State v. Cruz, 31880.

• Court: Court of Appeals of Idaho
• Writing for the Court: Schwartzman
• Citation: 174 P.3d 876,144 Idaho 906
• Parties: STATE of Idaho, Plaintiff-Appellant, v. Ernesto CRUZ, Defendant-Respondent.
• Docket Number: No. 31880.,31880.
• Decision Date: 12 June 2007

174 P.3d 876

144 Idaho 906

STATE of Idaho, Plaintiff-Appellant, v. Ernesto CRUZ, Defendant-Respondent.

No. 31880.

Court of Appeals of Idaho.

June 12, 2007.

Rehearing Denied August 28, 2007.

Hon. Lawrence G. Wasden, Attorney General; Thomas Tharp, Deputy Attorney General, Boise, for appellant. Thomas Tharp argued.

Molly J. Huskey, State Appellate Public Defender; Daniel R. Anderson, Deputy Appellate Public Defender, Boise, for respondent. Daniel R. Anderson argued.

SCHWARTZMAN, Judge Pro Tem.

The state appeals from the district court's order suppressing evidence the state sought to admit in the prosecution of Ernesto Cruz. For the reasons set forth below, we reverse and remand.

I. FACTS AND PROCEDURE

Cruz was paroled after being convicted of possession of a controlled substance. Cruz agreed to abide by several parole conditions, including that he would "submit to a search of person or property, to include residence and vehicle, at any time and place by any agent of Field and Community Services and [he] does waive constitutional right to be free from such searches."

Almost a year after Cruz was released on parole, a parole officer received an uncorroborated tip from a probationer that Cruz was selling narcotics at a studio apartment. Although that apartment was not the residence that Cruz had reported to his supervising parole officer, the probationer further informed the parole officer that Cruz was living at the studio apartment. The parole officer who received the tip consulted with Cruz's supervising parole officer and learned that Cruz was not home during a recent home visit and that Cruz had recently stated that he wished to move from his reported address. Additionally, two police officers, acting as part of a task force with parole officers, drove by Cruz's reported residence two to three times a day for a week and a half but never observed Cruz's vehicle parked in the area. The two police officers and the parole officer who received the tip then observed Cruz's vehicle parked, two evenings in a row, near the apartment where he was reported to have been selling narcotics and living. On the second evening they observed Cruz's vehicle parked nearby, the parole officer and two police officers went to the apartment to determine if he had changed his residence without permission and whether he was complying with the terms of his probation. The parole officer knocked on the front door, identified herself, and asked for Cruz. Cruz suggested that they give him a chance to exit to speak with them outside of the apartment. The officers then ordered Cruz to show his hands, but Cruz kept his left hand hidden behind the partially-opened door. The officers forcibly entered the apartment, handcuffed Cruz after a brief struggle, and took steps to ensure their safety by making a protective sweep and securing the apartment.

Cruz's girlfriend and her son, the resident occupants of the apartment, were both present when the officers entered. As one of the police officers closed the front door, he discovered four plastic bindles of methamphetamine lying on the floor in the area behind the front door where Cruz's left arm had been. Cruz admitted that the methamphetamine belonged to him. The parole officer discovered other items belonging to Cruz in the apartment, including two pairs of jeans and a few shirts on the bed; work boots on the floor; a coat; bottles containing drugs prescribed to him on top of a dresser; and his cell phone charger on an end table.

The state charged Cruz with possession of a controlled substance, I.C. § 37-2732(c)(1), for the methamphetamine found behind the front door.¹ Cruz moved to suppress this evidence as the fruit of an unlawful search. After a hearing, the district court issued an extensive decision, granting Cruz's motion to suppress. The district court found that, although Cruz was not permanently residing at his girlfriend's apartment, he visited the apartment almost every day and spent one to two nights a week there. The district court ruled that Cruz had a reasonable expectation of privacy in his girlfriend's apartment entitling him to challenge the search, and that the search was unlawful because Cruz did not have authority, as a nonresident of the apartment, to consent to the search. The state appeals.

II. STANDARD OF REVIEW

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).

