*1 perceived rightly Here the district court determining meaning its of the role in Idaho, Plaintiff-Respondent, STATE of parties’ agreement. The district court con- cluded contract TRC-Gilbert WRIGHT, Ronald Allen nine-day
served as a for the limit substitute Defendant-Appellant. TRC-City contract. This decision is supported competent by substantial and ev- No. 17057. Quong-Watkins idence. See Bischoff Properties, Although the supra. Gilberts Appeals of Idaho. Court claim that the TRC-Gilbert contract dealt April completion project with the during hours, specifi- business contract
cally for daily stated that the fee lost busi-
ness expected to continue until com-
pletion project. term This can be interpreted parties to mean that the intend- project,
ed to extend the or it can be inter-
preted that, project mean even if the extended, parties
were not intended the
daily fee for loss business would act as a any damages resulting
substitute for from
breach nine-day limit in construction TRC-City contract. Under the circum-
stances, we defer to the district court’s
interpretation provision. of this We there-
fore hold that district court did not err
in concluding that con- TRC-Gilbert
tract nine-day was a substitute limit provided construction the TRC-
City contract.
Conclusion portion
In summary, we vacate that dealing district court’s order with the damages
measure of to be awarded to the
Gilberts. We remand this case to the dis- specific
trict court with instruction for de-
termining damages the amount of in ac- opinion. remaining
cordance with this
portions of the order are affirmed. Be- party prevailed part
cause each has appeal, attorney we decline to award
fees or costs. SWANSTROM, JJ.,
BURNETT and
concur. *2 Kohler,
Jay A. Hart & Kohler Law Of- Falls, fices, defendant-appellant. Jones, Gen., Atty. A.I. Myrna Jim Stah- man, Gen., Boise, Atty. plain- Deputy tiff-respondent.
WALTERS, Judge. Chief Wright, appellant, Allen con- Ronald ditionally plea guilty to a entered a charge possessing a controlled sub- plea right to seek stance. His reserved the denying his appellate review of an order suppress pursu- to seized motion evidence 11(a)(2). ant to a warrant. I.C.R. below, explained affirm the For reasons we refusing suppress to the evidence. order summary fol- A of the facts as brief the Idaho After Officer Ericsson of lows. Falls, Idaho, police department arrested drug-related charge Burnside on a Robert from confi- he received information regarding Burnside dential informants who persons in the Idaho Falls area reportedly in Burnside’s were involved per- “other drug organization. One Wright. On Ronald sons” involved was were issued August ve- County search Burnside’s Bonneville residences, including hicle and two The warrants were based Wright’s home. testimony his affidavit and upon Ericsson’s Burnside, presented to a large resident, transport planned Boise from Boise quantity methamphetamine following week. within Idaho Falls occurred two house The search of of the war- following the issuance days the officers found shortly after rants and The search re- Idaho Falls. methamphet- cigarettes, marijuana vealed As re- amine, drug paraphernalia. charged sult, Wright (methamphet- substance of a controlled amine), analysis I.C. 37-2732.1 When the district sents the and view of this author only. suppress refused to ob- court evidence search, during tained entered a Officer Ericsson’s affidavit and testimo- plea guilty. The district conditional support ny, presented to the issuance judgment court ordered be withheld home, the warrant to search con- *3 placed Wright probation and for three information, following in loose- tained the Wright
years. brought appeal. then this ly chronological fashion. He related that since 1984 he had received information Wright challenges judge’s order de- reporting that from confidential informants motion, nying suppression on several three of Robert Burnside’s most trusted First, grounds. he maintains that acquaintances helping Burnside han- were proba- search warrant was issued without methamphet- majority dle the of Burnside’s Next, affidavit, cause. he contends ble county in area. amine business the local magistrate support submitted to the of acquaintances by The three were identified warrant, intentionally contained false Lines, Casey, the informants as Ed Bruce misleading affiant, by and statements appellant, Wright. and the Ronald Erics- Third, argues he Ericsson. that war- personally that he had son stated observed 41(c) by failing rant violated I.C.R. to con- frequenting the addresses of the language directing tain execution of the acquaintances three times in the several days. within fourteen He further prior years. two He related that he had 41(d) asserts that I.C.R. was violated when eight days last seen Burnside earlier on by the return on the warrant made was 21, 1986, August when he Bum- observed present during officer was not who execu- replacing panel side and Lines a door Finally, tion of the he submits warrant. he Burnside’s automobile. Ericsson said “anticipatory” that the warrant was of fu- followed Burnside to a bar where he ob- events, ture and was therefore unconstitu- served Burnside contact an individual in tional. company Casey, of Ed and Ericsson represented Casey he that had arrested I. Probable Cause day delivery earlier that of a controlled substance to an undercover officer. Erics- point inquiry first whether son then that the informants he averred magistrate determining erred there was proven “used this case have been probable cause to issue a warrant to search occasions, reliable on several different with regard, home. In this it must be being several and arrests ob- determined whether there was a substan through gathered tained information from basis, totality