State Of Idaho v. Nanney, Docket No. 36548
| Decision Date | 17 September 2010 |
| Docket Number | Docket No. 36548 |
| Citation | 2010 Unpublished Opinion No. 648 |
| Parties | STATE OF IDAHO, Plaintiff-Respondent, v. WARREN NANNEY, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Molly J. Huskey, State Appellate Public Defender; Elizabeth A. Allred, Deputy Appellate Public Defender, Boise, for appellant. Elizabeth A. Allred argued.
Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent. John C. McKinney argued.
Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Gregory M. Culet, District Judge.
Judgment of conviction for possession of sexually exploitative material, affirmed.
Warren Nanney appeals from his judgment of conviction for possession of sexually exploitative material, arguing that the district court erred in denying his motion to suppress and by imposing an excessive sentence. We affirm.
Warren Nanney, twenty-nine years old, was arrested on August 2, 2008, after police officers were called to investigate his presence at 1:30 a.m. with a seventeen-year-old female, E.M., at a park in Caldwell. During this investigation, police officers searched Nanney's vehicle and seized several cell phones. Pursuant to a search warrant, the cell phones' contents were searched, and nude photographs of teenage girls were found on one cell phone. Officers determined that one of the girls was C.H. of South Carolina. C.H. had met Nanney online, where he initially told C.H. that he was fifteen but later disclosed his real age. Nanney beganrequesting nude pictures of C.H. through text messages, which she took and sent to him. C.H. was fourteen at the time she took the pictures. Nanney was charged with possession of sexually exploitative material, Idaho Code §§ 18-1507 and 18-1507A, for having these pictures of C.H on his phone.
Nanney moved to suppress all evidence seized during the search of his car, or obtained as a result thereof, on the ground that the search violated Nanney's federal and state constitutional rights to be free from unreasonable searches and seizures. Nanney argued that the officers conducted the search without a warrant and without any valid exceptions to the warrant requirement. Specifically, Nanney argued that the police did not legally impound his vehicle, and therefore any search pursuant to the inventory exception to the warrant requirement was invalid and any evidence seized should be suppressed.
Prior to an evidentiary hearing on Nanney's motion, the officers at the scene on the night of the incident were asked to write supplemental reports on the issue of Nanney's consent to search his vehicle. Thereafter, at an evidentiary hearing on Nanney's motion, Corporal Eldridge, a coordinating supervisor present on the night of the incident, testified that Nanney's vehicle had indeed been impounded improperly. However, Officer Hessman, a trainee officer present on the night of the incident, testified that Nanney gave him consent to search the car and Eldridge testified that Nanney gave him consent to search the trunk, before the car was improperly impounded. Nanney testified that he did not consent.
Although four officers were at the scene during the time Nanney allegedly gave consent, none were able to produce an audio recording. Two trainee officers testified at the evidentiary hearing that their recorders' batteries died. One officer testified that he deleted his recording after the incident because he was only there in a supervisor capacity and does not normally keep audio recording of a trainee's patrol, as usually it is the trainee's responsibility to make and keep any recording. The fourth officer, Eldridge, testified that he deleted his audio recording as he did not record any conversations with Nanney, just with other officers. He stated that because he was there in a coordinating supervisor capacity, initially he only conversed with other officers and turned off his recording device during this time. Thereafter, when he did approach Nanney, he did not think to turn his recording device back on and therefore did not record any discussion with Nanney. Based on the officers' testimony that recordings were either not taken or weredeleted, Nanney supplemented his motion to suppress and argued that the officers violated Nanney's due process rights by destroying material evidence in bad faith.
The trial court found the officers' testimony to be credible and truthful and held that Nanney consented to the search of his vehicle and that the officers, while negligent, had not acted in bad faith by failing to take audio recordings of the incident or by deleting audio recordings that were taken. After the court denied Nanney's motion to suppress, Nanney was granted a lower bond pursuant to several conditions, including that he not access a computer. Nanney violated this condition about a month later and his bond was revoked. Thereafter, Nanney pleaded guilty to possession of sexually exploitative material. He was sentenced to seven years incarceration, with two years fixed. Nanney appealed.
