State v. Garza

• Citation: 112 Idaho 778,735 P.2d 1089
• Decision Date: 07 April 1987
• Docket Number: No. 15774,15774
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Paul GARZA, Defendant-Appellant.
• Court: Court of Appeals of Idaho

Page 1089

735 P.2d 1089

112 Idaho 778

STATE of Idaho, Plaintiff-Respondent, v. Paul GARZA, Defendant-Appellant.

No. 15774.

Court of Appeals of Idaho.

April 7, 1987.

William J. Tway of Tway and Tway, Boise for defendant-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., for plaintiff-respondent.

SWANSTROM, Judge.

Following a search of his residence and seizure of certain evidence, Paul Garza was arrested and charged with possession of more than three ounces of marijuana, I.C. § 37-2732(e), and with possession with intent to deliver, I.C. § 37-2732(a)(1)(B). He appeals from the judgment entered on the jury's findings of guilt, raising several evidentiary and jurisdictional arguments. He contends that (1) Idaho Criminal Rule 41(b) unconstitutionally expands statutory limits upon the scope of search warrants, resulting in an over-broad warrant in this case; (2) the affidavit for the search warrant lacked probable cause, mandating suppression of the evidence seized; (3) the testimony concerning crimes committed by third parties in Nevada was erroneously admitted; and (4) the state failed to prove beyond a reasonable doubt either Paul's possession of the marijuana or his intent to deliver it to third parties. We affirm the final judgment below.

Acting pursuant to a search warrant, several police officers conducted a search of the home of Paul and Brenda Garza in the couple's absence. The search revealed the following evidence: (1) a brown suitcase containing seven plastic bags and one cellophane bag of marijuana ranging in weight from 392 to 471 grams located under the bed of an upstairs room; (2) a blue suitcase containing a "Seal-a-Meal" (a device for heat-sealing plastic bags) located under the bed next to the brown suitcase; (3) a set of scales in plain view on a sewing machine cabinet in the room with the suitcases; (4) a brown paper sack of marijuana stems wrapped in newspaper located on the floor between a chest of drawers and a baby crib in the master bedroom; (5) a large plastic bag of marijuana seeds on an upper shelf in the closet of the master bedroom; (6) a brown paper sack containing three individual zip-lock freezer bags of marijuana located in a closet on the first floor; and (7) two notebooks and numerous Western Union Money-Gram receipts and house payment receipts in a bank bag in the room with the suitcases. Paul and his wife, Brenda, were later arrested and each was charged with possession of more than three ounces of marijuana and with possession with intent to deliver. The two were given separate jury trials. ¹

Several of the Money-Gram receipts were introduced at Paul's trial, many made out to Paulo Ramirez for large sums. Testimony of a Las Vegas police officer outlined the arrest of Ramirez in Nevada for the sale of thirty-seven pounds of marijuana to an undercover police officer. Additional evidence indicated extensive telephone contact between the Garzas' telephone number and that of Gilbert Andrini in Las Vegas. Further testimony established Andrini's connection with cocaine trafficking, and indicated drug dealings between Andrini and Ramirez. Following a two-day trial, the jury found Paul guilty on both counts charged. The judge dismissed the conviction for possession of more than three ounces of marijuana and sentenced Paul to five years probation plus a term of community service and a $7,000 fine for the conviction of possession with intent to deliver. ²

I

First, Paul contends that the magistrate was without jurisdiction to issue a search warrant for seizure of "mere evidence" of a crime. He argues that Idaho Criminal Rule 41(b) allowing for the seizure of mere evidence impermissibly expands the statutorily restricted basis for issuance of a search warrant. The statute, I.C. 19-4402, essentially has not been changed since its adoption as Idaho territorial law in 1864. It provides that a search warrant

may be issued upon either of the following grounds:

1. When the property was stolen or embezzled....

2. When it was used as the means of committing a felony....

3. When it is in the possession of any person with the intent to use it as the means of committing a public offense....

In January, 1984, when the search warrant was issued, I.C.R. 41, as it was then promulgated by our Supreme Court, stated in part

(b) Property which may be seized with a warrant. A warrant may be issued under this rule to search for and seize (1) evidence of the commission of a criminal offense; or (2) contraband, the fruits of crime, or things otherwise criminally possessed; or (3) weapons or other things by means of which a crime has been committed or reasonably appears about to be committed.

Paul argues that § 19-4402, by setting narrower guidelines, is intended to afford more protection against searches than the constitution. He contends this greater protection is a substantive right. Accordingly, he argues that the Idaho Supreme Court cannot, by rule, amend the statute so as to broaden the scope of a search warrant. To do so is an unconstitutional invasion of legislative domain. Therefore, so far as I.C.R. 41(b) allows for search and seizure of "mere evidence," it is unconstitutional. We disagree.