tial under the of the circum these individuals.” He further confirmed stances, for the to conclude that from that several convictions had resulted Lang, cause existed. provided by these informants. Idaho As author opinion appeal Referring day of the lead on the in this his affidavit to the before case, my persuades presented magistrate, review of the to the Ericsson record was 28, 1986, correct, August he me that further stated that on al Madsen, though the other had been contacted Kent members of this Court in- special agent of the F.B.I. Madsen special conclude otherwise. concur {See he, Madsen, had a Swanstrom, J., formed Ericsson that ring opinions of and Bur him in- supply confidential informant with nett, J., infra, determining that the search concerning formation Burnside. Ericsson’s upheld nevertheless will be under United continued: affidavit Leon, 897, 104 States (1984).) The of one follow This informant is a close associate Part, therefore, ing repre- suspects personally and was discussion this Apparently Wright charged allegations mis- is not indicated in the record before also was marijuana para- and demeanor us. However, phernalia. disposition of those present privy and to the conversation is true correct that there is and suspect between Burnside Burn- that cause believe Robert impending drug large side told about the deliv- delivering quani- Burnside will be ery. given by this infor- methamphetamine Information ty within the [sic] person as to week, mant involved I next therefore believe we have drug trafficing operation, their resi- probable cause to obtain a Search War- [sic] dences, places employment, and their Ron rant the residence of drug association with Burnside and deal- being Ave, Gladstone ing have all coorborated been Falls, [sic] County, Bonneville State of Idaho. myself following regards: Edwin represented Ericsson’s affidavit then delivering Casey has been arrested for significant quantities methamphetamine methamphetamine to an undercover offi- easily can be concealed and that F.B.I. *4 cer currently jail and is for this of- agent Madsen's had said that informant by Bruce Lines has known fense. been methamphetamine in transported Burnside this officer to associate with Robert automobile, pan- his most in the likely door replacing Burnside and him in assist Finally, applying for the els. search panel door on his car other infor- and warrant, testified that Officer Ericsson past mants have indicated in the that Burnside in Boise and does not lives have sold out his Lines narcotics of business residence the Idaho Falls area. Accord- investigations Past by Ninth Street. requested to ingly, Ericsson warrants myself have disclosed that Robert Burn- and the resi- search Burnside’s automobile frequents side the residence of Ron Wright. dences of Bruce Lines and Ronald Wright at 439 and this Gladstone resi- questions sufficiency Wright of dence has of been source metham- magistrate by presented to the information phetamine in persons cases where deliv- particulars. He Officer Ericsson in several methamphetamine myself. ered The attributed to argues that the information provided confidential informant informa- nothing more than was the informants concerning tion play- several of the same circulating in the under- “casual rumor before, ers I being as mentioned Ron merely world” and an accusation based Wright, Casey Ed and Bruce and [Lines] He general reputation. Wright’s submits a Prank name in- This [last unknown]. of the informants were that the statements formant stated that Robert de- Burnside conclusory in nature vague and without usually pounds livers six or more of veracity, sufficient data to determine methamphetamine people to these on a reliability informant's and basis of the regular per- basis. The informant has argues per- knowledge. He that Ericsson’s sonally seen Bob Burnside deliver ad- of at the sonal observation Burnside pounds methamphetamine Casey of to Ed Wright, Casey, of Lines and “sev- dresses Bruce seen Lines and has also Rob- years,” last without eral times two methamphetamine ert Burnside deliver dates, renders that specificity more as Wright. to Ron The informant was of staleness. suspect because present during past when Rob- week no suggests He there evidence that ert these spoke Burnside with one [of] informant, reliability of the F.B.I. stated that he would re- individuals and knowledge that informant’s basis Idaho with more metham- turn to Falls provided to regard the information prior that phetamine to the time school persuaded I agent am not F.B.I. Madsen. area starts in this next started. School by Wright’s assertions. being day Sep- Tuesday, that 2nd tember, must be According 1986. to this infor- Affidavits for magistrates and brings interpreted by Robert Burnside meth- tested mant fash- in a commonsense and realistic Chevy Idaho in his courts amphetamine to Falls Ventresca, 380 U.S. ion. With the information obtained Camero. (1965). S.Ct. 13 L.Ed.2d informant Special Agent from Madsen’s magistrate's “A determination me to believe that this information leads cause should great be accorded deference cause shall be reviewed by appellate Similarly, court.... such remaining evidence or information Id.; Lindner, affidavits should be tested standards affidavit. see also State v. rigorous governing (1979). less then those the ad Idaho missibility of evidence at trial.” State v. Here, Wright the information claimed as Gomez, 802, 805, 623 P.2d misleading concerns frequenting Burnside (1980), 102 Wright’s affidavit, residence. his Offi- cer Ericsson personally stated: “I have ob- frequenting served Robert Burnside
Clearly, the
these
different sources of Erics-
three addresses
son’s
several
times
the last
information tended to corroborate
years
I
two
have been
each other.
