State v. Guzman

Idaho, Plaintiff-Respondent, STATE GUZMAN, Defendant-Appellant.

Jose

No. 17716. Idaho, Falls,

Twin 1991 Term. November

Nov. Wood, County Falls

Michael J. Twin Pub- Defender, Falls, appellant. for lic Twin EchoHawk, Gen., Atty. Mi- Larry Kane, Gen., Boise, Deputy Atty. chael J. argued. respondent. Michael J. Kane BISTLINE, Justice. UNDERLYING FACTUAL

PROLOGUE: CIRCUMSTANCES appeal In this we are asked review application district court’s probable require- cause exception to the in art. 17 of the Idaho ment contained Constitution, to or- and the court’s refusal identity of a der the State to disclose For the rea- paid confidential informant. apply opinion, in this sons stated has evolved under rule which jurisprudence and our state constitutional court’s re- accordingly reverse the district which was suppress the evidence fusal search war- pursuant to an invalid obtained moots resolution of that issue rant. Our to defendant’s further issue relative should have that the trial court contention the name the State to disclose ordered the informant. a review of begin our discussion with

We Ronald Axtman of the facts. Detective super- Department Police Twin Falls February vising paid informant. On 23,1987, contacted Detective the informant approximately stated that Axtman and being kept at a marijuana was pounds of Falls. The Lane Twin home on Gulch that Jose Guzman also stated informant Ari- marijuana from transported the had no Axtman took Detective zona Idaho. a Leon hearing, call, requested had other Guzman of this first on basis action issues relevant to the which time the history of request the criminal Guz- than explored. exception could be good faith During a authorities in Arizona. man from Thereafter, 18, 1988, January the dis- informant, from the on Febru- second call motion again trict denied Guzman’s court Detective the informant told ary The defen- suppress all of the evidence. pounds approximately Axtman plea guilty and received a entered a dant Lane marijuana remained Gulch year sentence. After determinate five call, Following phone the second home. serving days the sentence was sus- detective, Axtman, along another with placed proba- pended, and Guzman was yards hundred of the a few went within appeal years. This followed. tion for five surveil- Lane residence to conduct Gulch stakeout, saw During this Axtman lance. THE NOT PART I. WARRANT WAS general description of person fitting the BY PROBABLE SUPPORTED residence. the Gulch Lane Guzman at CAUSE. prepared to his office and Axtman returned agreed Guz The district court with support in of a search warrant an affidavit in information included Detec man that the outbuildings. house and its of the support in of the tive Axtman’s affidavit Judge for a applied Axtman Edwards complete. not The af search warrant was having first con- search warrant without (a) disclose that: the undis fidavit did not prosecut- anyone in office of the sulted informant; (b) paid was a closed informant Judge asking ing attorney. On Edwards convictions, in prior of the arrests and two Axtman it was that the informant how proved informant his which the undisclosed in the Lane knew the substance Gulch eight reliability, approximately occurred replied that marijuana, home Axtman was earlier; and, (c) years the third arrest the tex- the informant was familiar with in the affidavit was conviction referred to ture, coloring properties of mari- and other in probation in fact a violation which Axtman made an additional en- juana, and provide wholly accurate informant did not try by onto his to reflect this hand affidavit However, held information. the court magistrate. The warrant statement in these omissions the affidavit amounted February in executed the afternoon of was According to only negligent falsehoods. thirty-six pounds Approximately Delaware, Franks v. 98 S.Ct. found inside a locked marijuana (1978),adopted by this 57 L.Ed.2d 667 in an The freezer was located freezer. Lindner, outbuilding yard of Lane on the the Gulch (1979),“negligent or was found the out- residence. Guzman if neces misrepresentations, innocent even posses- time building, and at that admitted cause, sary probable will not to establish marijuana. of the sion invalidate a warrant.” February charged on Guzman was has hereto Our Court marijuana in ex- possession of with Franks ruling in should held that the fore ounces, set to and trial was cess of three inclu as well as the apply to the omission trial court issued three begin May 12. The in affidavits: of information sion in re- and orders memorandum decisions cases is whether At issue in the instant made preliminary motions sponse to inclusion, omission, of cer- rather than The memorandum decision defense. magistrate. misled the tain information 30, 1987, denied Guzman’s July order of cogent why reason conceive of no We can suppress all of the evidence motion to chal- Franks should not be extended to executing of the war- seized on which was lenges based on deliberate to affidavits motion also denied Guzman’s rant and omissions of facts which or reckless during by him seemingly straightforward statements made suppress might cause a A immediately magistrate. the search. fur- after to mislead the affidavit magistrate of a denied inform a on November failure to ther decision mislead- exculpatory may fact requesting motion disclosure known Guzman’s misleading, than the ing, if more informant. not of the confidential identity respects. furnishing apply- support false information in The affidavit in practically for a search warrant. search warrant offered no basis knowledge from which the informant’s Beaty, 794 P.2d independently statements could be tested. (Ct.App.1990) (emphasis origi Instead, the affidavit offered concluso- nal). analysis We concur ry long ago statements. As was written Appeals. Tay- for this Court Justice Herman H. invalidity In order to establish the lor, support an affidavit of a warrant warrant, prove by had to Guzman facts, simply must relate the conclu- preponderance of the evidence that Detec may sions that from be drawn those facts: Axtman, affiant, knowingly tive judgment halfway who sits at the [H]e recklessly, intentionally, or falsified ‘probable station as to the existence of information from his affidavit. omitted magistrate, cause’ must be the and not Lindner, 100 Idaho at 592 P.2d at 856. the affiant who must bear burden of independent of the record leads Our review up station, facts the mountain to that that, agree district court us to with the rather than his conclusions. He cannot most, Detective Axtman’s failure to include of leave at the foot the mountain his load in his the information affidavit amounted facts, lightened easy of and with and negligent misrepresentation. Howev steps halfway recite at the station his er, we add these words of caution. The conclusions as to facts which he does not supporting that this warrant and affi fact carry choose to so far. The affiant’s davit survived a Franks challenge does not eyes, powers ears and other senses and forget if will this instance mean securing are the mere instruments for challenge of an and when another such conveying magistrate and to the by the same affiant affidavit sworn facts which these senses have observed long pattern prac us. A comes before recorded, and and his mind is not the negligent misrepresentation could tice of reached, place for the conclusion to knowing indication of a and be seen as an magis- but the mind and brain intelligent or falsifica intentional omission trate must and draw the conclu- tion of information.1 form sions from facts. Although district court ruled Arregui, v. 44 Idaho 254 P. negligent in the affida falsehoods (1927) added). (emphasis 794-95 suppression justify vit were insufficient to evidence, concluded, under the it also PART II. PREVIOUS OPINION OUR test, that “totality of the circumstances” THE FAITH EX- ADOPTING GOOD him Judge did not have before Edwards THE CEPTION TO EXCLUSIONARY probable necessary facts to find sufficient RULE BASED AN UN- WAS UPON in his discretion issu cause and had abused LAW, OF WHICH WE SOUND RULE Gates, Illinois the search warrant. TODAY DISAVOW. 213, 103S.Ct. 76 L.Ed.2d 527 462 U.S. above, As noted the district court Lang, see State v. (1983); 105 Idaho (1983). agree applied “good exception faith” to the P.2d 561 We both performance perhaps years, occasion to motivated zeal in the 1. In recent this Court has had duty, may involving on occasion abuse the limited cases Detective consider other Axtman, concerning supported powers Constitu- vested in them the laws and cases warrants hope Idaho. It is we reasonable to sworn out him in which he tion of affidavits supplied by from a confiden believe that such officers have learned relied information Le., informant, exceptions, concerning their mistakes. The narrow issues unlawful tial Diaz, unforgiving out of the rule that See State v. 117 Idaho those carved conduct. (1990); illegally suppressed, City evidence must be Twin seized P.2d 207 Grant only Falls, sparingly, (Ct.App. when mis- P.2d there to be used 1987); be- City have been made. Mistakes must not Twin Falls & Axtman & takes Grant v. McDowell, (1991) exception. practice A come the instead 813 P.2d 880 120 Idaho 604). sug observing pattern (same on that a of mistakes We do not court as 113 Idaho case "mistake," that, seeing yet developed, just another gest their names has might or intimate because readily alleging po decide to view such circumstance appear litigation unlawful often accordingly. conduct, jaundiced eye, and rule with a law enforcement lice some officers. my opinion, announced in tice Johnson wrote that United “[i]n Leon, S.Ct. the result failure this Court to States decided to 82 L.Ed.2d 677 grant petition is review that deci- despite insufficiency admit the evidence Appeals sion of the Court of becomes support of the warrant. of the affidavit regard law of this state with new adopted good the Leon faith This Court principles of law announced in the deci- exception to the Nash, 114 Idaho at sion.” Prestwich, at 1182-83. presentation of re- Guzman adoption quires a reexamination of Prestwich by applying the “review denied” rule was a underpinnings. conceptual Prest- its Prestwich, dispute matter of with wich, opinion our stated that: favor, Justices Johnson McDevitt Preliminarily, we note that Prestwich has concurring and the Chief Justice in the applicability questioned of Leon majority opinion, adding special in a the unreasonable search and sei- under concurrence that the Court needed re- provision zure our state constitution opinion in Hays.3 consider its As (article 1, 17). We also note that our Bistline, J., therein, part it was previously held listing pointed out that the of his name as applicable under article that Leon concurring specially with Justice Johnson’s Rice, 985, 109 Idaho 712 17. State v. § in concurring opinion Nash awas clerical (Ct.App.1985) P.2d 686 rev. denied error, reducing opinion a thus Nash (1986). Although in Prestwich II2 justice two vote. Justice Bistline did con- Appeals of indicated that Court adoption cur in the Court’s yet applica- has not addressed the Court exception, only did so on the basis under our state constitu- bility of Leon “temporarily engaging” in of the federal 2, (109 n. tion Idaho at 989 712 P.2d at 966, 2), Rice, experiment, court’s 116 Idaho at 783 690 n. denial review in 305, “notwithstanding contrary P.2d implicitly approved ap- at this Court 1, plication Leon under article 17. and better reasoned views of Justices Bren- State, Hays v. 115 Idaho 766 nan and Stevens authored dissents in [who (1988). P.2d 786 Leon 116 Idaho at 783 P.2d at 304 ].” J., (Bistline, concurring). Prestwich, 116 Idaho at 783 P.2d at added). Thus, (emphasis paus- without 299 The time has arrived to reconsider “the merits, analysis an or ing to conduct suggested by rule of review denied” as thereof, lack Prestwich explicitly reject We Chief Justice. now presumably adopted deemed under was Nash-Hays review denied rule because of questiona- solely state constitution on the problems such a rule creates: T. See of the effect of the denial basis Court’s ble Gresback, For Review Denied: Petition Rice, petition of a for review State v. About?, All The Ida- Shouting What’s The (Ct.App.1985), Idaho 712 P.2d 686 rev. Advocate, (Feb. ho State Bar Vol. No. (1986). predicated This was den. result 1990). As article makes clear: that State, in turn ad- part Hays v. which problem Following is: The the wake opinion, an hered to earlier Nash v. Over- Nash, (1988) should the and bar holser, 114 P.2d 1180 how bench Idaho (Johnson, apply majority Ap- specially concurring, joined by the vast J. JJ.). Nash, Huntley, peals precedent in no was Bistline and Jus- which review Prestwich, case had been in the Court of 3. State Prestwich C.J., Bakes, Appeals two times before it reached this Court. concurred and Justice at 302. Prestwich, 110 Idaho Boyle his view that the Leon rule should stated Prestwich, (Ct.App.1986); State v. merits, adopted upon on its own "rather than be (Ct.App.1988). P.2d 787 Unless other- grant review in State v. this Court's failure Prestwich, indicated, when we refer to wise Rice, 116 Idaho at 783 P.2d at 305 ..." Prestwich, 116 Idaho refer to State v. J., concurring). (Boyle, P.2d 298 review, grant many and also catapults an- instances If denied review sought? grant one vote is cast to of this where review. into “the law principles nounced granting reasons for not The various re- state,” that the lack of review it follows stated, are not but we have never view non-binding authority Ida- constitutes denying any that considered review meant thus logical extension of Nash ho. more than that for one of various Ap- role of the Court of undercuts the for reasons there were sufficient votes peals. reconsidering the decision of the Court of at 11. Gresback apparent reason for Appeals. One the rule disavowing any efficacy in the In now that, denied was because we have of review do so on the denied rule we based review opinion question an and the considered reasoning of Justice Bakes as set Chief briefs, ensuing puts denial thereof our in Hays: in his dissent forth upon opinion. No one imprint doubts practice incorrect to hold I it is an believe sincerity advocating prop- of those of a review of a decision that the denial osition, but the consensus the Court is solely based of the Court such denial of review has no more side, one presentation from meaning effect than when the argu- the benefit of oral then without petition denies a Court of the United States conferencing, a con- establishes ment and certiorari, likely being denial attrib- for precedent of this Court. Certain- trolling ever-increasing utable to the number nothing in 118 which ly is I.A.R. there necessity there must petitions. Of a permits that result. requires, or even screening process. authority given is for the citation of No above, underlying premise As noted contrary today and it action concept of the review denied for the Supreme Court of the practice in the that the failure the statement Nash states____ This other States and United grant petition review of this Court summary disposi- does not have a Ap- of the Court of results the decision calendar, much less one which dis- tion becoming law of this state with peals from of cases based briefs poses of an- regard any principles new law side. The Court’s decision ... only one 114 at 757 nounced therein. strong for a incentive will constitute None of us who formed P.2d 1182-83. automatically of this Court to members disagreed has ever majority Nash for review in grant petition vote to that new Johnson’s declaration with Justice prece- prevent the every case in order to by the of principles of law announced Court by being created from dent of this Court precedential. The entire Appeals become default. under- membership had the same Court (Bakes, 317, 787 766 P.2d at 115 Idaho at standing princi- a new as to the of effect C.J., dissenting part). by the Court ple law announced of of any entertains this Court Whenever precedential law of it Appeals; becomes validity a new rule of of as state, doubt inferior to the all tribunals Appeals, of by the Court obligated by law announced Appeals are to abide Court of decision whether Appeals. considered make a of issued the Court decisions Each member of the deny judge review. grant knowledge, or neither a district To our petition for suggested is furnished with not judge Court trial has ever nor a briefs, law, review, and with of supporting principles new being bound or opinion. The briefs from this Court Appeals’s they emanate Court whether argued Appeals, in the Court but this Court parties which the from us, our is the the view that subscribed to Appeals are also available has never emanating extent, a decision it can to not review To that decision appeal entire record. to an im- tantamount our that court was do not reach from truthfully be said that we prece- holding new case law plicit in a vacu- grant deny review decision emanating from instances dent many There have been um. binding on this Court. somehow became voted only of the Court two members when

