State v. Johnson

Decision Date12 March 1986
Docket NumberNo. 16106,16106
Citation110 Idaho 516,716 P.2d 1288
PartiesSTATE of Idaho, Plaintiff-Respondent, v. John L. JOHNSON, Defendant-Appellant.
CourtIdaho Supreme Court

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., and A. Rene Fitzpatrick, Deputy Atty. Gen. (argued), Boise, for plaintiff-respondent.

BISTLINE, Justice.


On April 13, 1982, John Johnson was renting an apartment in Idaho Falls, Idaho. The record before us contains Johnson's affidavit, which states, among other things, that he was current in his rent and in all other ways in compliance with his rental agreement. Police officer Earl Sorensen, the officer who searched Johnson's apartment and seized the evidence that is the subject of Johnson's motion to suppress, signed an affidavit which stated that he was told by Joe Clevenger, Johnson's landlord, that Johnson was behind in his rent.

Sorensen stated in his affidavit that Clevenger entered Johnson's apartment on April 12, 1982, to see if Johnson had moved out. Clevenger observed what he thought were "suspicious plants," and called the police. Sorensen's affidavit states that he received an order to respond to a "suspicious call." When Sorensen arrived, Clevenger told him that he had observed "suspicious plants" and invited Sorensen inside to observe them. At Clevenger's invitation, Sorensen entered the apartment and, looking around, discovered the "suspicious plants." Sorensen testified at the motion to suppress hearing that, as he entered the apartment, he immediately noted several personal effects which clearly indicated to him that someone was residing therein. Nevertheless, Sorensen continued to enter the apartment and, when looking behind the front door, observed the "suspicious plants." Believing the plants to be marijuana, Sorensen left the apartment to obtain a warrant in order to seize the suspected contraband.

The affidavit Sorensen filed in support of the warrant he procured states the following:

1. Your Affiant received an Order to Respond to a suspicious call from Joe Clevenger, landlord of the above address.

2. Mr. Clevenger indicated that the individual renting apartment # 7 had been told to move due to non-payment of rent. He further indicated that last night, April 12th, 1982, he had entered the apartment to see if the renter had moved and observed suspicious plants growing in five gallon buckets.

3. On this day, April 13, 1982, your affiant was requested by Mr. Clevenger to enter the apartment and observe these plants and was let into the apartment by Mr. Clevenger and observed said plants.

4. Based upon your affiant's experience, he believes the plants to be marijuana and further believes that due to the large number of plants, additional useable material, paraphernalia and records will be located in said apartment.

Items 3 and 4 of the affidavit were based on the officer's personal observations while inside Johnson's home. Johnson argues that these two items should be excluded from the affidavit because they are "fruit" of the officer's unconstitutional entry into his home. Johnson's argument is predicated on the fact that he was unaware of and did not consent to the officer's entry into his home, and that his landlord was without such authority, for Fourth Amendment purposes, to consent to the officer's entry. Johnson concludes, therefore, that because the officer entered Johnson's home without a warrant, his entry and search were illegal. Thus, all evidence discovered and obtained as a result of that illegal search should have been suppressed.

The district court denied Johnson's motion to suppress. The district court thought it important to discover how the officer entered Johnson's home--whether it was in response to the landlord's invitation or whether in response to the officer's request. Said the court: "The question I want to know the answer to is who instigated the entry?" R., Vol. 1., p. 10. The uncontradicted testimony revealed that the landlord invited the officer enter.

Without giving any reason at all, the district court denied Johnson's motion to suppress. Nevertheless, because the district court thought it important how the officer entered, the court must have reached its conclusion based upon the belief that Johnson's landlord could consent to the officer's search of Johnson's home. Johnson appealed, and his case was assigned to the Court of Appeals. A special panel of that court, comprised of Justice Robert C. Huntley, retired Justice Joseph McFadden, and retired District Judge James G. Towles, unanimously reversed the district court in an exhaustive opinion--which was in turn added to by an additional opinion on denial of the state's petition for rehearing. State v. Johnson, 108 Idaho 619, 701 P.2d 239 (Ct.App.1985). The state has now petitioned this Court for review.


