that he may reasonably conclude that the information provided is reliable." Kaysville City v. Mulcahy, 943 P.2d 231, 236 (Utah Ct.App. & 1997). A police officer 'may corroborate the tip either by observing the illegal activity or by finding [the material facts] substantially as described by the informant. " Id. (citations omitted).

{23 Here, McCarthy's corroboration was not helpful. First, McCarthy conducted surveillance of Saddler's premises during the hours CI said Saddler was home. Between 8:00 p.m. and 6:00 a.m., McCarthy saw nothing to corroborate CT's information.

124 Second, at some point the next day, McCarthy says he saw short-term traffic that he believed to be drug related. One car was stopped and one-half ounce of marijuana was found on the driver, which McCarthy believed was purchased at Saddler's home because no drug paraphernalia was found. However, McCarthy provides only conclusory information about this corroborative effort. See State v. Babbell, 770 P.2d 987, 992 (Utah 1989) ("It is well established that a warrant cannot issue solely on the strength of 'a mere conclusory statement that gives the magistrate virtually no basis at all for making a judgment regarding probable cause.' " (citation omitted)). He does not state how many vehicles he saw visit Saddler's home, whether any of these vehicles arrived during Saddler's alleged hours of operation, whether any of these vehicles or their drivers were described by CI, whether the stopped person was a person described by CI or was driving a vehicle described by CI, or how long the stopped person was at Saddler's home.

{25 Third, McCarthy observed vehicles described by CI at Saddler's premises whose registered owner was described by CI. Again, McCarthy provides no detail as to what type of vehicles were present, how many vehicles he observed, whether they were part of the short-term traffic, or whether they were present during Saddler's alleged hours of operation. See id.

{26 Finally, McCarthy visited BACI's, Saddler's place of employment, where he learned Saddler was not at work and the person he spoke to did not know when Saddler was scheduled to work next. With more detail, this information may have provided important corroborative detail. However, as is, the information is practically useless. Although McCarthy established that Saddler worked at BACI's, we do not know who McCarthy spoke to or whether that person was in a position to know Saddler's schedule. We also do not know whether the person McCarthy spoke to thought it was unusual that Saddler was not currently at work or whether the person thought Saddler's work schedule in general was unusual.

CONCLUSION

127 Under the totality of the circumstances, we are convineed that the search warrant affidavit in this case failed to establish probable cause for the search of Saddler's home. Although the affidavit sufficiently established CI's basis of knowledge, it failed to establish CI's veracity and reliability. Moreover, the detail and corroboration included in the affidavit were not enough to establish probable cause in the absence of a showing of veracity and reliability. Accordingly, we conclude that the trial court erred in denying defendant's motion to suppress the seized evidence. "Since an error amounting to a violation of the federal constitution requires reversal unless it is harmless beyond a reasonable doubt, we reverse [Saddler's] conviction| ]." State v. Droneburg, 781 P.2d 1303, 1306 (Utah Ct.App.1989).

128 Saddler's conviction is reversed and the case is remanded for proceedings consistent with this opinion.

T 29 I CONCUR: PAMELA T. GREENWOOD, Judge.

BILLINGS, Associate Presiding Judge

(dissenting):

30 I respectfully dissent. I would conclude that under the "totality-of-the-cireum-stances test" required by Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983), the magistrate had a "substantial basis for ... [determining] that probable cause existed." State v. Deluna, 2001 UT App 401, 119, 40 P.3d 1136 (quotations and citations omitted).

1 31 As a threshold matter, I disagree with the majority's application of the facts to controlling law. First, I conclude the affidavit establishes CT's reliability. As the majority acknowledges, CI's basis of knowledge was strong. The affidavit set forth facts personally observed by CI over a one-year period: CI observed Saddler using marijuana and cocaine; CI used marijuana with Saddler; CI within the last ten days observed three to four pounds of marijuana; CI observed scales in Saddler's home that Saddler allegedly used to weigh and package marijuana for re-sale; CI stated that Saddler admitted to him that he sells marijuana and cocaine; and CI observed Saddler selling controlled substances inside the named premises.