987 791, 17 (1967), L.Ed.2d 730 obligation to be and Court wrote falls To this Court holdings that its do “not affect the state’s authority in fashion- ultimate remain power impose higher standards discarding amending, and declaring, ing, than the search and seizures federal Con prece- rules, and doctrines principles, if it stitution chooses to do so.” Justice the low- by application which dential law article, State Constitutions and Brennan’s This fashion their decisions. courts will er Rights, the Protections Individual 90 remains the final arbi- been and Court has spark helped Harv.L.Rev. 489 law, pro- rules of both those ter of Idaho greater independent interest in state consti evolving decisionally. mulgated and those analysis. tutional Evidence of this trend import our that the sole We reaffirm analysis constitutional can towards state be to not review a Court determination supreme seen the state courts which is as heretofore stated: Appeals decision adopt “good-faith” refused to ex have Therefore, denial of review this Court See, ception under their own constitutions. carry weight no more than a deni- should Edmunds, v. e.g., Commonwealth 526 Pa. certiorari the United States Su- al of Oakes, 374, (1991); 586 A.2d 887 a denial ‘means preme Court —such Marsala, (Vt.1991); State v. 598 A.2d 119 that, one' reason or another which for 150, (1990); State v. A.2d 216 Conn. 579 58 disclosed, infrequently and not seldom Carter, 709, (1988); 370 553 322 N.C. S.E.2d conflicting may which have reasons Novembrino, 95, State v. 105 519 A.2d N.J. nothing of the merits to do with view (1987); People Bigelow, 66 N.Y.2d 820 Court, there by majority taken 497 630 488 N.E.2d N.Y.S.2d four members of the were [three] Upton, see also Commonwealth v. (1985); thought should the case Court who (1985) (re N.E.2d 548 394 Mass. 476 Allen, Daniels v. heard.’ State v. statutory grounds); jecting rule on L.Ed. S.Ct. [97 469] McKnight, 291 S.C. 352 S.E.2d (1953). (1987) (same). Additionally, some state Prestwich, rejected appeal courts of have J., (1989) (Bistline, specially respective their under See, Gutierrez, e.g., concurring). constitutions. (Ct.App.1991); 112 N.M. THE III. ARTICLE OF PART People Sundling, Mich.App. IN SOME CONSTITUTION STATE 395 N.W.2d CONFERS BROADER INSTANCES II, part our As noted in AGAINST UNREA- PROTECTION State v. good exception faith adopted the AND SEARCHES SEI- SONABLE 985, Rice, (Ct.App. 712 P.2d 686 109 Idaho THE FOURTH ZURES THAN DOES 1985). not do so because it was It did AMENDMENT. the correctness of the persuaded Having explained the unusual cir v. (to State contrary, in decision Schaf genesis of which were the cumstances 822, 458, 812, fer, 107 Idaho 693 P.2d 478 Prestwick, adoption next reconsider our we (Ct.App.1984), expressed it serious reserva the Leon rule light of the Idaho Leon), rather because it tions as to but Constitution. compelled by virtue of our believed itself so Cowen, 104 Idaho 649, v. State dispute decision in beyond now that It is (1983): 662 P.2d 230 interpret our state is free to this Court protective of requested constitution as more that we appellant rights prohibi- Idaho citizens than the United the Idaho constitutional construe interpretation of searches and Supreme against Court’s unreasonable States tion PruneYard in evidence federal constitution. to exclude admission seizures Robins, case, 74, v. in this Shopping Center 447 U.S. the fruits of the search may 2035, 2040-41, withstanding that the evidence 64 L.Ed.2d not 100 S.Ct. Cooper v. J.). under the federal Constitu- (1980) In admissible (Rehnquist, 741 ap- 788, expressed our 58, 62, In we tion. California, 386 U.S. 87 S.Ct. Schaffer prehensions independently about the federal rule an- from the fourth amendment. However, light 748, in Leon. nounced 114 Idaho at 760 P.2d at 1164. We Supreme our Court’s admonition that the Newman, 5, 10 said in State v. 108 Idaho n. provision Idaho is to be construed consis- 6, 856, (1985), 696 P.2d 6n. that tently the fourth amendment to the with liberty state Courts are at to find within Constitution, Cowen, federal provisions their constitutions 650, 230, (1983), 662 P.2d greater protection than is afforded under are constrained to decline Rice’s re- we interpreted by the federal constitution as quest. Supreme the United States Court. See Rice, 109 Idaho at 712 P.2d at State Hass, 714, 719, Oregon v. U.S. (footnotes omitted).4 S.Ct. 43 L.Ed.2d 570 This is true even when the constitutional Cowen, In did “that the we state provisions implicated contain similar Constitution, of Idaho art. provision phraseology. Long gone days are the 17, prohibiting searches unreasonable § blindly apply when state courts will seizures, Unit- is to be construed consistent Supreme interpretation ed States ly with the fourth amendment to the Unit methodology process when ed States Constitution.” 104 Idaho at However, interpreting their 662 P.2d at 231. we did not own constitutions. provisions mean that the two were identical independent analysis Such does not every respect say because we went on to mean that Court will reach a result that law is therefore instructive “[federal different from the United States (Em on the issue Id. [before Court].” Court, e.g., Lang, see State added.) phasis Although artfully stat (1983) (independently ed, proposition that Cowen stands for the Gates, adopting Illinois v. seriously in deter consider federal law (1983) 103 S.Ct. 76 L.Ed.2d 527 under mining parameters of our own constitu 1, 17); only art. it means that we are free § provisions, may adopt federal tional and we so, to do if it is determined that different constitution precedent under the state counterpart better effectuates our Ida- the fed only to the extent we believe provision. ho constitutional protec eral inconsistent with the law not by our state constitution.5 tions afforded THE THE PART IV. MERITS OF GOOD not taken the “construed The Court has FAITH THE EX- EXCEPTION TO consistently” language from Cowen CLUSIONARY RULE DO NOT JUS- provisions constitutional mean that the two THE TIFY ITS ADOPTION UNDER example, co-extensive. For the Court IDAHO CONSTITUTION. Henderson, 114 Idaho stated in question of We next turn to the 756 P.2d the Leon whether can, appro- Idaho Constitution where “[t]he adoption its rule merits priate, grant protection more than its fed- Although we do not under art. counterpart.” Thomp- eral Id. challenge doubt and do not the United 746, son, 1162 760 P.2d Supreme power to define the States Court’s distinguished and declined to Cowen protec 1, parameters of fourth amendment 17, apply, under art. a States § United. against tion unreasonable searches and sei interpreting the fourth Supreme Court case zures, 1, important pro equally it is again stated that art. amendment. We our state constitu- may be read tections accorded under 17 of the state constitution § Appeals 4. The Court of to the Court of for Idaho at 5. This criticize observed at 109 2, "that, 1, adopting interpretation n. since 17§ n. 712 P.2d at an of art. which Cowen, Supreme expressly our Court has re- consistent with the fourth amendment. was binding day for whether Leon is Cowen, served smother ambiguous language the the Given interpretation its of the in Idaho to Appeals reasonably it concluded that Court of similarly not be federal constitution and would had no other alternative. applied to the Idaho Constitution."

