State v. Gomez

Heming- in favor tered of the defendants. Fritz,

way supra. Idaho, Plaintiff-Respondent,

STATE GOMEZ, Defendant-Appellant.

Carlos 12820.

No.

Supreme Court of Idaho. 9, 1980.

Dec.

Rehearing Denied Feb. suppression officer at hearing; virtue

(3) due process he was denied before the state’s failure to disclose trial to the search photographs certain material issue; (4) court erred seizure trial agent permitting a federal narcotics give defendant’s al- opinion regarding his seized; leged intent to deliver the narcotics (5) evidence the was insufficient to the defend- support jury’s finding ant deliver intended to narcotics. Galland, May On Lt. director of Canyon city-county narcotics division Support in submitted an “Affidavit County, magistrate. Warrant” to a Search issued a search warrant magistrate then SHERIFF, CONSTABLE, directing “ANY Canyon in POLICEMAN” OR MARSHAL residence defendant’s de- County to search scribed as: white single-story certain frame “That Parma, Idaho, at Route house located 18 or Highway known as Ros- a road Boulevard, and located particularly well of a block on the east side the middle highway between Wendell Street with and identified and Park Street front of posted number 204 possession house under and control of one Gomez.” Carlos of Gomez After warrants for the arrest issued, and a search of his home were basement number of officers met in the County sheriff’s office order Canyon proceed how to execute determine Fuller, Caldwell, for Wayne P. defend- Johnson, special agent Agent warrants. ant-appellant. Narcotics, for the Bureau of testified he personally that at such time observed Gen., Leroy, Atty. David H. E. Lynn original thought what he were the arrest Thomas, Stahman, Myrna At- Deputy A. I. or not he Gen., search warrants. Whether Boise, tys. plaintiff-respondent. them,

had that he actually seen it is certain BAKES, for the Justice. was aware that arrest and the warrant to search the Gomez charged pos- Defendant Gomez was had been issued. premises defendant’s marijuana possession session of her- Thereafter, proceed- oin with A a number jury intent to deliver. found of officers guilty him ed of Parma in several cars. charged. appeals city Gomez toward the conviction, (1) arrest and claiming possession that: certain evi- Lt. Galland Agent and Offi- dence seized law enforcement officers in Johnson warrants. separate of his were in vehicles. premises a search should have been cer Galland Parma, Lt. (2) court lim- arrived in suppressed; the trial erred in When the officers iting right to cross examine a to arrest the defendant proceeded defendant’s Galland

g05 at a location not far from defendant’s resi- search warrant was unlawful. Thirdly, de- time, dence. At Agent description fendant insists that of his Johnson was radioed and residence in the affidavit and search informed that Gomez was war- arrested, and proceed that he should rant was insufficient it did not premises Gomez particularly residence in describe to be order to “secure the premises.” searched. We will address these According Johnson, sep- issues Agent arately. officers desired to make sure that no one entered or left the and that no Sufficiency A. of the affidavit in sup- evidence would be destroyed. port of the search warrant. Agent Johnson and two other officers We note at the outset the some proceeded to the defendant’s house without what deferential standard of appellate re door, knocked on the identified view used to test the sufficiency of affida and, themselves and their purpose, having vits support of search warrants. Affida heard no reply, proceeded to enter the vits for search warrants should not be re house through both the back and front viewed and tested in a hypertechnical man doors. Upon residence, entering the they ner. Ventresca, United States v. 380 U.S. found defendant’s wife and a child. They 102, 741, 85 S.Ct. (1965); L.Ed.2d 684 looked through the rooms and closets of the 387, v. Oropeza, 97 Idaho 545 P.2d 475 house in order to ascertain the presence of (1976). A magistrate’s determination of any other people. They found no one. probable cause should great be accorded They did not search for or seize evi- deference by appellate Spinelli court. dence at that time. States, v. 584, United 393 U.S. 89 S.Ct. (1969); L.Ed.2d 637 Oropeza, State v. Approximately ten to fifteen minutes la- supra. Similarly, such affidavits should be ter, Lt. Galland arrived at the premises tested by standards less rigorous than those with the search Thereafter, warrant. offi- governing the admissibility of evidence at cers conducted a thorough search of the trial. Spineili States, v. United supra. premises and found: two bags marijua- na; Keeping heroin; the above packets twelve tinfoil standards of appellate of 8-14% bag mind, containing grams heroin; scrutiny we turn now 17% to the suffi- “fix ciency kit” containing syringe question. affidavit and rubber The hose; affidavit, Galland, and a signed scale. Lt. by was based primarily on two sources of information: a trial, Prior to defendant had made a mo- confidential informant and prior surveil- tion suppress the evidence of the search lances of by the defendant conducted law on the grounds raised here appeal. on As enforcement officers. The officers had ob- new available, evidence became this motion served making Gomez heroin deliveries times, renewed several before and dur- occasions, the Boise area on two separate trial, ing and was denied each time by the thirty-nine and forty-five days prior to trial court. issuance of day the warrant. On the before issued, warrant was the confidential informant quanti- had told Lt. Galland that THE ties SUPPRESSION ISSUE narcotics could be found at the Go- mez residence. Defendant asserts three independent grounds in support of his contention that argues defendant the informa the court below erred in denying his motion tion provided confidential informant First, suppress. he maintains that does not meet two-pronged test articu affidavit offered in support of the search lated the United Supreme States Court warrant was insufficient to demonstrate in Aguilar Texas, v. 378 U.S. 84 S.Ct. probable cause. Secondly, argues he (1964); 12 L.Ed.2d 723 further expli the actions of the three officers in “securing Spinelli States, cated in v. supra,, United premises” prior to the arrival of the implemented by this Court in

Oropeza, supra, Alger, subject and State v. 100 Ramos and another male known as Idaho The re does Pete Guzman.” The affidavit not indi- quirements of the test are as follows: cate whether the informant ob- confidential served it delivery an firsthand.2 Nor does

“Although affidavit be based on indicate how it was known that the “third hearsay information and need not reflect personal party” acquired direct the heroin from Gomez. observations of the affiant, proble- Not raise the magistrate must be does the affidavit informed of some of aspect hearsay matic also underlying hearsay, circumstances but from which supra. upon Oropeza, informant concluded hearsay. See State the narcotics were where he they claimed The state as much when it states admits were, and some underlying circum- in the in its brief: “There is no indication stances from which the officer concluded affidavit the information ... as to whether that the informant . . . was ‘credible’or provided informant was by the confidential his information ‘reliable’.” Aguilar v. upon based the informant’s observation of Texas, at U.S. S.Ct. delivering drugs Carlos Gomez to a third (citations omitted).1 L.Ed.2d at 729 party subsequently who delivered them to

Regarding the tip informant’s in Janie Ramos and Pete Guzman.” There the instant quite it is fore, clear that the question if the were based affidavit affidavit met the second prong Agui solely tip, informant’s we anonymous lar-Spinelli test, the so-called “veracity compelled would be to hold the search war prong.” The affidavit states that the confi itself, rant tip, invalid. The does not dential informant had proven reliable on test, no Aguilar meet the since it lacks the occasions, less than previous six and his primary required factual data for mag information directly led to the arrest istrate to evaluate the conclusional validity prosecution of at least five traffickers of the informant’s statements. Stanley See of narcotics. The amply affidavit demon State, 507, 847, Md.App. v. 19 313 A.2d 861 See, strates reliability. informant’s (1974), (1974). cert. denied e.g., States, 257, Jones v. United 362 80 U.S. The state insists that this defect is not 725, S.Ct. 4 L.Ed.2d 697 (1960). We also affidavit, pointing fatal to the out that note that particularly strong showing “[a] probable here is based not on the cause on one prong may compensate for a weaker on the affiant’s tip, informant’s but also showing on the other.” United States v. independent knowledge defendant’s Smith, 936, 598 (5th F.2d 1979). 939-40 Cir. trafficking “recent” narcotics as observed However, by other officers. The law enforcement tip informant’s does not meet argument roughly the first state’s based on the prong of the Aguilar-Spi test, nelli following language Spinelli: from “If the dubbed the “basis knowledge” prong. affiant, Galland, tip inadequate The is found under Aguilar, Lt. states that the tipster allegations other which corroborate the in- informed him that “Carlos Go mez had in the hearsay report delivered a formation contained quantity of heroin v. through subjects Spinelli a third to two should then be considered.” party from area; Idaho, States, 415, the Burley, at one of those sub United 393 U.S. 89 S.Ct. jects being 588, a female by name of Janie 21 L.Ed.2d at 643. Aguilar-Spinelli substantially Aguilar-Spinelli inquiry places premi- 1. The test is codi- The 41(c), part personal fied in I.C.R. which um on reads relevant the informant’s observation or finding knowledge. probable Alger, as follows: “The firsthand See State v. 100 cause 675, evidence, (1979); upon shall be based Idaho 603 P.2d 1009 State v. Arch- substantial er, 584, (1975); Ariz.App. hearsay part, 23 534 P.2d 1083 in whole or in Lemons, 316, provided Ariz.App. v. 519 P.2d 69 there is a substantial basis for believ- (1974); (La. Weinberg, ing So.2d 964 hearsay State v. the source of the to be credible and State, 1978); Wis.2d Laster v. believing for there is factual basis for the LaFave, (Wis. 1973); 1 W. Search & N.W.2d 13 information furnished.” Amendment, Seizure, A Treatise on the Fourth 3.3(d) (1978). § (1965); by Alger, As noted 13 L.Ed.2d Judge Friendly, writing for Appeals, the 2nd Circuit Court of the effect 100 Idaho

of a defect in the tip police personally informant’s is dimin- officers observed criminal circumstances, ished when the these presents activity. affidavit other in- Under dependently incriminating really information:3 issue is not whether these observa sufficiently tions corroborate the infor

