State v. Johnson

Fritz, supra, and we affirm the decision of plain-

the district court which dismissed

tiffs’ claim.

Affirmed. respondents. Costs to

716 P.2d 1288 Idaho, Plaintiff-Respondent,

STATE of JOHNSON,

John L.

Defendant-Appellant.

No. 16106.

Supreme Court of Idaho.

March Jones, Gen., Atty.

Jim Lynn Thomas, E. Gen., Sol. Fitzpatrick, and A. René Deputy Atty. (argued), Boise, Gen. plaintiff-re- spondent.

BISTLINE, Justice.

HISTORY April 13, 1982, On John Johnson was renting apartment Falls, in Idaho Idaho. The record before us contains Johnson’s affidavit, states, among other things, he was current in his rent and in all ways compliance other with his rental agreement. Sorensen, Police officer Earl the officer apart- who searched Johnson’s ment and seized the evidence that is the subject of suppress, Johnson’s motion to signed an affidavit which stated that he told Clevenger, Joe Johnson’s land- lord, that Johnson was behind his rent. Sorensen stated affidavit that Cle- venger apartment entered Johnson’s on April see if to Johnson had moved Clevenger thought out. observed what he “suspicious plants,” were called police. Sorensen’s affidavit states he respond received an “suspi- order to a arrived, cious call.” When Sorensen Cle- venger told him he had observed “sus- picious plants” and invited Sorensen inside Clevenger’s to observe them. At invita- tion, and, apartment Sorensen entered the looking around, “suspicious discovered the plants.” Sorensen testified at motion that, suppress hearing as he entered the apartment, immediately he noted several personal clearly effects which indicated to residing him that someone was therein. Nevertheless, Sorensen continued enter and, apartment looking when behind door, “suspicious front observed the Believing plants.” plants to be mari- juana, apartment left the Sorensen to ob- suspect- warrant in tain a order seize ed contraband. support

The affidavit filed in Sorensen procured the warrant he states follow- ing: Falls, Whittington,

Kent E. Idaho Your Order to Affiant received an defendant-appellant. Respond suspicious from Joe to a call testimony uncontradicted revealed

Clevenger, landlord of the above ad- enter. landlord invited the officer dress. Clevenger all, 2. Mr. indicated that the indi- any reason at giving Without # renting apartment vidual 7 had district court denied Johnson’s motion to Nevertheless, non-pay- been told to move due to suppress. because the dis- ment of rent. He further indicated thought important trict how the court 12th, 1982, April entered, night, that last officer the court must have upon the had to see if reached its conclusion based be- entered could consent moved lief that Johnson’s landlord the renter had and observed of Johnson’s home. officer’s search suspicious plants growing gal- in five appealed, Johnson and his case was as- lon buckets. signed Appeals. special A Court of April day, your 3. On this court, panel comprised of of that Justice requested by affiant was Mr. Cleven- Joseph Huntley, Robert C. retired Justice ger to enter the and ob- McFadden, Judge and retired District into, plants serve these and was let Towles, unanimously James G. reversed by Clevenger the Mr. and opinion— the exhaustive district court plants. observed said by which was in turn added an additional upon your experi- 4. Based affiant’s opinion petition on denial the state’s for ence, plants the he believes to be Johnson, rehearing. State v. marijuana further and believes that (Ct.App.1985). 701 P.2d 239 The state large plants, due to the number of petitioned has now this Court for review. material, para- additional useable phernalia and records will be located I. THE SEARCHES apartment. said noted, Appeals As the Court of there Items 3 and 4 of the affidavit were based were three of Johnson’s home: searches on the personal officer’s observations while landlord, by the first search the the second inside argues Johnson’s home. Johnson by search the at the landlord’s invi- officer that these two items should be excluded prior obtaining tation but to the of a valid from the affidavit because are "fruit” warrant, by search the third search and of the officer’s entry unconstitutional into obtaining officer after warrant. argument his home. predicat- Johnson’s is landlord, by The first search ed on the fact that he was unaware of and Johnson, although by not consented to im entry did not consent to the officer’s into plicates no interests of the Fourth Amend home, his and that his landlord was without ment or art. 17 of Idaho Constitu § authority, such Fourth for Amendment provisions only prohibit tion because those purposes, to to the entry. consent officer’s illegal searches and sei governmental therefore, concludes, Johnson that because Jacobsen, zures. United States the officer entered Johnson’s home without warrant, entry search were il- Pontier, Idaho legal. Thus, all evidence discovered and is the It latter two obtained as a result search turn our attention. searches to which we suppressed. should have been involving issues The second search raises The district court denied Johnson’s mo- police of the officer whether the conduct suppress. tion to The district court constituted a search Fourth Amend thought important it to discover how the purposes, ment and art. whether § officer entered Johnson’s home—whether it adequately Johnson’s landlord could con in response home, landlord’s invitation sent to a search of Johnson’s response or whether in legitimate expecta officer’s re- whether Johnson had quest. question Said the court: “The I tion of was violated in this want to know the validity depends answer is who insti- case. The third search’s R., gated 1., entry?” p. Vol. large degree upon validity 10. to a of the The ment____” independently second search. It also Respondent’s raises Support Brief in involving issues validity search Rehearing, p. Petition for 9-10.1 In the warrant, probable cause, what constitutes view, state’s the officer’s conduct was a and what constitutes tainted evidence that “police viewing” of what Johnson’s land- must suppressed. be uncovered, lord had and not search. Re- spondent’s Brief, supra, pp. 9-10. We re- A. The Second Search in This Case Im- ject characterization, finding the state’s it plicates Rights Protected factually legally without merit. Fourth Amendment to the United The States upon2 cases the state Constitution and Art. 17§ relies do not the Idaho Constitution. support the state. Each these cases turning over private involved a individual begins by arguing The state private results his or her search to there is no issue of consent in this case not, government. They with do because police viewing “the of the results Lucas, possible private exception of the was not a search within Eisentrager, supra,3 the confines of the Fourth police Amend- a- involve offi- state, Although unmentioned but raised stolen contraband he had in the discovered de- Johnson, clothing. an issue art. § 17 Idaho fendant’s The officer did not prohibits Constitution also unreasonable personal also search the or effects of wording very searches and seizures in that is defendant looked at what the similar to that contained in the Fourth Amend- private individual had uncovered. however, wording, ment. Similar essarily does not nec- officer, readily apparent al- interpretation. demand similar though apartment, inside defendant’s is, unanimously reason for this as this Court warrant, independent without a no conducted Newman, 5, declared in 6, v. State 10 n. merely search of his own observed the fruits 856, (1985): 696 861 n. P.2d 6 private original express search. While we and state [The] federal constitutions derive opinion propriety no to the of as power independent their from sources. Lucas, government the action in we note the [Thus,] liberty state courts are at to find with- qualitative substantial difference exists provisions in the of their own constitutions case, our we between it and wherein do have an greater protection than is afforded under the search, independent government inside the de- interpreted federal as constitution the Unit- home, and of fendant’s at the invitation the Hass, Supreme Oregon 1215, 1219, ed States Court. v. See landlord. 420 U.S. 43 Eisentrager, Appeals As for the Court of accu- This is true even when rately distinguished the this case facts of provisions implicated the constitutional con- Eisentrager following those found in in the man- gone phraseology. Long tain similar are the ner: days blindly apply when state courts will Unit- Eisentrager, landlady In a reason to be- had interpretation ed States Court apart- his lieve that her tenant had vacated methodology process interpret- when in the of apartment ment. entered the and found She ing (Emphasis their own constitutions. add- corpse the hidden the tenant’s wife under a ed.) Eisentrager, blanket in a closet. stated, In the court Jacobsen, Pontier, supra; supra; United 2. States corpse presence the was “the hidden (7th Cir.1980); Bulgier, v. 472 United 618 F.2d (the strongest possible to lead her the evidence McDaniel, (5th Cir.1978) States v. 574 F.2d 1224 landlord) Eisentrager had to believe that aban- 952, 2181, denied, S.Ct. cert. 60 441 99 finding apartment____’’ doned the corpse After the Haes, 1057; L.Ed.2d United States v. 551 F.2d landlady police who en- the called the Blanton, (8th Cir.1977); 767 United v. 479 States Eisentrager apartment. tered the court Hocker, (5th Cir.1973); Eisentrager F.2d v. 327 corpse finding the concluded that the Cir.1971); (9th Clayton v. 450 F.2d 490 States, United owner, posses- landlady, right to had a take denied, (9th Cir.1969) 297 cert. 413 F.2d police apartment, sion of the invite the 565; 2204, L.Ed.2d 399 U.S. S.Ct. 26 90 Thus, search. the time the enter and Watkins, (D.C.Ala.1964) Gandy F.Supp. 266 v. Eisentrager apartment officers entered that denied, S.Ct. rt. 380 U.S. ce longer expectation no a had reasonable 965; State, v. So.2d 140 L.Ed.2d Lucas case, privacy in it. The facts of the instant Morris, (Miss.1980); N.C.App. State course, time the officer are otherwise. At the 254 S.E.2d 241 residence, clearly entered Johnson Johnson’s expectation legitimate retained a Lucas, accompanied In officer the the Salvucci, it. United States private to the that the indi- individual L.Ed.2d Katz apart- vidual had While inside searched. ment, officer individual showed with what tional view is not harmonious into a home following private citizen cer and state consti- conducting independent search framers of our federal pro- noted: Appeals they put these that home. As Court intended when tutions constitutions, we so suspected tections into our In the instant case ... turned over contraband was not hold.