989 Anderson, permanently they selected by a and what viewed not be diminished tion appropriate authority upon as the most adoption good- the federal pervading Evidence, rely, 1 which to Greenleaf on exception. 254(a), 15th ed. wherein is said: it history of the review of the both A brief may place It mentioned that be the rule is and Idaho federal though and other papers subjects of evi- explaining reject our decision to helpful illegally from may dence have been taken the good-faith exception to exclusion- the possession party against the whom The exclu- ary rule. fourth amendment offered, unlawfully they or are otherwise sionary rule was first set forth v. Weeks obtained, is no objection there valid States, 34 S.Ct. United admissibility they if pertinent their are (1914). L.Ed. 652 Weeks was arrested 58 the The court will not take notice issue. illegal gambling. Before trial he obtained, they how were whether lawful- incriminating for the return of rec- moved ly unlawfully, nor will issue it form an and letters that had been seized ords question. that to determine during government officials a search of his quoted supported above is text denied home. motion was and Weeks East, v. 14 Legatt Tollervey, the cases of Supreme convicted. The United States 617; Reprint, Eng. 104 Jordan conviction, holding reversed that Court the Lewis, East, 306, Eng. Reprint, fourth amendment barred use of 168; Dana, 2 Met. Commonwealth illegally seized evidence: (Mass.) 329.) private If letters and documents can thus Anderson, Idaho and seized held and used evidence (1918). 174 P. offense, against a citizen accused of sitting Budge and Rice still Justices were Amendment, protection of the 4th years four after State declaring right against secure to be Anderson when Court revisited seizures, such searches is of no val- and Myers, ue, placed so far thus as those P. 440 Defendants Idaho concerned, might as well be stricken Myers Fitzgerald prosecuted were from the Constitution. conspiracy crime convicted Weeks, 232 U.S. at 34 S.Ct. at 344. bribes, accept request allegedly com- Accordingly, the held that evidence period of time ex- mitted in Idaho over seized violation of the Fourth Amend- A tending 1918 to March 1919. from June upon governmental power ment limitation White, a person named member Weeks, must be excluded. 232 U.S. at constabulary, com- delivered to the 346. made The Court it clear S.Ct. pa- missioner law enforcement “certain prosecution’s illegally use of of defen- pers” taken from residence seized evidence involved “a denial of the at trial were marked Myers, dant which rights constitutional of the accused.” Id. placed in evidence as state’s exhibit however, Court, limited hold- The Weeks its exhibit It was unclear how White obtained government actions of “the federal residence, cer- Myers 4 from it is Thus, agencies.” and its case did Id. Myers’ objection tain he did so. illegally not involve the introduction of trial court’s refusal return exhibit prosecu- evidence in a state court seized him, or its admission was fruitless. to bar tion. Court, appeal Supreme to the Idaho On thereafter, years the three-member recognition particular Four was accorded to that presented error, assignment Court was with nine as- first of by pursued where the factual circumstances were the signments appeal case raised on 401-02, virtually to Idaho Myers, identical Weeks. State discussion see Anderson, 514, Rice Budge 174 P. 124 211 P. and Idaho but Justices Almost Budge steadfastly surprisingly, Justices and Rice remained obdurate. Not defending ignored enlightened pages the views of eleven were consumed more Jus- culminated in their tribute Morgan, their stand and expressed tice People Mayen, Myers, State v. 402, to California’s 188 Cal. 36 Idaho at 211 P. at 237, 205 P. 435 422 (quoting People v. Mayen, 188 Cal. jus- which the two rule,” perceived tices “the correct 237, 435). 205 P. Budge, Justice with Jus supported by weight the authority: continuing concur, tice Rice noting after The Constitution and the laws of the provisions the of Sections 13 and 17 of art. persons land are not solicitous to aid Constitution,6 wrote as to those charged with crime in their efforts protections: sequester or conceal evidence of their provisions Similar are contained in the iniquity. From the necessities of the fourth and fifth amendments to the con- many case the law countenances devious States, stitution of the United it is procuring methods of evidence crimi- well settled that these apply amendments system espio- nal cases. The whole government agen- federal and its nage largely upon deceiving rests and cies, (6 R.C.L., rather than to the states. trapping wrongdoer the into some invol- Law, Constitutional p. sec. note untary disclosure of this crime. It dis- 3.) way confidence; simulates a into his it keyhole listens at peers through the and question presented, therefore nice, transom-light. the It is not but it is whether under the constitution and laws necessary ferreting out the crimes state, papers subjects this or other against society always which are done in evidence, illegally which have been taken darkness and concealment. possession from the party against of the it Thus is that almost from time imme- offered, they whom are admissible in engaged in morial courts the trial of a timely evidence after demand has been prosecution accepted criminal have com- upon, by, made and denied the trial court petent and relevant evidence without for the return thereof. question, collaterally and refused have Myers, 36 Idaho at 211 P. at investigate or source manner of its 411. Budge Justice also cited to and relied procurement, leaving parties ag- in majority opinion grieved to whatever direct remedies the Anderson, 174 P. which provides punish trespasser, law or possession goods wrong- recover attributable to himself and Jus- fully taken. tice Rice.7 "(Sec. 13) person compelled guards may No shall be ... be effectual the court must be- any against criminal case to be a witness him- party by receiving come a to it the results as self,____” "(Sec. 17) right peo- so, and of the [T]he proof. I decline to do and hold that evi- houses, ple persons, to be secure in their procured by illegal dence and unreason- against effects unreasonable search and seizure search, purpose able of which was to violated, shall not be no warrant shall issue it, timely discover and seize is inadmissible if affidavit, probable by par- without cause shown proper objection be made to its introduc- ticularly describing place to be searched and tion, procured by because it was an invasion person thing to be seized.” State v. rights guaranteed persons of the to all within Myers, 36 Idaho at 211 P. at 441. constitution, this state sec. art. it, against and to admit a defendant in a Morgan, 7. Justice the other member of that objection, criminal case over such an would court, three-justice opened his dissent in State v. violation, court, be a of sec. 13 thereof. Anderson, 31 Idaho at 174 P. at on a guardians These sections are of American note, lamenting ago assigned “Some time I was liberty justice which come to us from the preparing opinion the task of of the court in same source and with like sacrifice as did my this case ... but utmost efforts have not those, equally greatly prized, justices but not more convinced the other of the soundness of whereby guaranteed religious liberty, my logic, we are nor of wisdom of the decisions of arms, supreme by jury, right peace- court of the United States ... trial to bear assemble, similarity ably speech, liberty similar cases.” He then noted the free Anderson to the factual circumstances in Weeks press, many other constitutional safe- States, which, v. United which was followed a well- guards they because have been faith- plea persuading courts, stated aimed at the other two fully upheld by accomplished have justices: agency more than has other to make this disregard, government peoples which the In order that the total disclosed one record, may profitably copy. of these constitutional safe- earth Supreme long-com- States Court did not Fortunately, day was not United constitutionally tempered exclusionary amendment tiie make the fourth when Morgan mandatory upon the states until 1961. of Justice set out rule views Ohio, return Idaho to constitu- 367 U.S. 81 S.Ct. Mapp Anderson would v. happened Mapp This in 1926 af- tional doctrine. 6 L.Ed.2d 1081 Court Taylor (obviously H. attorney Herman “all evidence obtained ter held that Morgan), is, sharing views as Justice the same of the Constitution searches violation to the Idaho Court authority, was elected inadmissible in a by that same ensuing year Jus- took office. and at 367 U.S. at 81 S.Ct. state court.” opinion Taylor tice authored Court’s partially overruled Mapp 1691. The 254 P. 788 Arregui, because “the admission new Wolf overruling therein Anderson and right constitutional could not con- Wolf adopting exclusionary rule as the Weeks impor- most sistently tolerate denial of its being suited for Idaho. Thus it the better privilege, namely tant constitutional the ex- Morgan Tay- was that Justice and Justice an accused had clusion of evidence which lor, acting in tandem concert but give by illegal reason of an been forced to years, people span over a of ten blessed the grant seizure. To hold otherwise is to protections Idaho with substantial right reality privilege to withhold its but in- against improper and unconstitutional enjoyment.” and 367 U.S. at 81 S.Ct. protec- into their lives.8 Those cursions Mapp reiterated that at 1692. The the Idaho tions remain intact insofar as exclusionary rule was mandated the Weeks is concerned. Constitution provide in order to by the constitution fourth remedy to those who have had their emphasized that the fourth It should be rights amendment violated. 367 U.S. at apply exclusionary amendment rule did not Additionally, the 81 S.Ct. at 1688. Arregui the states when was decided rule had and, thus, Court noted exclusionary rule 1) purposes: the rule three other wholly upon the state consti- became based Colorado, prevent would the use of evidence which tution. See Wolf confession, (1949) (the was “tantamount” to a coerced 93 L.Ed. 1782 69 S.Ct. 1692; 2) states, at applies U.S. at S.Ct. fourth amendment rule would serve as a deterrent to fourth but the fourth amendment violations, not). Thus, amendment 367 U.S. at does Idaho has had an 1693; 3) protect upon S.Ct. at the rule would independent exclusionary rule based sixty-five judicial integrity. 367 at 81 S.Ct. past the state constitution for the U.S. years. at 1693-94. punished, security person prehended, If the and the home convicted and constitution, right protected by employed doing are not in so must not be such means constitution, religious enjoyment prohibited the exercise and as are and the worship may sight people faith and be withdrawn. If un- fact must not be lost of that the seizures, danger reasonable searches and warrant, without of a state are in more real from a permitted, by jury may participates are to be trial resort which in the court of last laws, may, upon suspicion, be denied. If officers its fundamental even in violation of persons they the inhabit- bring justice, search the and homes of a criminal to than order to Idaho, rights people to bear persistent ants of are from the most efforts of all the defense, security peace- bootleggers large. arms for their assemble, ably freely speak, pub- Anderson, write 31 Idaho at 174 P. at lish, J., danger. dissenting). (Morgan, are in Whenever the courts lend sanction to the abolition of one of these their very might Arregui, died rights principle, well have the fundamental 8. State sacred them, Budge aborning had it surfaced with Justice of all of which forms the foundations Fortunate- away government Justice Rice both still on the bench. free cut and our boast of remained, Budge ly, only and the com- Justice becomes an idle waste breath. Court, position in addition against of the five-member of the law While violation Lee, Taylor, intoxicating included Justices Wm. E. transportation liquor to Justice into Ida- Lee, Justice), (Chief Bailey Raymond L. T. mini- no means to be excused or ho is mized, dissenter, Budge was a sole perpetrators that crime Givens. Justice and while out, be, they being, sought ap- wrote not. should tire 1970’s,