“The lesson we draw from all this is that tip, mant’s but rather whether the criminal Aguilar applies rigor only with full when by police observed activity previously the search depends warrant or the arrest officers, Aguilar -defec supported solely tip. tip informer’s When a magis tip support tive informant’s can not meeting Aguilar generat- test has probable cause.4 See finding trate’s police ed investigation and this has devel- McNally, 473 F.2d United States oped sufficient corroboration or other (3rd 1973) (while recognizing 939-40 Cir. ‘probative indications of criminal activity approach “tip plus that the corroboration” along the suggested by lines the infor- tip is fruitless where the informant’s sets mant,’ Rebell, see The Undisclosed Infor- corroboration, capable forth no detail mant and the Fourth Amendment: A indepen court held that “other nonetheless Standards, Meaningful Search for dently suspect activity” together can (1972), Yale L.J. tip, 715-17 even tip cause). defective establish probable though qualifying Aguilar, hot under may be used to give such additional color case, Alger, supra, a recent State v. as is needed to elevate the information recognized this Court that direct observa- acquired by police observation above the police tions made can be combined with floor required probable cause.” Unit- probable an informant’s to constitute tip ed Canieso, States v. 470 F.2d 1231 cause, though even observation (2d 1972)(emphasis text). Cir. itself would be insufficient. “ In the instant observations, the affidavit unto insufficient ‘[DJirect of Lt. Galland sets forth “other probative cause, themselves to establish indications of criminal activity.” The affi may nevertheless be added to trustwor alleges davit two separate occasions thy hearsay, which ... is also insufficient the defendant made deliveries of itself, heroin unto so that the combination of while under by surveillance investigative incriminatory may elements establish the officers. Police officers are presumed to be probable cause which neither quite alone reliable sources of information. United demonstrates.’ Moylan, Hearsay and Ventresca, States v. 102, 380 85 U.S. S.Ct. Probable Cause: An Aguilar Spinelli requests 3. Aguilar Defendant that we follow “More difficult is the case in which it cannot Oropeza suppress quite ‘probable the fruits of the be said that cause is estab- However, Aguilar Oropeza warrant. necessary since lished without hear- resort only dealt with say,’ affidavits based on information but where this other information stand- supplied by informant, they a ing suspicious. confidential highly are alone is nonetheless distinguishable. Oropeza, May It is true that it be' said in such a case that the infor- supporting alleged officer’s story, lacking showing affidavit that “sur- mant’s albeit a of the by City- knowledge, may veillance conducted officers of the basis of be taken into County purpose supplying Narcotics Division established account for the of the ‘lit- Oropeza, above facts to be true.” State v. 97 tle bit more’ which is needed to elevate this 390, However, Idaho at up probable 545 P.2d at other information to the level of conclusory view of yes. nature of the above cause? The answer is allegation, surprise it comes as no that corrobo- tip ration of an informant’s was not an issue in “A number of the lower court decisions Oropeza. upon theory which are based the unsound remedy that corroboration an otherwise LaFave, 4. Professor in his treatise on the fourth knowledge unestablished basis of could more amendment, points out the existence of readily explained theory just on the stat- non-hearsay incriminatory information in the LaFave, Seizure, 1 W. ed.” Search & A Trea- problem affidavit takes the realm of outside the Amendment, 3.3(e) tise on the Fourth § Spineili problem. the normal corroboration (1978), at 566-67. 808 Harris, 741, 482

Primer, at 628. Cf. United States v. Mercer L.Rev. 778-79 25 1973) 1115, (3rd (“[protract- 100 Idaho at Cir. (1974).” Alger, v. F.2d State is inherent in a activity ed and continuous 603 P.2d at 1112. operation”). large-scale narcotics maintains, however, that Appellant support cannot prior police observations we believe In this finding probable a cause because such by law heroin deliveries observed prior two for place thirty-nine and observations took least raise the in enforcement officers at engaged to the issuance of the ty-five days prior the defendant ference distributing The defendant contends continuing search warrant. business in the information fails to estab Lt. this “stale” It must also be noted that narcotics. probable gener describing lish cause. It is tense in “present” present used the Galland provide must confiden provided true that affidavit the information ally “[a]n tense, probable cause for facts sufficient to create tial informant.5 Use informant, sup articles are within lends belief that the forbidden even a confidential probable port finding “present” at the time the to a place to be searched Boudreaux, 304 requested.” search warrant State v. Or cause. v. So.2d See State (La.1974); Clay, Wash.App. v. opeza, 97 Idaho at 545 P.2d at 480. 343 (1972). Unfortunately, magical there exists no 501 P.2d 603 number of within which days information is We to hold specifically decline fresh and after which the information be whether observations in this case prior question comes stale. The must be resolved support finding a would themselves light of the circumstances each case. that such probable cause. We hold Id.; States, Sgro v. United U.S. observations, with the infor coupled when (1932); 77 L.Ed. 260 S.Ct. United currently mant’s information that Gomez (5th 1978); Hyde, States v. 574 F.2d 856 Cir. possession in his and at his residence Ingram, v. Or. narcotics, this affidavit quantities of raises Annot., (1968). generally 100 A.L.R.2d See In so above the floor of cause. holding, we have taken into consideration impressive

An factor in “staleness” the informant’s record as a important past. of the criminal con of reliable information analysis is the nature source that, previously duct. If recounts criminal We have also considered the affidavit observed, veracity prong may protracted strong activities of a or continuous na ture, of weakness in the sequence strengthen in the of events other areas delay time prior is of observations significance. Basically, less See United States affidavit. Johnson, protracted Hyde, suggest 461 of the officers supra; United States part (10th 1972). activity F.2d course of criminal Cir. defendant, allegations and the circumstances, Under some appropriate bring the activities confidential informant drug trafficking courts have viewed as an evidence place and the of defendant current activity. Johnson v. inherently continuous in the defendant’s squarely to be seized State, (Md. 622 Md.App. 14 288 A.2d residence. Johnson, lapse In the of time App.1972). conclude, allowing due def- days. As in the case at We therefore twenty-six magistrate in bench, the decision of the prior been two observa- erence to there had investigative obser- prior enforce- this that the drug trafficking by law tions of activity, bol- criminal The Johnson court stated vations of defendant’s personnel. ment a supplied by information by in the affidavit stered the that the activities described informant, are sufficient highly business in reliable continuing a suggest “seemed to Id., cause. support finding 288 A.2d the distribution of narcotics.” added.) drugs. (Emphasis that “CARLOS 5. Lt. affidavit stated Galland’s custody quantity illicit of’ has in his GOMEZ

809 Securing premises. counterpart B. the I.C.R. Idaho’s to Rule 41 Criminal Procedure. Federal Rules of We next decide entry, whether the initial following We find comment the the which was intended “secure” the Gomez Supreme equally United Court to be States residence, was permissible. Agent Johnson applicable here: and two other the officers had entered 41(d) “Rule does officers require federal prior ten to fifteen minutes to the upon person copy to serve the searched Galland, defendant, arrival Lt. the a receipt describing of the warrant the search warrant. At the time of the obtained, but does not material it entry, initial Galland other officers require done be- invariably that Parma, were in downtown three to four Katz v. place.” fore the takes away, blocks arresting defendant. The States, United 347, 355, 389 U.S. 88 S.Ct. arrest, pursuant was executed 507, 513, (1967) 19 584 at n. L.Ed.2d at an parts auto store. When ar- Galland rived at the defendant’s house a search was McKenzie, Accord, United v. States 446 conducted and the evidence in question was 1971); Wraspir, State v. (6th F.2d 949 Cir. seized. 20 P.2d Wash.App. proce Defendant claims the above that Several courts have concluded dure 19-4408, violated I.C. and that any § fact that initiated investigative officers evidence seized must be suppressed. We a search but undelivered without the issued agree. cannot possession warrant their did not physical I.C. 19-4408 reads as follows: United v. § States invalidate search. Woodring, 444 F.2d 749 (9th 1971); Cir. “19-4408. OF SERVICE WARRANT. Cooper, United States F.Supp. —A search may warrant in all cases be Johnson, State v. (W.D.Tenn.1976); served by of the officers mentioned Mayor- (Ct.C.P.Ohio 1968). N.E.2d 574 See directions, in its person, but no other ga People, 178 Colo. except in aid of the officer on requir- his State, Williams v. (1972); S.W.2d ing it, he acting in its But see United States (Tex.Cr.App.1972). execution.” v. Seely, 570 F.2d 322 (10th 1978). Cir. We fail to see how “securing the act of Woodring Cooper, ques- searches premises” in this case violated the terms of tion by agents were commenced who had the above statute. The requires statute been via informed radio communication the warrant “by any be served the warrant indeed been issued. officers Here, mentioned in its directions.” In Cooper, it was hours after the initia- IV2 sheriff, warrant was directed to “any tion of the search finally constable, marshal policeman” Canyon suppress arrived. Both courts declined to County. It therefore included Agent John- the evidence. son and the two initially officers who en- concept foreign above is not tered premises.” and “secured the The Idaho Arrest law. warrants be exe statute says nothing about the necessity of cuted officers without the warrant the warrant being present upon the initial 4(c)(3) their possession. (renumbered I.C.R. entry. requires It presence of the 4(h)(3), 1980). July I.C.R. effective officer or officers directed to execute it. Granted, require statute does practice Nor “securing has Qf “served,” warrant be which necessarily re- premises” been condemned this Court. quires that the present. warrant be How- contrary, To the while we ex- have never ever, the statute does not specify issue, whether plicitly confronted the we have twice the service must place take before the favorably practice. on the commented search is commenced. Miles, v. 396, State In 97 Idaho 545 P.2d procedure

The (1976), service exe 484 we said that while the officers cution of is governed search warrants also could not a warrantless conduct

810 537, suspected (Ariz.1977); an automobile Ariz. 566 P.2d containing con- 685 v. State traband, Mankel, they posted 436, could have a guard 27 555 P.2d 1124 Ariz.App. car, it, with thereby securing the while oth- (Ariz.App.1976). courts hold that the Other ers went to obtain the warrant. assuming initial its constitutional or entry, statutory infirmity, does not taint the Rauch, 586, In State v. 99 Idaho 586 P.2d entry pursu second and search undertaken (1978), 671 sup- we affirmed a trial court’s ant to a valid search warrant. ex rel. State based, pression of evidence which was Hyder Superior Maricopa v. Court of Coun among things, police other officers’ 337, ty, (1977); 114 Ariz. 560 P.2d 1244 failure comply with the Idaho knock Smith, 531, State v. 112 Ariz. 544 P.2d 213 statutes, announce I.C. 19-611 and §§ (1975); Hannah, 9, People v. 514 183 Colo. Rauch, -4409. The state’s concern in which Fenin, (1973); P.2d 320 v. 154 State N.J.Su case, again expressed in this centered 282, (1977). per. 381 A.2d 364 others Still around the possibility drugs the could entry prior find the initial undertaken destroyed have been easily unless the repug the issuance of the warrant to be so immediately prevent took action to it. In require suppression nant as to of evidence Rauch, we recognized legitimacy the subsequently pursuant validly seized to a state’s concern but declined to hold that it issued executed warrant. United justified failure to knock pri- and announce Griffin, (6th v. 502 F.2d 959 Cir. States entry. 1050, 1974), cert. denied 419 95 S.Ct. U.S. “In this case as the trial explicitly court 626, (1974); People Shuey, 42 645 v. L.Ed.2d noted, the gave time frame involved 835,120 Cal.Rptr. 13 Cal.3d probable cause to enter and secure the Matsen, (1975); v. 601 State Or. Rauch premises without a but Bean, (1979); Wash.2d P.2d 784 v. did not excuse the necessity complying However, (1978). we P.2d with Idaho’s ‘knock and announce’ stat- conflicting need not choose between these ute. There urgency justi- was no only we hold authority. Today lines of fied noncompliance with the statute even premises an intended to is secure though there cause to enter after and not when undertaken improper and secure premises.” Id. at the issuance of the war knowledge of added). P.2d at 676 (emphasis rant, at the prior premises but to its arrival In the instant the defendant to be searched. place. was arrested in a The officers public The Non-existent House Number. C. that, feared apparently given size of arrest, Parma and the location of the their The final attack on the defendant’s actions would attract attention and that a is based on an error in validity of the search phone call might to the residence Gomez subject premises. description occupants quickly dispose enable the magis The search warrant issued reasonable, drugs. This concern seems house was “identi trate indicated that the especially allega in view of the informant’s posted fied with the number 204 ” tion drugs possibly that the were stored front of the house . . . . While there is a reach of ready rapid bathroom within preponderance testimony, conflict fact, disposal. prompted In this allegation the number of the evidence indicates that magistrate pro to include “no-knock” on the house at the time of appear did not vision the search warrant. this dis the search. Defendant insists that the search currently split authority crepancy There is invalidates Yoder, effect of 96 Idaho 534 P.2d among concerning citing the courts Yoder, entries we held premises intended to secure “[t]he clear so sufficiently where no warrant must be description has been issued. Some recogniz is property courts of se that the to be searched actively practice condone neighboring properties.” other curing while the warrant able from Broadfoot, distin- obtained. 534 P.2d at 773. See State Id. ed, description apart is sufficient from guishable description Yo- contained der supporting warrant and affidavit was to house num- respect with disparity an incorrect house number. bers. Hart,

