State v. Carlson

• Decision Date: 29 February 2000
• Docket Number: No. 24640, No. 24639, No. 24641.
• Citation: 134 Idaho 471,4 P.3d 1122
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Stephen Gary CARLSON, Defendant-Appellant. State of Idaho, Plaintiff-Respondent, v. Holly Helen Carlson, Defendant-Appellant. State of Idaho, Plaintiff-Respondent, v. James Charles Carlson, Defendant-Appellant.
• Court: Idaho Court of Appeals

4 P.3d 1122

134 Idaho 471

STATE of Idaho, Plaintiff-Respondent, v. Stephen Gary CARLSON, Defendant-Appellant.

State of Idaho, Plaintiff-Respondent, v. Holly Helen Carlson, Defendant-Appellant.

State of Idaho, Plaintiff-Respondent, v. James Charles Carlson, Defendant-Appellant.

Nos. 24639, 24640, 24641.

Court of Appeals of Idaho.

February 29, 2000.

Rehearing Denied May 23, 2000.

Review Denied July 31, 2000.

Marilyn Paul, Jerome County Public Defender, Jerome, for appellants.

Hon. Alan G. Lance, Attorney General; Alison A. Stieglitz, Deputy Attorney General, Boise, for respondent. Alison A. Stieglitz argued.

PERRY, Chief Judge.

These cases were consolidated for appeal. Stephen Gary Carlson appeals from a judgment of conviction entered upon his guilty plea to possession of a controlled substance with the intent to deliver, I.C. § 37-2732(a)(1)(B), and trafficking in marijuana, I.C. § 37-2732B(a)(1)(B). Holly Helen Carlson appeals from a judgment of conviction entered upon her guilty plea to manufacture of a controlled substance where children are present. I.C. § 37-2737A. James Charles Carlson appeals from a judgment of conviction entered upon his guilty plea to possession of a controlled substance with the intent to deliver. I.C. § 37-2732(a)(1)(B). The Carlsons each reserved their right to appeal from the district court's denial of their motions to suppress. For the reasons set forth below, we affirm.

I. BACKGROUND

A search warrant affidavit was presented to a magistrate in support of an application for a search warrant. After reviewing the affidavit, a magistrate found probable cause that evidence of a crime would be found at the Carlsons' residence and issued a search warrant for the Carlsons' property. The warrant authorized the seizure of marijuana, cultivation equipment, records or instruments of illegal drug sales or possession, and paraphernalia.

The search of the residence yielded, among other things, approximately ninety-one cannabis plants of differing sizes, processed marijuana, methamphetamine, and paraphernalia. The Carlsons were each subsequently charged with various violations of the Uniform Controlled Substances Act, I.C. §§ 37-2701 to -2751. The Carlsons, through common defense counsel, filed motions to suppress the evidence seized in the search of their property which the district court denied after a hearing.

Subsequently, the Carlsons each entered I.C.R. 11 conditional guilty pleas reserving their right to appeal the denial of the motions to suppress. Stephen Carlson pled guilty to possession of marijuana with the intent to deliver and trafficking in marijuana. Holly Carlson pled guilty to manufacturing a controlled substance while children are present. James Carlson pled guilty to possession of marijuana with intent to deliver. The Carlsons appeal.

II. ANALYSIS

The Fourth Amendment to the United States Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article I, Section 17 of the Idaho Constitution is virtually identical to the Fourth Amendment, except that "oath or affirmation" is termed "affidavit." The Carlsons allege that both constitutional provisions were violated here. However, they do not contend that Article I, Section 17 of the Idaho Constitution provides greater protection than its Fourth Amendment counterpart. Because the Carlsons have not presented any cogent reason why Article I, Section 17 of the Idaho Constitution should be applied differently than the Fourth Amendment with respect to the search involved here, we will rely upon judicial interpretation of the Fourth Amendment in rendering our decision.

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 were 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). The Carlsons do not dispute the district court's factual findings.

The Carlsons challenge the district court's denial of their motion to suppress. They allege that the information contained in the affidavit in support of the application for the search warrant was unreliable, stale, and, when taken as a whole, otherwise insufficient to amount to probable cause. Thus, according to the Carlsons, the district court erred when it determined that probable cause supported the issuance of the search warrant.