involved with
totality
of the circum-
organization.”
[Emphasis
drug-traf-
stances showed that Burnside’s
Wright
compare
asks us to
ficking organization
added.]
ongoing opera-
was an
testimony given
statement with Ericsson’s
tion. Ronald
was identified as one
suppression
hearing.
There Erics-
of Burnside’s trusted associates who had
son stated
personally
that he had
observed
receiving
been seen
delivery of metham-
Burnside at
residence on
one
phetamine from
Burnside.
home
occasion,
year before,
about a
in the fall of
methamphetamine
been the source of
Wright argues
that Ericsson intend-
persons
delivered
to Ericsson.
*5
magistrate
ed for the
to believe that Erics-
Burnside had been seen at and known to
son
personally
observed Burnside fre-
frequent Wright’s home. An imminent de-
quenting
Wright
the
residence several
livery of controlled substances into the Ida-
years;
times
the last two
rather than
by
ho Falls area
Burnside reasonably could
understanding that Ericsson had observed
Wright
involve
and his home.
I conclude
frequenting
addresses,
the three
that there was a substantial basis for the
cumulatively, several
times
the last two
to find that
cause ex-
years. Wright urges that Ericsson was
isted to issue the warrant for a search of
intentionally misleading
the
or
Wright’s house.
that Ericsson made the statement with
truth,
disregard
reckless
II.
and there-
Misleading
False and
Statements
fore, the statement should be excised from
Wright next contends that Detective
the affidavit.
presented
Ericsson
false
misleading
application
statements in the
for the search
rejected
The district court
impact
warrant which would
magis
argument, noting that:
finding
trate’s
cause. There
Although the affidavit of Detective Todd
fore,
argues,
he
any
pursu
evidence seized
Ericsson is subject
interpre-
to different
ant to that
suppressed.
warrant should be
inference,
tation and
the court does not
affidavit,
find that the
testimony
Delaware,
Franks v.
any
proceedings
Ericsson or
of the
below
(1978),
S.Ct.
discusses
misleading, false,
were
or constituted a
applicable
analyzing
standard for
disregard
reckless
for the truth of the
attack on a search warrant where the chal-
by
matter as stated
the court
in the
lenge
alleged
is based on an
material mis-
amended memorandum decision on file
representation
sup-
of fact in the affidavit
herein.
porting the
requires
warrant. Franks
showing by
party challenging
threshold
agree
judge
We
with the district
demonstrating
prepon-
subject
affidavit’s recital is
to alternative
warrant —
derance of the evidence—that
interpretations.
accept
judge’s
We
de-
in the affidavit
false
and made know-
termination that the
in-
affidavit was not
ingly
intentionally
or with
misleading,
reckless dis-
tended to be false or
and that it
regard
Upon
for the truth.
such a show- did
disregard
not reflect a reckless
for the
ing,
questioned
the evidence
in the
Negligent
misrepresen-
affidavit
truth.
or innocent
disregarded
finding
tations,
must be
and if necessary
prob-
even
to establish
cause,
invalidate a
or property
subjected
able
will not
warrant.
has been
to the
Lindner, supra;
Kelly,
State
search.
(Ct.App.1984),
918, 105
U.S.
on
IV. Return
Warrant
Accordingly,
L.Ed.2d
de
we
that, contrary
next asserts
cline
overturn the warrant on this issue.
41(d),3
I.C.R.
the return on the warrant was
actually
made by an officer who did not
III.