In State v. 594 P.2d Idaho (1979), we held that a district court Ill quashing erred “in a search warrant where concerning We now turn to issues the house to be searched described of defendant’s intent to deliver evidence number, an erroneous house but was fur- trial, question. During narcotics in ther identified additional fea- physical Hendrix, from one testimony state elicited tures contained in the warrant.” Id. at Drug En- special agent for the federal 594 P.2d at We think Hart is control- The trial court forcement Administration. ling. Carlson, See State v. 101 Idaho and train- experience found that Hendrix’s (1980). ing qualified expert him as an narcotics In the instant the warrant described investigation paraphernalia. Defend- premises to be searched as “a white dispute finding. ant does not single-story frame dwelling house located at direct examination cul Hendrix’s 3, Parma, Idaho, Route on a road known as following exchange: minated in the Highway Boulevard, 18 or Roswell located Now, “Q. experience, upon your in the based middle of the block on the east side education, training familiarity of the highway between Wendle Street and users, Street, Park narcotics and narcotics Officer Canyon County, Idaho, Hendricks, opinion which is have an as to possession you under the and control of do one CARLOS GOMEZ.” whether or not an addict would individual possess grams person- of heroin for his It is immediately clear that the detail in al use? this description surpasses the description in the Yoder Significantly, warrant. the Go- mez residence was the house on the “A. I do not believe so. I have never

east side of Highway 18 between Wendle seen an addict have that for his quantity and Park Streets. The possibility a mis- own use. minimal, taken identification being we con- “Q. opin- you And on what do base clude that the description in the warrant ion? sufficient. “A. Past cases we have worked involv- ing opposed narcotics traffickers as to an II individual addict.” Defendant next contends that objects testimony. Defendant to this We trial court erred in limiting his cross exami see nothing improper in its admission. The nation of Lt. Galland at suppression question hypothetical above is a one. See hearing. The permit court did not defense Bell, Handbook of Evidence for the Ida- G. counsel to ask photographs Galland whether (1972). Lawyer, ho at 66-68 Previous testi- were taken on the exterior of the house on grams had established that fifteen mony the day of the search. Defendant also as found in resi- heroin had been defendant’s serts that he process was denied due of law for the hy- dence. The factual foundation by virtue of the state’s failure to disclose pothetical question was therefore certain photographs day taken the trial the record. The court did not err in search. photos These established permitting express opinion. Hendrix to his number “204” appear did not on the front 96 Idaho 525 P.2d Badger, side of the house. See (1974); O’Mealey, 95 Idaho Both of these contentions concern the P.2d 99 adequacy and accuracy description of in the warrant challenge Defendant’s final is directed at supporting affidavit. we previously As sufficiency conclud- of the evidence. He con-

cedes that law, the record supports posses- general well settled as will be body conviction, issue, sion but claims there is no sub- discussed regards further on. As stantial evidence an unsettling “intent opinion, deliver.” the Court’s while it is result, The function of this in considering wrong Court the law and leads to a affects defendant, Gomez, evidentiary sufficiency just particular and limited to deter- mining whether there he will be neither the first nor the last exists substantial and competent person evidence. who error at g., through E. has suffered Kel- logg, 100 Idaho trial (1979). part appellate 600 P.2d 787 or error on the of an court. In our judgment, the evidence sus goes beyond The case the instant de- far tains defendant’s conviction. physical The fendant, opinion however. The Court’s evidence introduced at trial included one written goes aiding abetting far in packet grams of fifteen of a powdery sub deepest intrusion on Fourth Amendment heroin, stance containing 17% one metal rights country’s misfor- it will be containing container twelve individual tin years— tune in recent to have encountered foil packets powdery of a ranging substance in all the nation was perhaps time since heroin, from 8% to 14% and scales suitable primary concern in this My founded. for weighing. Hendrix, Special agent an case—one which also involves invasion of expert whose qualifications are uncontro rights the ex- defendant’s constitutional —-is verted, testified that only not the quantity, adopts treme ease with which Court but also the packaging and purity of the approves newly police- discovered heroin seized at defendant’s residence were state which is referred to as doctrine “Se- and, consistent with sales activities con so new curing Premises" —a doctrine versely, inconsistent with mere use. Agent Court, opinion, recognizes that the in its Hendrix’s testimony was substantially cor necessity for it when cir- mentioning by roborated the testimony of Lt. Galland. cumscribed quotation marks. It cannot be said that the evidence is insuf ficient. Badger, See State v. 96 Idaho not, “Securing my the Premises” has P.2d 363 knowledge, my opinion, and in heretofore approval received the of this Court. judgment of conviction below is af- Rauch, 99 Idaho firmed. (1978), a in which 1978 decision of Court opin I participated joined the Court’s DONALDSON, J., McFADDEN, J, C. ion, only the we had for our consideration SCOGGIN, Tem., J. Pro concur. suppressing review of a trial court order BISTLINE, J., dissents. with the Idaho noncompliance evidence for The trial knock-and-announce statutes. BISTLINE, Justice, dissenting. upon based a fac court determination was had not finding prosecution tual I. exigent circum produced any evidence PREFATORY REMARKS justify noncompli stances which would In my evidentiary finding time on the was found Court there has not ance. That appeal been another case before us with more far to be sustained Court reaching record, A consequences than this. One as- and on that basis we affirmed. pect justice would have appeal dissenting has to do with defend- in that case otherwise, opinion ant’s purporting claim that the affidavit inserted into his held support quotation the issuance of the search warrant the trial remarks made upon exigent was insufficient which to that there were base the court to the effect requisite finding gave probable cause. I am circumstances “which cause agree believing entry unable to with the was needed to se Court’s conclusion it the residents against was—which conclusion runs cure the house and monitor prior pre arrived to against decisions of the Court and before the search warrant disregarded could be requirements nounce of contraband from vent removal made. was there making P.2d at 680. 99 Idaho at house.” the securing was said about What that was not the It must be remembered obiter, and mere opinion was in in Court’s opinion opinion. Court’s Court’s interpreta only capable mind my to the dissent Rauch did concede to hy gratuitously tion that the Court remarked, setting again trial court had so might entry a warrantless pothesizing that forth, explicitly to proceeding the same the circum made under circumstances, properly been when point exigent out that “Securing existing. and there enter, stances then exist, to found to can “allow the case. an issue in was not the Premises” search, complying without seize and arrest of the Unit requirements with the warrant of this the case to pertinency real Of ” 99 Idaho at ed .... States Constitution in observation is the Court’s defendant 590-91, Plainly at 586 P.2d 675-76. court, that trial Rauch, with the agreeing seized out that evidence simply, pointed we is an insufficient speculation” “sheer always will not on warrantless entries nec- exigent circumstances for the premise distinguished then between suppressed, and of a home without an essary to make hand, entries, such warrantless on the one 99 Idaho at the statute. compliance with entries without knock-and-an 591, speculation 586 P.2d at Sheer We compliance, nounce on the other. exigent for the premise insufficient also an agreed analysis with the trial court’s where constitutional required circumstances evidence, was no ur saying that “[t]here are entries warrantless against prohibitions justified noncompliance with gency involved, being that the constitu- view my ” the statute. . .. 99 Idaho at 586 P.2d legislative than a stronger mandate tion is a at which was 676. That the exact issue requirement. presented, holding, there and that was our far today does is a That which the Court wherein, well in Justice Donaldson’s rea as to from our observations in Rauch cry joined soned with courts which opinion, we person’s in a right the “basic to be secure seriously legislature’s requirement take home, the fourth amend guaranteed by police making in warrant entries do 677; P.2d at ment 99 Idaho at ...” not, exigent cir except acting when under home ...” very sanctity of the “[t]he cumstances, merely giving break in without 678; at 586 P.2d at the fact that Idaho “ presence pur advance advice of their interest precious action invades the ‘[s]uch pose. The sentence which announced our adage in the ancient privacy up summed language, holding contained the additional Miller v. house is his castle.’ that man’s picked up twice-quot from the trial court’s 301, 307, States, 78 S.Ct. 357 U.S. United passage, ed that “there was cause ” 1190, 1194, .. . 99 Idaho 2 L.Ed.2d 1332 premises.” enter and secure the 99 Ida 677; fact that P.2d at at “[t]he regard, ho at at 586 P.2d 676. In that guar the basic exclusionary rule has been then, as I and still language understood the ac illegal police from of freedom antor read it we were that the day, saying to this id.-, “‘[ejvery and the fact tion. ...” officers could have a warrantless en made bad, householder, and the good circumstances, but try upon exigent based innocent, is entitled to and the guilty found to type exigent circumstances the common designed to secure protection ignoring justify exist were insufficient unlawful invasion of against interest knock and an requirements of our ” P.2d at 679 Idaho at house.’ tri thoughts nounce statute. Whatever 313-14, Miller, supra, 357 U.S. at (quoting making al may court have entertained 1197-1198). S.Ct. remarks, his and whatever the other mem and well artic- Rauch was a well reasoned bers of the Court have considered Court, represent- of this ulated regard “securing premises,” it is alto decision unlawful against bulwark gether significant clear to me that the issue in the ed a of the home. privacy case was whether or not the knock-and-an intrusions into Yet, recollection, according to my paper just it went a local year. this last Of unnoticed and unheralded —which is un- great encouragement to those who would usual in view of the general media’s con- struggle protect rights those was the cern with rights, constitutional especially comment, singular rather fact that those engendered by the First Amendment. editorial, the form of an saw a recent Unit- Although there was a vigorous dissent Supreme opinion1 ed States as run- Court the disposition made of that in which ning “counter to the Fourth Amendment justice another joined, still the appar- media protection against unreasonable search and ently believed importance. the case of little Supreme seizure.” Noting past Court So, other than it important that was to that excess,” rulings police “have curbed the edi- particular defendant and to the state’s po- ruling recent say torial went on to that the officers, lice the case caused little stir. At quite obviously change showed a of view in about the same time the split Court also Court, that and court was un- that “[t]he three-two on another involving case the potential dangers mindful of the of the rights people of Idaho protect to themselves .,” of ruling . . the circumstances which it in their traveling homes and while pains lay took the out to its readers. The highways automobiles, in their motor message editorial concluded with a which homes, and other vehicles. compels vigor me with renewed to continue McNary, (1979), 100 Idaho sworn to enforce the Fourth my obligation expanded Court beyond I.C. 18-3302 § I rights Amendment which see violat- its plain and language, held that the statute today: ed prohibited the keeping weap- concealed “The in the highest court land told ons within homes which were within city police prosecutors and that it has no aver- limits or within vehicles operating public repugnant police sion to the prac- most highways. Despite importance of the long tices as as the that is evidence issue, split Court, and the in the nothing obtained is used defendants who against was written or said about the case and it is happen don’t to own a briefcase that is not known to day legislature this if the stolen, a residence car burgled that is or a showed concern for the strained inter- illegally searched. But the court pretation of its statute. Such recollections ignored rights party of the who owns put me in mind remarks of Justice briefcase, residence or car. It also Byron White of the Supreme United States ignored excesses and sent a Court, given at the Bar Convention in confusing dangerous message po- and in Valley July Sun to the effect that added.) lice agencies.” (Emphasis although out, opinions Court’s were rights par- debate still Fourth Amendment are not the raged on as to the validity the varying espoused judges lawyers, views in ticular concern of and but the various opinions just then handed down. I have are and should be the concern of all the thought, believe, and continue people it unfortu- country regard this it is —in nate that after the members of this Court gratifying rights to see those debated and struggle mightily with some of the difficult argued, espoused pro whether the views faced, issues with which we are no one feels or con. free or motivated to either assail or defend direction which the Court has moved. II. A recent ray light, may and one which ENTRY TO “SECURE WARRANTLESS

