State v. Jardine

• Decision Date: 02 August 1990
• Docket Number: No. 17714,17714
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Danny Wade JARDINE, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 165

796 P.2d 165

118 Idaho 288

STATE of Idaho, Plaintiff-Respondent, v. Danny Wade JARDINE, Defendant-Appellant.

No. 17714.

Court of Appeals of Idaho.

Aug. 2, 1990.

Rehearing Denied Aug. 2, 1990.

[118 Idaho 289] Stewart A. Morris, Boise, for defendant-appellant.

Jim Jones, Atty. Gen., Jack B. Haycock, Deputy Atty. Gen., argued, Boise, for plaintiff-respondent.

SUBSTITUTE OPINION

The Court's prior opinion dated December 29, 1989, is hereby withdrawn.

WALTERS, Chief Judge.

This is an appeal by Danny Jardine from a judgment of conviction on a charge of manufacturing a controlled substance. I.C. § 37-2732. Jardine conditionally pled guilty, reserving the right to challenge on appeal an order denying his motion to suppress evidence. I.C.R. 11(a)(2). The evidence had been seized during a search by police with a warrant. Jardine argues that the police seized the evidence illegally because the magistrate who issued the search warrant had been misled by omission of material information by the police in the affidavit supporting the warrant. The district court found that the omission of information rendered the search warrant invalid but refused to suppress the evidence because the police operated on a good-faith belief in the validity of the warrant. We disagree.

The facts are as follows. Danny Jardine was arrested after a search of his residence by police disclosed several marijuana plants grown with the aid of florescent "grow" lights. The police conducted the search pursuant to a warrant issued on the basis of the following information. The police department received an anonymous phone tip that marijuana was being grown at Jardine's residence. Detective Schnebly surveilled the residence and observed reflective material covering the basement windows. An employee from the state bureau of narcotics performed a comparative electrical-power analysis on Jardine's home. The analysis was designed to compare current power usage to a similar time period during the previous year when another occupant resided at the premises, in order to determine whether an increase in power usage had occurred. The analysis concluded there was a 453% increase in power consumption over a similar and equal time period during the previous year. That conclusion was communicated to Officer Schnebly.

In an attempt to secure a search warrant for Jardine's home, Schnebly stated in an affidavit that--in his experience--the anonymous phone tip, the reflective material on the windows and the 453% increase in power usage provided probable cause that Jardine was growing marijuana inside his home. The magistrate agreed and issued a search warrant based on Schnebly's affidavit. The police searched the house the same day, found the marijuana plants and arrested Jardine.

Jardine moved in the district court to suppress the evidence seized in the search, arguing that the affidavit upon which the search warrant was predicated misled the magistrate. Jardine maintained that the police erred by omitting from the warrant affidavit material information involving two documentary reports obtained from Idaho Power Company. Each of these reports provided the monthly amount of power expressed in kilowatt hours, used at Jardine's residence, on a yearly basis. One form indicated the power usage for the months Jardine lived at his residence. The other document contained the power usage of the house before Jardine's occupancy. Jardine's report demonstrated relatively consistent amounts of power usage, indicating a lower use in the summer months and higher consumption in the winter. The previous tenant's form showed uses comparable to Jardine's during the first three months of comparison (January, February and March). However, the use dropped precipitously after the first three months and continued at a similar low rate from April until the following January when Jardine moved onto the premises. In fact, no one occupied the house during the months of low power usage prior to Jardine's occupancy. The employee of the narcotics bureau chose the kilowatt amounts from eight of these nine months of low power use to compare the same eight months the following year when Jardine resided at the premises. The employee's computations from this comparison were not made part of the affidavit.

Jardine argues that by omitting the foregoing background information, the police misled the magistrate. The police portrayed an "increase" in power usage when the difference between the two periods of comparison simply resulted from the fact that there was less power used at the house during the prior year when the residence was unoccupied. Jardine argues that the remaining information contained in Schnebly's affidavit was insufficient to support a determination of probable cause. Thus, Jardine contends that no search warrant should have been issued.

When reviewing the magistrate's probable cause determination, the district court agreed that insufficient information had been given to the magistrate to establish probable cause to issue the warrant--in particular, the details of the power consumption explaining the difference in electricity usage. However, the district court judge ruled that the police department's error in failing to present the true facts underlying the power comparison was innocent because those facts were "not known to the investigating officers at the time the search warrant was requested, issued or served." Concluding that the error was not made in reckless disregard of the truth or with the intent to mislead the magistrate, the district court upheld the search under the good-faith exception to the exclusionary rule under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). This appeal followed.

Jardine submits that the court erred in applying the Leon good-faith exception to the exclusionary rule. The application of the good-faith exception by the district court presents a mixed question of law and fact. We defer to factual findings made upon substantial evidence, but we freely review the application of the law as stated in Leon to the facts as found in the instant case. State v. Prestwich, 115 Idaho 317, 766 P.2d 787 (Ct.App.1989), aff'd on review, 116 Idaho 959, 783 P.2d 298 (1989). Under Leon, evidence seized as a result of a police officer's objectively reasonable reliance on a magistrate's determination of probable cause will not be suppressed even if the warrant is later found to lack probable cause. However, the good-faith exception will not be applied where

(1) the magistrate or judge issuing the warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth; (2) the issuing magistrate wholly abandoned his judicial role in such a manner or under such circumstances that no reasonably well-trained officer should rely on the warrant; (3) the warrant is based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; or (4) the warrant is so facially deficient in failing to particularize the place to be searched or the things to be seized that the officer cannot reasonably presume the warrant to be valid.

State v. Prestwich, 110 Idaho 966, 969, 719 P.2d 1226, 1229 (Ct.App.1986).

Here, Jardine challenges the veracity of the affidavit, arguing that the detective's omission of the underlying data--which led to the conclusion that there was an increase in power--was intentionally designed to mislead the magistrate. Jardine contends that, at the very least, the detective's failure to show the magistrate the comparison or to disclose the data demonstrates a reckless disregard for the truth. Therefore, we will focus our attention upon the application of the false-information "exception" to the facts of this case.

The false-information exception originates in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). To frame a Franks issue, the defendant must show by a preponderance of the evidence that false information was included in the warrant affidavit knowingly and intentionally, or with a reckless disregard for the truth. Franks, supra; State v. Lindner, 100 Idaho 37, 592 P.2d 852 (1979). ¹ In this case, however, we are not concerned with the inclusion of information in an affidavit; rather it is the omission of information which is alleged to have misled the magistrate. See e.g., State v. Beaty, 118 Idaho 20, 794 P.2d 290 (1990). In this regard, the Ninth Circuit Court of Appeals has held:

[T]he Fourth Amendment mandates that a defendant be permitted to challenge a warrant affidavit valid on its face when it contains deliberate or reckless omissions of fact that tend to mislead.

The use of deliberately falsified information is not the only way by which police officers can mislead a magistrate when making a probable cause determination. By reporting less than the total story, an affiant can manipulate the inference a magistrate will draw. To allow a magistrate to be misled in such a manner could denude the probable cause requirement of all real meaning.

United States v. Stanert, 762 F.2d 775 at 781 (9th Cir.1985), amended, 769 F.2d 1410 (9th Cir.1985). See also, United States v. Reivich, 793 F.2d 957 (8th Cir.1986); United States v. Williams, 737 F.2d 594 (7th Cir.1984); ...