State v. Cook

A effectively I as say pump would have to it be a blood as a normal would fairly degree; enough severe to cause Since heart failure a condi- heartbeat. cyanosis. pump,” tion in which heart “fails as i.e., pumps inefficiently, jury just- could We passages believe these in- additional frequent arrhythmias ifiably infer established, dicate that Dr. Owens to a necessarily aggravate the condition would certainty, reasonable medical rela- a causal already suffering of from chronic someone tionship between enema and treatment heart failure. deterioration Hill’s condition. The jury’s justifiable inference that Hill’s wors- things, while other such as death, led ened condition to his derived exertion, aggravated could have stress or hospital- from the that Hill facts had to be condition, proximity Hill’s time of the morning ized the after the treatment enema treatment and the visible deteriora thereafter, completes that he died soon justified condition the reason tion of Hill’s required causal chain. We are not to rev- inference that the former caused the able erse, however, simply because the doctor’s Greensweig, latter. Cf. testimony was couched in terms of “reason- (intent (Ct.App.1982) 644 P.2d 372 certainty” able medical rather than “be- jury commit a crime can be inferred yond a doubt.” People reasonable v. Phil- actions). from a defendant’s The mere fact lips, Cal.Rptr. 64 Cal.2d may have from the that death resulted (1966). Rarely, P.2d 353 as Dr. Owens effects of the enema treatment combined stated, absolutely are doctors certain about other pre-existing and some cause or condi the cause effect of process. a disease tion would not relieve Maxfield of criminal Dr. Owens testified that to a reasonable State, responsibility. Armstrong v. certainty medical the enema treatment (Alaska 1972). P.2d 440 opin- worsened heart Hill’s failure. his We conclude that the state’s evidence majority” ion pulmonary the “vast permissible support was sufficient to in- edema was due to heart He said failure. jury. ference causation Accord- suggest- that even if—as some evidence jury ingly, the verdict will not be disturbed pulmonary readily ed—the edema was not judgment appeal. on of conviction is Hill discernible when was admitted affirmed. Oregon hospital, the enema could nevertheless caused the heart failure and WALTERS, C.J., BURNETT,J„ con- resulting pulmonary The au- edema. cur. topsy demonstrated that one of causes pulmonary of death was edema. testimony suf-

There was also that Hill

fered from chronic heart failure and heart failure. Owens died of acute Dr. develops heart stated that acute failure 677 P.2d 522 within hours suddenly, from minutes to Idaho, Plaintiff-Respondent, STATE precipitates the after the stimulus which He testified heart failure occurs. further cyanosis, that the existence manifested COOK, Defendant-Appellant. Lee office, leaving when Hill Maxfield’s No. 13876. process going on at indicates “an acute Appeals of Idaho. McGeary that dis- that time.” Dr. testified “would have an affect tension of the colon Feb. 1984. slowing causing heart and the heart frequent arrhythmias or ... to have more beats____” arrhythmias irregular Cardiac irregular extra that do

are heartbeats

211

213 Wiebe, store County grocery Klaus Ada to the area near the where Public Defend- er, Boise, defendant-appellant. officers, found two uniformed Schuler what he had seen. Marcum. He told them Jones, Atty. Gen., Thomas, Lynn