support required by my extra effort THE PREMISES” deep extreme concern and involvement the fact of the particular controversy, was some inter- It was unfortunate that rights expressed est in Fourth Amendment not become disclosed entry warrantless did Payner, Obviously 447 U.S. United States 1. decided 65 L.Ed.2d S.Ct. 23, 1980. June attired, have been so that one or more say midway

until in the trial. would have they likely it is also in mind that the trial court and thought so, except If and weapons. ruled otherwise might very here well have drawn their within other into the no one was given pre-trial inquiry a full-blown fact than that child, circumstances, time the situation given facts and more and than a woman law and disas- dangers to consider the scant of violence opportunity fraught with to “secure the grave available on entries made our concerns was one of ter such as weigh more time to of our premises,” given validity applying upholding the incontrovert- authority light in Rauch. statute knock-and-announce Fourth language purpose compli- ible very need for we said: “The There in the protect people Amendment statutes with ‘knock and announce’ ance The remarks of the privacy home. noncompliance from great danger and the trial court show an extreme concern Idaho at enforcement.” requires strict quite po- disenchantment with the apparent 586 P.2d at breaking lice action in into the Gomez home im- light, came to The warrantless so, a warrant to do having without hand catching the attention of the trial mediately ultimately being swayed by with the court Johnson was on the judge, when Officer authority some from Arizona —which Arizo- examination: stand on direct authority na will be hereinafter discussed particular that “Q Why you go did regard reasoning with for its shallow residence, agent Johnson? disregard rights guaranteed callous residence I went there to secure the “A people. on that resi- and initiate search course, sup- a motion to Ordinarily, dence. trial. press prior must be made up a you speak Would “THE COURT: Conner, 59 Idaho difficulty They having little more. are But as the trial opinion recognized, that did read that you Would hearing, apparently. here, court there opportuni- must be an that, part missed Possibly jury back. record con- ty raise issue. Here the and I know I did. residence, clusively shows that the Gomez into, unlawfully occupied when broken was read) (Reporter only by Maria Gomez and the child. Mr. with “Q premises enter those you Did home, Gomez was not at and counsel who the warrant? was to later represent Mr. Gomez had no No, sir, I didn’t. I entered “A information that the was warrantless premises to secure. Lt. Galland had the until divulged the fact was at trial on ex- warrant. amination of officer Paul Johnson. you when en- “Q present was And who Gomez, The record is conclusive that Mrs. premises? tered looking had she had reason to be out of Deputy it precise police the house at time the “A time would be At arrived, County grown Cortez, Canyon would have seen three men was with the who house, approach her none of them in uni- Office. Sheriff’s form, having just exited from vehicle Now, having I am still “THE COURT: which was At trial not a car. went into the difficulty. The officers was that all testimony of Officer Johnson house? did not testimony three were armed. The Cortez, Yes, sir. Officer “A Officer garbed officers were develop whether these were the ones that went myself Carr and in the manner often agents undercover into the house. . .. quarry— dress of their pursuit while who which is much in the manner of those Now, you have testified that “Q you suspicion develop

are under did not —and prior to the time weapons actually whether had drawn entered the house they their they likely burst into the residence. It is was conducted. search Perhaps maybe

“A “THE I should. Right, sir. COURT: I thought This is a very point. material “Q you And and Lt. and —ex- Galland jury you testify heard when the cuse me. You and Lt.—Officer Cortez. in before the search you went “A Officer Cortez. warrant arrived. “Q —Went inside the house. Was it Yes, sir, “A that’s correct. with Officer Carr? “THE And then another COURT: Yes, sir, you “A it was. I misheard question maybe —I — thought you go didn’t until you said “Q you anybody Did arrest inside the Lt. arrived with the Galland had house? warrant. No, “A sir we didn’t. No, question “A sir. I answered to “Q Who was there? ini- When I place when was the searched. it not first time tially went “A There was a woman inside with a When Lt. searched. It was secured. Gal- small child. read, warrant was land arrived the search “THE point you COURT: At are at which time the search saying that you went into this house before was commenced. the search ? warrant arrived when you “THE COURT: What did do Yes, sir, “A we did. you premises? secured the “Q you Did have the search warrant Sir, just basically “A we sure that made you at that time ? left no place, no one entered or be able to be destroyed. evidence would No,

“A sir. At that we into time went the house Lt. had the search war- Galland you “THE How did make en- COURT: rant. trance?

“Q the back through And Lt. wasn’t “A We made entrance present. Galland through the front door. door and no, “A sir. He — Simultaneously? “THE COURT: “THE I COURT: don’t understand. get can with- Simultaneously you “A “MR. PULLER: This is new evidence to just besides any out form of communication me, and I would like to have a recess for and going around the back door someone making a motion outside the purpose of through front door. you going in jury. way, went in one “THE You COURT: “THE I point COURT: think at this we you? did should have some outside the testimony Yes, Deputy “A and Carr Myself sir. presence of the Recess the at jury. jury door, Deputy went in the front and Cortez this time for might whatever time it went in the back door. necessary part During for this of the case. when And what occurred “THE COURT: take, the recess that are about you to mem- went in the front door? you bers of the heed the admoni- jury, you must the front door “A When I went in tion I given you have heretofore relative to child and the small noticed the female and recesses. You will be called back in due house, at which time Deputy Cortez in the time. rest of the house proceeded we to check the (Jury m.) at p. recessed 3:23 was within the house. anyone to see if else (Following proceedings had in the through you go Did clear “THE COURT: jury:) absence of the the house? Honor, pro- “MR. Your Imay FULLER: and checked just through “A We went any- and see if questions, ceed to ask a few more does real fast to look the rooms or the closets. in the rooms the Court— one was either tel- advised you Were “THE COURT: How was it after long “THE COURT: Mr. Gal- warrant was ephone that the search warrant arrived? went you at the time possession land’s when we “A 4:00 o’clock Approximately door? the front in, 4:10 is when Lt. approximately and went time, sir, personal I had “A At with Mr. Gomez. Galland arrived the search had that Lt. Galland knowledge Did at the back those “THE COURT: warrant. all through go the house and come in door and in town If he was “THE COURT: through it? residence, far how out you were Basically recol- No, my to best “A sir. residence, where two were the apart who myself Carr and lection it Officer Parma? say you downtown residence the bedroom checked the room secured four blocks. Probably three to “A Officer front room area. I believe and the you person- You say “THE COURT: kitchen was the one that secured the Cortez knowledge. al wash basin area. area and the office Yes, We left the sheriff’s sir. “A Now, went you say you “THE COURT: time. at the same front through door. got to you When “THE COURT: Yes, “A sir. it, secure place to when happened What “THE COURT: min- there, ten got but there about wasn’t you Did you through went the front door. later. utes knock first? Lt. Gal- Yes, It with sir. arrived “A Yes, door “A sir. We knocked arrest. land, Mr. Gomez under who had deputy advised them that we were un- highly Now this is “THE COURT: Canyon County Of- sheriffs from Sheriff’s question- get into Judge that a would usual fice, a search open up, that we had questions open It will be like this. ing we were secure the going Fuller, may proceed you either side. Mr. residence. want might questions you here. “THE You them COURT: advised

open up. Fuller): you time At the “Q Mr. (By Mrs. Gomez the front door was went Yes, “A sir. the house? inside “THE You the sher- COURT: were from through the time I “A At went right, department, iff’s sir? front room got when I into the front door “A had a And we search warrant for later I believed I saw a female who area premises. Mrs. identified as Gomez. “THE And had a you COURT: yourself. “Q opened You the front door search warrant. Yes, sir, “A I did. Yes, “A sir. in. —And went “Q actually But didn’t you “THE COURT: Yes, “A sir. it arrived yet, have a search warrant and in. you did not invite “Q Mrs. Gomez ten minutes later. about I can I did not “A As far as remember have “A I did not the search answer. anyone hear it, at the time. my hand Lt. Galland you got after into the residence “Q And Parma, and at City he was in the rooms in you went around and looked in the un- placing which time he was Mr. Gomez residence, is that correct? arrest, was for and the search warrant der advised point and at that Lt. Galland looked rooms drugs, Briefly “A into the sure make was no else within us to secure residence and make sure there one itself. nothing destroyed. residence “Q you And “Q Officer Carr did your this. the course of you actions as home, Johnson, Agent you entered this did “A Officer Carr and Officer Cortez was open any drawers? the other officer that I went with. No, did, thing “A sir. The that we “Q At particular time you did stated, as I was look in the rooms for indi- an arrest warrant for anybody that you viduals, and we advised the female that found inside the house? were, again who we that we were from No, “A sir. The only one we had an office, the sheriff’s and we had a search arrest warrant for was Mr. Gomez. warrant for the her hus- premises, and that “Q And did Officer Galland have that? band —I believe it was Cortez was Officer talking to her in Mexican —I can’t be sure— Yes, “A sir. advised that was arrested and other Carlos “MR. I FULLER: have no ques- further people would be here in a matter time. tions, Your Honor. “Q you Did show Mrs. Gomez iden- REDIRECT EXAMINATION BY MR. tification? DRESCHER ON MOTION: Sir, “A at that time we were in uni- “Q Paul, at you the time entered this forms, uniforms, complete deputy sheriff residence you throughout moved uniforms, there, were badges and our out house would you describe in your detail quite and we did ourselves. It was identify activities us, and movements for please. obvious who we were. Yes, “A sir. As we arrived to the front “Q You were in full uniform. residence advised Officer Cortez to “A That’s correct. go around to the rear and secure the rear house, side of the and at that time got “Q you he Were armed?

