State v. Guzman, No. 17716

• Court: Idaho Supreme Court
• Writing for the Court: BISTLINE; BOYLE; BAKES; JOHNSON; McQuade
• Citation: 842 P.2d 660,122 Idaho 981
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Jose GUZMAN, Defendant-Appellant. Twin Falls, November 1991 Term
• Docket Number: No. 17716
• Decision Date: 05 November 1992

Page 660

842 P.2d 660 122 Idaho 981 STATE of Idaho, Plaintiff-Respondent,
v.
Jose GUZMAN, Defendant-Appellant. No. 17716. Supreme Court of Idaho, Twin Falls, November 1991 Term.
Nov. 5, 1992.

Michael J. Wood, Twin Falls County Public Defender, Twin Falls, for appellant.

Larry EchoHawk, Atty. Gen., and Michael J. Kane, Deputy Atty. Gen., Boise, for respondent. Michael J. Kane argued.

BISTLINE, Justice.

PROLOGUE: UNDERLYING FACTUAL CIRCUMSTANCES

In this appeal we are asked to review the district court's application of the good faith exception to the probable cause requirement contained in art. 1, § 17 of the Idaho Constitution, and the court's refusal to order the State to disclose the identity of a paid confidential informant. For the reasons stated in this opinion, we apply the exclusionary rule which has evolved under our state constitutional jurisprudence and accordingly reverse the district court's refusal to suppress the evidence which was obtained pursuant to an invalid search warrant. Our resolution of that issue moots the further issue relative to defendant's contention that the trial court should have ordered the State to disclose the name of the informant.

We begin our discussion with a review of the facts. Detective Ronald Axtman of the Twin Falls Police Department was supervising the paid informant. On February 23, 1987, the informant contacted Detective Axtman and stated that approximately 200 pounds of marijuana was being kept at a home on Gulch Lane in Twin Falls. The informant also stated that Jose Guzman had transported the marijuana from Arizona to Idaho. Detective Axtman took no

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[122 Idaho 983] action on the basis of this first call, other than to request the criminal history of Guzman from authorities in Arizona. During a second call from the informant, on February 26, 1987, the informant told Detective Axtman that approximately 100 pounds of marijuana remained at the Gulch Lane home. Following the second phone call, Axtman, along with another detective, went within a few hundred yards of the Gulch Lane residence to conduct surveillance. During this stakeout, Axtman saw a person fitting the general description of Guzman at the Gulch Lane residence. Axtman returned to his office and prepared an affidavit in support of a search warrant of the house and its outbuildings.

Axtman applied to Judge Edwards for a search warrant without having first consulted anyone in the office of the prosecuting attorney. On Judge Edwards asking Axtman how it was that the informant knew the substance in the Gulch Lane home was marijuana, Axtman replied that the informant was familiar with the texture, coloring and other properties of marijuana, and Axtman made an additional entry by hand onto his affidavit to reflect this statement to the magistrate. The warrant was executed in the afternoon of February 26, 1987. Approximately thirty-six pounds of marijuana was found inside a locked freezer. The freezer was located in an outbuilding on the yard of the Gulch Lane residence. Guzman was found in the outbuilding, and at that time admitted possession of the marijuana.

Guzman was charged on February 27, 1987, with possession of marijuana in excess of three ounces, and trial was set to begin May 12. The trial court issued three memorandum decisions and orders in response to preliminary motions made by the defense. The memorandum decision and order of July 30, 1987, denied Guzman's motion to suppress all of the evidence which was seized on executing of the warrant and also denied Guzman's motion to suppress statements made by him during and immediately after the search. A further decision on November 13, 1987, denied Guzman's motion requesting disclosure of the identity of the confidential informant. Guzman had requested a Leon hearing, at which time the issues relevant to the Leon good faith exception could be explored. Thereafter, on January 18, 1988, the district court again denied Guzman's motion to suppress all of the evidence. The defendant entered a plea of guilty and received a determinate five year sentence. After serving 120 days the sentence was suspended, and Guzman was placed on probation for five years. This appeal followed.

PART I. THE WARRANT WAS NOT SUPPORTED BY PROBABLE CAUSE.