132 However, the majority dismisses this strong basis of knowledge and claims the veracity and reliability prongs are not satisfied. I disagree. Veracity and reliability can be buttressed by a high degree of detail presented by CI in the affidavit and independent corroboration of such detail by the police. See State v. Purser, 828 P.2d 515, 517 (Utah Ct.App.1992). Both are present here.

133 CI admittedly used drugs with Saddler in the past. However, CI was "[neither] promised nor paid for any of the information provided." This bolsters CJ's reliability and veracity. See State v. Vigh, 871 P.2d 1030, 1034 (Utah Ct.App.1994) ("Because the confidential informant here received nothing in exchange for information about [the] illegal activities, the magistrate properly assumed that the informant was reliable."); State v. Purser, 828 P.2d 515, 517 (Utah Ct.App.1992) (assuming reliability and veracity for citizen informant who "receive[d] nothing from the police in exchange for the information" (citations omitted)).

1 34 I further disagree with the majority's claim that we do not know if CI volunteered the information to Officer McCarthy. On the contrary, a fair reading of the affidavit establishes that he did. The affidavit plainly states that CI told Officer McCarthy the information out of "a sense of guilt and a desire to stop the sales and usage of controlled substances in the community." Further, the majority refuses to acknowledge CI told Officer McCarthy CT's name and was therefore not anonymous. Where an affidavit is ambiguous, we must defer to the magistrate where, given the affidavit's language, the magistrate could reasonably construe a meaning that favors a probable cause determination. See State v. Babbell, 770 P.2d 987, 992 (Utah 1989) (acknowledging ambiguity of an affidavit, but deferring to magistrate's "reasonable construction" of that ambiguity). Although Officer McCarthy did not directly state that he knew CI's name, a magistrate could reasonably construe Officer McCarthy's knowledge of CT's name from the affidavit's language. The affidavit clearly asks that the court not require Officer McCarthy to "publish the CT's name." One cannot publish a name one does not know.

T35 The majority is hyper-technical in claiming CI's admission that he used drugs with Saddler was not against his penal interest and thus did not bolster his reliability. See United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 2082, 29 L.Ed.2d 723 (1971) (holding statements "against the informant's penal interest" "carriied] their own indicia of credibility"). As previously stated, in my view, the affidavit establishes that CI did reveal his identity to the officer. I also disagree with the majority's conclusion that, because there is no other evidence against CI, there was no admission against penal interest. We simply do not know if there is other evidence against CI, nor should we expect such evidence in the affidavit CI made incriminating statements with both the possibility that such statements could be investigated and the possibility that other evidence could be found. "People do not lightly admit a crime and place critical evidence in the hands of police in the form of their own admissions." Id. at 583, 91 S.Ct. at 2082. In Harris, the Supreme Court similarly found, without more, that an informant's disclosure that he purchased illegal whiskey from the defendant over a period of two years was a statement against penal interest that "carrliedllits] own indicia of credibility." 403 U.S. at 575, 583, 91 S.Ct. at 2078, 2082.

136 As the majority acknowledges, an informant's veracity and reliability may be "boosted by the detail with which the informant described his personal observation of the [crime]." State v. Bailey, 675 P.2d 1203, 1206 (Utah 1984) (quotations and citation omitted). However, the majority finds the description of the ongoing use and sale of drugs over a period of a year, including the observation of scales, packaging material, and three to four pounds of marijuana within the previous ten days, to be insufficient detail. The majority requires the affidavit recite, for example, more detail about Saddler's residence, such as, presumably, where in the house CI saw the materials, The Fourth Amendment's search warrant requirements are not that burdensome. We "pay great deference to the magistrate's determination," Vigh, 871 P.2d at 1033, because " '[al] grudging or negative attitude ... toward warrants' is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant." Deluna, 2001 UT App 401 at ¶¶ 10, 40 P.3d 1136 (quoting Gates, 462 U.S. at 236, 103 S.Ct. at 2331).