out of the vehicle. He proceeded go Yes, sir, “A we were armed. around to the north side of the building to “Q What you kind of vehicle were driv- the east side which would be—what we ing? house, considered the rear of the and at “A I was driving deputy a marked coun- time also Officer Cortez went to the ty patrol sheriff vehicle. south side of building and checked that to see “Q if there was any you other doors or Would describe that vehicle for anyone around He there. came back. We us. knocked on the door. We advised them. Yes, “A colored light sir. It is a tan in We identified ourselves and advised them vehicle, a Plymouth, lights and it had there, the purpose at which top emergency that are used for situations time we went into the residence. When we runs, things and it had other essential Cortez,

entered the residence Officer a fe- identified it as a sheriff’s vehicle. male and a small child was in the area of uniform, “Q your Would describe you kitchen, front room and the at which please. myself time and Officer Carr went to a “A again light Uniform sort tan bedroom which right, was off to my and badge colored uniform. has a in the It went back around and went in and checked weapon, every- front. Your holster and the wash through basin area which was thing patch else. Your which also states kitchen and back of the house and bath- you deputy Canyon are sheriff from room area to make sure that there was no County, complete thing. and type uniform one there. What we through did was look “Q Now, when entered this resi- you the door very quickly and to see if briefly dence, Paul, do recall whether or not you there was standing someone there or behind anything you? Mrs. Gomez said to the clothes in the closets and that is basical- ly it. thing “A The I remember about

her, extremely upset she was at first. The ex- about the information was asked about Deputy Cortez crying, was small child city residence settle her act location trying to to her and talking was Parma. can’t recall limits of time, really I at that down what she stated exactly verbatim anything saw you after then “THE COURT: So at that time. anything original thought was you what Par- immediately think I have took off you I don’t DRESCHER: “MR. time, Your questions ma. any further Honor. went for Parma “A I left MR. BY RECROSS-EXAMINATION went. Lt. Galland same direction ON MOTION: FULLER with Lt. Gal- you go Did “THE COURT: to Johnson, you went “Q when Mr. land to Parma? go open doors you rooms did these other sir, separate Yes, we were “A but rooms? into those vehicles. open. No, the doors were “A sir. All cor- Then if I understand “THE COURT: the rooms? “Q you go Did into house, you and did to the you went rectly, knock? room and Sir, into the just “A went if there was bod- to see

looked around Yes, sir, knock. we did “A what we did. basically That is ies. came to And Mrs. Gomez “THE COURT: ques- I have no further “MR. FULLER: door, did she? make, Your I have a motion to tions. do No, she didn’t. “A sir Honor. the door? Who came to “THE COURT: questions a few “THE I have COURT: came to the door. Nobody “A like to I would questions further myself, cor- testimony your you opened ask. If understood Then “THE COURT: warrant original search rectly, saw the you door.

in Lt. hands. Galland’s sir, Yes, we did. “A Yes, sir, best recollection. my “A in? walk you Did “THE COURT: it, it he had secured And “THE COURT: Yes, sir, did. we “A magistrate? from the Mrs. saw you there And “THE COURT: sir, time, were in the we “A At that Gomez. CCND, in the base- at the which is office Yes, “A sir. The search ment of the sheriff’s office. child. —And a small we obtained, at that time “THE COURT: was out proceed were going decided how we Yes, “A sir. the residence itself. Parma to seen Mr. Gomez you Had “THE COURT: was the city And in what “THE COURT: time? by that arrested search warrant obtained? time, sir, were advised we “A At “A Sir? arrested, he was the radio over “THE Caldwell? COURT: the residence. to secure it was “A best recollection my here, To Now, time area COURT: “THE in this Courthouse. obtained to the entry been, after first your you door and the front through house left immediate- you “THE Then COURT: men other by the back door through the understanding, or your it was ly. say You described, about ten it was you thought what actually you see you did ap- it, Lt. Galland minutes, before warrant? a search search war- scene with on the peared thought I was a “A I saw what in his hand. rant also, that during process and I obtained, Right, “A sir. I being was the search being “THE And did he exhibit “A Mr. Gomez was followed into COURT: people search warrant to the the house? to the time city prior limits of Parma limits, and when we got that we to the city Yes, “A sir. advised to city entered the limits we were Does either counsel “THE COURT: have residence, at which time proceed to the questions? further Howery I believe and Lt. Gal- it was Chief “MR. DRESCHER: Not from the State. following land process were Fuller): understand, I “Q Mr. Mr. (By Gomez, locating Mr. when we were at Johnson, testimony you is that had not the house of our vehicle’s we were advised actually been advised that the arrest had else, during location and everything accomplished, been but the arrest was in radio that Mr. they time came over the process of being made. arrested, Gomez was we being and that “A being The arrest was made. It came should in which the secure the residence being over the radio that the individual was for, my and to search warrant was obtained arrested, and we were advised to secure the given best recollection that was over the residence. conjunction things by radio in with Lt. Gal- “Q But weren’t advised that it actu- you land. had been ally done. you “THE COURT: As far as know the what my understanding “A To was stat- away arrest was made several blocks from radio, ed over the that the individual was the residence. being stopped being and was arrested. Yes, sir, “A to my best recollection it There was all forms of traffic over the was. stopping

radio in reference to the individual arrest, under having placed him “THE And Lt. Galland had COURT: stopped, was finally him, when the individual search warrant with wherever it was arrest, we were advised being placed under defendant, arresting that he was as far to secure the residence. you know. “Q you got message what it —is So Yes, “A sir. from Lt. Galland. ques- no further “THE COURT: it was from my “A To best recollection tions.” people was other on the Lt. Galland. There in time defense point At counsel radio at that time. suppress moved the court to the evidence “Q Lt. radi- you saying are Galland So at the Gomez resi- which had been seized you being oed and said Mr. Gomez dence, grounds on the basing the motion

stopped being and was arrested. particular of this that “there was seizure my “A To best recollection that. warrant was a valid search residence before “Q radioing It was who was Lt. Galland residence,” and that “there at the you. by the officers was a search of the residence house,” to which he add- through the going sir, said, people “A Like I other difference “any ed that there was not radio. Lt. Galland was on radio. The they looking people whether are being advice was he was arrested. To my they looking whether are for narcotics.” given best recollection the instruction was by Lt. Galland in fact that the arrest was responded with his view prosecutor time, being performed at that and for us to is far too “the issue before us now secure the residence. to be decided without the benefit grave I have no further ques- “MR. FULLER: what investigation as to some research and tions. regard of the law is precise state briefly, urged he Arguing issue.” to this you

“THE Were informed or COURT: secured. residence was “that you did learn of where it was that Mr. strongly empha- He Nothing Gomez arrested? was seized.” search warrant apparently being there a were in uniform. that officers sized “these at another location.” badges, had on in existence They guns. They had on they were in top off with that you and that before the tri- following morning, theOn He that officers marked cars.” contended the uncovered law al court received officers, as marked so identifiable so counsel, the court the advised prosecutor of of a having knowledge the existence advised him of that Johnson had Officer to the permitted be secure should testimony given in his inaccuracies certain another officer where premises, especially the to court’s previous day. the answer the defendant. arresting was elsewhere of Mr. testified that none Johnson question, was, and it is bet- strongest argument His uniform when had been in the three officers ter set forth verbatim:2 residence, and broke into the Gomez they “Now, in they by outside idly must sit in marked not there they had arrived as the individ- marked cars and uniforms was testimony offered vehicles. No further particular residence uals within that to proceeded court party. either The. cops pulling make note of all these hasty hear from counsel. the proceed destroy to up outside Premises,” the defense “Securing toAs the very evidence which warrant was simi- argued that such doctrine counsel was so previously been issued an pursuant to lar to search and seizure Honor, issued? I would Your suggest, arrest, you doing are “because what invalid that it is preferable practice the to secure in premises, you the are going are you is sup- these we dwellings, and I wish could premises the in searching seizing effect the with ply Court some authority.” He such an analogized invalid way.” an agreed The trial that the judge question follow- to a consent search unlawful grave, trial the and recessed the until arrest, a against as consent illegal an ing next that morning, so both court and coun- made, cit- search no arrest has been where any The sel could search out available law. Barwick, 142, 483 Idaho ing State up court the for counsel: summed issue held (1971), where the Court P.2d “THE search are point COURT: The that bothers “where the consent and that arrest, me in is the that there was the accompanied by illegal this case fact an events other, intertwined, lapse. ap- some ten-minute There was one with the that are so parently, according testimony to the of not the taint of expunge the consent does witness, urged the illegal search obtained. arrest.” Counsel is question illegal entry, illegal There a involved of an arrest you “once have the defendant, Gomez, seizure, so approxi- Mr. taints search that, mately Apparently happens that time. the arrest after everything that having was in ... all the process place. taken events are intertwined that so away, The that was arrest several blocks be excluded evidence should question going and seizure place, subsequent into the mak- result warrant.” ing any they kind of a search incident to the with the search when came had to do with think authority arrest is here. submitted don’t Other arrest, is, to regard as question apparently you have stat- searches incident ed, Drescher, problem, Mr. no real can the existence of which the trial court saw for, premises there was no arrest at the being search warrant basis where it, The court did put securing as the term is which had been “secured." with ways, going being com- as bothered goes long express but which himself house, securing, without invita- far can the pletely through go “how officers He tion, used, than in advance.” authority without other the term might argument phone call en- This will be later referred to Gomez residence quickly dispose opinion occupants respect the statement in the Court’s able that, given drugs.” “apparently” apparently “The underlined as this feared officers arrest, place as so here takes the testi- size of Parma and word used the location effect, mony there none whatever. to that their would attract attention and that actions added that testimony was to the III.

effect that there was no search made for

any object, although the whole house was “SECURING THE PREMISES” —A persons.3 searched for AND FALLACIOUS PERNICIOUS

