State v. Fledderjohann, Docket No. 32099 (Idaho App. 10/3/2008)
| Decision Date | 03 October 2008 |
| Docket Number | Docket No. 32099. |
| Parties | STATE OF IDAHO, Plaintiff-Respondent, v. DIANA L. FLEDDERJOHANN, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Thomas F. Neville, District Judge.
Judgment of conviction for injury to a child, affirmed.
Molly J. Huskey, State Appellate Public Defender; Justin M. Curtis, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Rebekah A. Cudé, Deputy Attorney General, Boise, for respondent.
Diana L. Fledderjohann entered a conditional plea of guilty to a charge of injury to a child, I.C. § 18-1501(1). She appeals, contending that the district court erred in denying a portion of her motion to suppress evidence. We affirm.
The following facts appear from the oral findings and the written decision of the district court entered at the conclusion of the hearing on Fledderjohann's motion to suppress. Fledderjohann's parents and her brother, Scott, co-owned a house on Waterbury Way in Meridian. They had purchased the house so Fledderjohann and Scott would have a place to live when they left their parents' home. Scott and Fledderjohann lived in the house until March or April 2004, when Scott moved out to get married. After that Fledderjohann lived in the house with her ten-year-old daughter, KF, and with a roommate who paid half of the rent to her, and which Fledderjohann would then pay to her mother. As an arrangement among the family members, Fledderjohann's parents and brother had keys to her house and she had keys to their houses so they could enter each other's homes at any time. There was also a keypad locking system on Fledderjohann's house and her mother had the code numbers so she could get into the house at any time without a key.
The family had a birthday party for Scott on July 24, 2004. After the party Fledderjohann took KF home, dropped her off at the house and told KF she would be back in a few minutes. Six days later, Fledderjohann's mother stopped at the house on her way home from work because she had learned that Fledderjohann had lost her job at Blue Cross where both of them worked. The door was unlocked; Mrs. Fledderjohann entered and found that no one was in the house, although the television was on. While she was in the house, KF came in with some friends. KF told her grandmother that she had not seen her mother in the past week and that she had been left alone at the house without adult supervision. Mrs. Fledderjohann observed that the kitchen and living areas of the home were filthy; there were dirty dishes, an empty beer container in the living room, dried food, unwashed moldy dishes, and no food or milk in the house. Mrs. Fledderjohann took KF home with her. She talked the situation over with her husband when he came home from work around ten o'clock p.m., and with Scott and his wife. Sometime that evening, Mrs. Fledderjohann tried to telephone Fledderjohann at the latter's cell phone number but got no answer and left a message on the cell phone. She never heard back from Fledderjohann. She decided to call the police and agreed to meet the police at Fledderjohann's house later that night.
When the police arrived at Fledderjohann's house, they asked for and received permission from Mrs. Fledderjohann and Scott to enter the house in order to determine if KF had been abandoned or was living in dangerous surroundings, and to investigate Fledderjohann's disappearance. The police did not have a warrant to search the premises. Scott used his key to let the officers into the house. Inside, the officers observed the general condition of the house and discovered drug paraphernalia in plain view, consisting of two glass pipes lying on furniture and a torch lying on the bedroom floor, that is commonly used to heat pipes to ingest or smoke methamphetamine. The officers also conducted a more thorough search and found additional drug-related items in a closed liquor-bottle bag in an open closet in the master bedroom. Fledderjohann was charged with injury to a child and with possession of drug paraphernalia. She moved to suppress the officers' observations of the condition of the home, photographs taken by the officers of the interior of the home, and the drug paraphernalia found by the officers in plain view and in the closed bag. The district court granted the motion as to the paraphernalia found in the closed bag, but denied the motion as to the officers' observations, the photographs, and the two glass pipes.1 The district court held that it was reasonable on three grounds for the officers to enter Fledderjohann's home without a warrant. First, the court held that because the officers were authorized by statute2 to take the child, KF, into custody by the Idaho Department of Health and Welfare if the child's welfare was in danger or if she was abandoned, the officers' investigation permitted them to enter the house to view the conditions under which the child was living and to determine whether she had been abandoned and should be taken into custody. Additionally, the court held that the officers had consent from the owners of the property, Fledderjohann's mother and brother, to enter the premises. Finally, the court held that the officers were acting under a community caretaking function when they entered the house to determine the whereabouts of Fledderjohann, who according to her parents, was a missing person who had not been seen or heard from for a week. The court held, however, that once the officers were in the house engaging in their observations of conditions and of items in plain view, it was unreasonable for the officers to conduct a more intrusive search by looking into the small closed bag from the closet, where they found drug paraphernalia in addition to the items in plain view. Consequently, the court ordered suppression of the items in the bag.
