State v. Oropeza

However, purpose if 545 P.2d 475 is, statutory question classification Idaho, Plaintiff-Respondent, STATE of Employment argues, Department as unemploy- integrity protect Oropeza, Jose Ann Luis OROPEZA and Gail ineligible by making ment insurance fund Defendants-Appellants. per- unemployment insurance benefits 11542. No. and sec- primarily sons are students who Supreme Court Idaho. force, this ondarily the labor members of Jan. purpose effectuated arbitrari- cannot be night part time ly deeming students to full time day students to be

students regardless of hours worked or

students spent in As the facts

the time school. amply demonstrate, there

this case nor-

types employment people in which afternoon

mally during full time work morning evening hours and have their that the

hours free. The record discloses substantially working

claimant here was he long than 40 hours a week before

more taking morning classes.

ever commenced

The Fourteenth Amendment the Consti- prohibits the

tution of the United States regularly em- denying

state from such a

ployed person unemployment insurance

benefits he has decided to attend because during non-working

school hours

morning, when a normal who work

daytime shift are not denied benefits be- they have chosen to attend school Thus,

during night. their free time (a)

distinction drawn 72-1312 vio- I.C. §

lates Amendment and the the Fourteenth

Industrial Commission’sconclusions of law authority benefits

denying Kerr 72-1312(a) are in error. I.C. § order of the Industrial Com reversed,

mission is cause remand

ed with directions to award claimant Kerr

unemployment insurance benefits rea pro attorney

sonable fees for the entire

ceedings regulations in the authorized Department Employment.

of the Idaho appel- and remanded. Costs to

Reversed

lant. McFADDEN,

McQUADE, J.,C. SHEPARD, JJ., con-

DONALDSON

cur. Derr, Derr,

Richard Udell of S. Walters Cantrill, Boise, & defendants-appel- lants. Park, Gen., Anthony Atty. Lynn

W. Thomas, Gen., Boise, Deputy Atty. plaintiff-respondent.

McQUADE, Chief Justice. Defendants-appellants Oropeza Luis Jose were found Oropeza guilty Ann Gail possession unlawful aof controlled sub- (heroin) in stance violation of I.C. 37- § 2732(c)(1) jury after trial. reverse We conviction, judgment finding appellants’ motion to evidence granted by should have been the district court. 5,May Sergeant Gary

On Twedt Canyon County City-County Narcot- Division, appeared ics before a and filed an Affidavit for Search War- personal knowledge Twedt swore rant. that: day agent

(1) on that state narcotics purchased from an indi- had heroin have vidual known to obtained un- narcotic particularly known at described residence; and, corroborated (2) a surveillance the transaction. authorizing the issued

A was particularly-described resi- of that motor ve- dence, persons and adult and all premises. The next found on hicles un- officers day, May enforcement law premises an- dertook surveillance warrant. executing ticipation appellants were appeared it When mate- van with depart in a motor about house, plain-clothes from the taken rials where property entered officers stop appellants’ parked attempted van lation of and state con- federal rights them. law enforcement One officer stitutional from unrea- to be secure Danger- Federal Bureau of Narcotics and so, sonable searches and If seizures. his Drugs, badge ous and drew suppressed, waved judgment evidence weapon. Oropeza placed the van reversed, of conviction re- case Jose reverse, accelerated, hitting and after a possible manded further proceedings. tank, propane stop to a still on First, came while must we if determine the search was placed premises. appellants the The were under conducted a valid search warrant. They under were removed from arrest. Sergeant sup- Twedt’s affidavit filed to the and vehicle was vehicle searched. The port application the for issuance of the containing A her- then canister searched. read, part: search warrant in relevant glove compartment of oin was found in the ‘ * * * duly appoint- That he is the the During the their arraignment, van. ed, qualified peace acting and officer appellants’ to district court denied motion County the Canyon, within State of suppress Appellants’ second the heroin. Idaho, and that he has reasons to believe immediately suppress motion was denied to (2) Substances, that certain Controlled before trial. to, including, but Marihuana, not limited Appellants assignments make three Heroin, Amphetamines, and Lysergic assignment with the error. The first deals Diethylamid unlawfully Acid being denial to district court’s of their motions residence; held the (3) located on old suppress The below the evidence. court Highway 95 between and Wilder Home- refusing in heroin erred to the dale, located mile Three-Tenths North of reversal evidence found the van. Our Bridge the Homedale the on East side of dispositive appeal. ground on is this road, pink a and cinder white block- Appellants’ illegal search and claim single story roof, building green awith guar- seizure is based on the fundamental Canyon Idaho, County, and all motor protected people antee that are to be rooms, present, spaces, vehicles all clos- searches and seizures. from unreasonable ets, containers, cupboards, boxes, pack-’ United The Fourth Amendment to the baskets, drawers, ages, paper beds, waste provides: Constitution States cellars, outbuildings, persons and present grounds all adults there- people secure right to be “The of. houses, and ef- papers, persons, their and fects, searches against unreasonable That he has cause to believe