Defense counsel also engaged the DOCTRINE trial court a meaningful discussion relative to At this point things a number of are clear the lack of any testimony establishing exi- and need restating moving before on to a circumstances, gent counsel conceding that discussion of the by available case law some hypothetical might circumstances which the today persuaded Court is to justified the entry made here without stamp imprimatur its on the doctrine of a but insisting such circumstances “Securing the Premises.” were not here established. Much that de- (1) The opinion clearly Court in its has fense counsel urged was entirely consistent give chosen to no disregard mention to statements by made this Court in Rauch, State v. supra, judge accept the fact that the trial although our decision did not in that case had not doctrine, then been contrary quite announced. but on the the-police disturbed at conduct here in ques- prosecutor, turn, at his upon relied tion. The trial judge reasoned that decisions courts, of the Arizona primarily questionable evidence could be admitted on Smith, State v. 112 Ariz. the basis that subsequent (1975). placed He some reliance on the “search” premises, Colorado case that is the draw- Hannah, of People v. er-by-drawer Colo. closet-by-closet P.2d 320 His ransack- argument was quite it, direct: “Securing ing separable Premises” from the no-war- is a doctrine, sound because the courts of rant earlier search premises, where so; Arizona have said evidence pur- seized the three officers merely length roamed suant to the warrant should not sup- house, and breadth of the completely com- pressed prior because of the securing; there mandeering it observing that which said, no link. Finally he in language was to be eye. observed with the naked similar to that the Court uses in its opinion: (2) Rauch, Totally unlike there was no submit, “I Honor, would also Your that presented evidence to judge the trial the community of Parma is a very small the officers had any engage reason to community; the defendant’s arrest surmise that Maria Gomez and the child within that community very likely, could might busy flushing themselves in contra- and I think the police justified could be band down receiving the drains on a tele- presuming that the defendant’s arrest phone call person from some unknown do a small town like that would call some so not (certainly guard- the handcuffed and interest, direct some attention toward Gomez); ed testify nor did the officers their affairs. fears, entertaining such whether not sus- “Mr. Gomez’ residence could be noti- by tained the observed circumstances. fied, and evidence could be destroyed.” (3) Nonetheless, willing the Court is This argument speculation. was sheer gloss over requirement of facts and Worse, it was the sole exigent source of showing exigent circumstances circum- circumstances in this case. Our own warn- kind, ings in stances of some Rauch to trial the innuendo that police courts and to officers have therefore there gone unheeded was such evidence —when in fact today’s majority. there was none. This the Court accom- reason, explained, despite 3. For some not case is the fact that I have to take the testimo- highly ny being unusual recantation of John- purpose Officer of Mr. Johnson as true for testimony being fully motion, son’s saying as to uniformed and and I am not it is true or vehicles, in marked accept the trial court stated not true. I have to it at face value for misconception purposes clear of the law as I under- of this motion.” thing stand it: “The that bothers me in this roving else which their anything ap- plishes writing officers “[t]he an that, given of Par- searching eyes feared the size see. parently Anytime arrest, which the residence, ma their and the location access into a is made attract and that actions would attention entitled, constitutes police are not might phone call to the Gomez residence investigated If the crime search. of dispose occupants quickly enable the entry an pianos, theft to be of happened evidence, the was no such drugs.” There premis- the “securing a mere of defended as opinion but the would more the reader of will be pianos than a for rather es” was. conclude that there likely than not bounds beyond some to be the thought by Maria For all that the record shows neither gets which Any entry made credulity. with Gomez nor the child were involved they are where within a residence the there have been drug may not peddling, indeed welcome invited is not otherwise testified, a phone. Had officer so apparently is search, a of which the extent did, the which none such would have been unbridled as limited the officers’ only as condemned in Rauch as speculation sheer a taking apart of discretion allows. The by police for unlawful intrusion insufficient required is not by board board residence officers. entry. That search made after constitute a (4) there are The Court observes that is the comprehend fails to which the Court which authority distinguish lines of circum- of the Fourth protections that the concept issued, warrant but is stances where a has protections proper- not Amendment are entry not the “secure served with made to people of the protections rather the ty, but the as premises,” against circumstances con- to be within the right in their secure are made the where entries “to secure expected priva- places of their own fines premises” no is- where warrant has been cas- cy peoples’ residences —their —of gone pick up sued one but officers tles —are foremost. (much grocery the stop by as householders Supreme the by noted United States As loaf of pick up quart store to a of milk or Court, home is the “physical bread). majority The withholds reasonably the wording of against chief evil which the its of those which make no approval cases directed,” Payton v. Amendment is Fourth distinction, but con- unreasonably fails to York, 583, 100 New S.Ct. U.S. warrantless totally upon demn entries made (1980), “[fjreedom 63 L.Ed.2d expectation magistrate perform that a will is dwelling into home or from intrusion the as is expected the case. always not —which se privacy protection archetype the clearly impres- the quite Court leaves at Id. the Fourth Amendment.” cured will made approve sion that it of entries Dorman (quoting 100 S.Ct. when the without a existence States, (D.C. Cir. F.2d United Although time comes. would be con- Payton 1969)). Supreme the Court Thus today’s strongly urge sistent with holding, sanctity prohibits the home held that the constitutionally adopt more Court home. The arrest within the a warrantless warrant- position disapproving sound all that follows: “In terms Court reasoned as made, less which are regardless entries and to property to seizures of apply equally issued, re- may when the warrant be Amendment persons, seizures of the Fourth gardless it may presented. of when be line entrance to a firm at the has drawn Premises,” another bit of “Securing circumstances, exigent house. Absent nothing nomenclature for that which is but crossed reasonably not threshold entry, warrantless is a fallacious doctrine. without a warrant.” Id. S.Ct. It imagination beyond stretches police, to be told that the breaking point case a situation Although that involved number, this case three in can wander issued, prin- warrant had “bodies,” where no been searching for through a residence have the remains the same—citizens it, ciple yet one maintain put security privacy that the searching right not to know straight they face that are of their homes may not be because, violated not to ought complain all, after state, and the police are not to enter those somewhere, although proving the warrant homes without the warrant which is their present, fact is not there has been a lawful badge of entrance. Totally mon- determination of cause made strous is proposition, advanced by the magistrate. Only detached and neutral itself, Court the conduct here com- presentation of a warrant at the time of the plained of was a mere “Securing the Prem- intrusive entry can be said to meet with ises,” and hence not interdicted as would be constitutional requirements. an unlawful searching premises. Keep- context, In a similar seizing as to ing in mind that the Fourth Amendment person, premises, rather than his 19- I.C. § all that protects the people against unrea- 609 requires person making “[i]f sonable seizures, searches and accordingly, acting authority arrest is under the of a “Securing the Premises” recog- must be warrant, he must show the if re- is, nized for what it in reality a of securing added.) quired.” (Emphasis An officer the occupants as well as the premises, and without a warrant in or at hand is not in a thus a seizure of those occupants prem- and position respond a demand that he ises within the meaning purpose of the either display it or make an immediate re- Fourth Amendment.4 might very treat. The officer well be The discernible difference between forced to in an engage affray, which in the intrusion of “securing” a from within as many surely instances will result. against a “search” is one purpose; of a search is Foster, to discover evidence to be In Anderson v. 73 Idaho taken for trial, later use at whereas in a mere (1953), enlightened P.2d 199 a more Court “securing” the violated and occu- upheld jury finding a verdict a offi- police pants are seized captive and laid until the cer of false guilty arrest where the evidence police officers arrive with the warrant showed that the officer did not show the which, by the doctrine espoused by the warrant or advise of his reason making Court in today’s opinion, is said to legitima- the arrest. tize the dastardly prior conduct. In today’s That the same principle requires a war- of sanctioning “Securing the Premises” the rant before the police sanctity invade the of police are given judicial license to at will provisions the home is also evident in the any home, invade parts person’s and all of a for no-knock entries. provi- Under these while at (here the same occupants time the sions, notwithstanding that a warrant is in a child) woman and are custodially re- hand, police the must still announce their strained in living their own room. In fact presence, authority en- purpose and before truth, “Securing the Premises” is house, tering except exigent someone’s far the worst infringement on the Fourth 19-4409; circumstances. I.C. State v. § Amendment which yet has been visited on Rauch, (1978). 99 Idaho the people. police, The being without able purposes poli- This rule is four based on intrusion, show authority for their (1) protection privacy cies: of the need only declare to the occupants of a home; (2) protection individual in his of house that they “securing” are it on the persons innocent who also be premise that such is justification sufficient made; an arrest is premises where for their entry. Such conduct is on a par (3) which are prevention of situations and readily classified with the much hated General conducive to violent confrontations between Warrant upon visited the colonists British, by the who enter his occupant which abuse a and individuals played large part notice; (4) fomenting Revolution. Nor is it proper home without any defense to suggest people injured protection might who be Hobson, automobile, they “seizing” 4. See State v. 95 Idaho 523 P.2d an are him within (1974), meaning where this held that where Court Fourth Amendment. police stop occupant and surround the are emergencies (1973), such Rptr. householder. and fearful startled variety.” ‘do-it-yourself’ “strictly of 588-89, Rauch, 99 Idaho exigent circum recognized While it is P.2d 673-74 cases such that in some might exist stances judicial is a new Premises Securing the made before necessarily be entry an should con- of civil and destructive totally doctrine warrant, even without a the arrival condemned and is better rights, stitutional all, is not this such having issued without police, than condoned. does, hold, as the Court case. To simply display proper able to permis in hand is a warrant made without length to roam the be allowed cannot nothing more sible, than when based residence, occupying private breadth of a securing premises, purpose purported rooms, and all of its closets and opening judicial sanc give To judicial outrage. ais justify such action on the basis here com such that made tion to entries way.” “is on its con- search warrant Such right the constitutional negates pletely potential and the for violent illegal, duct is in their homes. It is secure people re- is awesome. It must be confrontation coming proposition an intolerable —and still are in our coun- membered that there nothing is short of chaotic. from this Court try many rugged individualists of Revolu- who not all so tionary might War caliber may take the people Where the Court asserting authority a voice calmly yield to orbiting this state within the doctrine of illegal entry on the verbal making while “Securing exemplified the Premises” best of a warrant of the existence declaration Arizona, place that which has taken arrive. later the most recent case State v. Broad foot, (1977). 115 Ariz. 566 justifications P.2d 685 policy In addition to these Supreme Therein the Court of that state present warrant be requiring for the said this: premises, under police before the enter analysis, which Amendment basic Fourth “Appellant police also asserts that con- scope of the inva- compares degree duct «in securing appellant’s house while property or person sion of defendant’s a procuring warrant violated appellant’s govern- objective imperative rights under the Fourth Amendment and action, “securing of the particular ment this requires suppression pur- items seized premises” was unreasonable. suant to that warrant. To the contrary, police in this situation did precisely invasion into scope

Obviously, continually what we exhort them to do. here is substantial. property defendant’s The impulse officers resisted the to action, however, the state’s necessity The search the immediately house now only The reason is not so obvious. —conduct which would have violated appellant’s in the “securing premises” advanced Fourth Amendment rights. Instead they argu prosecution’s case was the detached, submitted the issue to a impar- might that someone ment of bare surmise magistrate. tial A search warrant was arrest, specu and sheer have seen Gomez’s properly procured. Under the circum- might in turn someone lation stances, police could not expected be to wife, might might called Gomez’s who the house leave unattended. long So involved, destroy the not be and told her to no there is unreasonable delay in seeking that she knew where the drugs, assuming procuring securing were, so do. Just as such drugs might is premises not unreasonable police conjecture support entry cannot an without Cook, conduct. See State v. 115 Ariz. notice, see, Doering, v. 384 g., e. State (1977); Smith, v. 564 P.2d 877 (W.D.Mich.1974) (mere pres 1307 F.Supp. (1975).” Ariz. 544 P.2d 213 566 112 justify to immedi drugs ence of insufficient added). (emphasis at 687 P.2d an entry), support ate so it cannot Shuey opinion information in the as to without a warrant. As stated Court, is this: type premise-securing 20 106 Cal. Superior Cal.App.3d

“The plate license number the car warrant does not make the warrant in- suspects left in was taken down firm as Justice in his dissent stated: Cole “ witness. appellant’s This led to stultifying suggest ‘It to that a house, where the suspects had driven. causal link detention illegal between Police detained four men outside the and seizure under exists the warrant house, two of whom were identified * ** petitioner deprived because the clerk as the A suspects. of the opportunity destroy the mari search the sought house was and issued. juana and amphetamines.’ Shuey v. Appellant’s house was secured until the Superior for County Court of Los An issued, one, warrant was including and no 535, 547, geles, Cal.App.3d 106 Cal. appellant’s wife, was permitted access.” 452, 460, Rptr. n.1 added). P.2d at (emphasis “Also we do not find the officers’ ac- The court did not presume suggest securing tions herein in the premises what would have been the status of the were they disap- such that should entry (assuming one) there was if a war- proved by this court. rant Smith, was not obtainable. “It facts been may well be that had the (1975), Ariz. the resi- officer, developed point dence in question (this was a house trailer circumstances, exigent basis of was the Arizona case which the trial court right would have to search the had the thought here applicable). The “Securing of premises obtaining without first a war- according to the opinion of Premises” — rant. Instead he chose secure the Arizona Supreme “by post- Court —was premises magistrate and seek out for a ing a police officer on the premises and not pre- warrant. The officers’ actions were allowing any person or material to enter or ferable to searching without premises.” (em- leave the 544 P.2d at 214 a warrant and complied with both the phasis added). Thereafter a warrant was letter obtained, spirit and the of the law.” 544 and the officers “conducted a added). search of P.2d premises.” (emphasis 544 P.2d *at (emphasis added). I note also opin- that the As carefully noted the Arizona court ion mentioned that a “Mark Seger, who was it, which cited the above quote Shuey from trailer, objected inside the procedure is found in the dissenting opinion in that ” placed and was under arrest .. .. 544 majority case. The in Shuey refused to P.2d at 215 (emphasis again supplied). It is “securing” sanction the of the premises by totally unclear whether “on premises” allowing provide it to probable cause for a referred to realty, the outside or the resi- subsequent pur- warrant. Evidence seized itself, dence and as the opinion later demon- suant to the otherwise valid strates, particular this was not of signifi- suppressed. therefore cance to the Arizona court. The court there intimate, illegal idea that an securing did Judge as did Norris in this case, premises is that were somehow severable from a sub- “illegally se- cured,” sequent the court there search to warrant is re- pursuant seemed satis- —but fied that such pugnant did not taint the search to the purpose Constitution. The place took thereafter: of the exclusionary give meaning rule is to to the Fourth Amendment by deterring

