State v. Ballou

• Decision Date: 11 June 2008
• Docket Number: No. 33248.,No. 33247.,33247.,33248.
• Citation: 186 P.3d 696,145 Idaho 840
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Michael S. BALLOU, Defendant-Appellant.
• Court: Idaho Court of Appeals

186 P.3d 696

145 Idaho 840

STATE of Idaho, Plaintiff-Respondent, v. Michael S. BALLOU, Defendant-Appellant.

No. 33247.

No. 33248.

Court of Appeals of Idaho.

June 11, 2008.

Molly J. Huskey, State Appellate Public Defender; Justin M. Curtis, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Daniel W. Bower, Deputy Attorney General, Boise, for respondent.

PERRY, Judge.

In these consolidated cases, Michael S. Ballou appeals from his judgment of conviction and sentences for thirteen counts of grand theft, fourteen counts of burglary, and one count of felony eluding a peace officer. For the reasons set forth below, we affirm.

I. FACTS AND PROCEDURE

In the early morning hours of November 26, 2004, a police officer observed an individual driving a vehicle that did not have any license plates on it. The officer initiated the patrol car's overhead lights in an attempt to stop the vehicle, but the driver led the officer on a high-speed chase through town, running several stop signs and stop lights. More officers joined the pursuit, and the car stopped at an apartment complex. The driver, who was later determined to be Ballou, fled on foot. Officers chased Ballou around the apartment complex, but eventually lost sight of him. The officers did not know the suspect they were pursuing was Ballou, nor did they know which apartment he entered, so they began to knock on doors of the apartment complex in search of the suspect.

A little before four in the morning, and approximately forty minutes after losing sight of Ballou, officers knocked on Ballou's apartment door. Ballou's wife answered the door wearing only a blanket. Initially, Ballou's wife told officers that she was home alone, but later disclosed her husband's name and indicated that he was home. One of the officers recognized Ballou's name from a previous encounter and concluded that it was Ballou they had been pursuing that morning. An officer then told Ballou's wife that Ballou was wanted for questioning regarding a possible felony eluding charge. That officer also told Ballou's wife that, if she refused consent to enter the apartment and search for Ballou, the officers could detain her in handcuffs, put her in a patrol car, and watch the house until they got a warrant. Ballou's wife retreated down the steps in front of the apartment and allowed the initial officer and another officer to enter the apartment just as Ballou was jumping out of a back window. The officers immediately ran out of the apartment and Ballou, who was wearing different clothes than when he entered the apartment, was apprehended by a canine unit and placed under arrest for felony eluding a peace officer.

Ballou's wife said she was cold and reentered the apartment, and two of the officers entered with her. The officers waited in the front room of the apartment for approximately five minutes while Ballou's wife put some clothes on. When Ballou's wife emerged, one of the officers asked for permission to search the back room where Ballou had jumped out of the window. Ballou's wife consented to the officer's request. The officers briefly entered the back room but then left to process the car that Ballou had been driving, which was determined to have been stolen.

Several hours later after processing the car, the officer who asked for permission to search the back room returned to the apartment and asked Ballou's wife for permission to search for the clothes Ballou had been wearing when the chase began. Ballou's wife asked about her rights, and the officer responded that she could either consent to the search or the officer could take her to another location while a warrant was obtained. Ballou's wife consented to the search. Eventually, another officer arrived to present Ballou's wife with a written consent form to search the apartment. When the officer arrived with the written consent form, there were already three officers in the apartment. The written consent form contained language indicating that Ballou's wife had "been informed of [her] constitutional right not to have a search made of the premises." Ballou's wife signed the consent form. A search of the apartment yielded burglary tools and a substantial amount of stolen goods including video and sound equipment and computers.

Initially, Ballou was charged with grand theft, felony eluding a peace officer, and a persistent violator sentence enhancement. Ballou filed a motion to suppress the evidence obtained from his apartment arguing that his wife's consent was not freely and voluntarily given. The district court held a hearing at which three officers testified-the officer who initiated the chase, the officer who followed Ballou's wife back into the apartment and asked for permission to search the back room and returned later to look for Ballou's clothes, and the officer who obtained Ballou's wife's signature on the written consent form. The district court also reviewed an audio tape of the initial encounter between Ballou's wife and the officers when they first knocked on her apartment door.