(cid:127) violated, seizures, and no not be positive shall and is is true same because issue, upon probable but warrants shall facts, following which he has affirmation, cause, by or supported oath personal knowledge: describing place to particularly and 5th, 1973, May That (4) Agent on an things to searched, or be of the Idaho Bureau of Narcotics and be seized.” Enforcement, Drug Agency an Consti- of the Idaho Article Section Attorney Office, Idaho General’s made a tution similar.1 is purchase quantity Heroin if which

We determine who is individual known have ac- disclosed heroin in vio- quired person was conducted the said Heroin from or larly describing 1. Art. Idaho be § Const.: “Unreason searched and prohibited. pro thing able searches and seizures or This seized.” right per people “substantially (that) is secure their visions the same sons, houses, papers against un effects States Constitution.”: Peterson, not be reasonable searches seizures shall 81 Idaho Accord, Arregui, violated; no warrant issue with State v. Idaho shall particu by affidavit, out P. 788 cause shown persons unknown at the above described search provides That rule seizure. residence. part: relevant (5) That surveillance by conducted of- “(c) ISSUANCE AND CONTENT. A City-County ficers of the Narcotics Di- warrant shall issue vision established the above facts to be or affidavits sworn to before district true. judge magistrate or testimony un- der oath and and establishing recorded (6) That a field test of the above de- grounds issuing If warrant. scribed Heroin was conducted the in- is judge or district satis- officers, vestigating and said test showed application fied for the grounds ex- positive Opiate indication of an being ist, that there to be- present in said substance. exist, they shall lieve he issue Wherefore, your (7) prays affiant property identifying allowing warrant that a search the naming person or place the or describing of the above search described residence probable finding to be The searched. of and all motor vehicles upon evi- cause be based substantial shall rooms, closets, spaces, present, cup- all dence, hearsay be whole or may which containers, boards, boxes, packages, part, a provided there is substantial baskets, beds, drawers, wastepaper out- basis source the believing the for cellars, persons all and the buildings, hearsay believing credible for thereof, grounds the present and adults that basis there is for infor- factual by this Court.” be issued added).” furnished, (emphasis mation that the above magistrate concluded certain standards This rule codifies provided probable to be- cause necessary of a the issuance valid controlled sub- above enumerated lieve Affidavit(s) or, alterna search warrant. — being held at described were stances testimony- tively, be recorded —must authorizing a warrant and issued residence presented magistrate which sets to the “ all vehi- . . . motor a affiant believes which the forth facts closets, cup- rooms, spaces, present, all cles It from the probable establishes cause.2 boxes, containers, boards, packages, waste- the affidavit —which facts contained beds, drawers, outbuildings, baskets, paper may examination include a recorded cellars, persons of all adults under oath—that witnesses affiant and his said grounds of present magistrate makes detached the neutral and ” . . . . residence . . independent as to his whether evaluation Furthermore, The instant is to be tested probable exists. cause constitutional standards may this cause provides announced rule that evidence,3 incorpo State and it also be in hearsay must accord based on Rules Rule 41 of the Idaho test established two-pronged of Criminal rates the pertaining and Procedure Practice v. Texas4 Aguilar 1509, ; 108, 114, 1514, 12 2. See I.C. 19-4403 19-4405 §§ 4.378 U.S. “Although Constanzo, (1954) ; (1964). an af- 76 Idaho 276 P.2d 959 L.Ed.2d hearsay Padilla, information 182 Colo. P.2d fidavit be based personal ob- the direct and need not reflect affiant, servations of underlying Ventresca, circum- United States v. be informed of some (1965) ; concluded informant 13 L.Ed.2d which the S.Ct. stances from Aguilar Texas, he claimed where were narcotics underlying (1964) ; they were, cir- Jones v. United and some concluded the officer which cumstances from informant, was ‘credible’ . . . Citations ‘reliable’.” information omitted. States,5 hold that the statements contained sufficiency to measure the of such We prob- hearsay therein were to establish insufficient O’Bryan,6 evidence. State v. explained able for the issuance of the search this Aguilar-Spinelli Court requirements: warrant. Twedt knowl- swore specific day, agent edge that on a “Therein, Supreme the United States Drug the state Bureau of Narcotics guide- Court established constitutional