“If ille- the warrant was properly issued the gal police complained conduct. The conduct search in response proper thereto was a example possible of here is an of the worst search and seizure and the fact that powers abuse of state premises may have been undercover illegally secured —armed operate nullify bursting private does not the effect officers into a residence combing the search warrant. the house The fact that de- while a woman and stark, fendant or deprived ignorant his friends were her child sit fear of the the opportunity destroy the evidence events that are swirling around them. If while the officers went to obtain a search ever there was a need to deter the excesses

827 Arizona knock-and-announce cation of the such a need police power, of the use of entry 457, statute, a warrantless holding at 106 that Shuey, supra here. As stated violated are to be encour- to arrest Cal.Rptr. “the made order In so possible, whenever warrants with their statute. aged noncompliance obtain particular do so in a truism: they but the fact that an earlier doing, repeated he retroactively purify preceding case does not time-tested embodies the “This statute misconduct.” of Arizona people mandate of the to be left right their police respect follow decisions Several better-reasoned the announcement ruling alone. In on Bean, Wash.2d In v. 89 Shuey. . statute, A.R.S. required by a similar (1978), Washington court 13-1446, ‘There is no more we said: § stated: privacy to have the right sacred than pri- seized “In the evidence suppressing against unreasonable protected the home securing or to the of a search unexpected An searches and seizures. necessarily by impli- found the trial court home breaking might into a officers exigent sufficient circum- cation that no killed under the well result in their the warrant- justified in this case stances pro- home owner was that the impression the residence. We are entry less against and his home tecting family his agreement with the trial court’s complete Mendoza, Ariz. 104 intruders.’ State statements, to hold go but we further (1969). It P.2d 140 at 144 395 at 454 suppress the trial court’s failure to announce’ ‘knock and is fundamental which was obtained from the evidence offi- adopted safeguard ‘to statutes are warrant was house after mistaken, cers, upon an might be served, who The initial into was error. home, into a unannounced intrusion wrongful the house was and the subse- to be there.’ right was not someone with no Sab- obtained search warrant quently States, at entry. original illegal curative of the bath v. United U.S. 835, 850, 20 L.Ed.2d 828 Shuey, 13 Cal.3d 1755 at People S.Ct. 83, 94, (1975). P.2d Cal.Rptr. Court, Supreme Shuey the California exceptions there are no “We note issue, very

upon being presented with this statute, nor are we the face of the stated as follows: 564 P.2d any.” to create persuaded omit- regarded (footnote can be

Analytically (emphasis supplied) case facto, simply involving ted). a de inchoate person property seizure of the circum- exigent were no that there Holding police began Paul the moment the stances, true in our Rauch equally as was illegal occupation. Thereafter the ob- said this about se- the Arizona court warrant no more taining of the could premises: the curing (30 operate ‘to disinfect this conduct’ step one analysis proceed must “Our 535, 540, Cal.Rptr. 160 Cal.App.3d p. at appel- into entry Even if the further. 452) actually police than if the justified, physi- be the lant’s home could sought to be seized the individual items would obtained therefrom cal evidence acquisition to suppressed prior knew the officers suppressed still be as warrant.” 572 P.2d at 1105. suspect was not that within seconds Griffin, v. 502 F.2d also United States See duty the officers’ point, there. At that Matsen, 1974); (6th

959 v. 287 Or. Cir. State a and obtain was to secure the (Or. 1979). P.2d Sauve, v. warrant. See State [112 If the Cook, supra. P.2d v. 115 Ariz. 564 P.2d Ariz. State 1091] appel- within lawfully (Ariz.1977), also cited in the Broadfoot had been to court, purpose home for a other than lant’s excerpt, Justice Gordon for seen, ‘plain’ ‘open or this seize the items did Justice Donaldson for Court permit the seizure Rauch, view’ doctrine would opinion appli- wrote an excellent ever, majority trying reaches too far in prosecution and use in of items which came into their view.” 564 inadvertently uphold this warrant. added).

P.2d at 883 (emphasis time, point It would seem that at one at A. least, the Arizona court recognize did valid, For to be a search “Securing the Premises” did not include a support affidavit in of the warrant must set physical intrusion into the residence —but forth the facts which the affiant underlying that somewhere in transition that court for- believes cause. probable establish got what the Fourth Amendment is all Oropeza, 97 Idaho 545 P.2d quoted about. With reference to the last Supreme As stated the United States excerpt, if “Securing the Premises” —mean- Court, moreover, the statute does “[w]hile an ing intrusive and unwelcome a—is proof of not fix the time within lawful entry, entirely then that court was probable judge cause must be taken observing correct in it is for certain a commissioner, or it is manifest search, at least to the extent of items which closely facts so related to proof must be of are in If “plain” “open open view.” such as to the time of the issue of the warrant view picked up, “Securing items can be cause at that justify finding probable of Premises,” agrees, as that court then States, Sgro time.” v. United 287 U.S. indeed there is a As stated in search. 138, 140, (1932) 77 L.Ed. 260 53 S.Ct. effect, then, Shuey, supra, practical “[i]n added). (emphasis everything apart- the officers ‘seized’ in the In order to determine whether the infor- ment, per- and detained [the defendant’s] tip mant’s case is sufficient son, hoping that a search warrant would of prior police to elevate the observation later permit particularize them to the sei- criminal conduct to the level of a current zure and to arrest [the defendant].” cause, finding probable it is first neces- Cal.Rptr. the earli- sary sufficiency to examine the views, In concluding aspect my I If these er observations themselves. opin- submit the obvious. The Court’s observations come close to establishing ion exceeds the bounds to which it should cause, probable imperfect tip then an can And, gone. as to the trial court’s more need- easily supply more the little bit opinion separa- that the warrant search was cause. If these obser- probable ed to show ble entry, from the warrantless intrusive establishing vations do not come close to disagree, submitting that the only eviden- cause, however, then more is re- probable tiary given by reason Johnson for Officer consequently, tip quired tip, breaking into the Gomez residence was his closely. more must be examined officer, superior obedience to the order of a determin- one considered in not on the scene. The factors to be sup- information is too stale ing whether IV. cause are port finding time, activi- type of criminal passage PROBABLE FOR THE CAUSE involved, length during of time ty SEARCH WARRANT which the has continued and activity Compounding monstrosity, the affida- seized. property nature of the support vit offered in of the search warrant (Me.1976). Willey, 363 A.2d 739 finding support insufficient at a If considered one these factors are probable by majori- cause. The analysis present time in the it is that apparent ty is correct insofar as it defines the issue fall far short prior these observations alone being activity pre- the criminal “whether probable current cause. establishing of officers, viously sup- observed of time itself is Although passage ported by Aguilar -defective infor- thirty-nine days of controlling, lapse not tip, support magistrate’s mant’s can find- there, against present proba- obviously mitigates From how- ing probable of cause.”

829 236, Novak, 335 233 Pa.Super. wealth v. of other circum- ble cause in the absence of (a purchases drugs circumstances, (1975) dozen A.2d 773 of stances. other Such establish ago weeks insufficient seven course, criminal activi- type would be the nar likely that because it probable cause time over length ty involved and quickly will be held for sale cotics Here there activity which the occurred. indicate, two of). these cases As disposed drug isolated sales in a were two made that not raise an inference isolated sales do week, five weeks period of one followed in the continu engaged the defendant any alleged criminal no observations narcotics, in distributing ing business There are no facts in the affida- activity. to the unsupported assertion spite of the major- vit, by the spite implication in majority. also Hemler contrary by the See large- was a ity contrary, to the that 430, Court, 118 Superior 44 Cal.3d Cal. v. It is not drug operation. continuous scale (no such inference Rptr. (Cal.App.1975) 564 cause to probable seen that there is readily State, sale); Ashley v. 251 Ind. from one selling drugs anyone believe that twice seen 359, (1968) (no 241 N.E.2d 264 such infer more than one in his house drugs will have sale); Willey, from one v. 363 ence State later, light in of the fourth especially month 1976) (no (Me. 739 such inference from A.2d consideration, drugs easily that are namely Anno., 525, sales); 542 three 100 A.L.R.2d disposed of. transported facts (1965) (“where the affidavit includes State, 359, v. Ind. Ashley As stated in is of a continuous showing activity that the 264, (1968): 241 N.E.2d likely . . . the courts are to find nature precise can be no rule as “Although there cause . .. where the affidavit re probable may time to how much intervene between an isolated violation . . . the courts cites the is- of the facts and obtaining proba refuse to the existence of imply dealing suance of the search just although- days ble cause a few marihuana, which like with a substance passed”). about, moved easily can be concealed State, v. majority The cites Johnson that it was in a cause to believe probable 622, 721, cert. denied 409 Md.App. 288 A.2d the third of the month building on certain 517, 34 L.Ed.2d 93 S.Ct. U.S. to believe that it is not cause probable (1972), ap proposition for the “[u]nder building eight days will in the same be circumstances, some courts have propriate later.” inherently as an drug trafficking viewed heroin reasoning holds true for The same added). activity.” (Emphasis continuous drugs. and other Thus the court in v. State point fails to out majority (1968), Ingram, 251 Or. 445 P.2d 503 in circumstance in that case was that purchase January held that a of heroin on 9 formant was in the defendant’s car when he support finding was insufficient who made his rounds to determine probable February cause on 6. “Heroin is narcotics, re-supplied implying thus easily disposable and and its transportable selling a continuous business of narcotics. presence January 9 would not afford Black, Similarly, Or.App. it was strong believing basis for (1978), the informant’s observa a month later.” Id. at least drugs tions of at defendant’s house at 505. months led to the eight once a week for Spenc Similarly, the affidavit inference that the defendant overwhelming (1973), er, P.2d 833 Wash.App. drug-selling still was in the had been and 9, 1972, relied on sales of executed March no such facts in the business. There are us; on Decem by the defendant indication amphetamines before there is no affidavit 23, 1971, 1972. The January large quantities, no ber that the sales involved clientele, too remote large sales are and no factu court held that indication of a “[t]hese cause drug activity. point prolonged of time to constitute al evidence of isolated acknowledged warrant on it is two issuance of a search Once for the an infer observations alone do not create 1972.” Id. at 834. See Common March * * * ence of activity, continuous and that ness of there the facts relied on to show are no other factual probable accepted circumstances here to cause. necessarily He inference, support such an it apparent ‘suspicion,’ is the informant’s question without ” Aguilar that the officers’ observations did not come ‘belief’ or ‘mere conclusion.’ v. State, 108, 113-14, 1509, close to establishing probable cause. Thus 378 U.S. S.Ct. (footnotes tip (1964) informant’s omit- must be examined close L.Ed.2d 723 ted). ly, ago, for it v. fifty years must do far more than Over provide a (1927), Arregui, minimal 44 Idaho 254 P. 788 this bit more to probable establish cause. Court itself held that the affidavit must set finding probable