authorities; instead the landlord invited to claim that of no avail for the state It is dwelling private the officer to enter “unwittingly” entered police officer first-hand. the contraband observe discovery his was apartment or that case, was suspected contraband this discovery the evidence. “plain view” view; plain landlord had not and the clearly that Johnson’s His affidavit states nor delivered personally neither seized were him that there landlord informed police. The had to enter it to the officer (the police which he “suspicious plants,” dwelling in to see it. private order Thus, officer) knew should see. the officer Fourth Amendment The fact he home that entering Johnson’s before reach the landlord does does not alleg- entering in to ascertain some if officer, government offi- mean that were, plants” fact, edly ‘’suspicious cial, immune from its sanctions is also contraband. accompanied the land- simply because Johnson, supra, 108 Idaho at lord. testified at the mo The officer also (emphasis to “offi- 701 P.2d at n. prelimi hearing, and at the suppress tion to emphasis original; remainder of cer” hearing, that: “As I went into nary added). personal I observed several in this case There is no evidence still lived indicated someone items from which Johnson’s landlord could have Nevertheless, testified the officer there.” had concluded that Johnson abandoned to enter Johnson’s that he continued apartment. contrary, the record On feet—to approximately five or six home— personal reveals that numerous Only “suspicious plants.” effects for the home, suggest- were in Johnson’s found looking a door did officer after behind home, that, ing, abandoning his far from “suspicious plants.” alleged discover living he was still there. was not clear that the evidence illogic argument of the state’s that plain officer, The view” “exposed to the of entry con- the officer’s and search did not only a not have “not and that he did for Fourth Amendment stitute a search he to be where duty” also a right, but noting the purposes is best observed 606, 608, Ellis, 586 99 Idaho was. State application flow from of results that would added). (1978) 1050, (emphasis 1052 P.2d If to have its argument. its the state were 730, Brown, 103 460 Texas v. U.S. See also apparently ar- way point, on this it would (1983) 1535, 1540, 75 L.Ed.2d 502 gue following that the scenario is outside plain (“The property in question whether private protection: A citizen may therefore be seized view of home, claiming to be in search ransacks a legality of the intrusion must turn on the discovering the al- Upon contraband. of physical and perceive them to that enables contraband, leged the citizen calls question.”). Ac ly property seize ransacking a second of police who conduct argument must any “plain view” cordingly, home, searching every- looking and also fail. everything as did the inspecting where and knew that the landlord The officer state, According to the because citizen. that, just a land requesting the search was only “viewing” is the citizen’s the officer lord, certainly not a nothing “merely” retracing the citizen’s more— efforts — is The officer spouse or a co-tenant. government activity is out- footsteps —such which, law, knowledge imputed with purview federal and state con- side the of below, part infra, I.B.2. as we detail see protections. Such an abbera- stitutional 625, added). Johnson, (1967). (emphasis supra, ho at 701 P.2d at 245 108 Ida- L.Ed.2d 576 522 among things,

includes other fact 2. that The Landlord Did Not Au- Have (1) are per thority warrantless searches se to uncon- Consent to the Search of stitutional, Home. specific exception unless a Johnson’s to exists, (2) the rule that a landlord’s The of proving burden con permit consent is insufficient govern- to a sent given, has been person that the ment official to search the home of a rent- giving so, authority the consent had to do prima er/lessee. we have a Matlock, is on the state. United States v. facie case, point even as seen view 164, 171, 94 S.Ct. 39 officer, rights where under the (1974); Post, State v. Idaho 98 1, 834, Fourth art. 837, 153, Amendment and 17 have 573 P.2d 156 § over implicated. been ques- We turn now to the ruled grounds, on other State v. Bottel son, 90, rights tion whether those were Idaho P.2d 1093 It violated.