III. ANALYSIS

A warrantless search is presumptively unreasonable unless it falls within certain special and well-delineated exceptions to the warrant requirement in the Fourth Amendment of the United States Constitution and Article I, Section 17 of the Idaho Constitution. State v. Curl, 125 Idaho 224, 225, 869 P.2d 224, 225 (1993); State v. McIntee, 124 Idaho 803, 804, 864 P.2d 641, 642 (Ct.App.1993). Even if a search is improper, however, only an individual with a privacy interest that was invaded by the search may obtain suppression of evidence found. State v. Hanson, 142 Idaho 711, 716, 132 P.3d 468, 473 (Ct.App.2006). We agree with the district court that Cruz had a reasonable expectation of privacy in his girlfriend's apartment which he frequented regularly, either as a social guest or "part-time" resident, and that he was therefore entitled to challenge the reasonableness of the search. See Minnesota v. Olson, 495 U.S. 91, 100, 110 S.Ct. 1684, 1689, 109 L.Ed.2d 85, 95 (1990); United States v. Rhiger, 315 F.3d 1283, 1287 (10th Cir.2003); United States v. Pollard, 215 F.3d 643, 647-48 (6th Cir.2000); Morton v. United States, 734 A.2d 178, 182 (D.C.1999); State v. Missouri, 361 S.C. 107, 603 S.E.2d 594, 597-98 (2004); State v. Hess, 680 N.W.2d 314, 322-23 (S.D.2004). See also 6 Wayne R. LaFave, Search and Seizure § 11.3(b), at 151-52 (4th ed.2004).

The state argues that the search of Cruz's girlfriend's apartment was reasonable because, as a parolee subject to searches of his person or residence at any time, Cruz had a significantly diminished expectation of privacy. Idaho appellate courts have long-recognized that parolees and probationers have a diminished expectation of privacy and will enforce Fourth Amendment waivers as a condition of parole or probation. See, e.g. State v. Gawron, 112 Idaho 841, 843, 736 P.2d 1295, 1297 (1987); State v. Peters, 130 Idaho 960, 963, 950 P.2d 1299, 1302 (Ct.App.1997). Even in the absence of a warrantless search condition, a parole or probation officer may conduct a search of a parolee or probationer and his or her residence if the officer has "reasonable grounds" to believe that he or she has violated a parole or probation condition and the search is reasonably related to the disclosure or confirmation of that violation. See State v. Klingler, 143 Idaho 494, 497-98, 148 P.3d 1240, 1243-44 (2006). In Klingler, the Idaho Supreme Court upheld the warrantless search of an unsupervised probationer's residence based upon an unsubstantiated tip from a police detective that Klingler "may be dealing drugs," coupled with the probationer's drug history which indicated a heightened need for supervision. Id., 143 Idaho at 498, 148 P.3d at 1244. Thus, the mere likelihood of facts justifying the search can be sufficient to constitute reasonable grounds. Id. See also State v. Anderson, 140 Idaho 484, 487-88, 95 P.3d 635, 638-39 (2004) (unconfirmed tips from a neighbor regarding detected odor of suspected methamphetamine lab, coupled with prior drug history and other rumors, sufficient to establish "reasonable grounds" or "reasonable suspicion" for warrantless search as a condition of bail pending appeal).

The United States Supreme Court has recently analyzed the constitutionality of warrantless searches of parolees and probationers under the general Fourth Amendment approach of examining the totality of the circumstances. See Samson v. California, ___ U.S. ___, ___, 126 S.Ct. 2193, 2197, 165 L.Ed.2d 250, 256 (2006); United States v. Knights, 534 U.S. 112, 118, 122 S.Ct. 587, 590, 151 L.Ed.2d 497, 504 (2001). Whether a search is reasonable is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests. Samson, ___ U.S. at ___, 126 S.Ct. at 2197, 165 L.Ed.2d at 256; Knights, 534 U.S. at 118-19, 122 S.Ct. at 591-92, 151 L.Ed.2d at 504-05.

In Knights, a probationer challenged a warrantless search of his residence. The Supreme Court noted that the probationer's expectation of privacy was significantly diminished by a condition of his probation whereby he was subject to a search of his person or residence, without a warrant or reasonable cause, by any probation officer or law enforcement officer at any time. The Court held that, when an officer has "reasonable suspicion" that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer's significantly diminished privacy interests is reasonable. Knights, 534 U.S. at 121, 122 S.Ct. at 592, 151 L.Ed.2d at 506. The Supreme Court declined to decide, however, whether the probation condition so diminished, or completely eliminated, the probationer's reasonable expectation of privacy that a search unsupported by individualized suspicion would have...