137 The majority further complains CT's statements are conclusory. Again I disagree. The sufficient details include CI knowing Saddler for over one year and observing cocaine and marijuana in the home, including three to four pounds of marijuana within the previous ten days; observation of scales and packaging material; observation of Saddler selling drugs from the home; and numerous observations of Saddler using drugs in the home. Where, as here, " 'the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant.'" State v. Stromberg, 783 P.2d 54, 57 (Utah Ct.App.1989) (citation omitted). In Stromberg, for instance, the court noted with approval under similar facts that "[the informant observed marijuana use and marijuana paraphernalia in the home on not one occasion, but on numerous visits to the home." Id.

138 Even if veracity and reliability were weak, this is not fatal under the totality-of-the-cireumstances test. See State v. Hansen, 732 P.2d 127, 130 (Utah 1987) (noting "an informant's 'reliability' and 'basis of knowledge' are but two relevant considerations, among others, in determining the existence of probable cause," and concluding "[a] weakness in one [area] or the other is not fatal to the warrant so long as" the affidavit, as a whole, provides a "substantial basis for finding probable cause"). In sum, however, under the totality-of-the-cireumstances, I conclude the affidavit established the veracity and reliability of CL

139 The majority also faults Officer McCarthy's corroboration of CT's information. A police officer "may corroborate the tip either by observing the illegal activity or by finding [the material facts] substantially as described by the informant." Kaysville City v. Mulcahy, 943 P.2d 231, 236 (Utah Ct.App.1997) (quotations and citations omitted). The majority finds Officer McCarthy's corroboration unhelpful. On the contrary, I conclude Officer McCarthy met both prongs of the corroboration requirement.

1 40 Officer McCarthy both observed illegal activity and verified the facts as described by CI. On June 15, 2000, in early morning hours (as described by CI), Officer McCarthy observed short term traffic to and from Saddler's house which, based on his nineteen years of experience and training in narcotics investigation, he believed indicated the sale of drugs in the home. See Purser, 828 P.2d at 516, 518 (concluding that where the detective "described his narcotics experience" and "observed persons enter defendant's residence and leave after only a few minutes, ... suggest[ing] narcotics trafficking," such corroboration was helpful in finding probable cause); State v. White, 851 P.2d 1195, 1196-97 (Utah Ct.App.1993) (finding that where the detective stated in his affidavit "he had seen vehicles arrive at the [defendant's residence] and stay for a very short period of timel,] ... consistent with the buying and selling of nareoties," such corroboration supported the state's case).

{41 Further, Officer McCarthy had the West Valley Police stop one of the vehicles leaving the premises and the driver possessed one half ounce of marijuana. Police found no drug paraphernalia in the vehicle or on the driver, and based on his training and experience, Officer McCarthy concluded this indicated the driver had just purchased marijuana in Saddler's house.

1 42 In verifying the facts described by CI, Officer McCarthy observed the vehicles described by CI at Saddler's home, verified the registered owner of a vehicle was as described by CI, and verified that Saddler worked at BACTS. In my opinion, officer McCarthy made significant successful efforts to corroborate CI's information.

48 In conclusion, I reach a different result than the majority based on my application of the facts to the law. This can often happen in the fact sensitive area of the Fourth Amendment. However, what troubles me about the majority's analysis is that I think it is contrary to the deference we should afford to the magistrate in determining whether a search warrant is valid. See Vigh, 871 P.2d at 1033 (noting the "great deference" we pay to the magistrate's determination). "[The [Flourth [AJmendment does not require that the reviewing court conduct a de novo review of the magistrate's probable cause determination.] [Instead, it requires only that the reviewing court conclude that the magistrate had a substantial basis for ... [determining] that probable cause existed." Deluna, 2001 UT App 401 at ¶ 9, 40 P.3d 1136 (alterations in original) (quotations and citations omitted). I believe the majority conducts a de novo review and gives no deference to the magistrate's determination.