In Supreme the United 921, States ter.” 468 U.S. at 104 S.Ct. at 3419. Court started rewrite its own And, exclusion- police deterrence of misconduct is ary history. so, rule In doing began it only purpose justifying the exclusion- deny Weeks-Mapp purposes be- ary application the rule no has in such hind exclusionary rule had ever existed good cases. Id. The faith instead asserted that the purpose since been Supreme extended justified which ever exclusionary to include situations police where the en- was the deterrence rationale. The first gage in illegal an good search in faith put case to history forth this revisionist upon illegal reliance statute. Illinois v. exclusionary rule was United States v. Krull, 340, 480 U.S. 107 S.Ct. Calandra, 414 U.S. 94 S.Ct. (1987). L.Ed.2d 364 L.Ed.2d 561 There the United Supreme States Court made a clear break PART V. WE REJECT THE LEON with this adopting Court’s reasons for GOOD FAITH EXCEPTION FOR independent state exclusionary rule. The THE REASONS BELOW. Supreme Court stated that: purpose exclusionary rule is A. The Exception Good Faith is Incom- injury to redress the privacy patible Multiple Purposes With The victim____ Instead, the search the rule’s Independent Behind our State Exclu- prime purpose is to deter future unlaw- sionary Rule. police ful conduct and thereby effectuate above, As noted holding the Leon could guarantee of the Fourth Amendment not have been Supreme reached but for the against unreasonable and sei- searches justification Court’s narrow for the exclu ____ sum, zures In the rule judicially is a sionary However, rule. in Idaho this Court remedy designed created safeguard has held that the exclusionary rule does rights Fourth Amendment generally more than merely police deter misconduct. through effect, its deterrent rather than In Arregui, we said exclusionary personal right a party aggrieved. rule was a constitutionally mandated reme Calandra, 414 U.S. at 94 S.Ct. at dy illegal searches and seizures. In 619-20. The Calandra court held that the Rauch, 99 Idaho 586 P.2d exclusionary apply grand rule did not (1978), we said that evidence ille jury proceedings, basing its decision on the gally suppressed seized must be because to “Any belief that: incremental deterrent ef- admit it would independent constitute an might by extending fect which be achieved constitutional violation the court in addi grand the rule to jury proceedings is uncer- tion to the violation at the time of the Calandra, tain at best.” 414 U.S. at illegal search. In LePage, 94 S.Ct. at 621. 387, 391-92, 630 P.2d 678-79 apex post-Mapp of this view of the (1981), cert. denied 454 U.S. 102 S.Ct. exclusionary rule was reached in United 70 L.Ed.2d 595 recog while we Leon, States v. 104 S.Ct. nized that police the deterrence of miscon (1984). There, 82 L.Ed.2d 677 purpose, duct was a recognized we also Supreme Court relied the Calandra de- judicial integrity mandated the exclu in announcing “good excep- cision a faith” sionary Johnson, rule. See also exclusionary tion to the federal rule. The 516, 524-26, 716 P.2d Supreme Court held that evidence obtained (1986) (recognizing pur 1296-98 the different good-faith reliance on a rule). poses exclusionary of the state suppressed, warrant need not be if even sum the bases for our supported by probable warrant is not rule are the same as those set forth cause and thus is in violation of the fourth Mapp and are inimicable to the taken view amendment. The Court reasoned that as Calandra. long as the officer acted in warrant, po- Additionally, reliance there was no we believe the nothing lice properly misconduct “and thus to de- rule is also directed toward the issuing agree provided impetus has process itself. We in federal law warrant have noted those commentators who this Court to exclusive with a return state that suppose “it is somewhat odd to that the analysis. exclusionary We believe that exclusionary designed rule 1) the was not applied pro- in to: should be order rule the issuance of warrants.” deter invalid persons remedy effective vide an who Mertens, and Wasserstrom The Exclusion- subjected to an have unreasonable been the it a ary Rule on But Was seizure; 2) government search and/or de- Scaffold: Trial?, 85, 22 106 Am.Crim.L.Rev. Fair police acting unlawfully from ter the (1984). pur- a the Without doubt one of evidence; 3) encourage thorough- obtaining 1, 17 poses prohibit of art. the § issuing process; 4) in the warrant ness probable of warrants on issuance less than having judiciary the commit an avoid addi- The text of art. is clear: cause. 17§ violation consider- tional constitutional probable shall issue “no warrant without ing evidence which has been obtained cause____” exclusionary rule encour- means; 5) illegal preserve ju- through and ages seriously take judges to their obli- integrity. no reason to dicial We see de- gation probable to ensure that cause part exclusionary from the rationale set requirement of art. 17 is met before proge- their Arregui out Weeks say warrant is issued. This is not to that ny, withstanding States United Su- judges intentionally we issu- fear that begrudging approach preme Court’s recent ing knowing probable cause warrants protection. fourth amendment towards Rather, exist. feel certain does not we Additionally, disagree with the meet the that search warrants which fail to premise the Leon decision—that basic probable cause standard more often “result apply the decision whether to the exclusion intentional from carelessness rather than ary by determining rule should be made violations, just surely constitutional goal police whether deterrence exclusionary rule is logically directed furthered in the case at bar— would be 1 La- those more common violations.” W. totally it fails to take into account because 1.3(d), Fave, p. 55 Search Seizure § purposes independent the other of our 1987). (2d words, long- “In ed. other believe, exclusionary rule. We re state exclusionary standing application of the goal police gardless of whether the de served not rule with-warrant cases has served, that the other terrence would mag- only ill-spirited to deter the occasional jus purposes exclusionary of the state rule istrate, importantly to influence but more every tify application the rule case judicial generally by more ... cre- behavior pursuant evidence is seized to a war where ating an ‘incentive to err on the side of ” supported by showing is not rant which Id., quoting constitutional behavior.’ regard, probable cause. In this we are Johnson, United States agreement with some of the states which 202 102 S.Ct. 73 L.Ed.2d good rejected have faith issue, important The more in this See, e.g., grounds. constitutional effect of the regard, “is not deterrent at People Bigelow, 66 N.Y.2d exclusionary rule on the conduct of individ- 427; at 497 N.Y.S.2d at N.E.2d magistrates, ual but the extent to which Carter, N.C. S.E.2d at helps preserve integrity of the the rule 561; Oakes, A.2d issuing process Was- warrant as a whole.” Mertens, Marsala, (Vt.1991); at 109. Conn. at supra, serstrom A.2d at sum, In the United States original purposes Court has abandoned the Anal- B. The Court’s Cost-Benefit exclusionary as announced rule Exclusionary Rule is an ysis in Arre adopted this Court Weeks and Determin- Inappropriate Method of clearly gui, system in that the federal the Rule. the Value of exclu repudiated any purpose behind reject rule even would sionary other than of a deterrent We rule Thus, change preceding were if the discussion illegal behavior. However, doing our protect basis for so. our con- ist values which are difficult to goes with, begin cern much further. To we quantify, yet impor- which are considered reject the analy- Leon Court’s cost-benefit by society. tant sis of the rule. this re- Turning itself, gard, important it is to remember that high the Vermont court has written that rules which exclude evidence are not analysis the Leon cost-benefit is of no val- unique jurisprudence. in our This Court ue because the costs and benefits involved requires the catego- exclusion of numerous accurately cannot gauged: be highly ries of reliable and relevant evidence The ultimate criticism of the Court’s from both civil criminal trials. See analysis cost-benefit in Leon is that it is e.g., I.R.E. (attorney-client privilege); 502 attempting to do what at this time cannot (physician I.R.E. 503 and psychotherapist- simply be done. There are insufficient patient privilege); (husband-wife I.R.E. 504 empirical for data the costs and benefits privilege); (religious privilege); I.R.E. 505 good exception of a faith to accurately be (political privilege); I.R.E. 506 vote I.R.E. assessed. The benefits of the exclusion- (governmental privilege); 508 I.R.E. 509 ary rule are hard to measure because (identity privilege); informant they consist of “non-events.” “Police (parent-child I.R.E. privilege); I.R.E. compliance exclusionary with the (accountant-client privilege); I.R.E. 516 produces a non-event which is not direct- (school privilege); counselor-student I.R.E. ly observable—it consists of not conduct- (licensed privilege); counselor-client Morris, illegal search.” The Ex- (licensed I.R.E. 518 social worker-client clusionary Rule and Posner’s Econom- privilege); (hospital, in-hospital I.R.E. 519 Law, Analysis ic 57 Wash.L.Rev. medical staff society committee-medical (1982) (emphasis original). (medical privilege); malpractice I.R.E. 520 screening panel privilege). committee Be- yond privilege, law the rules of [E]mpirical pronouncements without em- evidence also limit or forbid the admission pirical support persuasive. are not Be- might of what some consider relevant evi- inability cause of the at this time to public policy dence for e.g., reasons. See measure exclusionary the costs of the 404(a) (character evidence); I.R.E. I.R.E. rule, see 104 S.Ct. at [468 U.S.] measures); (subsequent remedial (Brennan, J., dissenting), we do not (compromise I.R.E. 408 and offers to com- persuasive find the Court’s conclusion as promise); (payment I.R.E. 409 of medical to a to the exclu- expenses); (pleas and similar I.R.E. 410 sionary rule. discussions); plea (liability I.R.E. 411 Oakes, 119, 126(Vt.1991). 598 A.2d insurance); (sex I.R.E. crime victim’s agree analy We with the Vermont court’s