is conceded that Johnson’s con landlord B. sented to apart Johnson’s Landlord Did the search Johnson’s Not Have issue, however, ment. The

Proper is whether Consent Authority to to the had authority to do so. The United States Police Search Johnson’s Officer’s supplied Court has the test Home. which to determine whether a party third 1. Introduction. authority had to consent to a search a It axiomatic warrantless government official: unreasonable, per searches are se prosecution justify seeks to a [W]hen unconstitutional, specifi therefore unless a by proof voluntary warrantless search cally exception enumerated ap this rule consent, proof limited is not Bottelson, plies. State v. 102 Idaho defendant, given by consent (1981); Ellis, P.2d State v. permission show that to search was 99 Idaho P.2d party pos- obtained from third who Harwood, authority sessed common over or other Basically, relationship premises or sufficient sought effects exceptions inspected.7 to be there three common (1) warrant rule: incident a search to a is, course, authority Common not to arrest, Harwood, lawful implied property from the mere interest a third party property. authority 163; (2) has in the response P.2d at justifies third-party rest consent does not circumstances,4 Id., (3) exigent property, the law with its attendant pursuant giv to properly search conducted refinements, legal Chapman historical and see v. United en consent. Id. (landlord validly L.Ed.2d could not argument any There is no of these consent to the search of house he had rented another), California, exceptions apply except excep- the consent Stoner (1964) (night hotel Specifically, only tion. the state can ex- validly of clerk could consent to search not the in this case if cuse warrantless search room) rests rather on use customer’s mutual joint persuade property by generally having it can us that landlord had persons of purposes, it is access or most so that control for proper authority to consent to the recognize any that reasonable to co-inhab- that the landlord officer’s search. We hold right permit inspection in itants has the authority. did not have such right have his own and that others assumed (search (1967) probable in patterns cause for and 4. Courts various fact with found circumstances, constituting exigent felony pursuit fleeing dangerous and have ac hot of a cordingly requirement Barone, waived the warrant suspect proper); United States v. 330 is See, Cir.1964) e.g., cases. the Fourth Amendment in these (2d U.S. F.2d rt. denied 377 543 ce Perez, (N.D. F.Supp. United States v. 440 272 1004, 1940, (search 84 S.Ct. 12 L.Ed.2d 1053 1977), (6th Cir.), 584 cert. Ohio 571 F.2d emergency upon apparent aff’d val based id); medical is 998, 1652, 435 U.S. 98 S.Ct. 56 L.Ed.2d 88 denied 244, McCleary, P.2d State v. 116 Ariz. 568 (1978) (upholding explo search for warrantless 1142, (1977) (warrantless search for bound 1143 sives): Maryland Penitentiary Hay Warden v. proper). gagged robbery victims is 1642, den, 294, U.S. 18 L.Ed.2d 782 387 87 S.Ct.

523 might permit the the common that one their number risk below, the reasons set forth we and for Matlock, area,to be searched. su- landlord was without hold that Johnson’s 171, (emphasis pra, U.S. at 94 S.Ct. at 993 415 purposes either the Fourth authority for added). 1, give Amendment or art. 17 to effective § is, inquiry our in the words of a search of Johnson’s home. consent Court, United States whether is holding for in this case proven that landlord The reason our state has Johnson’s any present unable to property,” the state was had “mutual use landlord had “mu- risk that evidence that Johnson’s whether “assumed the Johnson property” or that Johnson might permit the com- tual use of landlord] [Johnson’s “assumed the risk that mon area to be searched.”5 landlord] [Johnson’s area to be might permit the common person’s A home “is accorded Matlock, at searched.” pro range the full of Fourth Amendment 171, 7, 993, at n. 7. Further- n. 94 S.Ct. States, 385 Lewis United tections.” more, in this case reveals that the evidence 211, 424, 427, 206, 17 87 S.Ct. L.Ed.2d U.S. legitimate and reasonable Johnson had (1966). Moreover, entry “physical 312 expectation in his home. There against evil which the home is chief that he had abandoned his is no evidence is wording the Fourth Amendment he still There is evidence that residence. directed____” United States v. United residing given This was in the was there. Court, 297, 313, States District 92 testimony officer form of the 2125, 2134, (1972) (em 32 L.Ed.2d 752 offending search.6 performed who Louis, 296 added). See also State v. phasis (The 57, 708, (1983) 710 de Or. 672 P.2d period had ex Whether the rental “living quarters quin are the fendant’s ... yet has not pired is a factual issue that protected by tessential domain the constitu de That issue need been decided. guarantee against tional warrantless case, however, in of this cided the context searches.”); accord, Martin, 139 entirely was because we hold Johnson 489, Ariz. 679 P.2d 496 Our his landlord to resort justified expecting make no distinction between constitutions procedures required law to the eviction long living quarters. owned and rented So seeking resorting self-help rather than premis as a tenant has not abandoned the in his payment if he was fact behind rent es, protection of the Fourth Amendment Botelho, 360 rent. United States 17 is not lost. Abel v. and art. (D.Hawaii 1973); Unit § 624-25 F.Supp. States, 217, 241, 683, 698, Olsen, 80 S.Ct. U.S. F.Supp. 644-45 ed States v. Or.App. Taggart, (D.Mont.1965); State (1971).7 P.2d Applying the test announced other Matlock, holding is consistent with what supra, 415 U.S. at 171 n. Our For case, in similar situations. courts have held at 993 n. to the facts of this injured resort landlord can questions important her rent is 5. The reason these before 6-310, possession, or § I.C. 17 are to an action § the Fourth Amendment and art. is expec damages, IE. Until written notice protect person’s legitimate I.C. 6-31 designed § however, non-paying given, tenant is not "society prepared privacy, tation of ” Illinois, detaining unlawfully the law as recognize Rakas v. viewed as ‘reasonable.’ 6-303(2). premises. I.C. § L.Ed.2d rented U.S. 99 S.Ct. (1978), quoting v. United Katz suggest nothing in this record to There is 507, 516-17, L.Ed.2d unlawfully detaining the searched Johnson accord, (Harlan, J., concurring); Bot requirements premises enumerated above —the telson, supra, 102 Idaho at Our the landlord. have not been followed land- that Johnson’s reveals no evidence record expectation evidence of Johnson’s gave 6. Additional notice of non- Johnson written lord ever by readily that the privacy by inferred the fact spelled is I.C. 6- payment 303(2) §§ rent as out concealed, Therefore, marijuana plants not hidden or were record we the and 6-304. pots openly around the room. occupancy situated in of the reveals that Johnson’s have legal. was premises He therefore rented expecting protection the subse- 6-303(2) notify justified requires in a landlord that § 7. I.C. from quent government and search. intrusion writing his or an individual who is behind in in 524

