*1 jury’s damage basis that the award was inad- misconduct,
equate jury on the basis of
judgment must for Leavitt be entered $30,300 plus
amount of his costs incurred judgment
both before and after the offer 68(b).
pursuant to I.R.C.P.
VIII.
CONCLUSION was no
Because we eonclúde that there presented jury support its
evidence to the twenty-five percent finding
verdict Leavitt collision,
fault for the we reverse judg- of Leavitt’s motion for a
court’s denial on the is- notwithstanding
ment the verdict liability. also reverse the order
sue of We pay post-offer
directing Leavitt Swain’s 68(b). remand for
costs under I.R.C.P. We under the correct standard
reconsideration damages. trial on
Leavitt’s motion for a new remand, granted
If motion is allegations investigation
then further into the If juror misconduct must be conducted. court concludes that due to cur-
the district
rent circumstances it cannot be determined occurred, jury a new
whether misconduct damages issue must be ordered.
trial on the appeal appellant. are awarded to
Costs on SCHWARTZMAN, JJ.,
PERRY and
concur.
STATE KELLY,
Thomas Edward
Defendant-Appellant.
No. 23788. Appel- Finney, Sandpoint, for Finney & Appeals of Idaho. Court Finney argued. A. lant. John Aug. General; Lance, Attorney Cather- Alan G. General, Derden, Attorney Deputy
ine O. Boise, O. Derden Respondent. for Catherine argued.
775
LANSING,
Judge.
Kelly. The search revealed that one of
Chief
of
gasoline.
with
Kelly’s coat sleeves was soaked
appeal
This is an
from the
court’s
Kelly
carrying a
It also revealed that
was
suppress
denial of a motion to
evidence ob-
marijuana pipe in
spout
gas
from a
can and a
by
following
tained
a law enforcement officer
discoveries,
pocket.
his coat
Based on these
his warrantless
into the defendant’s
Kelly
ultimately
was arrested
and was
residence. The district court found the
charged
degree.
arson in the third
I.C.
with
justified by exigent
to be
circumstances. Be-
§ 18-804.
may
cause we
that an
conclude
officer
Kelly
suppress
filed a motion to
all of
rely
exigent
on
of
avoidable
circumstances
evidence discovered as a result of the war-
his own creation to
a warrantless en-
try,
hearing
into
home. At the
we reverse the
rantless
his
decision
the district
explanation
suppress
Officer Bitton offered no
for his
court and
the evidence
as
obtained
prosecu-
entry.
a result
election not to seek a warrant. The
of the
however,
argued,
had
tor
been
and, alternatively, was
made with consent
FACTS
justified by exigent circumstances. The dis-
9,
approximately
At
1:30 a.m. on December
trict court found that
there had been no
1996, Officer Bill Bitton of the Priest River
consent,
finding
challenged
and that
is not
on
Department
Police
was called to a residence
appeal.
upheld
entry,
The district court
investigate
possible
a
arson. When he
however,
ground
justified
on the
that it was
arrived, Bitton discovered that
there had
by
Kelly
exigent circumstances.
thereafter
in
been a fire
a tool shed that was located
plea
guilty
entered
conditional
to third
approximately 45 feet from the house. The
arson,
18-804,
degree
§
was sen-
I.C.
and
only slightly
shed was
charred and was no
four-year prison
tenced to serve a unified
longer burning, but a container of what
years
part
term with two
determinate. As
gasoline,
smelled like
which was situated
plea, Kelly
right
bring
his
reserved
shed,
near the
was still ablaze. The home-
appeal challenging
this
the district court’s
owner told
possible
Officer Bitton that it was
suppress.
denial
his motion to
Kelly”
that a man named
respon-
“Jason
starting
Shortly
sible for
the fire.
thereaf-
ANALYSIS
ter,
footprints
Officer Bitton discovered
in
In reviewing
disposition
a trial court’s
leading away
the snow
from the fire scene.
motion,
suppression
our standard of
footprints
nearby
He followed the
to a
house.
review is one of deference to the factual
there,
covertly
Once
Bitton
looked into the
findings
they
of the trial court unless
are
through
darkened residence
windows
erroneous,
clearly
giving
while
free review to
position,
front door. From that
he saw a
the trial court’s determination as to whether
standing
living
man
wearing
room
constitutional standards have been met
winter coat and hat. Officer Bitton then
Curl,
light of the facts found. State v.
125
inside,
knocked
the door. The man
who
224, 227,
224,
(1993);
Idaho
869 P.2d
227
door,
initially
glanced
had his back to the
129, 130,
Vasquez,
State v.