past behavior); (proceedings I.R.E. 413 sis. malpractice screening panels). medical If adopt we were to the Leon cost-benefit C. To the Extent the Costs the Exclu- evidence, suppression rationale to the Determined, sionary Rule Can might eventually have to reconsider all the Majority Leon Overstates Them. above, evidentiary privileges listed all of adopt Even if to we were the Leon which exclude evidence an endeavor to analysis, majority Court’s mode of protect societal values or foster laudable there failed to show that the costs of the goals. societal Arguably, one could never high. exclusionary unacceptably rule are prove cost-effectiveness Nevertheless, According majority, the rule above rules. needs to be limited because of sub- adopted recognition pure all of them in “[t]he stantial social costs exacted the exclu- analysis inadequate cost-benefit is an tool sionary rule for the vindication of Fourth evaluate such rules. All of the rules rights____” which limit the of relevant evi- Amendment 468 U.S. at admission dence, including exclusionary assumption ex- 104 S.Ct. at 3412. This central empirical prevailed require- if the majority has no have constitutional the Leon basis obeyed.” Dellinger, ment otherwise fallacious. had been and is Of Remedies, Rights Constitution First, majority the Leon attributes the Sword, 1532, 1563 as a 84 Harv.L.Rev. the fourth amendment the ex- costs of not pay The state does a “cost” clusionary They repeatedly rule. refer being put position than a worse before rule as the costs violation; only for- the constitutional it is something costs though such were distinct from its As the bidden to benefit error. costs of fourth amendment from the only deprived it was not what correctly observes itself. Justice Stewart place, say entitled in the first possess that: a cost to the the fourth amendment exacts of the criticism leveled at the [m]uch saying pays state is thief like misdirected; it is rule is committing required a theft when he is properly more directed at Fourth return he stole. what itself____ The Amendment Second, majority the Leon overstates no places limitations on the actions excluding “costs” Research of evidence. police. The fourth amendment very actually shows that little evidence is result of the does. inevitable Consti- noted, suppressed. As Professor LaFave prohibition against tution’s unreasonable date, the most careful and balanced “[t]o require- and and its searches seizures empirical assessment of all available data no shall ment that warrants issue but general shows ‘that the level of the rule’s upon probable cause is that offi- prosecutions marginal effects on criminal is obey will cers who its strictures catch ” LaFave, at most.’ 1 and W. Search Sei- criminals____ is price fewer [T]hat Davis, 1.3(c) p. A quoting, zure T. § willing and were anticipated the framers (and Hard Look at We Know Still What sanctity per- of pay to ensure the Learn) Need About the ‘Costs’ of son, home, property against and unre- Exclusionary Study Rule: The and N1J governmental power. strained Arrests, ‘Lost’ Other Studies of Stewart, Mapp The Road to v. Ohio and J. Accord- Am.B.Found.Research 622. Beyond: Development The Origins, and Court, ing study to the Leon Davis Exclusionary Future Rule in of evidence concludes that exclusion Cases, and Search Seizure Co- nonprosecution results in or nonconviction (1983). lum.L.Rev. 1392-93 Or as and between of individuals 0.6% 2.35% puts Brennan it: Justice study arrested for felonies. same That not, go free in Jus- criminals will [S]ome further (then Judge) misleading tice Cardozo’s suggests screening that [in California] epigram, ‘because the constable has blun- by police prosecutors and results dered,’ People 242 N.Y. Defore, illegal or sei- release because searches (1926), 150 N.E. but rather be- felony many zures of as of all 1.4% compliance ... with Fourth cause felony arres- arrestees ... 0.9% [by requirements Amendment law en- released, illegal tees are because of it make more dif- forcement authorities] seizures, at preliminary searches therefore, it ficult to catch criminals ... rough- hearing trial ... or after not the ly felony 0.05 of all arrestees benefit imposed Amendment that has itself appeal from ille- reversals because of cost. gal searches. Leon, 468 U.S. 104 S.Ct. at 3436 n. 6. 468 U.S. n. at 3412 at 907 S.Ct. J., (Brennan, dissenting). analy- The same researcher, the exclu- According to another relationship true for between sis holds marginal” “truly sion of has a evidence exclusionary rule. 17 and our state art. P. system. effect on the criminal court Moreover, Nardulli, the Exclu- all fourth amendment The Societal Costs that the Assessment, sionary Empirical quo An is “maintain the status that would Rule: does 585, 606- garding