quanti- purchase made a Enforcement measuring lines hearsay ty person who of heroin from unnamed setting. in a The credi- acquired to have the heroin was “known” bility test has which become known as at the unknown ‘veracity’ prong requires showing Oropeza sur- residence and that knowledge underlying of some “. . above veillance established the circumstances which lead to conclu- facts to be true.” sion that the informant is or his credible test, information reliable. The second the use indicates The affidavit knowledge’ prong, known the ‘basis of hearsay establish hearsay requires showing knowledge instances, an exceptional In certain cause. some of the underlying circumstances hearsay on containing such upon which the informant based his con- so, To do attack.10 hearsay withstand will clusion.” reliability of the indicating: (1) The facts magistrate probable find sufficiency The must and the initial source support cause to the issuance of exist as to the supporting circumstances quantum cause; warrant. The reli (2) The and probable ence of probable sufficient which constitutes cause to the information source of ability of the justify a to issuance of search warrant affidavit affiant, placed in the must be the par must be measured the facts may his deter make magistrate that the so acknowledge that ticular case.7 We Not probable cause.11 mination “. . . war in affidavits in the affidavit forth be set facts must . interpret- rants . . must be tested and affiant’s reliability of the dicating the by magistrates ed and courts in a common- facts agent, but source, a narcotics state n mustbe set issuing reliability sense and realistic fashion.”8 The and test forth to magistrate’s “. . .of determination affiant’s the source credibility of paid great defer- al cause should be who source, i.e., individual unnamed Oropeza . . .”9 reviewing ence courts at the the heroin legedly secured set forth to affidavit fails The residence. Taking rules of law into con- the above unnamed reliability of this relating to facts sideration, Detective have examined we person. a search warrant. Twedt’s affidavit 1967). (7th Roth, v. 391 F.2d 507 Cir. States 410, 584, 5. 21 L.Ed.2d 637 393 U.S. 89 S.Ct. Ind., State, N.E.2d v. 328 Madden But (1969). cf. (1975). 727 (1975). 548, 1193, 6. 96 Idaho 1197 Smith, F.2d 462 456 23, States v. California, United 11. See Ker v. 83 7. 374 U.S. S.Ct. Cf. Carney, 1972) ; (8th 328 v. States (1963) ; Wong United 1623, Cir. Sun 10 L.Ed.2d 726 925, (Del.1971), F.Supp. affmd. 455 F.2d States, 407, 471, 948 v. United 83 S.Ct. 371 U.S. McCoy, 1972) ; (3rd v. United States Cir. den., 1973), (10th cert. Cir. F.2d 176 478 102, Ventresoa, 8. United States 380 U.S. 53, 828, 62 L.Ed.2d 38 94 S.Ct. 414 U.S. 684, 741, 746, L.Ed.2d 689 85 S.Ct. 13 Fiorella, (1973) ; F.2d 468 States United den., (2nd 1972), cert. 417 Cir. 688 supra 9. v. United n. (1974), reh. at L.Ed.2d at at den., L.Ed.2d 645. Carmichael, ; (1975) United States (7th 1973). Cal.App.3d Cohn, Cir. 489 F.2d 983 (1st Dist.1973) ; Cal.Rptr. specification purchase find no in the of a substance known to have We premises ques- period acquired a date or as to of time been here; Orope analysis during which the transaction at the tion had indicated said sub- heroin; prior za residence between un stance to be for some hours person selling known and the unnamed to the search law enforcement officers had drug agent place; appellants loading to took and others the narcotics observed nor, any justifiable appeared all can we draw inference what of their vehicle; specific belongings they as to a time from the facts con a motor ob- into appellants together tained in An served all of the affidavit. with provide personal belongings and their chil- facts sufficient to create their starting depart premises; for the belief that the forbidden arti from the cause dren they departing ran vehicle dis- cles are within the to be searched toward the requested. shouting authority playing the time the search warrant of their as demanding sufficiency proof necessary cre law enforcement officers vary depend stop; appellants at- appellants ate such flee; par tempted noted ing the facts of the case and the one of the officers (s) appellants bending ticular nature of the article to be seized. one down toward case, dealing suspected might instant are with be the location of we what he dangerous drugs, possibility weapon; stop after the removal of vehicle, together per appellants all search of a residence with and others from located, particular area therein some searched that sons vehicles the officers compartment) (the glove so as particularity as to time must be made of the vehicle Fab- fully to enable the to make deter therein a loaded 9mm found together pistol present probable rique for the automatic