Jim E. Gen., Shuster, Atty. Mark Deputy Sol. J. car, Schuler, attempt to in an locate the Boise, Gen., for plaintiff-respondent. where it last drove the area had toward route, While en he heard been seen. SWANSTROM,Judge. robbery stating radio transmission robbery Minutes after the K of a Circle only a Circle K just occurred at store Boise, store in Lee companion Cook and a lost from where French had two blocks apprehended were several Boise sight Cook’s car. None of the officers officers. The officers searched Cook and recall at trial were able to who testified pocket. They found a of money wad in his in that exactly what was said transmission. also found loaded .22 caliber revolver relayed Apparently information robbery his car. Cook was convicted of the robbery initially was that a had occurred. twenty- sentenced an indeterminate description robber or his car was No of the year prison appealed term. He has given yet no talked because officer judgment of conviction. We affirm. with the witnesses at the scene. (1) appeal: Three are issues raised hearing robbery, After Schuler refusing whether district court erred suppress the wad and Marcum transmitted the seized from information Cook; (2) erred in whether court admit- had received from French. Soon af- ting gun found Cook’s Virgil terwards Officer Brown observed a stolen; (3) car had been and whether the yellow Toyota began sedan and to it. follow must the conviction be reversed because Ellsworth, Likes Officers and in another state made indirect references to Cook’s nearby, police parked car also noticed the prior felony conviction the after court suspects’ stop car. Ellsworth saw the car such ruled that evidence was not admissi- up pick young at a to a female corner ble. Likes, together hitchhiker. Ellsworth and evening 31, 1979, August On the De- officer, joined then with another Brown parked tective Charles French was in an pursuit. police in all The officers three NuWay unmarked vehicle near a Foods lights their cars activated overhead store in Boise when he man observed a Toyota. attempt stop to When it did the walking from the direction of that store. The stop, not Brown turned on his siren. The passed man within a few the feet of proceeded yards Toyota hundred several wearing stocking cap officer. He was a further, then a before turned corner jacket and a fleece-type leather with a lin- stopping. speed At no time did it or at- ing. person, This later identified as Lee escape tempt pursuing police cars. Cook, got into passenger a side of Toyota finally stopped, When Cook yellow Toyota sedan. That car not was emerged passenger from the side and be- parked lot, in the store but on the street slowly. gan away walk not He was three-quarters about a block from wearing stocking cap either his coat piqued store. These observations the offi- interest, officers, partly cer’s and this time. Several with drawn cap because the jacket appeared inappro- weapons, worn man warned to stop. Cook Ellsworth priate warm for such weather. put him to his hands on his head ordered his When and walk back towards car. pursue French decided to the car. He complied, green Cook Ellsworth noticed a time, but, wanting followed it for some hanging pants ski mask out his left rear occupants, to alert broke off contact. pocket. He reached seized the mask and so, driving After a block or he turned right pants pocket, ex- into front sought around Cook’s and re-establish contact it, crumpled paper money. with tracting the car. Unable to find he returned wad of money.1 placed Cook was then handcuffed in a his responded by and He pulling a pocket car. wad of out of his and count- ing out nearly When $300. Cook was K, arriving Just before at the Circle Offi- however, night, searched later the offi- cer Schuler heard a from Offi- transmission pocket. cers found $86 his The stopped cer Brown that he and others had manager K of the Circle testified that $79 talking French. car described After robbery. had been taken in the with the several minutes witnesses descrip- the robbery, transmitted a Schuler fourth-amendment of the Unit §I, tion to the officers who had ed States article robber Constitution and 17 of Idaho stopped protect people the car. The robber had worn Constitution fleece-type ski a coat with a unreasonable searches and seizures by mask and agents missing fingers. government. some At the lining, and was time of search, missing fingers right his did Cook was officers not have a warrant This last transmission occurred search either Cook or his hand. car. af- ter been arrested. Warrantless searches Cook had are deemed to be “per se unreasonable”-and burden is arrest, ap- Following Ellsworth upon the state to demonstrate that proached Toyota passenger from the pursuant search carried out to one of open door was Ells- side. The front exceptions requirement. to the warrant hanging leather worth noticed a brown coat Bottelson, P.2d gear On over the shift. the floorboard seat, passenger directly behind the he ob- served a .22 caliber revolver. Ellsworth concedes, and it is clear from picked up gun, it and re- examined case, the facts of the that the officers turned it to the floor of the car. The right stop his car without warrant impounded car officers and later ob- question companion him his con gun, tained warrant to search it. The cerning possible their involvement coat, mask, money and ski as well as other investigative stop robbery. is an Such items, were introduced into evidence response” allows an “intermediate of against Cook at his trial. Cook moved to ficer, probable who cause to make an lacks suppress all of this evidence. The district arrest, actively investigate possible to crim appeal, court denied the motion. On Cook inal behavior. As the Court stat money illegally contends that the Williams, 143, ed Adams v. in 407 U.S. seized and admitted into evidence. 146, 1921, 1923, 92 32 L.Ed.2d 612 S.Ct. (1972):

I* individual, suspicious stop A brief of a in The first issue is whether the district identity or order to his to determine by refusing suppress court erred the quo momentarily maintain status money pocket wad seized from of Cook’s information, may obtaining while more immediately following apprehension by his be ... reasonable fourth [under trial, the officers. At to account for the the facts light known amendment] money pocket, in his found Cook testified the time. officer at paid been several days that he had before Moreover, that he if an officer who his arrest. He said never bothered stop investigatory checking always kept with accounts and makes such “has rea his an wife, suspect present is armed money in cash. Cook’s Clis- son believe that ta, is dangerous, he the officer enth presently that before went out that testified carefully limited him tied to search evening she cautioned not to blow all ‘conduct * expressed opinion, points sepa- in the Part I court on these are set forth The views of the Burnett, opinion by Judge post. validity rate concerning of the search and the discovery, doctrine of inevitable are those of the Clista married 1. and Lee Cook were not until other author. The views of the members robbery. after the date of the

215 Similarly, clothing persons of the of such whether warrantless arrest is outer constitutionally permissible depends upon attempt weapons might to discover which ” Post, whether assault him.’ used to State v. 98 834, 838, (1978) Idaho 573 P.2d 157 made, at the moment arrest was Ohio, 1, 30, (quoting Terry 392 v. U.S. 88 probable officers had cause to make it— 1868, 1884, (1968). 20 L.Ed.2d 889 S.Ct. at whether that moment the facts and purpose “The of this limited search is not knowledge within their circumstances crime, they evidence of but to allow reasonably discover and of which trust- pursue investigation his with- worthy officer information were sufficient violence____” prudent believing out fear Adams v. Wil- man in warrant liams, at 407 U.S. at 92 1923. had committed or was S.Ct. [defendant] committing presented No evidence was here offense. searching officer believed the of mon- wad Ohio, 89, 91, Beck v. U.S. pants ey pocket weap- felt like a (1964). Furthermore, 13 L.Ed.2d 142 on. such contention has made. No dealing probable with cause ... as [i]n

Therefore, stopped when the officers Cook very implies, name we deal with money pocket, from his removed probabilities. technical; These are not they went conducted a search which be- they practical are the factual and consid- yond permitted scope of a frisk for everyday erations life on which rea- weapons. men, prudent sonable and legal not tech- nicians, act. excep