1983 Am.B.Found.Research J. the amount type of evidence study In this in Illi- nine counties necessary probable to establish cause. As nois, Michigan Pennsylvania, the au- above, noted adopted the rule of suppress physi- that motions thor found Gates, Illinois v. 103 S.Ct. cal evidence were filed fewer than five 2317, L.Ed.2d in State v. 7,500 percent of the case studies such Lang, 105 motions were successful in of all 0.7% concept fluid probable Gates’s cause 596; Nardulli, cases. Id. at see P. also justifi- eliminates much of the Leon Court's Exclusionary Costs Societal Rule exception. cation for As our Revisited, 238-39 U.Ill.L.Rev. Appeals, per Judge Court of Bur- Donald (confirming study). earlier nett, explained: As Justice Brennan noted: provides ... an when the [I]ndeed, acknowledges, as the Court re- or sworn testimony affidavit is “so lack- studies cent have demonstrated , probable in indicia of as to cause of the exclusionary “costs” rule —calcu- render official belief in its existence en- dropped prosecutions terms of lated tirely unreasonable.” We confess that quite lost convictions—are low. quantum unsure how this evi- Contrary to the claims of the rule’s crit- compares dence needed to level ics that exclusion leads to “the release of support probable cause determination criminals,” guilty countless ... these splits under It a fine indeed Gates. hair studies have demonstrated that federal say to that the evidence is so deficient prosecutors rarely state very drop there no to is “substantial basis” find potential cases because of search and probable cause “totality under a of cir- problems. example, a seizure For cumstances,” but that the still evidence study prepared request at the of Con- lacking is “so probable indicia of gress Accounting the General Office cause as to render official belief its reported only cases actu- of all 0.4% entirely existence unreasonable.” For prosecution by declined ally for federal cases, majority ap- the prosecutors primarily were declined be- vast it would illegal problems____ pear search If cause Court in Gates percent- GAO a the data are restated as has killed one Leon bird with two arrests, age of study all the shows that Only in exceptionally stones. an narrow only felony of all arrests are de- 0.2% cases band of would the fall evidence prosecution poten- for clined because yet short of the Gates standard suffi- be exclusionary problems____ tial rule Of permit a cient to reasonable official be- course, these the data describe costs probable lief in cause as denoted Leon. to attributable the exclusion evidence Schaffer, cases; in all the costs due the exclu- (Ct.App.1984). category of evidence in sion the narrower police objec- of cases where made Finally, majority have the bene- overstates the tively reasonable mistakes must neces- good By aggregating fits of the faith rule. sarily be even smaller. cases, excluding the costs of evidence all irrespective of the circumstances which led Leon, 468 U.S. at 104 S.Ct. at exclusion, (citations majority the also (Brennan, J., Leon dissenting), 3441-42 omitted). potential good overstates benefit of the insignificant “This is not an er- ror, inquiry know- exception. way had the Court’s ‘cost’ been faith We have no properly appar- focused it been many would have instances of exclu- how evidence the relevant costs are insubstan- po- ent that simply sion occurred have because LaFave, 1.3(c),p. supra, tial.” W. reasonably, mistakenly, lice but relied magis- warrant issued insufficient a Third, excluding whatever cost there inis Thus, we idea much evidence, trate. have no of how mini- already greatly it has been in the convic- adoption “benefit” form of increased in Idaho because of mized our good rule. “totality of the test re- tions will result from the faith circumstances” compliance Amendment tional with Fourth Majority Underestimates The Leon D. part Exclusionary requirements on the of law enforce- the Benefits of generally.” agencies ment Id. Otherwise Rule. stated, encourages just as help observe that cannot We departments greater care police to devote “costs” and quantify it is difficult providing magistrate attention to it is “benefits” proba- evidence to establish with sufficient quantify the “costs” and also difficult good exception, The faith on the ble cause. exception good faith “benefits” hand, places premium police on other a pre- reason we are not thereto. For that ignorance of the law. ap- adopt the Leon cost-benefit pared to study con- proach. have noted that a We good exception raises Because the faith tentatively decision ducted after (as having opposed a warrant value that the short term effect of concluded warrant), having a valid benefits minimal, on to state but went decision “magistrate shopping” gained from be “[bjecause of the constraints of the court not heightened. As the Connecticut span time since the Leon decision short ed, would encour “the design of the non-experimental and the ef age police some officers to extend less could made of study, no determination be establishing necessary probable fort ruling.” lasting effects of the locating cause to search and more effort go that “as states re- authors on might exacting than judge who be less questions surrounding the deci- solve the Marsala, 216 some others.” State v. Conn. sion, may impact more substantial empirical study A.2d at 67. An Uchida, Bynum, in the future.” observed has shown that there are substantial dis Rogan, Murasky, Acting in Faith: Good magistrates parities as to how between United States v. Leon Effects of required to obtain a much evidence Courts, 30 Ariz.L.Rev. the Police and Davis, n. supra, search warrant. See (1988). Recognizing that such is There can be no doubt the at 666. analyzed by appropriately matter a not a experience this from on the street know pure analysis, cost we nevertheless benefit advantage, and will use it to their absent good exception faith comes believe not to do so. reason potential potential costs with costs. These good exception only does the faith Not logic them and are have the force behind police spend for to provide an incentive any potential just likely to occur as gamering evidence to establish less time decrease in the costs of the fourth amend- cause, a disincen- probable it also creates good ment claimed those who favor vigilant in magistrates to be their tive exception. faith guardians role as neutral of the constitu- majority’s premise A crucial the Leon good exception implicitly faith tion. The argument good excep- faith favor magistrates they need not take tells police function tion is that the deterrence reviewing applica- much care in warrant exclusionary rule is not served when tions, since their mistakes will be virtual- constitutionally a warrant turns out to be magistrate consequence. If the ly no According majority, defective. probable existence of incorrect as to the magis- “[penalizing the officer for cause, police good faith relied own, error, rather than his cannot trate’s upon it, is nonetheless admit- the evidence deterrence of logically contribute thus, ted; incentive there is no institutional 468 U.S. Fourth Amendment violations.” right. “Inevitably, the care to do it However, as 104 S.Ct. at 3419. at inconsequen- to such an attention devoted out, this points Brennan’s dissent Justice Leon, tial chore will dwindle.” “captures comparative- argument only one (Brennan, J. dissent- at 3443 S.Ct. ly generally minor element of the acknowl- ing). edged purposes rule____ consequence effectively dis- Another chief deterrent function [T]he issuing judicial continuing review of the tendency promote institu- the rule is its probable ary appear gone cause determination is rule which to have officer’s unrec- guidance ognized there will be less for these majority. the Leon judicial officers as to what constitutes

