State v. Burnside

• Decision Date: 15 July 1987
• Docket Number: No. 16142,16142
• Citation: 741 P.2d 352,113 Idaho 65
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Robert L. BURNSIDE, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 352

741 P.2d 352

113 Idaho 65

STATE of Idaho, Plaintiff-Respondent, v. Robert L. BURNSIDE, Defendant-Appellant.

No. 16142.

Court of Appeals of Idaho.

July 15, 1987.

Marvin R. Stucki, Idaho Falls, for defendant-appellant.

Jim Jones, Atty. Gen., John J. McMahon, Deputy Atty. Gen. (argued), for plaintiff-respondent.

SWANSTROM, Judge.

Officers executing a search warrant found cocaine and methamphetamine at the residence of Robert Burnside. He was charged with two counts of possession of a controlled substance with the intent to deliver. I.C. § 37-2732. Burnside's motion to suppress the evidence seized from his home was denied, and he entered a plea of guilty conditioned on his right to appeal questions of law. I.C.R. 11(a)(2). The district court sentenced him to seven years in the custody of the State Board of Correction.

On appeal, Burnside contends that (1) the search warrant was issued without probable cause; (2) execution of the warrant occurred at night in violation of its terms, rendering the search illegal; (3) the search of a safe in Burnside's home went beyond the scope of the search warrant, requiring exclusion of the evidence found therein; (4) the court erred in allowing the state to present testimony during the hearing on Burnside's suppression motion while neither Burnside nor his attorney was present; and (5) the court imposed an ambiguous, unduly harsh sentence. For reasons given below, we affirm in part but remand for correction of the judgment and for resentencing.

Pursuant to an anonymous tip, Officer Todd Ericsson of the Idaho Falls Police Department began an investigation of Robert Burnside. After approximately nine days of surveillance and two searches of Burnside's trash, Ericsson applied for, and received, a warrant to search, during the daytime, Burnside's residence, his vehicle, and "any person found on the premises." The search was limited to "cocaine, evidence of ownership or possession, any narcotics including Cocaine, Marijuana, Methamphetamine, drug paraphernalia and evidence of drug use and trafficing [sic]."

At approximately 8:00 p.m. on September 15, 1984, Burnside returned home from a trip to Nevada and was confronted by the officers with the warrant. The officers searched Burnside and arrested him following discovery of cocaine, methamphetamine and more than $6,000 on his person. A brief search of the premises ensued, during which the officers persuaded Burnside to open a safe found inside the house. The safe contained more than $6,000 in cash, cocaine, methamphetamine and miscellaneous other items.

Burnside was subsequently charged with two counts of possession of a controlled substance with the intent to deliver. He moved for suppression and return of the evidence seized by the officers. A hearing was held. Neither Burnside nor his counsel was present at the hearing, yet the district judge received testimony from the state concerning the time of day the search warrant was executed. He then denied the motion. At Burnside's request, the court granted a rehearing at which both parties were in attendance. The court ultimately reaffirmed its denial of the motion to suppress. Burnside entered a conditional plea of guilty and brought this appeal.

Burnside's arguments fall into three categories: (1) the validity and scope of the search warrant; (2) the hearing on the suppression motion; and (3) the imposition of the sentence. Each subject will be discussed in turn.

I

Burnside offers three arguments concerning the validity and scope of the search warrant: (a) whether there was probable cause for issuance of the search warrant; (b) if so, whether the search warrant was executed during the nighttime in violation of its terms; and (c) if not, whether seizure of the items from inside the safe went beyond the scope of the warrant, requiring suppression of the evidence.

A

A review of a magistrate's finding of probable cause involves a determination of whether the magistrate had a substantial basis for concluding that probable cause existed. State v. Forshaw, 112 Idaho 162, 730 P.2d 1082 (Ct.App.1986). When the probable cause determination is based in whole or in part on information from an anonymous informant, we must apply the "totality of the circumstances" analysis established in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). State v. Forshaw, supra. This analysis replaced the more rigid two-prong test of Aguilar-Spinelli originated in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The latter test strictly required establishment of the informant's "basis of knowledge" along with either his veracity or the reliability of his information. In contrast, the Gates inquiry, as we interpret it in Idaho, begins by examining these two prongs but, when one prong proves weak, allows the magistrate to consider the totality of the circumstances to determine the existence of facts relevant to establishing probable cause. State v. Forshaw, supra.