Another of the established requirement U.S., 160, 175, Brinegar tions to warrant is the U.S. v. 1302, 1310, (1949). search incident to a lawful S.Ct. 93 L.Ed. 1879 arrest. State v. Post, (1978); 98 Idaho 573 P.2d 153 timing The exact sur events Harwood, 495 P.2d uncertain, rounding Cook’s arrest but (1972); Loyd, Idaho formally Cook not have been arrested (1967). P.2d 797 The state contends that away until he was handcuffed and led to a search Cook and the seizure of the already the officers had car —after permissible were as a search and If, however, pockets. searched his the offi Cook, incident seizure to a lawful arrest. probable cers cause arrest hand, argues on the other that at the mo search, the time conducted ment the officers him searched and seized preceded fact that the search formal his money they probable lacked cause to arrest several minutes would neces argues, arrest him. the search sarily illegal. Rawlings render search cannot be considered search incident to a 98,100 Kentucky, S.Ct. lawful sup arrest and fruit its must L.Ed.2d 633 pressed product illegal, as of an war cannot, opinion author how- rantless intrusion. ever, conclude that at the moment the offi- § provides po- Idaho a Code 19-603 that they probable cers searched had person lice officer arrest without stopped they cause to arrest him. When felony in fact been warrant has “[w]hen only felony him knew had been committed he has reasonable cause for committed and that had in the been person believing the have com- arrested to vicinity shortly of the Circle K before store The Idaho has mitted it.” robbery. They nothing knew about probable defined in the reasonable or cause identity The of the robber. radio transmis- § context I.C. 19-603 “as information robbery sion which announced that the ordinary provide that ‘would lead a man of care any description occurred did prudence any to believe or entertain an the robber clue as to or his means ” strong suspicion’ flight. honest and that the sub- until Not Schuler went on the radio ject guilty. Alger, of arrest is 100 and re- transmitted information he had 675, 677, (1979). robbery Idaho ceived from the P.2d witnesses arresting did the any descrip- exception officers have pertinent present to the third, tion of the case is the the so-called robber. before Schu- “inevitable discovery” doctrine, doctrine. if Under this ler had a chance to transmit this informa- certain it is illegal- evidence seized tion, already stopped the officers had ly would have otherwise discovered Toyota, and searched and arrested Cook. legally, Crews suppressed. it need not be robber, They believed Cook to be the not on States, v. United (D.C.1978), 389 A.2d 277 any description by provided basis of grounds, rev’d on other 445 U.S. crime, simply to the on witnesses but (1980). S.Ct. 63 L.Ed.2d 537 Cf. provided by basis of the information Miller, supra, (requiring United States v. French, i.e., engaged that Cook had been “reasonably probable” that it be suspicious behavior at another store and the evidence seized would have otherwise had been seeri within one to two blocks of been discovered—Miller represents ma- prior the Circle K store robbery. to the view, jority ap- but the stricter standard Moreover, when Ellsworth searched Cook pears preserve to better the constitutional yet weapon he had not discovered protections). inquiry “The crucial for a passenger the floor behind the seat evaluating court discovery an inevitable recognizing Cook’s car. “The cases proper predictable claim is whether ‘probable exception cause’ to the warrant police investigatory procedures normally insisted that requirement always have by police department ques- followed conducting the search have ‘rea- officers tion have would uncovered the evidence probable sonable or to believe that cause’ RINGEL, illegality.” without W. instrumentality they will find the of a SEIZURES, SEARCHES & ARRESTS pertaining to a crime as a crime § 3.3(b) AND CONFESSIONS at 3-17 dispensing prerequisite to with a warrant.” (1983). AND 68 Am.Jur.2d SEARCHES SEI- courts, A number of both federal and § (1973) added). (emphasis ZURES state, accepted this doctrine as an exception exclusionary rule. See Nevertheless the seized need not § 3.3(b) 52; Annot., Ringel at 3-16 n. necessarily suppressed. be Brewer v. See also A.L.R.3d 404-06. asking whether the evidence falls Williams, 430 U.S. 97 S.Ct. general exclusionary within the bar (1977) (recognizing L.Ed.2d 424 the exist against use of the fruits of an unlawful passing ence of the doctrine without on its search, inquiry our must focus on wheth- d constitutionality). It would indee be “ testimony er the ‘has been come at supress senseless evidence seized in exploitation illegality or instead faith, good illegally, albeit when that same sufficiently distinguishable to means legally evidence would have been seized ” purged primary taint.’ ... a later time seizure not sufficiently Whether evidence is distin- occurred. United States v. Alvarez-Por guishable hinges application of on the ras, denied, (2d Cir.1981), cert. 643 F.2d 54 closely exceptions to the three related 70 L.Ed.2d 121 testimony will exclusionary rule. The recog The author would therefore indepen- admissible if it derives from an nize the inevitable doctrine as an source, dent ... or if it has an attenuat- exception to the federal and state warrant evidence, illegally secured ed link to the requirements. inevitably or.if it would have been ... Applying the facts of the doctrine to during police investigation discovered case, present money it that is evident the illegally without the aid of the obtained Here, suppressed. need not be there is no evidence,____ [Citations omitted.] part indication of bad faith on the actions Miller, 666 F.2d 991, States v. 995 United Although of the the time officers. Cook denied, 964, (5th Cir.1982), cert. prob- have was arrested the officers did not (1982). him, minutes 72 L.Ed.2d 489 able cause to arrest a few