example, Appeals noted, as the Court of search or is seizure in inadmissible the give lessor/landlord cannot effective con criminal trial of a defendant. Weeks v. States, house, 394-98, sent to Chap 383, a search of a rental United 232 U.S. 34 341, 345-46, States, 610, man v. S.Ct. 58 United 365 81 L.Ed. 652 U.S. 776, 298, Gouled v. (1961), S.Ct. 5 255 U.S. apart 306-07, ment, 41 People Boorem, 233, S.Ct. 65 L.Ed. 647 184 Colo. 519 (1921).8 “judicially The is a (1974), rule created house, P.2d 939 in a rooming room effectuating means of rights the secured 56, Warfield, 184 Wis. 198 N.W. by the Fourth Amendment.” Stone (1924), hotel, 854 Stoner v. California, Powell, 3037, 428 U.S. 96 483, S.Ct. 889, U.S. S.Ct. 11 L.Ed.2d 856 (1976). (1964), locker, State, or even a Murdock v. (Alaska App.1983). P.2d 589 The rule was first established the Supreme Weeks, United States in Court 3. Conclusion. Gouled, supra, supra. In v.Wolf Colorado, 25, 27-28, (1) We 338 U.S. S.Ct. following: therefore hold the that 1361-62, Supreme the L.Ed. 1782 the second search the officer at held rights protected by Court that invitation of Johnson’s landlord was a Fourth Amendment are enforceable purposes search for of the Fourth Amend against the through process states ment; (2) the due legitimate Johnson had a clause of the Fourteenth Amendment. The expectation reasonable held, however, explicitly Court home; (3) his applying the United exclusionary Weeks-Gouled rule would not Supreme States Court test found in Mat imposed upon supra, the states. lock, supra, 415 171 n. U.S. at at S.Ct. Wolf at 69 S.Ct. at 1362. Twelve 993 n. authority the landlord did not have later, years mind, changed its Court home; to to consent the search of Johnson’s holding exclusionary appli- that the is rule officer, having that the not Ohio, cable to the Mapp states. search, consent to conduct there 643, 654-56, 1684, 1691-92, 81 S.Ct. being applicable other exception no our L.Ed.2d requirements, constitutions’ warrant con and, therefore, ducted an unreasonable un Mapp majority justified applica The constitutional search. we turn tion of rule to the states on several remedy necessary issue of what is cor First, grounds. prevent the rule would rect the unconstitutional conducted use of evidence which was “tantamount” to here. a coerced confession. Id. at Second, at 1692. the rule would serve as a II. THE EXCLUSIONARY RULE deterrent to Fourth Amendment violations.

APPLIED TO THE FACTS OF Third, Id. at 1693. S.Ct. at rule

THIS CASE protect judicial integrity. would Id. at Subsequent at decisions 1693-94. A. Introduction. of the Court have clarified the reason for 1. Federal Law. rule, stating primary purpose that its is Stone, rule supra, states that of deterrence. evidence obtained as a result of an at 3048-49.9 seizures, against approved Weeks this Court of the be secure such searches and value, and, Myers, placed doctrine in State v. of no so thus far as those concerned, 211 P. 440 might as well are be stricken the Constitution. The the courts and efforts of Court, establishing 9. The exclu- bring guilty punbh- their officiab Weeks, succinctly sionary rule in de- ment, are, prabeworthy as to be purpose scribed the rule as follows: great principles aided those sacrifice private If letters and can thus be documents by years suffering establbhed endeavor and against seized and held and in evidence used resulted their embodiment offense, protection accused of an citizen Weeks, law the land. su- fundamental Amendment, right declaring of the 4th