144 Furthermore, although the majority pays lip service to the "totality-of-the-cireum-stances" standard for the review of search warrants, I believe it in reality applies the older and stricter Aguilar-Spinelli test. See, e.g., State v. Jordan, 665 P.2d 1280, 1286 (Utah 1983) (applying two-pronged Aguilar, Spinelli test requiring an affiant demonstrate both basis of knowledge and reliability/veracity). This has not been the law in Utah since 1983, when State v. Anderton, 668 P.2d 1258, 1260-61 (Utah 1983), first applied the "totality-of-the-cireumstances test" required by Gates, 462 U.S. at 238, 103 S.Ct. at 2332. See also State v. Droneburg, 781 P.2d 1303, 1306 (Utah Ct.App.1989) (noting that "veracity, reliability, and basis of knowledge of confidential informants are no longer strict prerequisites for establishing probable cause," and are instead " 'relevant considerations, among others,"" under the totality-of-the-circumstances test (citation omitted)). The majority's approach undermines what should be our preference for searches conducted pursuant to search warrants. See Deluna, 2001 UT App 401 at ¶ 10, 40 P.3d 1136 (observing the Fourth Amendment has a " 'strong preference for searches conducted pursuant to a warrant' " (quoting Gates, 462 U.S. at 236, 103 S.Ct. at 2331)).

45 In sum, I would deny Saddler's motion to suppress and uphold the search, which was conducted pursuant to a search warrant, because I conclude under the totality-of-the-cireumstances that the affidavit supporting the issuance of the search warrant established probable cause to search Saddler's residence.

      . The dissent is concerned that we do not give sufficient deference to the magistrate's determination. ''We pay great deference to the magistrate's determination," State v. Vigh, 871 P.2d 1030, 1033 (Utah Ct.App.1994), because " '[al grudging or negative attitude toward warrants is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant. " State v. Deluna, 2001 UT App 401, 110, 40 P.3d 1136, cert. denied, 2002 Utah LEXIS 150 (citation omitted). However, our preference for warrants does not extend to warrants that are not based on probable cause. We will not give deference to the magistrate if there is no "substantial basis for ... [determining] that probable cause existed." Id. at 19.

      . The dissent argues that we dismiss the basis of knowledge portion too quickly in our analysis of the totality of the circumstances. This is not true. We acknowledge that the basis of knowledge portion of the test is satisfied. However, the basis of knowledge portion alone does not establish probable cause in the absence of information concerning CI's veracity and reliability. While basis of knowledge tells us how CI acquired his information, it does not tell us whether he was qualified to assess the information, whether he relayed the information accurately, or whether he is trustworthy.

      . The State argues that we should defer to the trial court's inference that CI was not anonymous. See State v. Babbell, 770 P.2d 987, 992 (Utah 1989) (acknowledging ambiguity of an affidavit, but deferring to magistrate's "reasonable construction" of that ambiguity). We disagree. It is not reasonable to infer, without more information, that CI, who was too afraid to allow his name to be published in the affidavit, was not also too afraid to give his name to the police officer drafting the affidavit.

      . We know that at some point, CI observed what he described as three to four pounds of marijuana at Saddler's premises. However, we do not know when CI made this observation. Although the affidavit says CI had been to the house within the last seven to ten days, we cannot reasonably infer that it was during this visit that CI saw the marijuana.

      . The State argues that probable cause exists even though the affidavit fails to provide specific dates and time periods because it establishes a course of conduct. We disagree. " '[WJhere the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant.' " State v. Stromberg, 783 P.2d 54, 57 (Utah Ct.App.1989) (citation omitted). Although CI uses the present tense to say Saddler "sells controlled substances," see State v. Anderton, 668 P.2d 1258, 1261 (Utah 1983) (holding information in search warrant not stale because the language used was "couched ... in the present tense which describes ongoing criminal conduct"), CI only talks about Saddler using and selling controlled substances from his home in the past tense and does not provide sufficient detail for us to ascertain whether the activity was of a protracted and continuous nature.

      . We do know CI said Saddler was home infrequently and usually during the late evening hours. Although seemingly helpful, this detail was discounted by McCarthy's own attempt at corroboration. When McCarthy conducted surveillance of Saddler's home during the late evening hours (8:00 p.m. to 6:00 a.m.), he did not gather any corroborating information.

      . Although the dissent concludes McCarthy saw the short-term traffic during the early morning hours, no actual time is provided by the affidavit.

