State v. Ellis

• Decision Date: 16 November 1978
• Docket Number: No. 12599,12599
• Citation: 586 P.2d 1050,99 Idaho 606
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Robert Franklin ELLIS, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 1050

586 P.2d 1050

99 Idaho 606

STATE of Idaho, Plaintiff-Respondent, v. Robert Franklin ELLIS, Defendant-Appellant.

No. 12599.

Supreme Court of Idaho.

Nov. 16, 1978.

Stephen F. Bell, Coeur d'Alene of Nixon, Nixon, Lyons & Bell, Coeur d'Alene, for defendant-appellant.

Wayne L. Kidwell, Atty. Gen., Arthur J. Berry, III, Asst. Atty. Gen., Lynn E. Thomas, Deputy Atty. Gen., Boise, for plaintiff-respondent.

BISTLINE, Justice.

Defendant Ellis has appealed his conviction of grand larceny on the ground that there was an impermissible search of the trunk of an automobile in his possession, followed by a later seizure of incriminating evidence which was in that trunk. Defendant alleges both the search and the seizure were unlawful and the evidence should have been excluded. We find no error and affirm.

The evidence touching on the exclusionary issue is without dispute. At or about 1:25 a. m. on the morning of January 12, 1977, officers were dispatched to the scene of a suspected on-going theft. Upon arriving, they found a parked automobile with its trunk unlocked and slightly open (three to six inches). Seeing rolls of copper wire inside the trunk, they followed footprints in the snow to a substation of Kootenai Electric Cooperative. Along the path and inside the substation they found other coils of wire that had been moved, as well as a pair of boltcutters and a cut link of the chain that had secured the gate to the substation. Following the tracks further, the officers apprehended defendant/appellant Ellis and an accomplice several miles from the substation.

Shortly after defendant's arrest, the officers returned to the automobile and the rolls of wire were seized from its trunk. No warrant was sought prior to such seizure. Defendant moved to suppress the wire as evidence on the ground that no warrant was obtained and no exception to the warrant requirement applied. At the suppression hearing which preceded the trial, defense counsel called Officer Hill, who had seized the wire. After direct and cross-examination and argument by counsel, the judge denied the motion on the ground that the plain view doctrine applied and no warrant was necessary.

Defendant argues that the trial judge erred procedurally in not directing the State to open at the suppression hearing with its presentation. It is true that the court did note that it was defendant's motion, and that defendant should proceed. Defendant did so, voicing no objection to going forward. Under such circumstances, any objection was thus waived. In Annau v. Schutte, 96 Idaho 704, 708, 535 P.2d 1095, 1099 (1975), the Court said:

(A)ppellants fail to point out in the record where they objected to this variance in procedure by the trial court, and fail to disclose how they were prejudiced in this regard. Under these circumstances we find no prejudicial error.

See also I.C. § 19-3702. Defendant also complains that the State put on no case. The record shows that defendant put on Officer Hill, whose testimony, amplified on cross-examination, was the only testimony submitted. Regardless of who called Hill as their witness, both parties had ample opportunity to make a record. The defendant on appeal is required to show error, and that he was prejudiced thereby. That the State was satisfied to rest on the testimony of Hill is of no avail to the defendant. If Hill's testimony did not sustain the State's position, it was the State which assumed the risk of not producing other evidence.

Defendant also contends that the evidence does not sustain the trial court's ruling. It is true that, subject to certain well-defined exceptions, warrantless searches are per se unreasonable. State v. Harwood, 94 Idaho 615, 617, 495 P.2d...