525 exclusionary Mapp, supra, efficacy long of the rule before the Since Supreme required States Court states to exclusionary rule has come under attack. proceedings. apply it in state court Stone, 487-92, State supra, See 428 U.S. at 96 43, 49-57, 788, 44 P. Arrequi, v. Idaho 254 S.Ct at 3049-51 and sources cited therein. Conner, In 789-92 State v. 59 Ida fact, Stone, although holding In that the 197, (1939), ho 89 P.2d this applicable on rule was still at trial and already Court could state: actions, appeal direct in criminal the United rule in this state that The is well settled Supreme States Court held that the rule is evidence, procured in of defend- violation applicable corpus in federal habeas immunity ant’s proceedings provided where the state has seizure, is inadmissible and opportunity the criminal defendant an request sup- will be excluded if for its litigation full and fair of his or her Fourth (State pression timely be made. ... v. 494,10 Amendment claim. Id. at 43, 788; 44 Ida. Arrequi, 254 Pac. 3052. 463; Wansgaard, A.L.R. 46 Ida. State 20, 671; Severns, 265 Pac. State Law. State 246, added).11 (emphasis Ida. 273 Pac. 940 holding Because of the in Mapp, Thus, 1927, early from as this Court has supra, exclusionary by rule as defined held that a violation of an individual’s con- applica rights against the United States stitutional Court unreasonable Newman, searches will result in the exclusion of il- ble to Idaho. As stated in su legally however, seized evidence. pra, that does not mean that this appropriate protec Court will not afford subsequent Arrequi to have not Cases tions under the Constitution of Idaho. niggardly treated the rule in a Newman, 10, supra, 6, 108 Idaho at n. Rauch, way. example, in For Indeed, 592-93, P.2d at n. 6. recog this Court Idaho 677-78 validity necessity (1978), nized the of and for the Justice Donaldson authored this pra, effectual, (emphasis U.S. at 34 S.Ct. at 344 the court must become a added). party by receiving proof. to it the results as I so, pro- decine to and hold that evidence .do Stone, subsequent 10. Cases have con- search, by cured or unreasonable applicability tinued to restrict ary of the exclusion- it, purpose which was to discover and seize Leon, example, For rule. in United States v. objection timely proper is inadmissible 3419-20, if introduction, be made to its because it was (1984), L.Ed.2d 677 clusionary the Court held that the ex- rights guaran- procured by an invasion applied rule should not be so as persons by teed to all within this state sec. prosecution’s bar the use of evidence in the case Constitution, it, art. and to admit by acting in chief obtained an officer in reason- against case over criminal by able reliance on a search issued warrant defendant violation, objection, magistrate would be a ultimately detached such an and neutral court, found to be invalid. sec. thereof. guardians of American Segura These sections In v. United liberty justice come us from the with as did Court held that a valid same source and those, like sacrifice warrant was means adequately distinguishable purge equally greatly prized, more evidence of but not any arising illegal entry whereby guaranteed religious liberty, "taint” from an we are arms, search. by jury, right peace- to bear trial applicability Segura assemble, Leon and ably speech, liberty free of the facts of this case will be discussed below. See many press, safe- other constitutional II.C., Part which, guards, infra. been faith- because have courts, accomplished fully upheld Morgan eloquently 11. Justice of this Court artic- agency any more than has other to make this ulated the basis which to establish the peoples government one which the dissent, exclusionary rule in a 1918 which was Anderson, may profitably copy. earth State Morgan part: cited to Conner. Justice said in 174 P. disregard, order the total disclosed J., added). (Morgan, dissenting) (emphasis record, safeguards this these constitutional opinion, applying Court’s of unreasonable, Johnson’s landlord was suppress by rule to police evidence taken unconstitutional, and therefore we also officers violation of Idaho’s “knock and gained hold that the evidence as a result of statute, announce” which is contained at case, the search must In be excluded. this 19-611 and I.C. 19-4409. §§ the items of person- evidence obtained were 387, In LePage, Sorensen, v. by State Idaho 391- al observations Officer who 92, 674, 678-79 cert. de used that to evidence file an affidavit and nied, 454 U.S. 102 S.Ct. 70 obtain a search warrant in which return L.Ed.2d this Court declared that al apartment Johnson’s confiscate primary though purpose of the exclu contraband. The observations Officer sionary misconduct, rule is deter Sorensen are listed as items 3 and 4 on his additional for use reasons its exist. Said in support affidavit of the warrant the Court: sought, which for convenience are restated: Finally, cognizant we are of the need 13, 1982, day, April your this On judiciary function, to insure that the does requested by affiant was Mr. Cleven- perceived functioning, as in a man- ger to enter the and ob- ner consistent with the individual consti- plants serve these into was let rights, federal, tutional both state and of apartment by Clevenger Mr. appear all justice. who before the bar of plants. observed said primary purpose While the of the exclu- sionary undoubtedly po- rule is to deter upon your experi- 4. Based affiant’s misconduct, lice it is also true that at ence, plants he believes the to be point some the courts must re- marijuana and further believes that to countenance certain behavior fuse large plants, due to the number of part agen- on lawof enforcement material, para- additional useable cies. “Courts ... cannot and will not phernalia and will be located records party to lawless made invasions of apartment. in said rights citizens of Because this evidence was the result of permitting unhindered use the fruits search, they Ohio, Officer Sorensen’s unlawful Terry such invasions.” of U.S. 1, 13, 1868, 1875, 88 S.Ct. Segu 20 L.Ed.2d must be deleted form the affidavit. imperative ju- ra, 3386; While “the supra, 104 Wong Sun integrity,” dicial Elkins v. United States, 471, 484, United 83 S.Ct. States, 80 S.Ct. 407, 415-16, Nardone (1960), not be States, U.S. primary reason refusing allow 266, 267-68, 84 L.Ed. 307 We use unconstitutionally evi- seized of the therefore turn to rest affidavit trial, certainly it requires dence at us to if by Officer determine filed Sorensen to alleged exercise our discretion to review mag adequate by which the contains facts rights errors affect substantial probable istrate have concluded could ‘‘plain” in the sense that it is evident of the for issuance cause exists (Emphasis has that mistake occurred. warrant.12 added.) excised affidavit reads The rest follows: Application Exclusionary B. Rule Requires Suppression the Evidence Affiant received Order 1. Your in This Obtained Case. suspicious Respond to a call from Joe Clevenger, ad- landlord of above we Because have held that search Officer Sorensen at the invitation dress. illegality inquiry independent

12. We make because the rule source this originated challenged evi- Lumber Co. v. United have discovered the Silverthorne would dence, admis- evidence seized is nevertheless Accord, (1920), Segura, 104 S.Ct. at 3386. L.Ed. 319 that where sible. Clevenger 2. Mr. indicated that the indi- Lang, renting vidual # 7 had P.2d this adopted Court been told to move due to non-pay- “totality Gates circumstances” test. ment of rent. He further indicated Applying facts, that test to the we instant 12th, night, April that last hold that magistrate would not had entered the to see if probable found cause issue the warrant the renter had moved and observed based on the information prop- which was suspicious plants growing gal- in five erly before him.

lon buckets. The information contained in the determining validity of a search war remaining of two items the supporting affi rant, pertaining to the factual assertions conclusory, davit provide were and in no therein, contained the United States Su “ ‘veracity,’ formation as to the ‘relia [or] preme Court recently reformulated its ” bility,’ Gates, 104 supra, S.Ct. at of rules standard of review. In Illinois Johnson’s landlord. We also do know Gates, 213, 103 2317, 2332, S.Ct. way plants what were “suspicious.” (1983), 76 L.Ed.2d rejected the Court If by “suspicious” Johnson’s landlord “rigidity” “two-pronged of the test” meant “suspected being marijuana,” Texas, Aguilar established 378 U.S. there is nothing in affidavit indi 108, 114, 1509, 1514, L.Ed.2d cates identify that Johnson’s landlord could (1964), Spinelli States, v. United marijuana a plant if he saw one in the first 410, 416, place. contrary, plain To the inference L.Ed.2d 637 “totality a for of the not, Thus, is that he could and did not. circumstances” test. Gates test magis there is no evidence which the amounts to following: trate could if determine Johnson’s landlord The task issuing magistrate of the proper id., had a of knowledge,” “basis simply to practical, make a common- Ap conclude As as he did. the Court of whether, given sense decision all the cir- noted, peals did landlord not describe cumstances set forth in the affidavit be- any way suspi allegedly whatsoever the him, fore including “veracity” plants; cious description nowhere is there a persons “basis of knowledge” supply- sizes, plants’ shapes, number ing information, hearsay there is a fair leaves, or color in terms that would have probability that contraband or evidence permitted if magistrate to determine a crime particular will be found plants were in fact contraband. John Gates, place. supra, 103 S.Ct. at 2332. son, supra, 108 Idaho at The Court went on further to articulate the appellate standard of review for courts in To rule support that the affidavit does reviewing magistrate such decisions: probable cause determination would consti- duty reviewing of a court is “[T]he tute the “mere ratification bare con- magistrate to ensure that the had a ‘sub Gates, supra, clusions of others.” basis concluding]’ stantial ... Id., something probable quoting cause S.Ct. at 2332. This is we refuse existed. Jones do, prohibited doing, are under (1960).13 hold, our Constitutions. we based cause; re-emphasized probable 13. The Gates Court the fact mine his action cannot be “ ‘veracity,’ ‘reliability’ informant’s “basis mere the bare conclusions ratification knowledge’ highly of mining are all relevant in deter- ensure others. In order to that such an abdi- Gates, report.” the value of occur, duty magistrate’s cation of the does not opinion S.Ct. at on 2327. Further in the conscientiously courts must continue review following: states the Court sufficiency on which warrants affidavits presented Sufficient information must be added). (emphasis issued. Id. at 2332 magistrate to allow to deter- official upon items and 2 of Officer Sorensen’s issuing cases where magistrate whol- affidavit, that there was not a substantial ly judicial ...; abandoned his role basis magistrate which the could have circumstances, such no reasonably well- found that there was a fair probability that trained rely officer should on the war- contraband would be found inside John- rant. Nor would an officer manifest ob- son’s home. all the circumstances “[G]iven jective good relying faith in on a warrant him,” set forth in id., the affidavit before based on an lacking affidavit “so in indi- we hold that there was insufficient evi- probable cia of cause as to render official magistrate dence which the could have belief in its entirely existence unreason- probable found cause. Finally, able.” ... depending on the cir- particular case, cumstances of the