After the hearing, the district court concluded that the doctrine of hot pursuit did not justify the initial entry into the apartment. The district court also concluded that Ballou's wife's consent for the initial entry, if given, was not voluntary. However, the district court determined that the initial entry did not result in a search because Ballou jumped out the window as the officers entered and the officers immediately left the apartment. The district court concluded that all of the subsequent entries were made with the voluntary consent of Ballou's wife.

Ballou filed a motion for reconsideration. At the hearing on this motion, his wife testified that, although the officers did not threaten her, she felt threatened by their presence and the events that had taken place that morning. Additionally, she testified that the oral consent she granted the officer was only consent to search for Ballou's clothing. Both parties submitted briefing on the motion for reconsideration, which the district court denied.

Ballou pled guilty to thirteen counts of grand theft, I.C. §§ 18-2403, 18-2407; fourteen counts of burglary, I.C. § 18-1401; one count of felony eluding a peace officer, I.C. § 49-1404(1)(2); and admitted to a persistent violator enhancement, I.C. § 19-2514. The district court sentenced Ballou to concurrent unified sentences of thirty-five years, with minimum periods of confinement of fifteen years. Ballou appeals, challenging the denial of his motion to suppress and the excessiveness of his sentences.

II. ANALYSIS

A. Motion to Suppress

The standard of review of a suppression motion is bifurcated. 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. 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 to the United States Constitution and Article I, Section 17 of the Idaho Constitution protect people against unreasonable searches and seizures. The guarantees under the United States Constitution and the Idaho Constitution are substantially the same. State v. Fees, 140 Idaho 81, 88, 90 P.3d 306, 313 (2004). Warrantless searches are presumptively unreasonable. State v. Anderson, 140 Idaho 484, 486, 95 P.3d 635, 637 (2004). The burden of proof rests with the state to demonstrate that the search either fell within a well-recognized exception to the warrant requirement or was otherwise reasonable under the circumstances. Id. Evidence obtained in violation of these constitutional protections must be suppressed in a criminal prosecution of the person whose rights were violated. State v. Curl, 125 Idaho 224, 227, 869 P.2d 224, 227 (1993).

1. Hot pursuit

The district court concluded that the initial entry into Ballou's apartment was illegal and that the doctrine of hot pursuit did not apply. On appeal, the state argues that the initial entry was justified by hot pursuit.

A warrantless entry into a suspect's home may be justified by the doctrine of hot pursuit. United States v. Santana, 427 U.S. 38, 42-43, 96 S.Ct. 2406, 2409-10, 49 L.Ed.2d 300, 305 (1976). The doctrine of hot pursuit prevents a suspect from escaping into a private residence after an arrest has been initiated in a public place. Id. at 43, 96 S.Ct. at 2410, 49 L.Ed.2d at 305. In order for the doctrine of hot pursuit to apply, the pursuit of the suspect must be immediate and continuous. Welsh v. Wisconsin, 466 U.S. 740, 753, 104 S.Ct. 2091, 2099, 80 L.Ed.2d 732, 745 (1984). See also United States v. Lindsay, 506 F.2d 166, 173 (D.C.Cir.1974) (noting that "speed and a continuous knowledge of the alleged perpetrator's whereabouts are the elements which underpin [the hot pursuit] exception to the warrant requirement").

Pursuit of a suspect was not considered continuous when the pursuing officer had not seen the suspect for thirty minutes. United States v. Johnson, 256 F.3d 895, 908 (9th Cir.2001). In Johnson, an officer pursuing a suspect stopped when the suspect entered a wooded area. The Ninth Circuit determined that the continuity of the pursuit was broken because the officer had not seen the suspect for thirty minutes and because the officer had no idea exactly where in the woods the suspect was hiding. Id. at 907-08. Although the court recognized that the continuity of a pursuit can sometimes be delayed and not broken, such as when officers wait for reinforcements, it determined that was not ...