As the Court of Appeals noted, there were three searches of Johnson's home: the first search by the landlord, the second search by the officer at the landlord's invitation but prior to the obtaining of a valid search warrant, and the third search by the officer after obtaining a warrant.

The first search by the landlord, although not consented to by Johnson, implicates no interests of the Fourth Amendment or art. 1, § 17 of the Idaho Constitution because those provisions only prohibit illegal governmental searches and seizures. United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); State v. Pontier, 103 Idaho 91, 94, 645 P.2d 325, 328 (1982). It is the latter two searches to which we turn our attention. The second search raises issues involving whether the conduct of the police officer constituted a search for Fourth Amendment and art. 1, § 17 purposes, whether Johnson's landlord could adequately consent to a search of Johnson's home, and whether Johnson had a legitimate expectation of privacy that was violated in this case. The third search's validity depends to a large degree upon the validity of the second search. It also independently raises issues involving the validity of the search warrant, what constitutes probable cause, and what constitutes tainted evidence that must be suppressed.

A. The Second Search in This Case Implicates Rights Protected by the Fourth Amendment to the United States Constitution and Art. 1, § 17 of the Idaho Constitution.

The state begins by arguing that there is no issue of consent in this case because "the police viewing of the results of the private search was not a search within the confines of the Fourth Amendment...." Respondent's Brief in Support of Petition for Rehearing, p. 9-10. 1 In the state's view, the officer's conduct was a "police viewing" of what Johnson's landlord had uncovered, and not a search. Respondent's Brief, supra, pp. 9-10. We reject the state's characterization, finding it to be factually and legally without merit.

The cases the state relies upon 2 do not support the state. Each of these cases involved a private individual turning over the results of his or her private search to the government. They do not, with the possible exception of Lucas, supra, and Eisentrager, supra, 3 involve a police officerfi cer following a private citizen into a home and conducting an independent search of that home. As the Court of Appeals noted:

In the instant case ... the suspected contraband was not turned over to the authorities; instead the landlord invited the officer to enter a private dwelling to observe the contraband first-hand. In this case, the suspected contraband was not in plain view; and the landlord had neither personally seized nor delivered it to the police. The officer had to enter the private dwelling in order to see it. The fact that the Fourth Amendment does not reach the landlord does not mean that the officer, a government official, is also immune from its sanctions simply because he accompanied the landlord. Johnson, supra, 108 Idaho at 622, 701 P.2d at 242, n. 2 (emphasis to "officer" in original; remainder of emphasis added).

There simply is no evidence in this case from which Johnson's landlord could have concluded that Johnson had abandoned his apartment. On the contrary, the record reveals that numerous personal effects were found in Johnson's home, suggesting, that, far from abandoning his home, he was still living there.

The illogic of the state's argument that the officer's entry and search did not constitute a search for Fourth Amendment purposes is best observed by noting the results that would flow from application of its argument. If the state were to have its way on this point, it would apparently argue that the following scenario is outside constitutional protection: A private citizen ransacks a home, claiming to be in search of contraband. Upon discovering the alleged contraband, the citizen calls in the police who conduct a second ransacking of the home, looking and searching everywhere and inspecting everything as did the citizen. According to the state, because the officer is only "viewing" the citizen's efforts--"merely" retracing the citizen's footsteps--such government activity is outside the purview of federal and state constitutional protections. Such an abberational view is not harmonious with what the framers of our federal and state constitutions intended when they put these protections into our constitutions, and we so hold.

It is of no avail for the state to claim that the police officer "unwittingly" entered the apartment or that his discovery was a "plain view" discovery of the evidence. His affidavit clearly states that Johnson's landlord informed him that there were "suspicious plants," which he (the police officer) should see. Thus, the officer knew before entering Johnson's home that he was entering in to ascertain if some allegedly "suspicious plants" were, in fact, contraband.

The officer also testified at the motion to suppress hearing, and...

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