State v. Howard

• Decision Date: 07 May 2001
• Docket Number: No. 25383.,25383.
• Citation: 24 P.3d 44,135 Idaho 727
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Edward Theodore HOWARD, Defendant-Appellant.
• Court: Idaho Supreme Court

24 P.3d 44

135 Idaho 727

STATE of Idaho, Plaintiff-Respondent, v. Edward Theodore HOWARD, Defendant-Appellant.

No. 25383.

Supreme Court of Idaho, Coeur d'Alene, April 2001 Term.

May 7, 2001.

Ronaldo A. Coulter, State Appellate Public Defender, Boise, for appellant. Sara B. Thomas argued.

Alan G. Lance, Attorney General, Boise, for respondent. Karen A. Hudelson argued.

SCHROEDER, Justice.

Edward Theodore Howard (Howard) appeals the district court's denial of his motion to suppress evidence seized pursuant to a search warrant and the district court's admission of evidence at trial. He also appeals the sentence imposed by the district court.

I. BACKGROUND AND PRIOR PROCEEDINGS

On April 26, 1998, Deputy Mark Strangio (Strangio) of the Boundary County Sheriff's Office applied for a search warrant for a 1978 Dodge pick-up. Strangio submitted an affidavit to support the application, and the magistrate issued a warrant to search the pick-up. The search revealed 42.6 grams of methamphetamine, 2.6 grams of heroine, and 2.6 grams of marijuana, and miscellaneous drug paraphernalia. Howard was charged with trafficking in methamphetamine, possession of heroin, possession of marijuana, and possession of paraphernalia.

The events leading to the search and arrest began when Strangio received an anonymous tip that Robin Eby was at the Kootenai River Inn with a woman named Jackie and an older man. The tip indicated that Eby was in a room at the Inn in possession of a "large quantity of crank" and was attempting to sell the drugs to another person.

Strangio discovered that two other officers had seen Howard in the truck and that Jackie had an outstanding arrest warrant for possession of methamphetamine. Strangio viewed the surveillance film at the Inn showing two women and a man. Strangio identified Eby in the tape from a description. Strangio also identified Jackie from a facsimile of her booking photo and observed Howard on the Inn's video surveillance camera. Subsequently, Officer Navarro of the Bonners Ferry Police Department met Strangio at the Inn. Strangio and Navarro saw Jackie with another woman in the lobby of the Inn. Strangio arrested Jackie on the outstanding warrant and questioned her about how she had arrived at the Inn. She responded that she had been "dropped off." Strangio connected Jackie to the truck from a report of the Inn's surveillance officer who witnessed Howard, Eby, and Jackie carrying backpacks to the truck which they placed in the truck's inside compartment and rear bed.

Jackie told the officers that she had some pot in her backpack. Strangio requested a "drug canine" and the dog's trainer to come to the Inn. The dog "alerted" to Jackie's purse and Jackie gave written consent for the officers to search her backpack that was in the bed of the pick-up. The search revealed a pen containing a white powder-like substance that the officers believed to be a controlled substance, a razor blade, and a small white colored rock that the officers also believed was a controlled substance. Both substances field-tested negative for methamphetamine. However, Strangio still believed the substances to be controlled substances based on his experience and training.

The dog sniffed the exterior of the pickup and alerted to the driver's side door and the front of the truck bed. Strangio asked Howard to consent to a search of the truck. Howard claimed the truck was not his and refused to consent to a search. Strangio determined the truck was registered to a another person. Strangio contacted the registered owner who stated that he had sold the truck to Howard.

The truck was then towed to Riverside Auto and Howard was detained pending further investigation. Strangio submitted an application for a search warrant, which was granted. Deputies Strangio and Alonzo conducted the physical search of the pick-up. Deputy Ekstrom filled out the warrant return receipt based on what was relayed to her by Strangio and Alonzo.

Howard moved to suppress the evidence seized in the search of the pickup on the basis that the search and arrest violated the United States Constitution, the Idaho Constitution, the Idaho Criminal Rules, and Idaho Code §§ 19-602 and 19-603. Howard alleged that the affidavit filed with the application for the search warrant was insufficient to allow the magistrate to make an independent determination that there was a fair probability that the truck contained contraband. The district court denied the motion to suppress.

A jury found Howard guilty of trafficking in methamphetamine; possession of heroin; and possession of marijuana. The district court sentenced Howard to concurrent unified sentences of fifteen years with five years fixed for trafficking in methamphetamine, five years fixed for possessing heroin, and three months fixed for possessing marijuana.