Because the war- warrant improperly facially deficient-i.e., rant be so granted, in pursuant the search conducted failing Therefore, particularize place was unlawful. all evidence to be seized as a result things of that search searched or the must be to be seized—that suppressed, and we so executing hold. officers reasonably cannot

presume Leon, it to be valid. supra, 104 (citations omitted).14 S.Ct. at 3421-22 C. Exception Application The Exclusionary Rule Announced in Segura, supra, decided the day same as Leon, supra, Inap- States v. Is Leon, amplified upon the various factual plicable to the Facts This Case. scenarios discussed in In Segura Leon. suppression the Court stated that would be above, As mentioned see n. “ justified challenged when ‘the evidence is Leon, United States Court in su- in product illegal govern some sense the pra, 3419-20, provided yet S.Ct. at ” activity.’ ment Segura, supra, 104 S.Ct. exception new to the exclusionary rule. 3391-92, quoting at United States v. The Court held that even where a search Crews, upon warrant does probable issue

cause, Segura The long so upon as the officer relied say Court went on to objective good warrant that evidence would faith the exclu- suppressed sionary apply. rule need not be if it would not have been illegal discovered “but search. Id. for” The Leon Court went on to discuss four Thus, at 3391. the thrust of Leon exclusionary instances which the rule is sure, Segura, exclusionary to be is that the applicable: still only employed rule should be when it will Suppression appro- therefore remains an serve the deterrent effect for which it was priate if remedy magistrate judge or Leon, supra, created. 104 S.Ct. at 3412- issuing a warrant was misled infor- 16, 3419; Segura, supra, 104 3385- mation in an affidavit that the affiant knew was or false would have known generated much except Segura was false for his Leon have reckless dis- regard debate.15 not enter that debate exception of the truth. ... The We need recognize today apply “good we will also not and decide whether faith” Leon’s Novembrino, N.J.Super. 14. The Leon Court nowhere states that this list is State v. below, (A.D.1985); Wisconsin, A.2d State v. Graw to be an exhaustive list. As we discuss ien, (1985); reasoning Segura clearly 123 Wis.2d 367 N.W.2d 816 reveals that the Minnesota, Houston, quoted list herein could not have been intended 359 N.W.2d 336 being comprehensive as list for when the exclusionary apply. rule shall following adopted states Leon: Indi constitutions, ana, State, interpreting (Ind.App. 15. In their own Mers v. N.E.2d York, Arkansas, State, rejected 1985); following states have Leon: New McFarland & Soest People Bigelow, Virginia, 66 N.Y.2d 497 N.Y.S.2d 284 Ark. McCary 684 S.W.2d 233 Commonwealth, (N.Y.1985); Jersey, 488 N.E.2d 451 New 228 Va. exception adopted part judge should be of Ida- who committed the error that invali- law, ho find it dated the warrant and not the because we offi- Leon, supra, 104 inapplicable to the facts of this case. cer. S.Ct. at 3418.

Here, however, the error was not commit- clearly Segura controls. “But Rather, judge. ted the error was for” illegal Officer Sorensen’s initial personnel— committed law enforcement search, he could not have executed the precise group government officials magistrate affidavit relied to whom the rule has been when he issued the search warrant. Con Accordingly, good-faith directed. Leon’s trary Segura, where all the information exception inapplicable. for the challenged included in the warrant was de above, reasons stated we hold that the evi- sources, legal way rived from and in no sup- dence obtained in this case should be prior police connected to the officer’s ad pressed.