      . According to the Harris court, "[t}hat the informant may be paid or promised a 'break' does not eliminate the residual risk and opprobrium of having admitted criminal conduct." United States v. Harris, 403 U.S. 573, 583-84, 91 S.Ct. 2075, 2082, 29 L.Ed.2d 723 (1971). Here, CI was "Ineither] promised nor paid for any of the information provided."

      . The majority claims they could not reasonably infer CI saw marijuana within the last ten days. I disagree. The affidavit provides, "CI has been to the premises numerous times, the most recent being within the last week to ten days, and observed approx. 3 to 4 pounds of marijuana." Although this language arguably does not link the observation of marijuana with CI's most recent visit to Saddler's premises, we "pay great deference to the magistrate's determination," State v. Vigh, 871 P.2d 1030, 1033 (Utah Ct.App.1994), and a magistrate could reasonably infer such a link. See State v. Babbell, 770 P.2d 987, 992 (Utah 1989) (acknowledging ambiguity of an affidavit, but deferring to magistrate's "reasonable construction" of that ambiguity).


author: GREENWOOD, Judge:

text:
    2003 UT App 87
    STATE of Utah, in the interest of S.A.K., a person under eighteen years of age. V.K.W., Appellant, v. State of Utah, Appellee.
    No. 20020315-CA.
    Court of Appeals of Utah.
    March 27, 2003.
    Alan D. Boyack, St. George, for Appellant.
    Mark L. Shurtleff, Atty. Gen., Carol L. Verdoia, and John M. Peterson, Asst. Attys. Gen., Salt Lake City, for Appellee.
    Martha Pierce and Angela Adams, Salt Lake City, Guardians Ad Litem.
    Before Judges BENCH, GREENWOOD, and THORNE.
   OPINION

GREENWOOD, Judge:

[ 1 V.K.W. (Mother) appeals the Adjudication/Disposition Order placing her daughter, S.AK., in the custody of S.L.B. and C.O.B. (Grandparents). Mother argues that the juvenile court erred when it admitted S.A.K.'s videotaped testimony of sexual abuse by her stepfather and his nephew, thus denying Mother an opportunity for cross-examination. The Guardian ad Litem (the Guardian) argues that this court does not have jurisdiction to hear this matter because Mother failed to file a timely appeal. We conclude that this court has jurisdiction and affirm the juvenile court's order.

BACKGROUND

12 In September 2001, SAK. was returned to Mother's care after being temporarily placed with Grandparents because of S.A.K.'s parents' inability to care for her. In November 2001, S.A.K. was again returned to Grandparents after it was alleged that she was a victim of sexual abuse perpetrated by Mother's husband (Stepfather) and his young nephew.

1 3 During the investigation of the alleged sexual abuse, S.A.K. was interviewed by Julie Willden, a social worker, and Detective Shayne Copeland at the Washington County Children's Justice Center. The interview was videotaped and transcribed. In the videotape S.A.K. stated, among other things, that Stepfather had touched her "many times" in "the private" with his hand underneath her clothes for a "long time." S.AK. described where she was in the house when the activity took place and what she was wearing. S.A.K. reported that she told Mother, who told Stepfather not to do it anymore. S.A.K. also described an incident with Stepfather's young nephew where he got on top of her and "frenched kissed" her, and another incident where the nephew touched her "on the private" over her clothes.

4 An adjudication hearing on the allegations of sexual abuse was scheduled and the State filed a motion to admit S.A.K.'s videotaped testimony in lieu of having her testify. The juvenile court determined that S.AK. was "unavailable" to testify at the adjudication hearing and admitted her testimony through the videotape.

15 The adjudication hearing was held on February 8, 2002. The juvenile court issued a memorandum decision on March 5, 2002, making the following findings: S.AK. was sexually abused by Stepfather, S.A.K.'s video testimony was credible, Grandmother's testimony was credible, Stepfather's testimony was not as credible and there was an "obvious motive" as to his testimony, and Mother had "an obvious bias in favor of [Stepfather] and against [S.AK. and Grandparents]" which "tainted" her motive in testifying. There was no order for custody or guardianship in this decision.