Howard requests this Court to (1) reverse the district court's order denying his motion to suppress and remand the case for further proceedings; (2) reverse the district court's judgments of conviction and remand the case for a new trial in light of the district court's erroneous admission of the receipt and inventory of the search; and (3) reduce his sentences in light of his potential for rehabilitation.

II. THERE WAS PROBABLE CAUSE FOR ISSUANCE OF THE SEARCH WARRANT

A. Standard Of Review

When a magistrate issues a search warrant which is later questioned on appeal, this Court's function is to ensure that the magistrate had a substantial basis for concluding that probable cause existed for the issuance of the warrant. Great deference is to be paid to the magistrate's decision. See State v. Josephson, 123 Idaho 790, 852 P.2d 1387 (1993) (citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); State v. Johnson, 110 Idaho 516, 716 P.2d 1288 (1986); State v. Lang, 105 Idaho 683, 672 P.2d 561 (1983)). A magistrate's evaluation of probable cause is determined from the facts set forth in the affidavit or any recorded testimony given in support of the search warrant. State v. Oropeza, 97 Idaho 387, 545 P.2d 475 (1976). This Court's review of the magistrate's decision is based only on those facts properly before the magistrate at the time of the decision to issue the warrant. See Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); see also State v. Johnson supra and State v. Lang supra.

When determining whether to issue a search warrant the magistrate is to "make a practical, common sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." State v. Cheatham, 134 Idaho 565, 572, 6 P.3d 815, 822 (2000) (citing Gates, 462 U.S. at 239, 103 S.Ct. at 2332, 76 L.Ed.2d at 548-49); see also Lang, 105 Idaho at 684, 672 P.2d at 562. The magistrate must have a substantial basis for concluding probable cause existed. See Gates, 462 U.S. at 239, 103 S.Ct. at 2332, 76 L.Ed.2d at 548-49; Lang, 105 Idaho at 684, 672 P.2d at 562.

When a search warrant is issued based on statements made by an anonymous caller, the Court's analysis proceeds under the "totality of circumstances" test announced in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and followed by this Court in State v. Lang, 105 Idaho 683, 672 P.2d 561 (1983). See Josephson, 123 Idaho at 792, 852 P.2d at 1389. Under the "totality of circumstances" test, the inquiry of both the magistrate and this Court is whether "given all the circumstances set forth in the affidavit . . . including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is . . . a fair probability that contraband or evidence of a crime will be found in a particular place." Lang, 105 Idaho at 684, 672 P.2d at 562 (citing Gates, 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548).

B. There Was Probable Cause For Issuance Of The Search Warrant.

The question in this case is whether Strangio's affidavit was sufficient to allow the magistrate to make a determination that probable cause existed that contraband would be found in the truck. The affidavit provided the following information regarding the anonymous tip:

[A] woman named Robin Eby was at the Kootenai River Inn in Boundary County, Idaho, with a woman named Jackie and an older man . . . . The anonymous caller stated that Robin Eby was in a room at the Kootenai River Inn in possession of a "large quantity of crank . . . ." The person said Robin Eby was attempting to contact a Dick Solt and attempt to sell him the narcotics.

The information from the tip alone is insufficient to establish a fair probability that drugs would be found in the truck. The tip fails to establish the informant's veracity or basis of knowledge. Thus, the affidavit is not self-verifying but may be considered if corroborated by the officer.

After receiving the tip, Strangio contacted Deputy Ekstrom, who informed Strangio that two other officers had seen Howard while on patrol and described the truck. Ekstrom also informed Strangio that the "female named `Jackie'" was possibly Jackie Grimm, a/k/a Starkey, and that she had an outstanding arrest warrant. Grimm's booking photo was facsimiled to Strangio who used it to "positively identify Jackie Grimm as the person . . . on surveillance cameras at the Kootenai River Inn." Strangio arrested Jackie and was able to link her to the truck with the Inn's surveillance video showing Howard, Eby, and Jackie each carrying bags to the truck. Strangio then requested a drug dog to do an exterior sniff of the car.

Howard contested the evidence produced by the dog search in the motion to suppress, arguing that the affidavit failed to provide any information regarding the dog's training and reliability. The Ninth Circuit has held that "a canine sniff alone can supply the probable cause necessary for issuing a search warrant if the...