mittedly illegal entry, here the information support needed to Officer Sorensen’s affi III. CONCLUSIONS “wholly davit—items 3 and 4—are not un forget We must never the reasons for related,” Segura, supra, 104 S.Ct. at which the Framers of our constitutions prior Rather, to the search. adopted the Fourth Amendment search, are the should fruit of suppressed. United States Constitution and art. 17§ thus be Id. at 3386. of the Idaho per- Constitution. Time has haps memory dimmed our of the out- Another why good- reason Leon’s rageous privacy dignity invasions of holding inapplicable faith applica is is that the colonists suffered at the hand of Brit- exclusionary tion of the rule in this case ish rule.16 effect, will serve a deterrent which is requirement Leon’s for determining when forget We must also never that a viola- Leon, apply court should the rule. su person’s tion of one Fourth Amendment 3420; pra, 104 S.Ct. at Massachusetts v. rights and art. is a violation of § Sheppard, 104 S.Ct. every person’s rights. Only by suppress- (1984) (decided evidence, ing illegally obtained and de- Leon). day same Ruling as we do conduct, terring illegal future can a court today re-emphasizes government offi effectively protect people innocent im- from importance cials the obtaining a search permissible invasions of their constitutional warrant a magistrate before conduct rights. eloquently As Justice Jackson stat- ing a search unless one of the several nar ed: row, exceptions apply. enumerated Such protect Courts can innocent re-emphasis, believe, we will deter future against [illegal] only indirectly invasions unlawful searches and seizures. through excluding the medium of why A final reason good-faith Leon’s against evidence obtained fre those who exception inapplicable is because the rea- quently guilty____ So a search exception son applicable for is not here. against Brinegar’s regard car must be primary good-faith reason for the ex- Everyman. ed as a search the car ception, it, as the Leon stated States, Court is that Brinegar v. United application 1302, 1313-14, rule would 69 93 L.Ed. 1879 (1949) added). have no deterrent (emphasis effect where it was the Louisiana, Wood, history tracing underlying S.E.2d 637 State v. 16. For a causes Missouri, (La.Ct.App.1984); 457 So.2d adoption State and eventual of the Fourth Amend- ment, Matlock, 180-83, Horsey, (Mo.Ct.App.1984); S.W.2d 847 see 415 U.S. at n. Arizona, Bolt, 997-99, J., (Douglas, 142 Ariz. 94 S.Ct. n. dissent- ing). holding Our today protects just John- the door to the gone get rights rights son’s every person. a warrant based on the affidavit of the Though price is, paid occasionally, to be instead, landlord. What the officer did suppression incriminating evidence,17 again according to his own testimony, was gained the benefit to be is the continued step five or six feet into the room. It guarantee every for individual of decent stepped was not until the officer had five privacy home, papers, his or her or six feet into the room that he inwas privacy effects—a indispensible “which is position “suspicious- plants.” to observe dignity to individual respect.” and self Hence, walking apart- the act of into the Harris v. looking ment and around with the knowl- 91 L.Ed. 1399 edge occupied that the was still (Jackson, J., dissenting). writing our was a search. The officer had no warrant constitutions, decidedly the Framers de- to search point at that and since there was clared individual’s be the exigent no consent or circumstances to right right only valued inviolate and search, justify —a a warrantless the search compliance breachable strict to consti- Also, illegal. the warrant that was requirements. tutional subsequently issued was based in- on the acquired through formation this reasons, foregoing agreement For the and, therefore, the warrant was also with expressed by the result Court illegal. Appeals, judgment of the district court is reversed. The cause is remanded to the While the fourth amendment Unit- proceedings district court for further con- protect ed States Constitution serves to sistent herewith. many places things person which a expectation privacy,

has a reasonable acutely protects against governmen- most WALTERS, tem, pro J. concurs. sanctity person’s tal intrusion into the of a C.J., DONALDSON, concurring in Part States, Boyd home. 116 U.S. United I, II, concurring in the result in Part 524, 532, 6 S.Ct. 29 L.Ed. 746 specially concurring. (1886). question, the home “Without is ac- range corded the full of Fourth Amend- DONALDSON, Justice, concurring Chief protections.” ment Lewis v. United I, concurring to Part to the result of Part States, 87 S.Ct. II, specially concurring. I majority opinion concur with the of merely step An officer cannot into some- Justice Bistline to the extent that the facts one’s home and “view” its contents in the clearly of this case indicate a search took person’s yard way same view place merely viewing. and not a partially public from a street or view a record indicates that when the landlord post opened package at the office. The opened apartment, the door to the the offi- package in expectations privacy of over a personal cer observed that there were still yard the mail and one’s as seen from which, according in apartment items public significantly street are less than the words, the officer’s “indicated some- own expectation privacy has in own of one point, one still lived there.” At that home. officer should realized he could not In the case of the States v. Ja enter the without the consent of cobsen, have closed the tenant. he should researcher, study, Exclusionary Failing Health? Some

17. One in an exhaustive Rule in involving Against Precipitous found that in those criminal cases Con- New Data and a Plea evidence, suppress only percent clusion,” ten Kentucky motion to LJ. 721-22 Canon, granted. such motions were B. "Is the (1984), L.Ed.2d 85 the United States Su I accept argument cannot preme dealing Court was package with a subject defendant’s home this case is partially had been open by torn justifiable the same lack expectations airport forklift at an Express Federal of privacy package as the in Jacobsen. The Employees opened fice. at the not, scene Supreme United States Court has package and a not, tube contained therein go I believe would so far equate as to powder plastic bags. discovered white the two. To do so would permit be to an When federal narcotics officers arrived on officer to enter and search without a war- the scene damage observed the through rant every piece personal prop- package and the erty tube removed the in one’s home because a third plastic bags employees put had party, landlord, such as a had done so back into the package. Supreme The U.S. previously. As the Colorado Court relied on the case Walter v. People Brewer, Unit Court stated in ed (Colo.1984), 65 860 “The decision in Jacobsen which also involved part a was based on the minimal intrusion package subject which was private of a governmental involved search of an search before it by was searched federal unwrapped package, and has never been authorities. The court stressed that justify used to an invasion of privacy must, invasion of cases, in such entry substantial as into a house.” Id. at evaluated degree to which the 864 n.3. government agents scope exceeded the If a warrant had been issued private Jacobsen, search. supra at authority of an affidavit of the landlord as 114-15, 104 1657; Walter, at supra at to what he observed in the defendant’s

657, 100 S.Ct. at 2402. apartment, the fact that his observations

It important to note that the court in were the result of an private unauthorized Walter and analogize entry Jacobsen did not would not have private search packages in the mail tainted the warrant. at Id. 863. This is private searches of See, type one’s e.g., responsible home. law enforcement Walter, supra activity the fourth S.Ct. at 2400. amendment and the ex- The underlying clusionary assumption in rule are encourage. both cases is intended to putting Unfortunately, package attempted the officer into the com- plete process shortcut control of a this and the party third result is evi- for trans- mission, dence tainted person search. pack- who owned that age necessarily expectation his reduced Bistline, however, goes Justice much far- privacy in the package. assumption This is ther in analysis rule that, manifest in the court’s statement than the facts of this case warrant. seized, “Such containers be at least Hence, I only concur in the result of Part

temporarily, without a warrant. Accord- state, II. say Suffice it to in this ingly, apparent since it was that the tube “evidence, procured in violation of defend- plastic bag and contained contraband and ant’s immunity from search else, little this seizure, warrantless seizure was and is inadmissible and will be reasonable, for it is well-settled that it is request excluded if suppression for its constitutionally reasonable for law en- timely Rauch, made.” Idaho 586, 592-93, forcement to seize officials ‘effects’ that 677-78 support justifiable cannot expectation Therefore, this Court should be content to warrant, (1) without a on based hold that the officer’s warrantless probable they cause believe illegal, (2) to contain search was the warrant was Jacobsen, contraband.” supra at 121- subsequently issued based infor- was 22, 104 S.Ct. at 1661. acquired mation through the and, therefore, illegal, was also honor, “Your I stipulate would to the facts illegally obtained evidence should be ex- entry of the initial they recited, or as cluded. they were testified to Officer Earl Sor-