129 Idaho
the officer and then turned and walked fur-
Pick,
(Ct.App.1996);
State v.
ther into
again,
the house. Bitton knocked
601, 603,
(Ct.
124 Idaho
and this
time
knock was answered
App.1993).
presented
No factual issues were
appeared
woman.
She
be confused when
motion,
by Kelly’s
indepen
and therefore we
Kelly”
Officer Bitton asked if
“Jason
lived
dently determine whether the uncontrovert
answering
the house. Without
Bit-
Officer
jus
ed facts show
circumstances that
inquiry,
ton’s
the woman turned and walked
bypassing
tified Officer Bitton in
the warrant
back
the house. Officer Bitton followed
requirement.
shortly
thereafter discovered the defen-
dant,
Wisconsin,
Kelly,
Thomas Edward
in a bedroom.
In
Welsh
466 U.S.
questioned Kelly
(1984),
Bitton
about his activities S.Ct.
777
fore,
exigency by alerting
all evidence derived from the
defendants
their
Rosselli,
presence.
suppressed. Wong
v. United
See also United States
must be
Sun
(7th Cir.1974)
States,
484-85,
(indicating
F.2d
371 U.S.
83 S.Ct.
Curl,
(1963);
rely
exigent
officers could not
cir L.Ed.2d 441
125 Idaho at
cumstances to
a warrantless
when were occurring); circumstances from CONCLUSION (8th Johnson, United States v. F.3d denying Kelly’s The district court’s order Cir.1993) (holding exigent circumstance ex suppress motion to all of the evidence discov- where, ception apply making did not before Bitton’s warrant- ered as result Officer delivery package, postal controlled in less into his home is reversed. The *4 spectors had substituted another substance to the court for case is remanded placed for cocaine base and a transmitter in proceedings. further package, thereby greatly increasing the destroyed risk that evidence would be when BENGTSON, Tern, J. Pro concurs. recipient opened package the the and found altered); that it had been v. United States SCHWARTZMAN, Judge, concurring. (9th Cir.1974) (stat Curran, F.2d I concur with the result in this reached ing exigency an “[i]f that arises because of ease, general legal as well with the as view delay by unreasonable and deliberate offi police may that not create their own cers, capa it is not an circumstance “exigency” justify a warrant- validate dispensing requirement ble of with the less into a residence. I write warrant.”); Lott, People v. 102 A.D.2d give legal/factual per- slightly different (1984) (holding 478 N.Y.S.2d spective to the incident under review. “police by cannot them own conduct create appearance an exigency.”); of v. Bea 1. State The officer’s conduct was more than vers, (Utah (stat 9, 18 Ct.App.1993) up point until “reasonable” of ing “police exigency cannot create the in morning. the home at 1:30 in the He was in entry.”). process order a warrantless continuing investigation his incident, relatively minor I arson see door, Absent Officer Bittoris knock on the nothing “constitutionally” wrong with knock- gave the circumstances no reason to believe door, ing on the even at this hour. awkward pause require- that a to honor the warrant greater ment would have created a risk than I believe the officer’s was based present that which upon subjective, erroneous, is in most situations his albeit belief police consent; probable where have implied cause for a that he not that had this compelling search but wait to exigency secure warrant. Be- was such a that he had life, exigency readily cause the claimed to burst in to save limb or evidence. produced However, recently avoidable and was as this Court articulated — action, Idaho -, unnecessary officer’s own Abeyta, it did not v. State entry. (Ct.App.1998): validate the warrantless To rule oth- 387 “There was no reasonable nullify respectful citizen-trespasser exception erwise would allow officers to to the requirement by needlessly warrant creating requirement warrant for into a home!” exigency. an As court noted United 3. The threshold to the home is constitu- (10th Aquino, v. States 836 F.2d sacrosanct, tionally especially at 1:30 a.m. Cir.1988), well-meaning police even officers What the officer should have done was to “may exploit opportunities such without suffi- have remained there and further clarified the regard privacy cient for the interests of the consent, perhaps by reidentifying issue of individuals involved.” requesting himself a loud voice and applicable presence just lady responded, Since the State has shown no of the who had exception requirement, suspect to the warrant Offi- or the for that matter. But once he entry Kelly’s cer in- Bitton’s residence was a crossed that threshold and continued his home, consent, vestigation violation of the Fourth Amendment. There- inside the without principle Abey- he violated the articulated
ta, being purge able to that unlawful without primary taint.
Accordingly, suppression of evidence must sanctity
follow this unlawful into the
the home.
STATE of FOLDESI,
Michael F. Defendant-
Appellant.
No. 23615. Appeals of Idaho.
Court
Aug.