217 description appeal was At the con- later of the robber trans- trial and state has yet to them. The had not probative mitted officers the evidence was tended that Certainly scene of the being left the arrest. it is guilt weapons, because stolen to believe trace, reasonable if the officers frequently hard to are used in rob- immediately they arrested Cook challenged beries. The evidence here have him would detained for a few minutes gun car found in Cook’s showed that they get report until could from the rob- had been about a month and a half stolen scene, bery they which knew was immi- robbery. K prosecu- The before the Circle nent. This would have entitled been directly if tor asked he had stolen Cook Williams, supra. to do. Adams v. The knowing it and he gun. He denied denied by additional information transmitted Offi- course, gun stolen. Of the state was supplied necessary proba- cer Schuler produced evidence that no Cook was Hence, transmission, ble cause. after the Thomas, Compare State v. thief. 94 Idaho they could have arrested and un- Cook (1971). 1310 489 P.2d The evidence doubtedly would have done It is also so. gun show that also did not had been certain that thereafter the officers would single of a part stolen as chain of events evidentiary conducted an search inci- Compare v. State leading up to the crime. dent arrest and would have discover- Shepherd, 94 Idaho (1971). 486 P.2d 82 money. ed the The author hold that would Finally, necessary evidence was not money inevitably been would have dis- weapon had access to a show that Cook and was covered therefore admissible. Com- robbery. similar to used in the Finally, recognized it should be that nor- pare Sharp, v. State 616 Idaho mally things the state must two establish (1980). only possible P.2d rele- discovery before the inevitable can doctrine evidence, fact, lay vance of the in the applied. The state must first that show by unsubstantiated assertion the state that proper predictable investigato- “certain hard to guns stolen are trace and therefore ry procedures would have utilized.” frequently are used in more robberies. Second, the state must demonstrate though dispute even Cook does not procedures inevitably “those would have stolen, gun proba- the fact that discovery resulted evidence in of the tive value of this evidence has not been Gírese, The “In- question.” LaCount and shown. Rule,” Discovery Evolving evitable An Exception To The Exclu- Constitutional The state also contends that evi Rule, sionary ALB.L.REV. proper testimony dence was rebut the (1976). Although present the state in the Clista that she was the owner of the showing offered no case affirmative weapon implausibil demonstrate the elements, amply sup- two these record ity story inadvertently that she of her required “predictable plies the facts. The gun permissible left the the car. “The procedures” by were demonstrated scope offered in of evidence rebuttal rests invalid, albeit Further- prior, arrest. judicial in the sound discretion of the trial more, procedures that such have re- would judge, clearly the record and unless shows in the also sulted is discretion, such abuse of trial prior Under demonstrated search. ruling upheld.” thereon must be court’s then, requirements circumstances these Hancock, Cargill 92 Idaho 444 P.2d of the doctrine are satisfied. (1968). Proper rebuttal evidence explains, repels, or that which counteracts

II testimony, disproves the facts or evidence on behalf of introduced the adverse We must next decide whether Olsen, evidence, party. admitting 103 Idaho court erred in district Gish, (1982); rebuttal, during gun P.2d 734 state’s possession stolen. 393 P.2d found Cook’s had been wife, Clista, ever, denied, either, that Cook’s testified for the de- it cannot be the probative fense. She said that the revolver the offi- evidence had value for rebuttal belonged purposes. provided cers found the car to her. She had vital testi- Clista weapon mony said that she had obtained the on critical in behalf of the defendant July sometime after the 4th in 1979 as a points important for in the case. It was gift companion, to her from a male whose jury with which the to have information last name could testi- she not recall. Clista credibility her as a witness. could test robbery fied that about a week before the disputed tended to counteract The evidence gone in the desert to she for a drive testimony. one facet of her and thus rebut target simply forgotten shoot and to provided jury with a more It gun car. said remove from the She story. accurate reflection of her entire presence. that of its Cook was not aware prejudicial, was while judge we do not believe the district abused testimony To rebut this the state called prejudice ruling that his discretion witnesses, They two husband and wife. evi- outweighed by the value of the was gun belonged that the to them and testified credibility testing for of Clista’s dence July had been stolen in the middle of 1979. testimony. positively Both to iden- witnesses were able tify gun, they produced registra- warranty and a Ill

tion form manufacturer’s showing gun’s and iden- serial number trial, morning with no On the first tifying purchaser. wife as its successfully moved jurors present, Cook objected of this evidence admission the state the district court to order improper grounds on the that it was both credibility, if impeaching his refrain prior improper evidence of rebuttal testified, prior felony by inquiring into a court, however, al- activity. criminal Apply- degree murder. conviction for first lowed the evidence to be admitted. 43(b)(6), court held ing I.R.C.P. the district this conviction was relevant carefully reviewing After Clista ruled, “I am not credibility. He Cook’s testimony, say that we cannot ask, allow, one, Prosecutor to going to improper was rebuttal evi offered evidence felony,’ of a since you ‘have been convicted proof gun dence. It is true that And only felony involved. this is the story directly rebut Clista’s stolen did not second, go him going I to allow am not bought she never claimed she since charge.” degree first murder into the her. given gun, it had argues state later made now that the to Cook the evidence tended we believe felony his conviction indirect references to story. The fact the “counteract” Clista’s jury. He asserts that why in front of the to show she gun was stolen tended misconduct warrant- “gift.” constituted deliberate identify the source of could not The state his conviction. ing on Clista’s candor reversal of least it cast doubt At the were alleged truth references willingness tell the whole contends that Cook, she, came to have and not innocuous. about how time of the rob gun in the car at the prior suggestion of a oblique The first bery. during the defend- felony conviction came being cross-ex- when Clista was ant’s case linking the defendant Evidence that she had testified amined. When Clista conduct unrelated with other criminal car, inadvertently gun in the left being tried— which he is charge con- not she was asked whether or generally excluded state even when relevant —is found might be that her husband impact cerned prejudicial from the trial where She was v. with a possession. firearm in his probative value. outweighs its that it was whether she realized 1318 then asked Stoddard, P.2d firearms, possess husband to for her hardly be denied It can (Ct.App.1983). “yes.” replied she How- to which prejudicial. here was the evidence made, and requested Cook’s counsel counsel then jury that the Cook’s sustained, objection “to this line of objected excused and he then court the “Prose- questioning.” As to this second incident advising jury cutor this witness and the Nothing no error is shown. fur we hold illegal pos- that it’s for Lee Cook to inbe No further motion for a ther occurred. a firearm.” session of He moved for a mistrial was made and we must assume for argued mistrial. Defendant’s counsel that defendant was the record satisfied judge prosecutor’s the trial that the ques- objection. produced with the result his way tion to Clista was but a subtle “educating jury fact that Lee question appeal The before us on is Cook have been a felon.” convicted earlier motion for whether denial Cook’s argued prosecutor right just The his to do amounts to reversible error. mistrial part that as of his cross-examination of reviewing Our method and standards for Clista, spite judge’s ruling. earlier question are set out in such prosecutor argued The further that it was Urquhart, 665 P.2d 1102 relevant to overcome defense counsel’s (Ct.App.1983). purposes For focus suggestions jurors during to the voir dire issue, ing upon dispositive the ultimate we wrong person that “it’s not for a to have a although we do not decide —that assume — gun judge in his car.” The conceded that prosecutor’s questioning line of slightly “it’s relevant” but he cautioned error, indirectly because it violated the or great prejudice “there’s a deal of be had judge der of the trial to exclude judge correctly per- this case.” The However, prior felony Cook’s conviction. question weighing ceived the one of record, after review of the total we are probative against value of the evidence beyond satisfied a reasonable doubt that possible prejudice to the defendant. the same result would have been reached jury disputed had the evidence been mistrial, judge stating The denied the Id. 665 P.2d at excluded. 1105. prosecutor’s that he question believed error, any, if Thus we find that the is not prejudicial was not and “was rather innocu- reversible. prosecutor per- ous.” after the arguing right judgment sisted in his it affirm the of conviction. to show was We firearm, possess Cook judge by saying, closed the matter BURNETT, (with “to Judge whom WAL- record, TERS, make it clear for the I don’t want to Judge, joins), specially Chief concur- bring jury past out his criminal ring.