enson at the Preliminary Hearing.” At the preliminary hearing Officer Sorenson testi- SHEPARD, Justice, dissenting. fied as follows: Although very case, this is a close I time, “At the I contacted a Cleverly Joe dissent, and would affirm the decision of Ridge, at 267 South Apartment No. the district court in refusing suppress they who stated that had a living tenant the evidence. in Apartment No. 7 that was behind on There is absolutely nothing in the record rent, they move, had told him to to sustain the contention that and Cleverly stated that he had went officer went the apartment any with night down the apart- before to clean the intent to search or seize. The record re ment, suspecting that the tenant had veals to contrary. The landlord con moved out. Cleverly As I and were police, tacted the dispatched who Officer speaking, guiding he was me down to Sorenson who was “told dispatcher Apartment stated, No. and he as he go Ridge, to 267 South Apartment No. opened door, he said that he had suspicion had a report there.” found these and pointing behind the There is no indication that the officer door. apartment, wished to enter the but rather “As I apartment, went into the I ob- was invited the landlord to enter the personal served several items that indi- apartment. The officer did not0 ask the cated that someone still lived there. IAs consent of the apart landlord to enter the door, looked behind the I observed two ment, but rather the opened landlord plastic green containers that had small door, pointed door, behind the request plants growing in them. I observed the Hence, ed the officer to look. I see no plants closer supposed them to be relevance in any of the cases cited involv marijuana. ing situations where desired to enter time, Cleverly “At that and I exited the premises sought permission of a room, it, locked and I him advised not to person landlord or some other third to en anyone let until I re- premises. Rather, ter I see the circum turned. stances of this case as in type similar “Q. do, you What did next Officer? Hocker, Eisentrager (9th 450 F.2d 490 Cir.1971) indistinguishable and almost “A. I directly went to the Prosecutor’s State, (Miss.1980). Lucas v. 381 So.2d 140 Office to him advise of what I had found, and to obtain a search warrant Implicit Bistline, opinion J. and go back and search and seize the Donaldson, C.J. is the assertion that merchandise.” the officer open doorway, stood in the ob- added; Tr., 5). (Emphasis Prelim.Hrg., p. served items which led him to believe that occupied by was still majority asserts: “There defendant, but nevertheless the officer no evidence this case from which John- proceeded then apartment into the and con- son’s landlord could have concluded that ducted emphatically a search. I disagree apartment. Johnson had abandoned his On that such was the evidence. It is clear to contrary, the record reveals that nu- me that while the officer proceeding personal merous effects were found in apartment into the personal he noted the home, that, suggesting, Johnson’s far from items and looked behind the door. home, abandoning living he was still hearing sup- At the I on the motion to there.” do not believe that statement is press, supported by counsel for the defendant only stated: the record. The testimo- ny any as to items apart- observed A. INo didn’t: ment was that Officer Sorenson and Detec- (Tr., Hrg., 9-10). Prelim. pp. premises tive Edwards returned to the with Bistline, opinion The J. states: a warrant and found in the some marijuana plants, scales, a set of “If the state were way to have its on this plastic bags. only other items men- point, apparently argue it would that the plate tioned in the record were a on which following scenario is outside constitution- marijuana soaking seeds were and an em- protection: al private A citizen ransacks ployment application form with the name home, claiming inbe search of con- of the defendant thereon. These latter two Upon discovering traband. alleged items were concealed from the view of contraband, the citizen calls in the apart- Sorenson when he first entered the who conduct a second ransacking of the ment. home, looking and searching everywhere Upon cross-examination of Officer Soren- inspecting everything as did the citi- during son preliminary hearing, the follow- According state, zen. because the ing testimony was taken: is only ‘viewing’ officer the citizen’s ef- “Q. you Did Cleverly ask Mr. to see ‘merely’ retracing the citizen’s forts— footsteps apartment? inside the government activity is —such No, “A. I didn’t. purview outside the of federal and state “Q. voluntarily He you let in? protections. Such an ab-

“A. Yes. berational view is not harmonious with what the framers of our federal and “Q. you Just Cleverly? and Mr. state constitutions intended when “A. Yes. put protections these into our constitu- “Q. anybody Was present? else tions, (At 1293). and we so hold.” “A. No there wasn’t. suggest I above-quoted that the language “Q. you You indicated observed behind is overblown in the circumstances of this you door. Did anywhere look case. Cleverly was not called as a witness apartment? else preliminary hearing at either the nor at the time, no, “A. At that I didn’t. hearing suppress. Hence, on the motion to “Q. you Is that all observed that was we are not aware of whether he believed suspicious plants was two behind had been abandoned. His the door? statements to Officer Sorenson hear- were “A. approximately There were that—at say accepted and hence cannot be for the time, I just approximated it as 20 truth of the facts asserted therein. Never- plants in five-gallon the two con- theless, my it is view that the actions of tainers. Officer Sorenson were reasonable under all “Q. you How far did enter into the of the circumstances. He did not seek to apartment? apartment. enter the Rather he was es- five, “A. Approximately six just feet. I apartment by corted to the the landlord observed behind the door. opened pointed who the door and behind it. “Q. You entered the room and To behind the stepped look door he into the looked behind the door? apartment five or six feet. At some poipt Right. “A. apartment” time as he “went into the “Q. You indicated this was a two-room saw items which indicated that someone apartment. you Did enter the oth- still lived there. We are not told er room? type personal record what items these didn’t, I “A. No not at this time. were, for all the record shows he “Q. referring you open plants Did have been to other or any cabinets or boxes anything event,

or plastic bags. any a closed nature? did Sorenson ransacking not “conduct a second

home, looking searching everywhere Rather, inspecting everything.” I be- strong probability,

lieve there and the justified

trial on this record court

finding, that Sorenson was led to believe

Cleverly that the had been aban-

doned, and after he had entered five or six

feet into the he came to the

conclusion that it had not been abandoned. point

At that he left and secured a warrant I premises. search of the cannot part

believe such conduct on the of a

police officer need be condemned nor that applied rule need be Pontier,

instant case. In State v. upheld 518 P.2d 969 this Court suppress

a denial of a motion to in circum- indeed,

stances where in the absence

warrant, general search was conducted marijuana

after had been observed

police growing outside the house.

I would affirm the action of the district denying

court in suppress. the motion to

BAKES, J., concurs. P.2d 1306 PARADIS,

Donald M.

Petitioner-Appellant, Idaho, Respondent.

STATE of

No. 15867.

Supreme Court of Idaho.

March 1986.

Rehearing April Denied

Case Details

Case Name: State v. Johnson

Court Name: Idaho Supreme Court

Date Published: Mar 12, 1986

Citation: 716 P.2d 1288

Docket Number: 16106

Court Abbreviation: Idaho