Time Limitation
Execute
execute the
The
filed
warrant.
return
Search Warrant
Ericsson,
the court was verified Officer
by Wright
next
issue raised
although
participate
personally
he did not
spec
concerns the failure of the warrant to
in the
state
search of
home. The
ify
period
within which the warrant
responds by pointing
propriety
out that the
41(c)
was to be executed.
Rule.
of the return on the warrant was never
provides
Rules
Criminal
questioned by Wright
proceedings
warrant “shall command
officer to
challenge
being as-
below. Because this
search,
specified period
time,
within the
time
appeal,
serted for the first
(14)days,
not to exceed
person
fourteen
argues
properly
state
that it is not
a sub-
place
property
person
or
named for the
ject
appellate
review in
We
this case.
specified.”2 Although
strictly
courts
en
agree
position.
state’s
with the
period
force the statutory time
for a war
validity,
magis
issuing
rant’s
failure of the
Ordinarily, we will not entertain
actually specify
trate to
in the warrant the
raised
first time
substantive issues
for the
period
which
warrant must be
appeal.
—within
Appellate
Re
Standards of
suppression.
executed—will not
lead to
view,
3.5.1,
IDAHO APPELLATE
Burke, 517
See United States v.
F.2d 377
Inc.,
(Idaho
Foundation,
HANDBOOK
Law
Cir.1975);
(2d
Bedford,
1985).
exception to
rule exists
An
*6
Cir.1975),
(3rd
denied,
1049
not reach the
fied that there is no likelihood that the
ly, supra. We therefore do
challenging
prematurely.
the return on the war-
issue
warrant will be executed
rant.
App.3d Cal.Rptr. 113 54 State ble in this case. Mier, N.J.Super. 147 A.2d 515 denying The district court’s order (1977); Glen, People v. 30 N.Y.2d suppress evidence is motion to N.Y.S.2d 282 N.E.2d affirmed. U.S. (1972); Soares, 384 Commonwealth v. (1981); Mass. N.E.2d SWANSTROM, Judge, specially Slowe, (Ut.1985). prac concurring. *7 obtaining delivery tice of a warrant before signed officer Ericsson the When preferable seizing of the contraband is to warrants, only affidavit for the search the property upon the the without warrant believing drugs basis for that would be Glen, People contraband’s arrival. v. su Wright’s found in residence was the antici
pra. approved practice The Glen court the pated delivery quantity of of metham anticipatory issuance of but phetamine by Burnside. The cautioned: directed that the search war should have present possession there is no [W]here had rant not served until the officers be prospec- evidence for the supporting means, confirmed, by that some observable strong must tive warrant be likely “delivery” of Burnside had effected a particular possession particular prop- drugs Wright’s residence. to erty elements to will occur and that the opinion, People in As noted in the lead bring possession pro- in about that are Glen, supra, York court cau- possession in New cess and will result issuing Judge should be place specified_ More- tioned that “the the time and over, issuing Judge there is no likelihood that the should be satis- satisfied that treatise, LAFAVE, (but leading presently) 1 future time not certain evidence 4. A W. Search Seizure, 3.7(c) (1978), anticipatory place.” specified defines an crime will be located at a upon warrant as "a warrant based Id. at 698. showing probable that at some affidavit cause 1050 prematurely.” ery executed probably
warrant will be
and will
leave the same
Glen,
People
night
P.2d 1117 The Court there noted: night? him in the anticipatory For an to warrant be val Right. OFFICER If ERICSSON: we id, there must be cause to be during night find him don’t have —we lieve that the items to be seized will be at any place him certain to wait for to know place to searched at the time the be town, coming only he’s into can when we executed, words, is in warrant or going check the residence he’s we know prematurely that the warrant will not be nighttime to if deliver at. So it’s at executed. See United States ex rel. him, get locate team we we can a search 430, (7th 418 Skaff, Beal v. F.2d together— Cir.1969); Glen, People v. 30 N.Y.2d Accordingly, authorized 656, 659, 331 N.Y.S.2d 282 N.E.2d nighttime search of Burnside’s vehicle (1972). case, In this it was reason this warrant. police able to conclude that the would not Officer Ericsson relied the same apprehend Ray frustrate their efforts to information to obtain a search warrant for drugs mond in Johnson that the residence. It is obvious by executing the