record, directly indirectly. either I think colleague agree We with our questioning] could that.” do [line judgment of conviction should be affirmed. fully We concur in Parts II and III of his during later The second reference came opinion; lead but we concur in the When cross-examination of Cook. I, result as to Part which discusses the very feeling mentioned that he was Cook resulting search seizure of nervous, prosecutor asked him whether pocket. In our view this search was felt nervous as the victim had felt on as Moreover, to a valid arrest. we incident night robbery. Cook said that suggestion resist the that the doctrine of might he did not know how the victim have discovery” applied “inevitable should be there, felt since he wasn’t but stated that point Each examined in this case. turn very nervous at that moment. he was below. then said that he had never been Cook replied, jury. prosecutor before a Search Incident to Arrest you have telling jury “You are not judge opinion suggests never been before a before.” Cook The lead “Yes, responded, I have been before a not incident to a valid arrest sir. search was because reasonable cause for such an ar- judge before.” did rest not opinion speci exist when the search occurred. The lead does disagree. We fy when an It arrest occurred in this case. says only actually may § Idaho provides po Code 19-603 been under arrest before he “formal was may person lice officer arrest a without a arrested, ly” away to a handcuffed and led felony warrant a fact has in been “[w]hen police upon car. The issue focuses committed and he has cause for reasonable relationship investigative stop between an believing person com arrested to have investigative stop and an arrest. An will mitted it.” Construing this and its statute arrest, ripen into an which then be must predecessors, the Idaho has by cause, supported reasonable if the de said that reasonable cause exists when People overly tention becomes arresting possesses intrusive. officer information Tooker, 496, v. Colo. 1388 ordinarily prudent which would lead an and 198 601 P.2d Tourtillott, believe, State (1979); 5, v. Or.App. cautious officer to to entertain 43 strong (1979), 845, an honest that suspicion, and 602 P.2d 659 289 Or. 618 affd denied, person felony. (1979), 972, arrested has committed a cert. P.2d 423 PoLson, 147, E.g., State v. 81 339 2051, (1980). Idaho 101 S.Ct. L.Ed.2d Ac 68 352 Autheman, v. (1959); 47 State P.2d 510 cordingly, an arrest to have oc deemed 328, (1929). reviewing Idaho 274 P. 805 In curred, and against must be tested police a officer’s of reasona determination cause, requirement of reasonable when field, ble cause we have admon police go beyond actions of the autho those ished to take into account the factual investigative stop. rized for an everyday life on practical considerations case, prudent persons, not appellant which reasonable and Cook this technicians, Draper v. United legal police act. adequate concedes that had States, 307, 329, 3 358 79 stop. U.S. S.Ct. grounds investigative conduct (1959); Brinegar v. United See, L.Ed.2d 327 Clovis, 75, e.g., State v. 618 127 Ariz. States, 160, 1302, L.Ed. 338 93 U.S. stop oc (App.1980). P.2d 245 When the (1949). 1879 curred, away from attempted Cook to walk weapons police, the scene. The with appellate re our standard of drawn, halt return. ordered him’to and to whether, view should at the time of the police officer Such detention arrest, police possession of infor permissible scope the investi within the which, practical mation in light viewed Taras, v. stop. 19 Ariz. E.g., State gative life, everyday considerations of would lead (1972); v. Gard State App. 504 P.2d 548 ordinarily prudent and cautious officer ner, (1981). Wash.App. 626 P.2d 56 28 to believe —or to entertain an honest necessarily involves Any investigative stop strong suspicion appellant —that suspect can A period brief of detention. felony. The variables committed a critical simply by stop purpose of not defeat the applying point are in time this test an inves walking it. Neither is away from quantum when the arrest occurred and the to an stop necessarily converted tigative possessed by police of information weapons. draw police if the arrest sug point. Although the state’s brief pre take police are entitled to reasonable acquired gests that after information safety make a and to for their own cautions finding support arrest used ef necessary to force reasonable show of cause, overwhelming weight probable W. generally 1 See stop. fectuate authority sufficiency holds SEIZURES, RINGEL, AR & SEARCHES the time of information must be tested at (2d § 13.5(c) AND CONFESSIONS People Talley, 65 RESTS E.g., v. the arrest itself. 1983). Here, no there is claim ed. Cal.Rptr. 423 P.2d 564 Cal.2d 56 drawing unreasonably acted Snelling, police People (1967); Colo. 174 Isham, robbery sus prevent an armed weapons 1 (Colo.1971); P.2d 784 484 leaving the scene. (1969). pect P.2d Wash.App.