Fledderjohann then agreed to plead guilty to the charge of injury to a child in exchange for dismissal of the drug possession charge, reserving the right to appeal the denial of her suppression motion. After entry of a judgment of conviction and sentence, Fledderjohann brought this appeal. She contends that the district court erred in denying in part her motion to suppress evidence. In this respect, Fledderjohann challenges the district court's determination that the officers did not violate her Fourth Amendment rights3 when they entered her home without a warrant.
The review of an order on a motion to suppress evidence involves mixed questions of law and fact. State v. Zubizareta, 122 Idaho 823, 826, 839 P.2d 1237, 1240 (Ct.App.1992); State v. McAfee, 116 Idaho 1007, 1008, 783 P.2d 874, 875 (Ct.App.1989). On appeal, we defer to the findings of the district court unless they are clearly erroneous, State v. DuValt, 131 Idaho 550, 552-53, 961 P.2d 641, 643-44 (1998); State v. Stevens, 126 Idaho 822, 823, 892 P.2d 889, 890 (1995); Zubizareta, 122 Idaho at 826, 839 P.2d at 1240, but we exercise free review in deciding whether, on those facts, constitutional requirements have been satisfied. Zubizareta, 122 Idaho at 826, 839 P.2d at 1240. The credibility of witnesses and weight to be given the facts in evidence is in the trial court's province. State v. Brauch, 133 Idaho 215, 218, 984 P.2d 703, 706, (1999).
An officer's warrantless entry into a residence to conduct a search is presumptively unreasonable and prohibited by the Fourth Amendment. Welsh v. Wisconsin, 466 U.S. 740 (1984); State v. Curl, 125 Idaho 224, 225, 869 P.2d 224, 225 (1993). However, an officer need not obtain a warrant if the search falls into one of the recognized exceptions to the warrant requirement. State v. Reimer, 127 Idaho 214, 899 P.2d 427 (1995). Here the district court upheld the officers' search of Fledderjohann's house and seizure of evidence under a recognized exception to the requirement of a warrant, consent, and upon two other grounds: the statutory authority to investigate whether KF was an abandoned child or was in imminent danger, and the community caretaking function of trying to determine Fledderjohann's whereabouts and condition.
At the outset, having reviewed the record, we hold that the district court's findings of fact are supported by substantial, competent evidence and therefore are not clearly erroneous. They will be sustained. DuValt, 131 Idaho at 552-53, 961 P.2d at 643-44; Stevens, 126 Idaho at 823, 892 P.2d at 890. Consequently, we must decide whether the district court's conclusion that the State did not violate Fledderjohann's Fourth Amendment rights can be sustained.
The State argues, and we agree, that the officers' entry into Fledderjohann's house can be upheld upon the consent exception to the warrant requirement. A warrant is not required when the police obtain consent for the search from a person who has authority to consent. Brauch, 133 Idaho at 219, 984 P.2d at 707 (citing United States v. Matlock, 416 U.S. 164 (1974)). Proper consent may come from any person who possesses common authority over the premises, which is derived from mutual use with joint access or control for most purposes. State v. Barker, 136 Idaho 728, 40 P.3d 86 (2002). If the person granting the police authority to search does not have actual authority, the search may still be legitimate if the officer reasonably believes that the person has authority to consent to the search. Illinois v. Rodriguez, 497 U.S. 177, 188-89 (1990). This concept is known as apparent authority and its application depends upon whether the police officer's belief that the person granting consent has authority, is objectively reasonable. Brauch, 133 Idaho at 219, 984 P.2d at 707. See also, State v. McCaughey, 127 Idaho 669, 674, 904 P.2d 939, 944 (1995); State v. Hawkins, 131 Idaho 396, 958 P.2d 22 (Ct. App. 1998). The...
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