warrant before the anticipating officers were that Burnside package was delivered to him. Alvi See delivering methamphetamines would be to Court, Superior Cal.App.3d dres v. Later, suppres- residence. at the 575, 579, Cal.Rptr. hearing, sion that it Ericsson testified appropriate anticipa We think it most plan the officers’ until Robert “wait tory situations, magis warrant drugs” Burnside had arrived with the be- trate insert a direction search war searching Wright’s fore residence. making contingent rant execution on the happening of an event which evidences morning Early August offi probable cause that the-item to be seized spotted cers Burnside and his vehicle searched, place be rather than stopped Idaho Falls as Burnside at a res directing that the warrant be executed pursu taurant. The was searched vehicle immediately applied As forthwith. days ant to the search issued warrant two case, the instant should have earlier. Less than an ounce of metham stated that execution was authorized phetamine was found concealed in the ve police after the cause Burnside, hicle. See State package to believe that had been (Ct .App.1989). Raymond delivered to Johnson. agreed I that the warrant to 617 P.2d at footnote 11. supported search the Burnside vehicle was Here, applied the officers for the search by probable appearance cause. The morning August *8 warrant in Burnside and his vehicle Idaho Falls at Ericsson told the Officer predicted by gave the time the informant reported that an informant Burnside would report. visible confirmation to the This returning be to Idaho Falls with “more “appearance” anticipated was the event methamphetamine” Sep- sometime before implicitly con- which the warrant was regard requested tember 2. In to the war- danger ditioned. The that the warrant rant to search Burnside’s vehicle and his is, prematurely, that be- would be served person, following Officer Ericsson had the deliveries, any fore Burnside made would dialogue magistrate: with the analysis. probable not affect the cause Ob- good viously, intercepted if
OFFICER ERICSSON: There’s a Burnside was before deliveries, coming during in there anticipated chance that he will be he made the drugs night greater to make his He should a likelihood of deliveries. be being drives in from Boise and makes a deliv- found in his vehicle.
1051 Hendricks, vehicle, e.g., searching After 743 F.2d the Burnside (9th Cir.1984). Accordingly, I concur officers executed the search warrant 653 Wright’s uphold in approximately residence at 7:30 result to the search Nothing appeal a.m. indi- record case.
cates that the officers had observed Bum- meeting Wright’s going side or BURNETT, Judge, specially they residence search before initiated the concurring. Wright’s residence. The officers had no agree Judge I Swanstrom “positive” anticipated evidence that the de- improperly search warrant was issued. Wright’s livery drugs residence had Judge opinion is Swanstrom’s devoted Following occurred. issuance of the search this case from distinguishing part to residence, Wright’s warrant Burnside, 882, significant ap- occurrence was Burnside’s I (Ct.App.1989), a case on which did not sit. pearance in Idaho Falls where he and his separately Accordingly, I write to artic- spotted by policeman vehicle were a at a underlying “anti- ulate our concerns about argued restaurant at 3:00 a.m. It could be cipatory warrants.” significant that the absence amounts of methamphetamine in Burnside’s vehicle Such warrants are not unconstitutional when searched was an indication that them, per jurisdictions se. Most allow but anticipated already deliveries had been jurisdictions appear to the courts in those However, made. this inference arises from place two restrictions on their issuance evidence, “negative” positive not evidence. First, they require particular execution. Moreover, inferences, just as reason- showing, probable cause affida ized able can be drawn from the failure to find sought testimony, vit or the items expected large methamphet- amount of specified place the search will be short, amine in Burnside’s vehicle. specified future date or time. The courts probable cause for Wright’s the search of “inevitability” speak often in terms of lacking residence was both at the time the referring to this re “imminence” when warrant was issued and at the time it was Glen, See, e.g., People v. 30 quirement. executed. N.E.2d N.Y.2d 331 N.Y.S.2d 282 93 U.S. S.Ct.