When probable cause to issue a search warrant is challenged on appeal, the reviewing court's function is to ensure that the magistrate had a substantial basis for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983); State v. Josephson, 123 Idaho 790, 792, 852 P.2d 1387, 1389 (1993); State v. Lang, 105 Idaho 683, 684, 672 P.2d 561, 562 (1983). In this evaluation, great deference is paid to the magistrate's determination. Gates, 462 U.S. at 236,103 S.Ct. at 2331,76 L.Ed.2d at 546; State v. Wilson, 130 Idaho 213, 215, 938 P.2d 1251, 1253 (Ct.App.1997). The test for reviewing the magistrate's action is whether he or she abused his or her discretion in finding that probable cause existed. State v. Holman, 109 Idaho 382, 387, 707 P.2d 493, 498 (Ct.App.1985).

When determining whether probable cause exists:

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him [or her], including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Gates, 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. See also Wilson, 130 Idaho at 215, 938 P.2d at 1253. If a search is conducted pursuant to a warrant, the burden of proof is on the defendant to show that the search was invalid. State v. Kelly, 106 Idaho 268, 275, 678 P.2d 60, 67 (Ct.App.1984).

The affidavit presented to the magistrate in support of the application of the search warrant in this case stated:

On 09-22-97 the affiant was contacted by an informant, concerning the possession and cultivation of marijuana at the above described location. The informant stated that he had personally witnessed the defendant, Steve Carlson, growing marijuana, harvesting it, drying it, and storing it at his home. A description of the property layout, and the home itself was given to the affiant over the phone. This was corroborated by Deputy Dunsbergen during the early morning hours of 09-23-97 when he developed a sketch of the home and property at the request of the affiant. The informant stated that about 14 days prior he had personally observed growing marijuana plants on the property, harvested and drying marijuana plants hanging in the garage.

The informant stated that his desire to remain anonymous was from his fear that the defendant would retaliate against him, stating that the defendant had a number of weapons in his home, and that he used "crank" and was violent.

At bout [sic] 0900 hrs. on 09-23-97 I spoke with Detective Rinehart of the Twin Falls Police concerning this defendant, as he has a business in the city of Twin Falls, ID. Det. Rinehart stated that he had been told by another Detective that the defendant was known by the street name of "Pop" and that he was suspected illegal [sic] manufacturing of suppression devices for firearms at his welding shop in Twin Falls.

In discussing this investigation with Sheriff Weaver and Undersheriff Roberts, Undersheriff Roberts stated that some time ago she had been involved in a call concerning a juvenile male who had possession of marijuana and claimed that it was obtained from another male juvenile that lived at the above described home. This matched information given the affiant by the informant that the defendant had a teenaged son in the home along with a wife and another child of about one year old.

Undersheriff Roberts stated that in that earlier case, she had learned that allegedly this young man living at the home of the defendant was allegedly selling marijuana and having others selling for him, that she had heard from another person that their son owed $500.00 to the boy living in the defendant's home for marijuana.

On 9-23-97 at about 0930 hrs., the affiant and Undersheriff Roberts drove to the defendant's home in Jerome County. On the mail box I saw that there was [sic] the names of "Pop" and "Bugg" rather than any proper names on the mail box in front of the home. Also, from examination of the exterior layout, the informant information seemed detailed, even including a pen for ducks and geese behind the home.

On 10-01-97 the affiant spoke with the informant again. He stated that as of Saturday 09-27-97, he observed in the defendant's garage there was [sic] a large growing marijuana plant, and plastic hanging in the garage to shelter the plant.

A. Nexus

Initially, we address the Carlsons' assertion that information concerning Stephen Carlson's alleged manufacturing of firearm suppression devices in Twin Falls should have been stricken from the affidavit and not considered by the magistrate because that allegation shows no nexus between criminal activity and the residence for which the search warrant was sought. Assertions in the affidavit must establish a sufficient nexus between criminal activity, the things to be seized, and the place to be searched to lead to the issuance of a warrant. State v. Sorbel, 124 Idaho 275, 278, 858 P.2d 814, 817 (Ct. App.1993). We agree that no nexus was...