probable cause. PART VI. CONCLUSION (T]t is in close fourth amendment cases sum, finally unequivocally we no guidance that new law is made and longer policy sheepishly adhere to a fol- magistrates and the is most need- lowing footsteps in the of the U.S. ed. Close cases are both the hardest to Court in the area of state constitutional dispose decide and the easiest to of under analysis. independent analy- Based on our good exception; faith in such cases good excep- sis the merits of the objective the officer’s faith is clear- tion, light long-standing as viewed in Thus, est. are the de- these cases that Constitution, provisions of our Idaho likely litigate fendants are least are convinced that it is ill-conceived and dispose likely the courts most of with- cannot be reconciled with art. 17 of our reaching out the merits of the fourth Accordingly, state constitution. we con- amendment claim. citizenry clude that the of Idaho will be Mertens, The Exclusion Wasserstrom longer if better served it no controls. We ary Rule on the But It aWas Scaffold: so hold. Trial?, 22 Fair Am.Crim.L.Rev. guidance, Absent such some courts opinion, For the reasons stated the number of mistakes made believe that ex- Hays “review denied” rule is now judicial officers will increase. See State disavowed; adoption pressly the Prestwick Oakes, 126; 598 A.2d at State v. Marsa “good exception faith” la, 216 Conn. at 579 A.2d at 67. abandoned; exclusionary rule is the deci- sion of the district court the motion to Jersey Supreme reached New reversed, suppress is and the cause is re- a related conclusion: proceedings. further manded for Because may against else said for or Whatever good-faith excep- of our resolution of the good-faith the Leon issue, propri- tion we need not address inevitably inexorably diminish will ruling ety of the district court’s which de- presented in quality of evidence compel nied Guzman’s motion to the State applications. By elimi- search-warrant identity to reveal the of the confidential noncompliance nating any cost for with informant. requirement proba- the constitutional cause, good-faith exception the as- ble JOHNSON, I, III, IV, in J. concurs and us that the constitutional standard sures V(A); and in the result in concurs VI. diluted. will be I, II, III; McDEVITT, J. concurs in and Novembrino, 105 N.J. State IV, V, in in and concurs the result and VI. A.2d at 854. BOYLE, sat, in participate J. but did not exclusionary rule unencumbered opinion resignation on due to his provides good exception faith incentives the March department judiciary and the police for the applied care that each warrant to take BAKES, Justice, dissenting. Chief supported by probable in and issued is fact encouraging compli- opinion in this case reverses Nash v. In addition to cause. the “re- requirement Hays and and the constitutional Overholser State ance with then, that, rule, upon proba- denied” based on shall issue but view that no warrant “good exception cause, chances that overturns the Leon faith” it also lessens the ble exclusionary agree I their homes bro- to the rule. While innocent citizens will have the Court’s decision to overturn the ransacked the be- with ken into and rule, incomplete Hays, “review denied” see upon of warrants issued cause (Bakes, J., We 115 Idaho information. believe or inaccurate dissenting), I dissent from the Court’s deci- exclusion- effects of the these are laudable “good sion to reverse direction on the Leon group government cise officials to faith” rule. the exclusionary whom rule has been di- Accordingly, rected. good-faith Leon's “good The Leon faith” rule has been exception inapplicable. followed the courts of this state since the Court decision the case of 110 Idaho at (empha- P.2d at 1301 Rice, 109 Idaho original). P.2d 686 sis in (Ct.App.1985). This Court twice affirmed present case the law enforcement application “good of the Leon faith” presented officer his facts to judge, who rule, exception exclusionary first in warrant, issued the search directing the Prestwich, 116 Idaho 783 P.2d officer to search for and property. seize the (1989), again opin and then our first The officer executed the search warrant ion this case issued on November precisely requires. as the law As was later that, where we held “Leon is the law determined, judge, it was the not the offi- in Idaho not because of what the Court of cer, who made an erroneous determination Rice, Appeals did in State v. but because of adequate probable cause had been the merits of Nothing Leon itself.” has Excluding shown. the evidence in this case occurred since change 1990 which should will not serve deterrent effect to law holding. though Even a majority is officers, group enforcement which our overturning now the review denied rule of Johnson case said was the focus of the Nash, Hays and there is no reason to retro exclusionary rule. Nor will it deter law- actively apply overturning of the re breakers, encouraged who will be de- —not view denied rule so as to affect this Court’s engaging crime, terred —from by appli- adoption good faith rule in State v. exclusionary cation of the rule in this case. Prestwich, opinion joined three expressed Johnson, As in State v. there that, justices, who said “Leon is the law in public is a regarding concern stability Idaho not because of review denied [the proper functioning of the judiciary, rule], but because the merits of Leon expressed opinion in that cogni- as “we are itself.” The “good merits of the Leon zant of the need to ensure judicia- changed faith” rule haven’t since this ry function,” does and that there is an approved it in 1990. “imperative judicial integrity.” A con- Nevertheless, opinion the Court’s today application tinued good excep- faith rejects good exception faith to the ex- public’s tion will enhance the confidence in clusionary 1, 17, based Article § stability judicial of our institutions. However, of the Idaho Constitution. the Changing years directions after seven given reasons which this justi- Court has prior opinions two approving fying application public’s will not enhance the con- rule under Article of the Idaho § stability fidence in the integrity applicable Constitution are not to this case. judiciary. public While the can understand Johnson, In State v. accept application of the exclusion- explained policy ary rule when a law enforcement officer application behind of an law, public violates the difficulty based Article of the Idaho understanding suppression the of evidence opinion Constitution. The Johnson states: merely of a crime because it is later deter- primary good-faith The reason for the judge mined that a made an error in evalu- exception, it, as the Leon Court stated is ating support the in evidence of a search application rule warrant. would have no deterrent effect where it Accordingly, I would vote to affirm the was the judge who committed the error decision of the trial court. that invalidated the warrant and not the Leon, supra officer. U.S. at [468 JOHNSON, Justice, dissenting, 918], Here, however, 104 S.Ct. at 3418. concurring, concurring in the result. the error by was not committed Rather,

judge. respectfully I part error was committed dissent from II of personnel pre- law enforcement opinion of the Court that overrules the —the 1000 portion of decisis was discussed Chief Ail rule” and Justice denied

“review Prestwich, P.2d v. Scott application 116 Idaho 783 shie in in terms of its (1989), applicability approved highest decisions of the court of a state Leon, 897, 104 of United States construing provisions, constitutional (1984) L.Ed.2d 677 under S.Ct. applied many in this state in rule been our state constitution. 17 of article involving cases not constitutional construc Vierstra, E.g., Salinas v. tion. 107 Idaho liberated, however, by part II from Being (1985); 695 P.2d 375-76 Prestwick, rule and from denied the review State, 795, 801, Smith v. 93 Idaho P.2d V(A) I, III, IV, parts I in concur (1970); Bethke v. Idaho Sav. & concur in the result of opinion, and Court’s Ass’n, 410, 412-13, 462 Loan P.2d view, V(B)-(D) parts are my In part YI. 505-06 dicta. stability The that the rule of stare decisis RULE: A THE REVIEW DENIED legal system significant in provides our is a PRECEDENT SHORT-LIVED part I of what believe “rule of law” is part denied rule has been The review prece- If we are free to all about. abandon since at jurisprudence of this state merely dent because we convinced that day opin- our least December prior in the rule laid down case is incor- State, 115 Idaho Hays ion in liking, appeal rect or not to our then each also Nash was issued. See P.2d change potentiality to basic rules has the Overholser, 461, 463-65, 114 Idaho Court, Ap- our Court of which J., (1988)(Johnson, spe- 1182-84 peals and our trial courts have relied concurring, Bistline and Hunt- cially with Bethke, In deciding cases. Justice JJ., concurring). ley, Court, McQuade, writing pointed for the rulings prior sup- Hays, said that when this Court out that adherence In ported by a decision of our Court of these considerations: denies review of Ap- of the Court of Appeals, the decision private “1. order- furtherance of “controlling precedent peals becomes ing— principles regard any new this state with “(a). enabling people desirability The Hays, 115 Idaho there.” of law announced stage pri- plan their affairs at the decision 766 P.2d at 786. Our mary private activity with the maximum Hays premised on the rule established they comply if confidence that attainable State, Brooks Appeals in our Court law as it has theretofore been with the (Ct.App.1985) announced, fairly expected to or can be Hays, (review denied). By our decision thereafter, they will be announced part of the denied rule became the review entangled litigation. become opinion By the law of this state. private “(b) desirability providing precedent expires before today, this possible far as with stable counsel so years. reaching age of four the tender reasoning____ bases review denied The demise “(c) encouraging the desirability of there remains ponder whether causes me to settlement processes private remedial As vitality in rule of stare decisis. par- minimizing the incentives Court, rule of stare by this articulated from a different try ties to to secure “ question once delib- means ‘that a decisis has been decision than judge a different decided should erately examined and judges other given by the same or unless it is de- settled ... considered as past. con- appear monstrably made to ” and “2. In effi- of fair furtherance Scott wrong.’ manifestly is struction cient adjudication— Gossett, 329, 335, P.2d point of “(a) desirability, from the ex C.J., The (Ailshie, quoting (1945) litiga- expediting litigants, of Fischl, of the 20 P.2d view Kain v. Mont. rel. by sparing minimizing its costs (1933)). stare tion and the rule of While necessity relitigating every of them the rule of stare is not a rule of [The decisis] proposition every unreasoning acquiescence. relevant case. We will not incorrect “(b) need, merely follow decisions point The from the of view of because there, they facilitating of the are “the to judicial system, by the stand cases, indeed, dispatch the sheer and of decided to maintain business— former reexamining impossibility adjudications, de ev- contemplates of novo more than ery proposition every case. blindly following relevant adjudica- some former tion, manifestly “(c) wrong.” discouraging of of The need a rush change litigation there is a of whenever at (emphasis Idaho 462 P.2d at 506 personnel bench. on the in original). “(d) desirability, point The of from the Smith, In 93 Idaho at 473 P.2d at litigants, of to the secur- view fairness of Donaldson, writing Justice for the ing uniformity a reasonable of decision Court, said: throughout judicial system, the both performance Court in proper This the given time and from one time judicial required of its function is to ex- another. prior precedents. prece- amine its When “(e) desirability genu- The of promoting light dent is examined in the of modem impersonality ine of decision minimiz- and it reality is evident that the reason discretion, personal the of elements precedent exists, longer no facilitating of operation and precedent abandonment is not a professional check of criticism. destruction of stare decisis rather a “(f) propriety according respect The of of proper fulfillment its function. predecessor of judges. conclusions confining Stare decisis is phe- not a “(g) injustice disappointing expec- The principle nomenon but rather a of law. fairly generated stage tations at the application And princi- when of this primary private activity. ple justice, will not result in it is evident “3. In public furtherance confi- that properly applica- the doctrine is not dence judiciary— in the ble. “(a) desirability maximizing The Salinas, 107 Idaho at decisions, acceptability impor- and the Bistline, writing at 375 Justice popular tance to this profes- end and Court, for the noted: (1) sional impersonality confidence cognizant impor- While we are (2) of decisions their and reasoned foun- tance plays judicial stare decisis in the dation, respect as manifested both process, we are not hesitant reverse accorded judges to them successor doctrine, defense, when a a ourselves or staying and power. their case, holding in proven over time “(b) necessity, considering amor- unjust or be unwise. phous upon judicial nature of limits power and the usual absence effec- of an See Harrison Taylor, also box, political 595-96, tive at the check ballot 768 P.2d 1328-29 judges subject to discipline be “precedents” glean From these we can obligation the restraint to build prior decisions of should prior law in a can fashion which govern they manifestly wrong unless professional withstand test of criti- proven unjust or have over time cism.” unwise. While I am prepared accept 93 Idaho at 462 P.2d at 505-506 these limitations on the rule of stare deci- (quoting Hart, from H.M. Jr. A.M. sis, prepared I am not these to allow limita- Sacks, Legal Process: Basic Problems precedents tions to convert of this Law, Application in Making 587- ephemeral that are here into edicts Mass., 1958)). 588 (Cambridge, tentative ed. tomorrow, today gone the duration of McQuade life-span