£21 However, police participated when one of the reported Cook had rob- subsequently officers into bery. acknowledge probable reached Cook’s We pocket, conducting rather “pat- than cause must consist of more than mere sus- weapons, scope search for down” of a picion, especially generalized suspicion. permissible investigative stop was exceed Arrest, See cases collected in 5 AM.JUR.2d Post, ed. State v. Idaho § 573 P.2d (1962). case the (1978), grounds, overruled other general suspicion; did not have a Bottelson, 625 P.2d rather, particularized suspicion had a Melear, See also State v. crime, upon proximity based (Hawaii 1981). Therefore, P.2d 619 in this suspicious inappropriate behavior case, the time of pur the arrest —for the clothing. particularized suspicion This testing pose of the existence of reasonable coupled attempt with Cook’s to leave the cause —was coincident with the search it investigative stop. scene of the It is well self. an attempt impor- settled that such an is factor, though dispositive, tant in not itself question next The is what informa determining reasonable cause for arrest. police possessed point. tion at Be that Melear, E.g., supra; State v. Bax- item, listing each fore it be should noted ter, (1966). 68 Wash.2d 413 P.2d 638 arresting officer’s information suspicion, Particularized when combined police part came in from the radio. In such attempt an investigative with to an avoid circumstances, be reasonable cause must stop, may adequate grounds constitute upon tested in police full information finding a See State of reasonable cause. possession which caused the radio mes Elliott, (Utah 1981). P.2d Finally, 626 423 sent, sages merely upon to be not mes attempted departure after Cook’s was halt- Pokini, E.g., sages themselves. ed, police observed the ski mask. (1961). Haw. See 367 P.2d 499 § RINGEL, generally supra, 4.3(d). W. We conclude that the arrest of Cook was supported by reasonable cause and that the police The an were informed of pocket search of Cook’s was valid. We robbery They armed at K the Circle store. acknowledge question is a close that, just were also aware before the rob one, respect and colleague’s we our differ- bery, fitting descrip general man However, ing purporting view. to inval- walking past tion had been seen another search, idate the arrest at the time of the store, entering then passenger’s side of opinion departs the lead from practical con- waiting Despite automobile. the warm everyday plays siderations of life. It weather, summer man wear legal of role technician condemned ing heavy coat appeared and what at that Draper Brinegar. time to stocking cap. be a The automobile very was “tailed” to a location near the Circle K store. The same man and automo Discovery The Doctrine of Inevitable and,

bile were observed minutes later when opinion Because the lead treats stopped, attempted the man to leave the invalid, search as it forced anoth- is to seek return, scene. When the man ordered upholding er basis for admission of the was seen to have then be appeared what opinion in evidence trial. The a ski mask protruding pock from his back upon the settles doctrine of inevitable dis- et. covery doctrine new to Idaho law. —a facts, in this at no time case state We believe these con doctrine, urged such a together light sidered nor did the district and viewed life, practical any everyday findings support considerations of court make of fact to ordinarily prudent application would lead an and cau of the For these doctrine. rea- believe, sons, police below, tious officer or to enter those set forth we would strong suspicion, apply tain honest the doctrine here.