The statute is an anachronism carved from the common law of England. At one time the statute did truly reflect the constitutional scope of a search warrant. See, e.g., Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921). That is no longer true. Since the era of this statute an evolution in the law of search and seizure has occurred "through a subtle interplay of substantive and procedural reform." Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 304, 87 S.Ct. 1642, 1649, 18 L.Ed.2d 782 (1967). In Hayden, the so-called "mere evidence rule"--actually a limitation prohibiting the government from searching for and seizing mere evidence of a crime--was historically reviewed and repudiated by the Supreme Court. The Supreme Court stated:

The requirements of the Fourth Amendment can secure the same protection of privacy whether the search is for "mere evidence" or for fruits, instrumentalities or contraband [of a crime].... Thus in the case of "mere evidence," probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction.

Id. at 306-07, 87 S.Ct. at 1650. The majority of state courts have followed the Supreme Court's rejection of the "mere evidence" rule, placing great emphasis on the above-quoted language when allowing for seizure of evidence of a crime. 1 W.E. RINGEL, SEARCHES & SEIZURES, ARRESTS AND CONFESSIONS § 2.4 (2d ed. 1986). E.g., State v. Mata, 125 Ariz. 233, 609 P.2d 48, cert. denied, Mata v. Arizona, 449 U.S. 938, 101 S.Ct. 338, 66 L.Ed.2d 161 (1980); People v. Franklin, 640 P.2d 226 (Colo.1982); State v. Paul, 80 N.M. 521, 458 P.2d 596 (Ct.App.1969), cert. denied, New Mexico v. Paul, 397 U.S. 1044, 90 S.Ct. 1354, 25 L.Ed.2d 654 (1970).

Shortly after the Hayden decision, our own Supreme Court voiced its support for the admission of mere evidence at trial. In State v. Gonzales, 92 Idaho 152, 438 P.2d 897 (1968), the Idaho Supreme Court determined that mere evidence was equally as admissible at trial as an instrumentality of a crime so long as the evidence was discovered as a result of a lawful search, indicating the propriety of the seizure of mere evidence pursuant to a lawful search. The two searches in Gonzales were made without a warrant, one pursuant to a lawful arrest and one with consent. The search pursuant to the arrest produced "mere evidence," a cartridge case, linking Gonzales to the weapon found in the other search. Idaho Code § 19-4402 was not implicated in Gonzales. Nevertheless, as to warrantless searches, our Supreme Court made it clear, by reference to Hayden, that the scope of such searches may be broader than indicated by the statute.

The federal rules prior to Hayden contained language paralleling I.C. § 19-4402. Subsequent to Hayden, Federal Rule 41(b) was amended to reflect the Supreme Court's change of position. Idaho's Rule 41(b) mirrors the current federal rule, underscoring the shifting attitude away from the mere evidence rule and dictating the treatment afforded the question of mere evidence in the majority of jurisdictions.

Three Idaho cases have dwelt on conflicts between Rule 41 and older, more restrictive statutory provisions. State v. Yoder, 96 Idaho 651, 534 P.2d 771 (1975) (upholding provisions of I.C.R. 41(c) allowing oral recorded testimony for issuance of search warrant even though I.C. § 19-4404 mandated "depositions in writing"); State v. Lindner, 100 Idaho 37, 592 P.2d 852 (1979) (holding that less restrictive provisions of I.C.R. 41(c) for issuing nighttime search warrants controlled over more restrictive provisions of I.C. § 19-4411); State v. Lewis, 107 Idaho 616, 691 P.2d 1231 (1984) (adhering to Lindner 's ruling "that I.C.R. 41 would control to the exclusion of I.C. § 19-4411"). In each case, Rule 41 was held to be fully operative while the inconsistent statute was found to be void of further force and effect. In essence, our Supreme Court has held that its rule making authority will predominate over such a statutory provision unless the provision in question embodies a constitutional right. Section 19-4402 contains no mandatory restrictive language as does § 19-4411. Neither the federal nor the state constitution requires a narrow adherence to the limits suggested by § 19-4402. Our Supreme Court has already held that warrantless searches may be conducted for "mere evidence" of the commission of a crime. In view of the decisions in Gonzales, Yoder, Lindner and Lewis, we believe that the provisions of I.C.R. 41(b) must be held to at least supplement the statutory provisions, if not replace them entirely. Accordingly, we hold that Rule 41(b) was properly invoked, and the magistrate had authority under the rule to issue a...