The district court agreed with Guzman that the information included in Detective Axtman's affidavit in support of the search warrant was not complete. The affidavit did not disclose that: (a) the undisclosed informant was a paid informant; (b) two of the prior arrests and convictions, in which the undisclosed informant proved his reliability, occurred approximately eight years earlier; and, (c) the third arrest and conviction referred to in the affidavit was in fact a probation violation in which the informant did not provide wholly accurate information. However, the court held that these omissions in the affidavit amounted to only negligent falsehoods. According to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), adopted by this Court in State v. Lindner, 100 Idaho 37, 41, 592 P.2d 852, 856 (1979), "negligent or innocent misrepresentations, even if necessary to establish probable cause, will not invalidate a warrant."

Our Court of Appeals has heretofore held that the ruling in Franks should apply to the omission as well as the inclusion of information in affidavits:

At issue in the instant cases is whether omission, rather than inclusion, of certain information misled the magistrate. We can conceive of no cogent reason why Franks should not be extended to challenges to affidavits based on deliberate or reckless omissions of facts which might cause a seemingly straightforward affidavit to mislead the magistrate. The failure to inform a magistrate of a known exculpatory fact may be misleading, if not more misleading, than the

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[122 Idaho 984] furnishing of false information in applying for a search warrant.

State v. Beaty, 118 Idaho 20, 24, 794 P.2d 290, 294 (Ct.App.1990) (emphasis in original). We concur in the analysis of the Court of Appeals.

In order to establish the invalidity of the warrant, Guzman had to prove by a preponderance of the evidence that Detective Axtman, the affiant, knowingly and intentionally, or recklessly, falsified or omitted information from his affidavit. Lindner, 100 Idaho at 41, 592 P.2d at 856. Our independent review of the record leads us to agree with the district court that, at most, Detective Axtman's failure to include the information in his affidavit amounted to a negligent misrepresentation. However, we add these words of caution. The fact that this warrant and supporting affidavit survived a Franks challenge does not mean that we will forget this instance if and when another such challenge of an affidavit sworn to by the same affiant comes before us. A long pattern or practice of negligent misrepresentation could be seen as an indication of a knowing and intentional intelligent omission or falsification of information. ¹

Although the district court ruled that the negligent falsehoods in the affidavit were insufficient to justify suppression of the evidence, it also concluded, under the "totality of the circumstances" test, that Judge Edwards did not have before him sufficient facts necessary to find probable cause and had abused his discretion in issuing the search warrant. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); see State v. Lang, 105 Idaho 683, 672 P.2d 561 (1983). We agree in both respects. The affidavit in support of the search warrant offered practically no basis of knowledge from which the informant's statements could be independently tested. Instead, the affidavit offered only conclusory statements. As was written long ago for this Court by Justice Herman H. Taylor, an affidavit in support of a warrant must relate facts, not simply the conclusions that may be drawn from those facts:

H]e who sits in judgment at the halfway station as to the existence of 'probable cause' must be the magistrate, and not the affiant who must bear the burden of facts up the mountain to that station, rather than his conclusions. He cannot leave at the foot of the mountain his load of facts, and with lightened and easy steps recite at the halfway station his conclusions as to facts which he does not choose to carry so far. The affiant's eyes, ears and other senses and powers are the mere instruments for securing and conveying to the magistrate the facts which these senses have observed and recorded, and his mind is not the place for the conclusion to be reached, but the mind and brain of the magistrate must form and draw the conclusions from facts

State v. Arregui, 44 Idaho 43, 63, 254 P. 788, 794-95 (1927) (emphasis added).

PART II. OUR PREVIOUS OPINION ADOPTING THE GOOD FAITH EXCEPTION TO THE EXCLUSIONARY RULE WAS BASED UPON AN UNSOUND RULE OF LAW, WHICH WE TODAY DISAVOW.

As noted above, the district court applied the "good faith" exception to the

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[122 Idaho 985] exclusionary rule, as announced in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and decided to admit the evidence despite the insufficiency of the affidavit in support of the warrant. This Court adopted the Leon good faith exception to the exclusionary rule in State v. Prestwich, 116 Idaho 959, 783 P.2d 298 (1989). The presentation of Guzman requires a reexamination of Prestwich and its conceptual underpinnings. In Prestwich, our opinion stated that:

Preliminarily, we note that Prestwich has not questioned the applicability of Leon under the unreasonable search and seizure provision of our state constitution (article 1, § 17). We also note that our Court of Appeals has previously held that Leon is applicable under article 1, § 17. State v. Rice, 109 Idaho 985, 712 P.2d 686 (Ct.App.1985) rev. denied (1986). Although in Prestwich II ² the Court of Appeals indicated that this Court has not yet addressed the...