When he applied for the search warrant, Officer Ericsson presented the following evidence of probable cause: (1) information conveyed from an anonymous informant to Officer Dennis Nizzi identifying Burnside, his address and his employer and asserting that Burnside sold methamphetamine; (2) information gleaned from an initial search of the trash in an alley behind Burnside's residence, revealing papers, bank receipts and statements bearing Burnside's name, a paper "bindle" folded in a manner common for the transport of narcotics, and notepads listing names, quantities and amounts in formats and figures consistent with drug use, common street values and common trafficking quantities; (3) observation of an extended period of activity consistent with narcotic dealings and characterized by Burnside's late-night rendezvous with numerous unidentified persons for short periods of time in quick succession, both at his residence and in public areas; (4) Ericsson's statement that late one evening outside Burnside's home he saw a visitor startle Burnside and heard Burnside say, "Oh, that's okay I just get real paranoid when I'm dealing;" (5) observations of Burnside as he made frequent checks of his premises throughout the night; and (6) a second search of the trash, revealing two additional bindles and a wrapper from a package of Zig-Zag cigarette papers.

Burnside argues that this information provided no basis for the belief that narcotics were located on his property or that he was engaged in anything but legal activities. Specifically, Burnside argues that the anonymous tip was unsubstantiated and unreliable. Very little information was received from the informant. Nothing in the tip indicated the informant's basis of knowledge. Partial verification occurred through Officer Ericsson's check of the utility records for the address given and through receipt of similar information from other informants. However, the basis of knowledge and veracity inquiries are extremely weak and hence must be given little weight. Keeping in mind that probable cause is based on a standard of probability, not proof, State v. Forshaw, supra, we turn to the remaining circumstances to determine the existence of probable cause.

The informant's tip prompted an investigation into Burnside's activities. The officers' observations and conclusions, based heavily on past narcotics experience, corroborated the informant's disclosure. The notepads, bindles and other evidence retrieved from the garbage, while not conclusive individually, together indicate activity likely connected with narcotics. When viewed in the aggregate, these points are more indicative of criminal activity than of innocent activity.

Burnside asserts that none of the evidence provided a substantial basis to believe that narcotics were located on his premises. However, much of the suspicious activity observed during the officers' surveillance occurred either at Burnside's residence or in his car. Additionally, the discovery of similar questionable items in the garbage on separate occasions strongly suggests the possibility of additional articles existing on the premises. Based on the information and circumstances outlined in the affidavit, we hold that a substantial basis existed for the magistrate's finding of probable cause.

B

Faced with a validly issued warrant, Burnside asserts that its execution was fatally flawed. The warrant clearly provides for execution during daylight hours. The parties agree that sunset "officially" occurred at approximately 7:39 p.m. The court found that the search commenced during daylight hours at approximately 8:00 p.m. Burnside argues that this determination is erroneous.

I.C.R. 41(c) authorizes daytime execution of a search warrant unless, for reasonable cause shown, the issuing authority provides in the warrant for nighttime execution. However, neither the rule nor the cases interpreting it defines "daytime," unlike a number of other jurisdictions. E.g., Fed.R.Crim.P. 41(h) (daytime extends between 6:00 a.m. and 10:00 p.m. local time); United States v. Liebrich, 55 F.2d 341 (D.C.Pa.1932) (holding, before adoption of 41(h), that daytime extends from at least thirty minutes before sunrise to thirty minutes after sunset); Funches v. State, 53 Ala.App. 330, 299 So.2d 771 (1974) (daytime exists while the light from the sun allows recognition of a person's features); United States v. Ortiz, 311 F.Supp. 880 (D.C.Colo.1970) (a daytime search is proper where there is sufficient light to recognize a person's features and to read the search warrant). The natural light of day may extend visibility beyond a locality's official sunset. ¹ Where one's features are clearly discernible by natural light alone, even after official sunset, we cannot say that daytime has ceased. Accordingly, we hold that, for execution of search warrants, daytime extends...