A rather than actual —sources of evidence. discovery under the inevitable doc- discovery is a device Inevitable trine, illegally evidence obtained employed courts have to narrow some though it admitted even was not obtained exclusionary appreci rule. order source, through independent an actual so device, significance ate it is another, long as the court is satisfied that exclusionary necessary to understand hypothetical inevitably source would have exceptions. rule existing itself and its yielded the evidence. exclusionary bars the use at trial of rule illegally applies obtained. It broadening independent This products indirect as well as direct of unlaw begun source doctrine said conduct. Silverthorne Lumber ful States, Wong Sun v. United States, Co. v. United U.S. (1963). S.Ct. 9 L.Ed.2d 441 In that use “time 64 L.Ed. 319 To case, agents federal narcotic entered tree,” metaphor” “poisonous worn building in a manner later held to unlaw- States, Harrison v. United U.S. occupant They ful. arrested 2008, 2010, 20 L.Ed.2d S.Ct. building, obtaining from him information (1968), unlawfully seized both the evidence drugs and other which led to poisonous “fruit tree” —that and the incriminating occupant the him- evidence is, derivative evidence to which the others, including as self well as several by are the tainted evidence —are barred led Supreme person Wong named Sun. The exclusionary as rule. under the Court was asked to decide whether Silverthorne, not Justice Holmes noted be at trial. derivative evidence could used simply is because all evidence inadmissible Supreme building occupant, As to the the other, to tainted it has some connection Court said: evidence: candidly prosecutor told the trial exclusionary the [Application of rule] “we have found court that wouldn’t facts ob- does not mean the thus building oc- drugs except those that [the tained become sacred and inaccessible. not to.” Hence this is cupant] helped us knowledge If gained of them is by where the envisioned this Court case may independent proved source be application exclusionary has rule no others, knowledge any like but learned of the Government because the gained wrong by own the Government’s source,” independent “from an evidence it____ by at cannot be used U.S. [251 nor is this case [citing Silverthorne ] 392, 40 at S.Ct. 183.] the law- connection between which the exclusionary rule does Consequently, the the dis- police and of the less conduct apply not to obtained from evidence has challenged evidence covery source,” though the evi- “independent even dissipate as attenuated “become so product or dence also have been needWe not [Citing taint.” Nardone.] illegal of an search. “poisoned fruit” is “fruit of the hold that all evidence States, 308 338, United In U.S. Nardone it simply because would poisonous tree” (1939), L.Ed. the Su- S.Ct. illegal light but not have come exception preme established a second Court police. the more Rather actions of exclusionary said rule. The Court “whether, apt question in a case is such apply not rule should primary granting establishment attenuated as to dissi- that has “become so instant to which illegality, the evidence at 267. the taint.” Id. pate at 60 S.Ct. come at objection made has been instead illegality or exploitation of that discovery occupies an Inevitable sufficiently distinguishable Although by means place in this mosaic. uncertain primary taint.” exclusionary purged of the [J.] exception to the called a third Guilt, 221 rule, Maguire, Evidence concept of an reality it extends were it clear that narcotics hypothetical— We think to cover independent source exploitation showing government come at of that ille- had [A] gality” they may independent hence that not sufficient information avail- against building occupant]. used able so that in the normal course of [the it might events have discovered the 487-88, Id. at 83 S.Ct. at 417. questioned evidence without an Sun, Turning Wong to the man named illegality search cannot excuse the the Court noted that he had made an later matter____ cure tainted The test must confession, drug implicating oral himself in actualities, possibilities. be one transactions. The Court said: Paroutian, United States v. 299 F.2d Wong unsigned Sun’s confession was not (2d Cir.1962) added). (emphasis [illegal fruit arrest Despite its ancestry, uncertain the nas building occupant], and was therefore cent doctrine of inevitable contin properly admitted at trial. On the evi- ued People to attract adherents. Wong dence that Sun been released Fitzpatrick, 32 N.Y.2d 346 N.Y.S.2d recognizance on his after a lawful own (N.Y.1973), 300 N.E.2d 139 cert. de arraignment, and had returned voluntari- nied, ly days several later to make the state- (1973), L.Ed.2d 338 York New Court of ment, hold that be- we the connection Appeals adopted emerging doctrine. tween the arrest and the statement Supreme When the United States Court dissipate “become so attenuated as case, denied certiorari in that Justice White [Citing taint.” Nardone.] dissented. He stated that he would have at Id. S.Ct. 419. granted certiorari because actually decid- significant question it is a constitutional Wong upon ed the Sun case the two well- “independent excep- whether the source” exceptions exclusionary established inadmissibility [citing tion to fruits “independent encompasses hypothetical rule —the source” and “atten- Wong Sun ] nothing independent uation.” The Court said in- about as well as an actual source. However, discovery. evitable a number of 1050, 554, Id. at 94 38 L.Ed.2d 338. S.Ct. began courts and commentators to read Thus, Supreme neither Court endorsed more Wong opinion. into the Sun One discovery nor eschewed doc- the inevitable important suggested article that the “fruit By denying Fitzpa- trine. in certiorari poisonous tree” unpoisoned could be trick, simply lower fed- the Court allowed government a police showing that appellate eral state appellate courts and acquired “would have any the evidence in develop their courts to continue efforts Maguire, Unpoison event.” R. How to the doctrine. Fruit —the Fourth Amendment and the Supreme recently, although More Rule, Exclusionary J.CRIM.LAW, 55 doctrine, adopted Court has it still CRIMINOLOGY, 307, & POLICE SCI. 315 inevita- recognized has in dictum a form of (1964) (emphasis original). That same In discovery relating ble dead bodies. year, a appellate federal court held that Williams, 387, 406 n. Brewer v. during evidence obtained an unlawful 12, 1232,1243 424 97 n. 51 L.Ed.2d S.Ct. apartment, search of a criminal defendant’s (1977), Court, citing Killough v. United concerning which led information States, if an incrimi- supra, said that even a body, location of homicide victim’s was obtained from nating improperly statement exclusionary not barred under the be- rule to locate helped criminal defendant body cause the would have been discovered body, evidence of the homicide victim’s any Killough States, in event. v. United body it was itself and the location where (D.C.Cir.1964). 336 F.2d 929 “might on the found well be admissible However, appellate theory body another federal dis- that the would been court, immediately Speaking preceding any in a decision in event.” more covered Sun, Crews, expressed a Wong generally different view: States v. 445 United 224

U.S. “independent S.Ct. source” doctrine. (1980), cited, L.Ed.2d 537 Court In the cases the “inevitable dis- commonly “three upon mentioned advanced ex- covery” doctrine has focused actu- an ceptions exclusionary al, i.e., in- rule” —the independent source evidence — source, attenuation, dependent Miller, and inevita- voluntary sepa- statement or the However, discovery. ble the Court did not fingerprinting rate procedure available in explain apply discovery or the inevitable Rowell. This overlap recently conceptual doctrine in that case. Appeals led the Second Circuit, expressed disap- which earlier had The Supreme current Court’s view proval discovery” of the “inevitable doc- discovery may be inevitable soon clarified Parowtian, concep- trine in to criticize in two cases pending where certiorari has Unit- tual foundations the doctrine. Nix, v. granted: Williams 700 F.2d Alvarez-Porras, ed States 643 F.2d (8th Cir.1983) (a reprise of Brewer v. (2d Cir.1981), ques- the Second Circuit Quarles, Williams, supra), People origin tioned the of the “inevitable dis- 458 N.Y.S.2d N.Y.2d suggested covery” doctrine and that cases N.E.2d The cases were sched- applied “can which it has been also be January, 1984. argument uled for Until explained firmly basis of more issued, those are all courts —in- decisions exceptions exclusionary established cluding speculate our own —must as to rule.” The that the difference court stated ancestry whether doctrine uncertain this discovery” other between “inevitable has a future. certain