6 A disposition hearing took place March 7, 2002. On March 25, 2002, the court issued an Adjudication/Disposition-Findings of Fact, Conclusions of Law, Order, and Notice of Permanency Hearing (the Adjudication/Disposition Order). In the Adjudication/Disposition Order, the juvenile court stated that S.A.K. was abused and neglected, based on the court's previous finding that she was sexually abused by Stepfather and his nephew. The court ordered S.A.K. to remain under the protective supervision of the Division of Child and Family Services (DCFS) and in the custody of Grandparents. The court then scheduled a permanency hearing for April 8, 2002.

T7 Mother filed a Notice of Appeal on April 8, 2002, stating she was appealing the "Disposition Order and [Plermaneney" from the March 7, 2002 disposition hearing. The juvenile court issued a Permanency, Guardianship, and Protective Order on May 1, 2002, placing S.A.K. in the permanent care, custody, control, and guardianship of Grandparents.

ISSUES AND STANDARDS OF REVIEW

T8 The Guardian argues that this court lacks jurisdiction because Mother failed to timely appeal from the adjudication order. "As a threshold matter, we must determine whether [Mother's] notice of appeal was timely filed, and therefore, whether we have jurisdiction." Reeves v. Steinfeldt, 915 P.2d 1073, 1074 (Utah Ct.App.1996). This court does not have jurisdiction where an appeal is not timely filed pursuant to rule 4 of the Utah Rules of Appellate Procedure. See State v. Houskeeper, 2002 UT 118, ¶ 23, 62 P.3d 444 (stating that if order not timely appealed, court lacks jurisdiction "to hear challenges to the order").

T9 Mother argues that the trial court erred in admitting S.A.K.'s videotaped testimony preventing Mother from conducting cross-examination. " 'A trial court has broad discretion to admit or exclude evidence and its determination typically will only be disturbed if it constitutes an abuse of disceretion."" State v. Comer, 2002 UT App 219, ¶ 11, 51 P.3d 55 (quoting State v. Whittle, 1999 UT 96, ¶ 20, 989 P.2d 52).

ANALYSIS

I. Jurisdiction

10 The Guardian argues that this court lacks jurisdiction because Mother failed to timely file her appeal. Specifically, the Guardian argues that Mother, by contesting the admission of S.A.K.'s videotaped testimony, is really claiming error in the juvenile court's memorandum decision following the adjudication hearing. The Guardian argues that because Mother's Notice of Appeal was filed after the March 25 Adjudication/Disposition Order granting custody of S.A.K. to Grandparents, and not within thirty days of the March 5 adjudication order, the appeal is untimely. See Utah R.App. P. 4(a) (requiring filing of notice of appeal within 30 days "of entry of the judgment or order appealed from"). The Guardian further argues that although Mother timely appealed the disposition order and the permanency order, she stipulated to both orders. As a result, the Guardian asserts this court should simply affirm the two orders. We disagree.

111 To aid in our analysis, we begin by describing the nature and purpose of adjudication and disposition hearings. After a petition is filed alleging abuse, neglect, or dependency, see Utah Code Ann. § 78-8a-305 (2002), and a shelter hearing is held, see id. § 78-82-8306 (2002), the juvenile court is required to schedule a pretrial and final adjudication hearing "no later than 60 calendar days from the date of the shelter hearing." Id. § 78-82-8308 (2002). "If, at the adjudication hearing, the court finds, by clear and convincing evidence, that the allegations contained in the petition are true, it shall conduct a dispositional hearing." Id. § 78-82a-310(1) (2002). "The dispositional hearing may be held on the same date as the adjudication hearing, but shall be held no later than 30 calendar days after the date of the adjudication hearing." Id. § 78-3a-310(2). At the disposition hearing, among other things, the court may alter custody, "order protective supervision, family preservation, medical or mental health treatment, or other services." Id. § 78-3a-311(1) (2002).