Although the district court held that (1972) (upholding anticipa L.Ed.2d 91 there was cause to issue the war tory person to search the of an rant and that the warrant was otherwise individual of certain evi whose valid, the court nevertheless also concluded dence was “imminent and all but inev that even if lacking cause was itable”). Second, the courts have declared ought be-upheld. In this “back issuing magistrate specify that the should up” ruling analyzed the district court event(s) particular trigger what will of United guidelines search under Anticipatory Leon, execution of the warrant. States v. U.S. any warrants that can be executed at time (1984), and concluded disapproval, although they have met with good-faith exception to the exclu ground rarely are held invalid on this alone. sionary apply rule would to the search of See, Gutman, e.g., State v. P.2d appeal residence. On the state (Alaska Ct.App.1983). urged ground uphold has this alternate ing denying the order motion to These restrictions serve to minimize suppress. appellant presented has not in anticipatory three risks inherent war- any argu direct refutation of the state’s First, premature rants. is a there risk of *9 ment. upon issuance. Warrants issued mere reviewing speculation activity After the district court’s find- of future criminal are ings plainly By requiring particular- and conclusions I am satisfied that the a invalid. cause, Leon good exception showing probable faith the exclusion- ized of the courts See, ary applied properly prevent rule was here. have endeavored to the search of a 1052
suspect’s person State, property Similarly, or when the in evi- Johnson v. 617 P.2d (Alaska 1980), presented by Judge dence 1117 a case noted magi to the 'trate indicates Swanstrom, police officers in suspect Alaska expected is to commit suspect reliable information that a re- a crime in the future. The second risk is ceiving weekly shipments drugs of from his possibility magistrates the will abdi- They police wife Seattle. asked Seattle police important judicial cate to officers an notify shipment them when the next function—the determination that police occurred. The Seattle informed the cause exists objects to believe that the suspect’s Alaska officers when the wife place be seized are in the to be searched. went to an airline ticket counter and By requiring particularized showing a be- presented package shipment for to Alas- issued, fore the magistrate warrant is the information, upon ka. Based this the Alas- can ensure that he or she—not the officers ka officers and exe- obtained warrant when, in the field—will determine and they package being it cuted after saw the whether, there should be a search. More- suspect’s delivered to the The home. Alas- over, by specifying trigger an event to the Supreme issuing ka the Court criticized search, prevent the can po- the specifying for not the event weighing lice from evidence obtained after trigger The court which would the search. issuance, the in determining warrant’s nevertheless declared the warrant to be themselves when the search should occur. valid, presumably because the likelihood of risk, closely The third related to the other premature unlikely execution was where two, is that the warrant will be executed police package the and the tracked knew is, prematurely when the evidence —that suspect’s when it had arrived at the resi- sought yet place, is not at the respect, dence. In is akin to Johnson person, of the to be searched. 62, O’Campo, State v. 644 P.2d magis- This risk can be minimized if the (Ct.App.1982), police 985 where knew specific trigger trate identifies a event to drugs suspect carrying be on an would the warrant’s execution. flight, they airline and obtained a warrant upon airport. to search him arrival at the anticipatory The restrictions on sampling are illustrated in a of decisions patterns Other illustrative fact are jurisdictions. Many intercep- involve Gutman, presented in v. 670 P.2d tion, subsequent delivery, packaged and (Alaska Ct.App.1983) (magistrate 1166 postal contraband service. For ex- specified triggering event execution of war ample, Outland, in United 476 States rant), State, 458, and Ariz. Mehrens v. 138 (6th Cir.1973), upheld F.2d 581 denied, court (Ct.App.1983), cert. authorizing warrant search of a sus- 469 105 U.S. (1984) (triggering
pect’s
upon delivery
package
specified
home
event not
but
of a
explicitly
warrant issued
drugs by
postal
service. The court
time,
tying
particular
place
the search to a
noted Uiat
evidence was known to be
person). Compare,
and
e.g., State v. Vi
postal inspector”
“hands
and
tale,
Ariz.App.
23
530 P.2d
398
suspect’s
was to be delivered
at
resi-
(1975) (anticipatory
struck down
following day.
postal
dence on the
Other
because future event was “a matter of
service cases include United States ex rel.
pure speculation”); United States v. Hen
(7th Cir.1969);
Skaff, 418
Beal v.
F.2d 430
dricks,
(9th Cir.1984),
and need not be elaborated here. It suffic- say
es to the warrant was invalid.
Nevertheless, Judge as Swanstrom has
observed, application of the exclusionary appears
rule to be barred Leon, 104 S.Ct.
L.Ed.2d 677 Schaffer, State v.
107 Idaho (Ct.App.1984), expressed
we misgivings about Leon but
held “good that the so-called excep faith” applied pursuant
tion would be policy, to a Court,
enunciated Supreme Idaho provision search-and-seizure Constitution, art. should be
interpreted in conformity with the Fourth recently explained
Amendment. As Prestwich, 766 P.2d (Ct.App.1988), we still feel constrained
to follow Leon. We will do so unless and Supreme
until our Court decides otherwise independent state constitutional
grounds. Accordingly, judge’s the district case, refusing
decision in this suppress
the evidence seized under the invalid war
rant, upheld. must be
SWANSTROM, J., concurs.