Justice went on out in point depending composi- their on the disposition Bethke: tion This is the Court. granted, majority if a of this Court votes unwilling overrule say I am to that not petition. may grant wrong. grant We also manifestly E.g., is that precedent Johnson, Farms, opinion or order of review of an Inc. v. Houghland (1990); Appeals on our own motion P.2d 978 of Court Elisondo, pursuant to I.A.R. 120. 114 Idaho (1988). review a decision of the If we decide to Appeals, ordinarily consider of we Court analysis, I ex- this framework With of presented issues Court all the in which this Court this decision amine Occasionally, may we decide to Appeals. denied which the review overrules pre- all of the issues address less than years ago. than four established less Appeals. In the Court of that sented to must ask about the questions parties of the issues we advise the case proven to be mani- whether it has been are As to the issues we we will address. time to be wrong proven or has over festly address, we consider that we decide to Keeping in mind the unjust or unwise. in the first in- hearing the matter appellate of courts system of the structure stance, merely considering the cor- Idaho, review denied I conclude that the of of the decision of Court rectness manifestly wrong nor has it rule is neither Appeals. unjust unwise. time to be or proven over 774- Schossberger, Sato district court this appeals All from the 339-40 may No cases are to this Court. Appeals. of I.A.R. appealed dramatically to the Court review is process This of of by which the Court means the review the United different from is as- cases to decide Appeals receives of the Supreme Court of decisions States 1-2406; signment by this Court. I.C. Supreme If Court circuit courts. distinguishes relation- certiorari, This I.A.R. 108. considers the grants the Court Appeals court, to our ship of this Court Court the circuit not that decision of Supreme court, grant of the United States from that when we review as we do trial courts of the United to the circuit This Appeals. Court of our of a decision Court system, cases are In federal significant struc- States. evidence of the is further dis- courts from the appealed relationship to the circuit of this in the tural difference have their The circuit courts Appeals courts. and that of trict to our Court of Court and are autono- jurisdiction appellate own Court to the States the United subject only jurisdiction, mous within circuit courts. federal United States being by the overruled Idaho, Appeals has no Court The decision of a circuit Supreme Court. When of its own. appellate jurisdiction circuit, unless final within court is appeal, a decision receives an this Court grants certio- Supreme Court United States the case will be made whether must be In the feder- circuit. rari and overrules the by this the Court heard Court denial of certiorari appellate system, the al assigned to the If case is Appeals. precedential value affect the does not effect, has, in Appeals, this Court Court within that cir- decision the circuit court’s “You decide Appeals, to the Court of said cuit. case, es- according precedents this it, the role of recently clarified I see when We have As this Court.” tablished case, of the Court reviewing a decision decided the Appeals the Court of case, Appeals: the law decision becomes granted by this Court of unless review the Court provides I.A.R. 108 opinion By its announced. new decision all cases and decide Appeals shall hear gives all decisions majority in this case I.A.R. 118 by this Court. assigned to it stating new law Appeals ag- of the Court proceeding any party to allows in the controlling precedent status of opinion or order grieved by an state, if this even of this courts district this Court petition denied review. has not is Court Review opinion or order. review the (5)Cases This view of the effect of decisions of the involving issues which Appeals of inevitably inconsistency will there is an leave us in the decisions of uncertainty Appeals the Court of juris- with of two tiers of or of the Su- preme Court. prudence in this state. One tier will be composed of decisions of the Court of (Emphasis added.) Appeals controlling that are on the district Obviously, dispute there would not abe composed courts. second tier will be about by the effect of the denial this Court of the decisions of this Court. This view of petition of a review decision of the the role of Appeals prece- the Court of as a Appeals, Court of if the Appeals Court of setting dent negated court seems to be stating were not sometimes new law. legislation both the that created it and Whether this Court has intentionally dele the rules concerning of this Court the as- gated issues Appeals to the Court of signment of cases to it. have led law, announcement of new or lay whether these issues hidden in the 1-2406(2) I.C. states: § they assigned, cases when were the result assigning In cases to the Idaho court has been the same—the Court of Appeals appeals, of supreme Idaho court shall has announced new law this state. This give regard due to the workload of each Rice, was the case in State v. court, to the error review and correc- 985, 989, (Ct.App.1985) P.2d tion appeals, court functions of of (review denied). Rice, In Ap Court of desirability to the retaining peals held that the faith exception to supreme decision court those the exclusionary rule established United public cases which there is substantial Leon, States v. 104 S.Ct. interest or in which signifi- there are (1984), applicable L.Ed.2d 677 cant involving issues or clarification under the unreasonable search and seizure development the law. provision (article our constitution (Emphasis added.) 17). Prestwich, In § 108(b) provides: I.A.R. accept I ed this decision of the Appeals, Court of Assignment of Ap- Cases to Court of because when this presented Court was peals. Generally, cases which involve Rice, with the opportunity to review we consideration of existing legal principles Otherwise, denied review. I would not assigned will be to the Appeals. Court of accepted have application In assigning cases Ap- to the Court of exclusion of evidence under article peals, regard due given will be to the 17 of our state constitution. court, workload of each and to the error According opinion of the Court in review and correction functions of the case, Appeals if the Court of makes a Appeals. Court of Ordinarily, the Su- law, decision that states new the decision is preme will retain the following controlling on the district courts of this classes cases: state, though even this Court has had no (1) Cases which there is substantial opportunity to consider the correctness of interest; public opinion This, Appeals. the Court of (2) Cases in which signifi- there are think, I appellate turns our jurisprudence involving cant issues or clarification on its head delegating making development law, pres- or which new law to the Appeals. my Court of question ent a impression; of first view, decisions of the Court of (3) question Cases which involve a stating new controlling only law are when substantial state or federal constitutional presented peti- this Court has been with a interpretation; tion for review and denied review. In that (4) raising ques- Cases a substantial case, it seems to me that the decision regarding tion of law validity of a controlling should be on the dis- statute, county, city, or of courts, trict also Ap- on the Court of ordinance; other peals local and on this Court. When have review, opportunity had we have denied opinion of the Court

to consider support of the brief in

Appeals as well as any If for review. there petition to the correctness of a new

question as law, grant we should review.

statement should be construed

Our denial review new acceptance of the law. view, demise of the review my less, than rule will create rather

denied

more, certainty in the law in Idaho. The the review de- decision to overrule

Court’s I will vote to review

nied dictates that of the Court decision law, I new law with which

states new even Otherwise,

agree. the trial bench doubt, years, perhaps

bar will be accept reject will

whether this Court Appeals on the issue

view of the Court of

involved. Idaho, DEPARTMENT OF

STATE WELFARE, rel., AND ex

HEALTH OSBORN, Plaintiff-Appel L.

Deborah

lant, ALTMAN, Defendant-Respondent.

Gene

No. 19460. Idaho,

Supreme Court d’Alene, Term.

Coeur October

Nov.

Case Details

Case Name: State v. Guzman

Court Name: Idaho Supreme Court

Date Published: Nov 5, 1992

Citation: 842 P.2d 660

Docket Number: 17716

Court Abbreviation: Idaho