forth of support facts a cause. As we said in that case: B. “He cannot the foot leave at [the affiant] The issue thus becomes whether the fol- facts, of the mountain load of his lowing statement in the affidavit elevated lightened easy steps recite at these police two observations to the level of halfway station his conclusions as probable cause:5 carry facts which he does not choose to so 17, 1976, “That on May a City-County far. and other eyes, The affiant’s ears Narcotics Major Crimes Division con- powers senses and are the mere instru- fidential informant assigned CCND Code securing conveying ments for to the # 78 your advised Affiant that CARLOS magistrate the facts which these senses GOMEZ had a quantity delivered of her- recorded, or and his mind observed through oin party subjects a third to two place is not the the conclusion to area; Idaho, from the Burley, one of reached, but the mind and brain of the subjects those a female magistrate must form and draw the con- name of JANIE and another RAMOS clusions from facts. subject male known as PETE GUZMAN. That the confidential informant further go “Affidavits which no further than to stated that the said CARLOS GOMEZ allege conclusions of law or of fact are has in his a custody quantity ampheta- 63-64, insufficient.” Id. at 254 P. at 794- mines, commonly more known as cross- tops speed, a quantity also Wilcox, marihuana believed to be excess of also See Struve 99 Idaho (4) added.) four (Emphasis (1978), kilos.” P.2d 1188 cert. denied 439 U.S. 59 L.Ed.2d 84 S.Ct. outset, note, At the as does the majority, these statements are totally deciding conclusory concluso- whether these ry, statements, citing police no facts as to how the when added to the state informant observations, support finding prob- came can a by this information.6 As stated by cause, able it would be well to remember Supreme holding United Court in States Oropeza, our statement 97 Idaho that a conclusory affidavit was insufficient 387, 392, (1976): cause, 545 P.2d support finding probable all the source here appears, “An provide affidavit must facts suffi- “[f]or merely suspected, believed or concluded cient to create probable cause for the that there were petitioner’s pos- narcotics in belief the forbidden articles are session. The magistrate certainly here within place to be searched at the could not judge persuasive- for himself the time the requested. search warrant point point prior police 5. I 6. I must out that this is not a case where must also out that the two tip generated sales, police investigation alleged so that observations heroin while the in- cause, produced probable types the two combined formant states that drugs has other Gomez Canieso, (2d prior United States v. 470 F.2d 1224 in his house. I doubt that observa- Rather, 1972), quoted majority. Cir. support tion of he heroin can statement attempt case involves an find cause types drugs now has other in his home. by adding totally conclusory tip informant’s to unrelated stale observations. further states that he has to cre- “This affiant sufficiency proof necessary Boogie Bowers every reason to believe de- may vary ate cause probable such Bowers Boogie in fact believe does the facts of the case and pending upon of the three occasions light particularly article(s) nature of the particular Boogie Bowers said stated above where case, dealing In the instant be seized. marijuana on the above de- there was and the dangerous drugs, we are with premises said premises, scribed entered of a search of a possibility residence to- marijuana from and in fact returned with with all gether persons and vehicles within.” Id. at 741. located, particularity therein some as to it, that the issue before The court noted time must be made so as to enable the thirty-one days be- delay of light of the magistrate to make his determination of the date of purchase tween the last present probable cause for the issuance of for the search was application the search warrant.” suffi- legally “made a whether the affidavit agree totally cannot that these conclu- consti- cause’ showing ‘probable cient sory statements raise the by the informant issuance of justify tutionally requisite probable affidavit above the floor of cause. fol- court held as the warrant.” Id. The lows: (Me. In Willey, 363 A.2d 739 “Here, as facts of the affidavit states 1976), quote which I at length because of its personal Bridges which the affiant similarity remarkable present occasions that on three knowledge only provided affidavit infor- following 26 to January during eight day period probable mation on cause: inclusive, Kenneth Bowers February January approximately “On 1974 at purchases of two separate made three p. 6:00 m. this affiant . . . [accompanied] marijuana defendant’s resi- ounces of by one Kenneth Allen Bowers hereinafter marijua- of the nature of light dence. Boogie referred to as Bowers went which can easily na as a substance automobile to the above premis- described concealed and moved about and the rela- es owned and occupied by the said Mal- defendant’s tively brief surveillance of colm (Mickey) arrival this Willey. Upon during the period forty-two residence Boogie affiant gave Bowers days purchase $50.00 from the date of the first the purchase marijuana. application of 2 to the time of the for search ounces of (three brief incidents in a period Boogie Bowers premises entered said by thirty-one followed days eleven shortly returned from within with 2 ounc- whatever), we days of no surveillance marijuana, es of marijuana has at de- purchases conclude that the three since been positive tested with results by residence, only facts fendant’s as the Department of Health and Welfare in Bridges, are insuffi- known to the affiant Augusta. 28, 1974, January On this affi- the ration- justify themselves to cient repeated ant process Boogie where magistrate ality of the conclusion Bowers entered said and re- such the last thirty-one days after turned marijuana with with similar test made, there was still purchase had been process results. This repeated marijuana believe that probable cause to 2,1974. like results yet again February at defendant’s home. or about February Boogie “On e then, remaining, “Th question Mickey Bowers stated to this affiant in the anything there was else whether (Malcolm Willey) always plenty has which, sup properly affidavit if taken as marijuana expecting large and was plementing personal the facts within the shipment in a or other day two. On Bridges, would knowledge of affiant Boogie occasions Bowers has informed entirety of the affidavit render Willey (Mickey) this affiant that Malcolm cause showing sufficient resi- always grass has on hand in said of the search justify issuance necessary to warrant requested. dence and never runs out. events, ual in the affida- other matters occurrences.

“The These other events, underlying this function or occur- ostensibly discharging vit individual rences, not, the affiant representations by may, may or have been di- are the that, thirty-one days rectly perceived than Bridges by more Bowers. It was nec- therefore, minimum, for the search application essary, to the that prior warrant, Bridges (1) Kenneth had told affidavit of Bowers should state (1) ‘always plenty has nature of Willey perceptions such other direct of Bridges ’ occurrences, events, (2) Willey ‘expect- particular was or on the marijuana of or two.’ basis of large shipment day in a which the ultimate conclusions ing a reached,

stated Bowers had been (2) state perceptions whether such direct “This information from Bowers were those of Bowers or some per- other Bridges. to the affiant hearsay as purely son who had told Bowers about them —in Yet, a supporting assist in hearsay it would be latter situation further of cause if magistrate’s finding probable requisite that the affidavit disclose facts (1) facts to assist the hearsay provides showing reliability of this other per- arriving independent in at the magistrate hearsay son as the source of information probable judgment of the existence turn, (who given to Bowers in necessary support cause issuance of a information, affiant, hearsay, as to the (2) the affidavit dis- Bridges). Bridges Because the affidavit the source showing closes facts of additionally neces- contained none hearsay is reliable. information information, sary magistrate lacked Me., (1975); v. 340 A.2d 1 Gamage, State independent rational factual basis for an [Me., 3633], v. 297 A.2d Appleton State conclusion there cause Texas, 108, 378 supra; Aguilar v. U.S. marijuana to believe that would 1509, (1964). 12 L.Ed.2d 723 S.Ct. when present at defendant’s residence “Here, we need not be concerned with requested search warrant was adequacy showing of the relia- executed). (or applied for would be (as bility hearsay of Bowers the source Hawkins, Me., (1970).” 261 A.2d 255 v. Bridges) be- information to the affiant added). (emphasis at 742-43 363 A.2d that, event, any cause we conclude 9 Wash. Spencer, v. The court in State pro- information itself failed to hearsay 95, 833, (1973) similarly App. 510 P.2d facts, any vide additional to the facts held: (the prior known to the affiant three March “The affidavit executed which, purchases), conjunction taken in of controlled upon alleged relies sales prior purchases, the three would be the defendant on De- substances made adequate requisite probable show; January 1971 and cember cause for search warrant. issuance of a point These sales are too remote Bridges “The affidavit of failed to re- probable cause for the time to constitute veal how position Bowers was to be warrant on March issuance of a search truth, able to say, purported that Wil- ’ Cir., 458 Bailey v. 1972. United States [9 ley ‘always plenty marijuana has ’ v. supra; F.2d Durham United 408] ‘was expecting large shipment n a day Cir., supra. 403 F.2d States 190] [9 or two. Such statements Bowers are not allegation themselves statements of known “The other offered facts, e., i. events or occur- the warrant particular support the affidavit rences who there were con- directly perceived by person opinion the officer’s thus ‘knows’ of them as ‘facts.’ Bowers’ trolled substances stored were, rather, opinion sup- statements statements of to be searched. This is not in- summarizing, ported by ultimate conclusions statement of fact. terpreting, opinion, of other inde- officer’s significance expression mere of an more, individ- pendent particular perceptions of without cannot form the basis for the issuance of a search warrant. State Peterson, Wash.App. v. 478 P.2d DALTON, Plaintiff-Respondent, Russell reasons, the search foregoing “For D’AL FORK OF COEUR SOUTH properly warrant was not issued and the DISTRICT, ENE RIVER SEWER fruits of the search should have been Defendant-Appellant. suppressed.” No. 12897. Ingram,

See also 251 Or. (1968) (sale days twenty P.2d 503 heroin of Idaho. Supreme Court prior plus allegation to warrant that de- Dec. 1980. fendant is known narcotics user insuffi- Denied Feb. cause). Rehearing support finding probable cient to In the in addition to the two observations, the affidavit contains

an tip informant’s which does not indicate

whether the confidential informant ob- firsthand, delivery

served the nor how it party”

was known that the “third had ac-

quired the heroin from Gomez. For all that known,

is might the confidential informant

have obtained his information from Ramos Guzman, might who in turn have re-

ceived their information from the “third

party” might who in turn have received the

drugs and information from himself. Gomez known, informant,

For all that Ra-

mos, might and Guzman never have met or Gomez;

talked they may simply

been relying reputation on Gomez’s or on an

underworld rumor. Not does affi- problematic aspects

davit raise the of hear-

say, hearsay upon hearsay, but also

possibly hearsay upon hearsay upon hear-

say. assertions in an conclusory Such affi-

davit are almost totally worthless due to

their supporting lack of facts as to how the

information was arrived at. They certainly prior

cannot raise the two police observa-

tions to the level of cause.

Case Details

Case Name: State v. Gomez

Court Name: Idaho Supreme Court

Date Published: Dec 9, 1980

Citation: 623 P.2d 110

Docket Number: 12820

Court Abbreviation: Idaho