mination of Nationale containing in 31 individual search warrant. The issuance of the with canister cash; comport this affidavit did not of heroin stant containers $731 was at a concentra- requirement.12 quality of the heroin opinion record is my tion 13.7%. suppress was im- Because the motion to federal, and law state local clear that the denied, judgment convic- properly had officers enforcement is remanded tion is reversed and the case in, possession and trafficking believe that proceedings. for further premises of, taking at the was heroin BAKES, question. DONALDSON, JJ., and con- cur. the con arrest and my judgment the In the automobile temporaneous search of SHEPARD, (dissenting). Justice Amendment of Fourth not violation trafficking This in heroin. case involves denial of the trial court’s rights and the arrested, and Appellants were tried con- was correct motion to appellants’ possession heroin victed of the crime of v. United Carroll be affirmed. and should majority remands the although 280, 132, 69 L.Ed. States, 45 S.Ct. 267 U.S. effec- proceedings, it has cause for further States, 251, 543; U.S. 305 v. United Scher by re- tively prevented proceedings further 151; v. 174, Chambers 83 L.Ed. 59 S.Ct. suppression of the heroin. quiring 1975, 42, 26 L. 90 S.Ct. Maroney, 399 U.S. Hampshire, 419; New v. Coolidge exigent Ed.2d that circumstances I would hold 2022, L.Ed.2d 443, 29 an arrest. 91 S.Ct. pursuant to 403 U.S. validated re remarkably similar also Federal, law enforcement 564. See and local state Patter Nebraska v. State cent case surveillance had conducted officers 308, (1974); 235 son, 220 N.W.2d here; Neb. made a 192 question had premises in Commonwealth, (1973) ; 339 v. Padilla, Webb. 480 v. 182 Colo. (Ky.1960). S.W.2d 177 Williams, (Colo. only “affiants have reliable infor- P.2d 76 received People v. person 1975); White, 96 mation from credible and do be- Texas v. (narcotics) being kept lieve that at ” (1975); premises . LeBlanc, above described . . (Me.1975). 347 A.2d Spinelli that the affidavit stated FBI majority sole basis decision confidential, “has informed reli- been insufficiency herein asserted is the op- able informant that is William which the search warrant wagers erating accepting a handbook and majority ex- purports was issued. The disseminating wagering information amine the affidavit and conclude “the affi- . telephones means of .” hearsay upon davit indicates the use of Thus, Spi- Aguilar it is clear both hearsay to establish cause.” very that the affi- language nelli of those my unnecessary judgment, such is an that knowl- davits indicated the affiant’s contrary unwarranted inference and is solely hearsay based edge was on informa- specific terms of No the affidavit. tion received from an informant. “informer” mentioned nor is it indicated that hearsay is clear information re It knowledge that of the affiant came from an informer furnish suf ceived any from source other than his ficient cause for the issuance police knowledge The ma- surveillance. warrant. Jones U.S. us, however, jority that we must as- tells (1960); 80 S.Ct. L.Ed.2d 697 sume the existence of certain and no facts Ventresca, United States others, the issuing tax (1965); Unit L.Ed.2d interpretation its of the facts Harris, ed States proceed then erro- to hold his decision Varon, interpret- neous could because he have Searches, (2nd Seizures and Immunities majority. ed the as does I Assuming Spi 1974) Aguilar and ed. disagree. equally interpretation An fair vitality following nelli maintain Harris might the affidavit be that a law enforce- Review, 687), Fordham (See 40 Law ment (perhaps officer Twedt ac- himself) only teaching hearsay those cases is companied unnamed person an and saw supplied by an informer must procure him a substance circulating than be more a casual rumor question, pur- residence in thereafter the underworld an accusation based substance, chased the had it tested and reputa merely general individual’s found it to be heroin. If a officer reliability regarding tion. Statements accompany did into the unknown merely informer must more than of an procure heroin, perhaps residence to nature, conclusory Spinelli, and these the officer was wired for sound and the underlying must set forth such circum by transaction heard at a oth- was distance judge necessary as are the valid stances any pos- er are officers. There number of conclusion, Aguilar. ity informer’s sibilities. Having “hearsay” nothing any I find in the decisions established that present Supreme an probable requires “informant” cause U.S. Court which problems case, majority in the instant issue affidavit at here to be determined in- authority then Tex- Aguilar showing probable uses the sufficient as cause. as, States, supra, Jones an affidavit v. United (1964) Spinelli