State v. Cada

• Decision Date: 29 March 1996
• Docket Number: No. 21606,21606
• Citation: 129 Idaho 224,923 P.2d 469
• Parties: STATE of Idaho, Plaintiff-Appellant, v. Rodney Karol CADA, Defendant-Respondent.
• Court: Idaho Court of Appeals

Page 469

923 P.2d 469

129 Idaho 224

STATE of Idaho, Plaintiff-Appellant, v. Rodney Karol CADA, Defendant-Respondent.

No. 21606.

Court of Appeals of Idaho.

March 29, 1996.

Rehearing Denied June 11, 1996.

Petition for Review Denied,

Oct. 4, 1996.

Alan G. Lance, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for appellant. John C. McKinney argued.

Featherston Law Firm, Sandpoint, for respondent. Brent C. Featherston argued.

LANSING, Judge.

We are once again called upon to address the complex issue of the scope of constitutional protections against unreasonable searches and seizures. In this case, law enforcement officers made two late night entries onto the driveway to the defendant's home in an effort to determine whether the defendant was engaged in growing marijuana. During these covert visits, the agents smelled marijuana in the vicinity of a garage and, using a thermal imaging device, determined that heat was being emitted from the garage. The information gained on these nighttime visits was then used by the law enforcement officers to obtain a warrant authorizing a search of the garage and the defendant's house. In executing the warrant, officers found marijuana being grown in the garage. The defendant was charged with trafficking in a controlled substance, marijuana, I.C. § 37-2732(B)(a)(1)(C), and failure to affix drug tax stamps, I.C. §§ 63-4205(1), 63-4207(2). The district court, however, suppressed evidence obtained during the night entries and during execution of the search warrant. The court concluded that the evidence presented by the officers in support of their application for the warrant had been obtained through illegal searches of the defendant's property. We affirm the decision of the district court.

FACTS

On June 21, 1993, a magistrate heard oral testimony in support of an application for a warrant to search the house and certain outbuildings located on rural property leased by Rodney K. Cada. According to this testimony, on May 8, 1993, a confidential informant contacted Agent Gary Landers of the United States Drug Enforcement Administration. The informant described to Landers an automobile that the informant had seen at a garden supply store in Spokane, Washington, which was known to sell equipment commonly used by persons who cultivate marijuana indoors. The informant gave Landers a partial Idaho license plate number for the vehicle and said that the driver, a white male, had emerged from the store carrying a small cardboard box. Landers shared this information with Agent Dan Thornton of the Idaho Bureau of Narcotics. Agent Thornton determined that the described vehicle was registered to Rodney K. Cada.

Based upon this information, on June 9, 1993, at about 10 a.m., Thornton drove to Cada's residence in a rural area of Bonner County and knocked on the front door. On the pretense that he needed directions to another location, Thornton spoke with an adult female who came to the door. After a short conversation, he left. While there, Thornton observed the general layout of the property, which included several outbuildings.

At about 1 a.m. on June 10, 1993, Agent Thornton returned to the Cada property with Agent Landers. The two walked from the county road up Cada's driveway. While on the driveway both agents smelled growing or freshly cultivated marijuana. The odor appeared to be coming from a garage located about 110 feet from the house. The agents continued on the driveway to an area between the garage and the house. They then set up a thermal imaging device and directed it at the garage. The device is a passive, non-intrusive system that detects the surface temperature of an object. The agents concluded that heat coming from the garage was consistent with the amount of heat which would be necessary to grow marijuana. The agents were on the property approximately ten to fifteen minutes during this entry.

The agents returned to the Cada property on June 21, 1993, at approximately 4 a.m. One or both of them wore camouflage clothing. Landers again smelled marijuana coming from the garage. On this visit the agents heard a noise coming from the back of the garage that sounded like an exhaust fan. Agent Thornton testified that in his experience indoor marijuana cultivation operations often have an exhaust system. Thornton set up a motion-activated low light infrared video camera and two infrared sensors in a position hidden among bushes across the driveway from the garage. The camera was focused on the garage. This intrusion onto Cada's property lasted about 45 minutes.