'I 12 In this case, the juvenile court held an adjudication hearing on February 8, 2002. The court then issued a memorandum decision on March 5, 2002, in which the court found the allegations of sexual abuse to be true. See id. § 78-82-810(1). On March 7, 2002, within 30 days from the date of the adjudication hearing, the court held a dispo-sitional hearing after which, on March 25, 2002, the Adjudication/Disposition Order was entered. See id. § 78-8a-310(2). Basing its decision on the finding of sexual abuse from the adjudication hearing, the court ordered S.A.K. to remain in the protective custody of Grandparents until the permanency hearing on April 8, 2002. At this hearing, Grandparents were granted permanent custody of S.A.K. See id. §

113 In child welfare proceedings, unlike traditional civil cases, appeals may be heard from more than one final judgment. See In re E.M., 922 P.2d 1282, 1284 (Utah Ct.App.1996) (per curiam) (stating ongoing jurisdiction of juvenile courts requires appellate courts to follow a different approach than final judgment rule). An adjudication order is one such judgment that we have found to be final for purposes of appeal See id. While determining that an adjudication order constitutes a final appealable order for the purpose of appellate review, we stated that the importance of final judgments for the purpose of appellate review cannot "override the concern for a child's welfare." Id. (citing In re J.J.T., 877 P.2d 161, 164 (Utah Ct.App.1994)). We noted that "[the unique nature of child welfare proceedings compels us to apply an analysis different from the analysis traditionally applied in civil cases." Id.

1114 Adjudication and disposition hearings in juvenile court may be compared to erimi-nal proceedings, where a trial court, after determining that a defendant is guilty, holds a sentencing hearing to determine the consequences resulting from the guilt finding in the previous hearing. See Utah R.Crim. P. 22. In child welfare proceedings, if the petition's allegations of neglect, abuse, or dependency are found to be true in the adjudication hearing, those findings provide the basis for determining the consequences in the disposition hearing. Possible consequences include changes in a child's custody, conditions of visitation, supervision, or treatment. See Utah Code Ann. § 78-8a-811. Consequently, an appeal from a disposition order should be sufficient to allege errors occurring in the adjudication proceedings, just as an appeal after sentencing in a criminal case may allege errors in the trial as well as in sentencing. Actually, it makes more sense to appeal after the disposition hearing, rather than the adjudication hearing, because this court will have before it the record of the trial on the petition, the juvenile court's findings of fact, and the judgment-that is, the juvenile court's conclusions of law and order as to the child's future whereabouts and status.

" 15 Thus, we conclude that this court has jurisdiction to hear this appeal of a ruling during the adjudication hearing where Mother timely filed a notice of appeal within thirty days of the disposition hearing order.

II. Admission of Videotape

16 Mother claims that the juvenile court abused its discretion in admitting S.A.K.'s videotaped testimony of the alleged sexual abuse because it was unreliable and denied Mother the opportunity for cross-examination.

17 Rule 87A of the Utah Rules of Juvenile Procedure permits the admission into evidence of recorded statements in abuse, neglect, or dependency proceedings if all the conditions set forth in the rule are met. See Utah R. Juv. P. 37A(I). The conditions are:

(a) no attorney for any party is in the child's presence when the statement is recorded;
(b) the recording is visual and aural and is recorded on film or videotape or by other electronic means;
(c) the recording equipment is capable of making an accurate recording, the operator of the equipment is competent, and the recording is accurate and has not been altered;
(d) each voice in the recording is identified;
(e) the person conducting the interview of the child in the recording is present at the proceeding and is available to testify and be cross-examined by either party;
(f) the parties and the parties' attorneys are provided an opportunity to view the recording before it is shown to the court;
(g) the court views the recording and determines that it is sufficiently reliable and trustworthy and that the interest of justice will best be served by admission of the statement into evidence; and
(h) the child is available to testify and to be cross-examined at trial, either in person or [by closed cireuit television or other court order], ... or the court determines that the child is unavailable as a witness to testify at trial under the Utah Rules of Evidence. For purposes of this subsection "unavailable" includes a determination, based on medical or psychological evidence or expert testimony, that the child would suffer serious emotional or mental strain if required to testify at trial.

Id. (emphasis added).

{18 Mother, conceding that the juvenile court met the requirements of rule 37A when admitting S.A.K.'s videotaped testimony, appears to nevertheless argue that the court erred in finding S.A.K.'s testimony reliable. Mother's argument is flawed because an inherent requirement of rule 37A(1)(g) is that the testimony be "sufficiently reliable and trustworthy." Id. Having conceded that the requirements of rule 37A were met, Mother attempts to argue error under Utah Code Ann. § 76-5411 (1999) and Utah Rules of Criminal Procedure 15.5.