receipt v. United for a warrant indicated the by person. information unnamed an (1969) authority holding as the in- although that There it was held that the affida- present magis- stant personal affidavit did not obser- vit did not set out affiant’s probable trate Aguilar cause. (as vations contrasted with the assertion of knowledge stated personal here), nevertheless other (here, police sources surveillance) by opinion majority Spinelli, in “In provided done, crediting holding substantial basis for as we have we do not retreat hearsay. sca, In United propositions only States v. Ventre from the established that probability, prima L.Ed.2d 684 and not a facie (1965), an affidavit showing, for a search warrant activity of criminal is the stan- receipt hearsay indicated probable cause, informa dard (citations) that af- tion such probable but was deemed sufficient by be fidavits or cause tested are cause strong background rigorous factual much less standards than those hearsay which buttressed governing admissibility and combined of evidence at probable trial, to establish probable cause. Some com judging that in (citations) argue opinion mentators magistrates issuing cause are not Harris, court in supra, United States v. by niggardly confined limitations re- has to some extent blunted the in decisions strictions on the use of their common Aguilar Spinelli, any sense, but in event Har and that their determination ris premised held that an affidavit in paid great on cause should be defer- courts, formation from an in reviewing received unknown ence (citations).” provided former sufficient Harris, As in stated “The Fourth for the issuance of a search warrant in commands, Amendment’s like all constitu- totality consideration of the of the circum requirements, practical tional are and not stances which were used to evaluate af teachings abstract. If the of the Court’s meeting proba fidavit as the standards for cases are to and the constitu- be followed ble cause. served, policy tional for search affidavits here, warrants, such as the one involved It is in an well-established that evalua interpreted by magis- must be tested and tion of an affidavit to determine the exis re- trates courts a commonsense and great tence of deference They normally alistic drafted fashion. are paid mag should be to the decision of the by nonlawyers in haste the midst and istrate and his not common sense should investigation. require- criminal Technical States, supra; restricted. Jones v. United specificity ments of elaborate once exacted Ventresca, supra. As United States v. pleadings under have no prop- common law Harris, stated in and reiterated grudging nega- er in this A area. policeman’s “A should not be by reviewing tive attitude courts towards essay judged entry in an contest.” as discourage police warrants will tend to of- “Thus, Aguilar, As was when a stated submitting to a ficers their evidence upon magistrate’s search is rather based judicial acting.” officer before than a officer’s determination of probable cause, reviewing courts will finally I note that the motions would accept ‘judicially compe evidence of a less prior both to and at the made to persuasive tent or than would character conclusory trial lan- time of justified acting have an officer on e., guage, i. affidavit “was not warrant,’ ibid., own without a and will sus af- of said based judicial long tain the determination so course, That, directly con- fiant.” magis ‘there was substantial basis for [the trary language to the affidavit: to conclude that narcotics were trate] probable cause to believe and “That he has probably present.’” in As stated Ventres positive is of the is same true because ca, “Observations of fellow officers facts, has following which he of engaged in Government a common investi states, further The motion knowledge.” gation plainly for a are a reliable basis hearsay evi- is based on “Said applied by of their num one and the said affiant by obtained dence State, ber.” also informa- reliability Schmidt v. 17 Md. affiant’s of source or As or established.” is not revealed (1973). 302 As tion App. A.2d stated 714 395 noted, no lawful arrest for which previously the affidavit contains Also, hold that any received from existed. I would further reference to That is the affidavit on its face indicated the exis- any other whatsoever. unnecessary by justifying tence the issu- merely an inference drawn course, and, by majori- appellants ance appellant of the search warrant and Further, ty opinion proving illegality bore the burden insofar as the herein. reveals, evidentiary hearing placing evidence at least in record no appel- affi- upon issue the assertions contained requested either conducted suppress. lants’ davit. motion to Holt, my disagreement 415 The essence of with