doctrines was so tenuous that all of the B help- “more doctrines should viewed as guides Id. rigid ful than as tests.” at 60. Assuming for moment inevitable it would examine court concluded that stay, here to we next consider basis, balancing each case on individual scope of this doctrine in cases charac- against pro- illegality the extent of the terized unlawful searches. Time con- evidence, “without em- bative value of comprehensive not allow sur- straints do inevi- bracing rejecting” or the doctrine of vey. several illustrative cases Id. discovery. Upon pragmatic, table why suffice to show the doctrine should not basis, up- the court rather than doctrinal applied there has been no here. Where during a held of evidence seized admission arrest, lawful evidence obtained identi- because the search which invalid has been held during fied search a in the belief that officers were mistaken have been if the evidence would admissible had been warrant issued. anyway result of inter- discovered as the conduct, voluntary vening such as the conceptual Beyond the difficulties attend United a material witness. statement of defining discovery, most ant to inevitable Miller, (5th F.2d 991 Cir. States v. appear recognize to the doc courts 1982). case, involving an as- In another limit in cases. trine has a search Where officials, it by arrest state sertedly invalid police knowingly the have conducted a war to fingerprints taken incident was held that search, to exception and no rantless where not been excluded the need have arrest exists, requirement the evi warrant prosecution in a federal evidence during been dence seized that search has another, entirely separate where there was suppressed despite government’s con authorities procedure by which federal if the had been conduct tention that search fingerprints. have obtained the same would lawfully the would have ed same evidence (7th Rowell, v. F.2d 1176 United States Allard, v. been found. See United States Cir.1980). (9th Cir.1980); United States 634 F.2d 1182 Cir.1974), cert. (6th Griffin, F.2d demonstrate that the doc- These cases denied, 95 S.Ct. strug- 419 U.S. discovery” is still trine of “inevitable see United States (1974). But identity separate a L.Ed.2d 645 gling clear to establish Fitzharris, (5th Cir.1980), pected possessing 633 F.2d 416 the defendant mari- denied, cert. juana person searched the defendant’s and In Griffin, warrant, 68 L.Ed.2d 847 his automobile without a found Appeals evidence, for Sixth Court Circuit stat incriminating and arrested the de- ed: successfully fendant. The defendant chal- search, lenged by (after validity of the and police assertion an

entry contended, finding appealed. after state The state ini- and evidence crime) discovery tially, the search was incident a was “inevita- to arrest; get they planned reject- ble” because a valid but the contention, noting search warrant had sent an officer ed that that a search mission, precede on such a as a practical would incident an could arrest not beyond judicial matter be Any review. arrest. The state then asked the court to practice other view would tend actual investiga- treat the search as incident to an to emasculate the search warrant re- tive stop. the Court noted that [fjourth quirement [ajmendment. police engaged officer had not in a [Id. pat-down 961.] search consistent with investi- gative stop, but had reached inside the The case now us is before unlike pockets, exceeding defendant’s the limited cases, Rowell, such as Miller in which scope permitted during search of a an in- discovery the inevitable doctrine has been vestigative stop. upon The court focused It also is dissimilar to Alvarez- applied. occurred, actually upon search that not Porras, pragmatic where taken view was a hypothetical might search have oc- toward miseommunication about existence police differently. curred if the had acted police knowingly of a warrant. Here the conducted warrantless search which Secondly, reject opinion’s we the lead opinion Thus, lead treats as invalid. ac- approach because it is inconsistent with the cepting colleague’s our view of that search manner in which most other courts have predicate discussion, as the case applied discovery the inevitable doctrine Allard, is more akin to where Griffin sought searches. Those courts not have application of the inevitable doc- by substituting sanitize their cases correct rejected. has trine been government they action for what have held Rather, government to be unlawful action. opinion The lead seeks invoke doc- they by reasoning have said that even if police trine that if the the searches opinion question disregarded, there in were po- made what the treats as an invalid arrest, acquired lice but instead had would have extended the inves- tigative stop e.g., entirely separate until different reasonable cause ar- means — established, could procedure, voluntary rest then a ar- law enforcement valid statement, would finding rest made and or the body. of a dead hypothesized, would have been discovered in a search These courts have in varying opinion degrees, incident to that arrest. about the alternate means replaces purportedly unlawful search which the could have obtained evidence; incident hypothesized an invalid arrest with a but have not hypothetical, proper police search incident to a legally would do what the postulated, police valid arrest. in those knowingly illegal- cases did ly- reject approach upon

We two First, grounds. hypothesizing an extended opinion here, any Under the lead case investigative stop, accepting rather than where an search had conduct- investigative stop actually ed, rip- which the state would be invited show that ened into an arrest due to if police illegally, actions had not searched but police, necessary is inconsistent with Idaho Su- instead had done whatever was Post, preme legal Court’s decision (e.g., make search obtain Post, supra. police officer who sus- warrant or secure additional information cause), doctrine, accepted, even if reasonable the evidence believe the is not establish question exclusionary to swallow the rule would have been obtained. As intended by substituting what Griffin, types showings noted in these whole practical beyond really for what “would as a matter be should have done did. tend in that the doctrine of inevitable judicial review” and “would actual We conclude not, not, in- practice to emasculate the search warrant need and should [fjourth [ajmendment.” requirement of the voked in this case.

Again, respect we our col

league’s opposing Despite view. our conceptual concerning

doubts founda discovery, of inevitable the doctrine

tion following continue

has attracted develop we some form.

Case Details

Case Name: State v. Cook

Court Name: Idaho Court of Appeals

Date Published: Feb 8, 1984

Citation: 677 P.2d 522

Docket Number: 13876

Court Abbreviation: Idaho Ct. App.