On appeal, Nanney argues that the district court erred in determining that Nanney had consented to the search of his car and in denying his motion to suppress. Nanney asserts that the court erred because the officers' inability to produce audio recordings of Nanney's alleged consent to the search of his vehicle and failure to note the consent in their initial reports, rendered the State unable to meet its burden of proving consent as a valid exception to the warrant requirement. Additionally, Nanney argues that the court erred in not finding the officers' conduct—two officers not taking audio recordings of Nanney's alleged consent, and two officers deleting their audio recordings—was in bad faith and violated Nanney's right to due process. Nanney further contends that the district court erred in fashioning his sentence because the court failed to properly consider Nanney's expression of remorse, mental illness, and family support as mitigating factors, resulting in an excessive sentence that focused more on incarceration than rehabilitation.
Nanney argues the district court erred in determining Nanney consented to the search of his car. The officers' inability to produce audio recordings and failure to note Nanney's consent in their initial reports, Nanney contends, shows the State did not sufficiently prove consent, thereby making the search of Nanney's vehicle a violation of his right to be free from unreasonable searches and seizures. Nanney also takes issue with the court's determination that the officers did not act in bad faith by failing to make audio recordings and by deleting audiorecordings of the incident. Because the officers acted in bad faith, the argument goes, Nanney's due process rights were violated. Nanney asserts that these violations of Nanney's constitutional rights required the suppression of the State's evidence obtained as a result of the search.
The review of a suppression motion presents mixed issues of fact and law. State v. Lafferty, 139 Idaho 336, 338, 79 P.3d 157, 159 (Ct. App. 2003). When a decision on a motion to suppress is challenged, we accept the trial court's findings of fact which are supported by substantial evidence, but we freely review the application of constitutional principles to the facts as found. State v. McCall, 135 Idaho 885, 886, 26 P.3d 1222, 1223 (2001); State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct. App. 1996). At a suppression hearing, the power to assess the credibility of witnesses, resolve factual conflicts, weigh evidence, and draw factual inferences is vested in the trial court. State v. Valdez-Molina, 127 Idaho 102, 106, 897 P.2d 993, 997 (1995); State v. Schevers, 132 Idaho 786, 789, 979 P.2d 659, 662 (Ct. App. 1999).
The Fourth Amendment and the Idaho Constitution require that all searches and seizures be reasonable. City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000); State v. Ashworth, 148 Idaho 700, 702, 228 P.3d 381, 383 (Ct. App. 2010). Warrantless searches are presumptively unreasonable, unless they fall within the few established and well-delineated exceptions. Katz v. United States, 389 U.S. 347, 357 (1967); Ashworth, 148 Idaho at 702, 228 P.3d at 383. Properly given voluntary consent to search is such an exception. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); State v. Fee, 135 Idaho 857, 862, 26 P.3d 40, 45 (Ct. App. 2001). The State bears the burden to demonstrate that a warrantless search either fell within a well-recognized exception or was otherwise reasonable under the circumstances. State v. Araiza, 147 Idaho 371, 374, 209 P.3d 668, 671 (Ct. App. 2009); State v. Martinez, 129 Idaho 426, 430, 925 P.2d 1125, 1129 (Ct. App. 1996). The State must prove the warrant exception by a preponderance of the evidence. Cf. United States v. Matlock, 415 U.S. 164, 177 n.14 (1974) (); State v. Thorpe, 141 Idaho 151, 153, 106 P.3d 477, 479 (Ct. App. 2004) (). If the State fails to meet its burden, evidence acquired as a result of an illegal search, including later-discovered evidence derived from the original illegal search, is inadmissible in court. State v. Hansen, 138 Idaho 791, 796, 69 P.3d 1052, 1057 (2003); State v. Brauch, 133 Idaho 215, 219, 984 P.2d 703, 707 (1999). See also Segura v. United States, 468 U.S. 796, 804 (1984).
The right to due process requires that criminal prosecutions comport with prevailing notions of fundamental fairness. California v. Trombetta, 467 U.S. 479, 485 (1984); State v. Lewis, 144 Idaho 64, 66, 156 P.3d 565, 567 (2007). Fundamental fairness...
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