As stated State v. S.W.2d majority the result obtained herein defendant (Mo.1967), 761 “Not perhaps expressed suppress file best the words a motion to the controverted evidence, present- Hugo Black and Felix Frankfurter. but he has the burden of 366 ing evidence to sustain his contentions.” dissent Stewart v. United 941, 954, Gardner, 1, 21, U.S. 81 6 L.Ed.2d 84 See also State v. 77 Mont. 249 S.Ct. Robinson, People (1961), 574 Mr. Frankfurter stated: (1926); P. v. 344 Justice 41 (1955); Mich. 74 v. N.W.2d authority in highest “When a court of Ferguson, 376 Mich. 135 357 N.W.2d interposes this country thus a bare tech- S., (1965); Alderman U. 394 v. nicality just between a defendant and his 22 L.Ed.2d 176 Mod- conviction, charge it is not too much to al, 1969, Practice, ern Criminal Hall et laxity some of in our administration Chapter 12 p. proneness on the of the criminal law to a part of courts of last resort to find error Aside from differences which are irrele judgments and to reverse of conviction.” (such vant here the combination Warden, suppress return Whiteley Wyoming motion to with one for the State proper 560, 570, illegally property seized Penitentiary, 1031, 1038, timing suppress), of a motion to there is (1971), Mr. Jus- no dissenting substantial difference the Ida tice between Black said: procedure ho and federal rules of criminal respect my “With all to Brethern who suppress. area of Evidentia motions to agree judgment opinion to the ry suppress hearings motions to Court, say I that I be- am constrained U.S., widely Kay utilized. Chin 311 F. gross lieve the decision here is a Lyon, 2d (9th 1962); Cir. U. S. v. wholly miscarriage jus- indefensible S., (7th F.2d Batten 1968); Cir. U. tice. For this reason it be classified (5th 1951). 188 F.2d 75 Cir. For addition many as one of those calculated to make present al cases on burden defendant’s good people actually believe our Court ing sup evidence to sustain his motion to enjoys frustrating justice by unnecessari- Kolberstein, press Or.App. see ly professional turning criminals loose to Ortega v. Tex (1972); P.2d upon society prey impunity.” as, Tex.Cr.App., 464 (1971); S.W.2d Believing that case at falls bar with- Or.App. Wright, State v. strictures, in those affirm I would the or- State, 514 (1972); Carter v. 274 Md. denying of the trial ders court the motions 337 A.2d 415 judgment and affirm the summarize, To I would hold first conviction. exigent circumstances here validated McFADDEN, J., the search of the motor vehicle incident concurs.

Case Details

Case Name: State v. Oropeza

Court Name: Idaho Supreme Court

Date Published: Jan 12, 1976

Citation: 545 P.2d 475

Docket Number: 11542

Court Abbreviation: Idaho