119 Section 76-5-411 and rule 15.5 are not binding on the juvenile court, but rather were created to protect a eriminal defendant's right to confrontation. See U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him. ..."); Utah Const. art. I, § 12 (same). We therefore decline to review the juvenile court's action under those provisions.

120 In analyzing S.A.K.'s testimony under rule 37A(1)(g), we determine the court did not abuse its discretion in finding her testimony to be reliable and trustworthy. In the memorandum decision entered after the adjudication hearing, the juvenile court made sufficient findings as to the reliability of S.AK.'s testimony. The juvenile court found S.A.K.'s videotape testimony to be "appropriate and convincing," frank but not pushy, spontaneous, "appropriately uncomfortable," age appropriate, "consistent as ... to specific allegations of abuse," and a recollection of events that did not seem rehearsed. The juvenile court found that S.A.K.'s explanation of the incidents was such that it was more likely she suffered abuse than that she was coached, because her answers were "in sufficient detail to answer a full one-hour examination appropriately," and that "although there were errors in the testimony they are understandable." Although the court was concerned with a few of S.A.K.'s answers, those concerns did not "undermine her credibility."

121 Finally, we note that Mother did not argue before the trial court or on appeal that the trial court erred in determining S.AK. was unavailable to testify as required by rule 87TA(1l)(h). Rather, Mother stipulated to the admission of the videotape and then claimed error when she was unable to cross-examine SAK., without ever assailing the juvenile court's finding that she was unavailable to testify. Mother cannot have it both ways; therefore, we conclude the juvenile court did not abuse its discretion in admitting the videotaped testimony.

CONCLUSION

122 This court has jurisdiction to hear an appeal from an order entered after a disposition hearing, including issues arising from the adjudication hearing. Due to the interrelation of the adjudication and disposition hearings, we determine the appeal may be properly and timely filed after the disposition hearing. Therefore, Mother's appeal is timely.

23 Additionally, we conclude that the juvenile court did not abuse its discretion in admitting S.A.K.'s video testimony or in finding it reliable and admissible under Utah Rule of Juvenile Procedure 37A. Therefore, we affirm.

T24 WE CONCUR: RUSSELL W. BENCH and WILLIAM A. THORNE JR., Judges.

      . As noted in E.M.:
      [TJhe possibility of multiple appeals in a case is not without precedent. The district court in divorce proceedings retains continuing jurisdiction to make subsequent changes or new orders as a result of a material change in circurastances with the result that several orders in a single case may be final and appeal-able. See Utah Code Ann. § 30-3-5 (Supp.1995); White v. State, 795 P.2d 648, 650 (Utah 1990); Foulger v. Foulger, 626 P.2d 412, 414 (Utah 1981); Peters v. Peters, 15 Utah 2d 413, 394 P.2d 71, 73 (1964).
      In re EM., 922 P.2d 1282, 1284 n. 1 (Utah Ct.App.1996) (per curiam).

      . On the other hand, a shelter hearing order is not a final order for purposes of appeal. See In re M.V., 937 P.2d 1049, 1051 (Utah Ct.App.1997).

      . Additionally, the court found no proof or even speculation of anyone coaching S.A.K.'s testimony.

      . The errors in S.A.K.'s testimony seem related to age and circumstance rather than untruthfulness. For example, S.AK. stated she lived in a house instead of a trailer and that the bed was green instead of blue.

      . The videotaped testimony in this case is very different than the testimony in State v. Lenaburg, 781 P.2d 432 (Utah 1989), the case cited by Mother. In Lenaburg, the court found the victim's videotaped testimony to be unreliable because the child's testimony regarding a monster's hand and the time of the incident seemed fantasized and inconsistent with her mother's testimony regarding the incident. See id. at 436.

      . "For purposes of ... [rule 37A(1)(h),] 'unavailable' includes a determination, based on medical or psychological evidence or expert testimony, that the child would suffer serious emotional or mental strain if required to testify at trial." Utah R. Juv. P. 37A(1)(h).