Later that day, both agents presented to a magistrate an application for a search warrant. In addition to testifying to the above facts, they presented evidence from the power company concerning electrical power usage on the property. The magistrate issued a warrant authorizing a search of Cada's residence and the garage. The magistrate's finding of probable cause for the warrant was based "most particularly" on the odor of marijuana detected by the agents.

On June 23, 1993, the warrant was executed. Officers found that the garage contained, in addition to a shop and storage area, more than one hundred marijuana plants. Cada was then arrested.

Cada moved to suppress the evidence obtained during execution of the search warrant and during the two warrantless nighttime entries onto his property. He contended that the agents' warrantless entries violated his rights to be free from unreasonable searches and seizures under the Fourth Amendment to the United States Constitution and Art. I, § 17 of the Idaho Constitution, and that the evidence thereby obtained must be suppressed. He also asserted that the search warrant was invalid because, absent the evidence unlawfully gained through the nighttime visits, there was no showing of probable cause for issuance of a warrant.

The district court concluded that the late night trips onto the property surrounding the home and garage were illegal searches and that the warrant was invalid. ¹ Therefore, Cada's motion to suppress was granted. It is unclear whether the district court's decision was based solely upon Art. I, § 17 of the Idaho Constitution or upon both the state and federal constitutions. We will address each.

ANALYSIS

Both the Fourth Amendment and Art. I, § 17 safeguard "the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures...." These constitutional provisions are designed to protect an individual's legitimate expectation of privacy that society is prepared to recognize as reasonable. Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 1740, 80 L.Ed.2d 214 (1984); Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516-17, 19 L.Ed.2d 576 (1967); State v. Thompson, 114 Idaho 746 760 P.2d 1162 (1988). Warrantless governmental entries into private dwellings are presumptively unreasonable. State v. Curl, 125 Idaho 224, 225, 869 P.2d 224, 225 (1993).

An application for a search warrant must be supported by facts "sufficient to create probable cause for belief that the forbidden articles are within the place to be searched." State v. Josephson, 123 Idaho 790, 794, 852 P.2d 1387, 1391 (1993). See also State v. Lang, 105 Idaho 683, 684, 672 P.2d 561, 562 (1983). When tainted evidence has been relied upon for the issuance of a warrant, an appellate court must determine whether the remaining information presented to the magistrate, after the tainted evidence is excluded, contains adequate facts from which the magistrate could have concluded that probable cause existed for issuance of the search warrant. State v. Johnson, 110 Idaho 516, 526, 716 P.2d 1288, 1298 (1986). In reviewing an order granting or denying a motion to suppress evidence, an appellate court will defer to the trial court's factual findings unless the findings are clearly erroneous. However, free review is exercised over the trial court's determination as to whether constitutional requirements have been satisfied in light of the facts found. State v. Weber, 116 Idaho 449, 451-52, 776 P.2d 458, 460-61 (1989) citing State v. Heinen, 114 Idaho 656, 658, 759 P.2d 947, 949 (Ct.App.1988).

The State argues that, if Agents Thornton and Landers were standing in a location where they had the right to be when they first detected the odor of marijuana coming from Cada's garage, the warrant must be upheld, even if the agents' subsequent further intrusions onto the property violated constitutional standards. That is, the State contends the marijuana odor, together with other evidence obtained prior to the nighttime excursions, would have been sufficient to establish probable cause for issuance of the warrant. Therefore, we focus our analysis on the lawfulness of the agents' conduct at the point when they first noticed the odor of marijuana.

A. Agents' Location When Marijuana Odor Was First Detected

Preliminarily we must address the State's argument that the district court's finding that the agents were on Cada's property when they first smelled marijuana was clearly erroneous. According to the State, testimony at the suppression hearing "plainly showed that the officers had not even crossed onto Cada's property when they first smelled marijuana."

This assertion is without merit. A diagram of the Cada property, drawn to scale, was placed in evidence. The prosecutor asked Agent Thornton to mark the location where he first smelled marijuana on the June 10 visit. On the diagram, Thornton drew an X on the driveway directly to the north of the garage. This mark is over the property line in excess of forty feet. The prosecutor also asked Thornton where Landers had indicated that he (Landers) smelled marijuana on June 21. Thornton drew a circle around the X he had drawn earlier. Although there was conflicting evidence in the record, this testimony constitutes substantial evidence supporting the district court's factual...