State v. Josephson

• Decision Date: 21 May 1993
• Docket Number: No. 19714,19714
• Citation: 123 Idaho 790,852 P.2d 1387
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Terrance Wade JOSEPHSON, Defendant-Appellant. Boise, February 1992 Term
• Court: Idaho Supreme Court

Page 1387

852 P.2d 1387

123 Idaho 790

STATE of Idaho, Plaintiff-Respondent, v. Terrance Wade JOSEPHSON, Defendant-Appellant.

No. 19714.

Supreme Court of Idaho,

Boise, February 1992 Term.

May 21, 1993.

Lynn, Scott, Hackney & Jackson, Boise, for defendant-appellant. Larry Scott argued.

George C. Patterson, Boise, for amicus curiae Idaho Chapter American Liberties Union.

Larry EchoHawk, Atty. Gen., and Thomas P. Watkins, Deputy Atty. Gen., Boise, for plaintiff-respondent. Thomas P. Watkins argued.

REINHARDT, Judge, Pro Tem.

On May 14, 1991, Detective Dana Ross ("Ross") of the Ada County Sheriff's Office presented an affidavit for a search warrant to the magistrate judge. The affidavit stated that on April 15, 1991, an anonymous person telephoned the BANDIT task force with information relating to Josephson. The caller gave Josephson's address and stated that Josephson was unemployed. The caller further stated that Josephson received a large number of visitors at his residence. The caller also informed the police that he or she had seen growing marijuana plants through an open door to an outbuilding on Josephson's property and that the lights were always on in that outbuilding. Although the affidavit acknowledged that there was no inquiry into how the caller was able to identify growing marijuana plants, the affidavit did state that Ross checked the power company's records, which confirmed that Josephson lived at the address given by the caller. The affidavit also stated that Ross ran a local record check on Josephson, which revealed that Josephson had been arrested for possession of marijuana in 1973, and again in 1975.

The affidavit also presented information regarding the results of a warrantless garbage search conducted by Ross on May 14, 1991. However, due to a typographical error, the date of the garbage search was listed in the affidavit as April 14, 1991. The affidavit stated that Ross collected garbage which "had been set out front of [Josephson's residence] for collection." A search of that garbage by Ross produced two marijuana cigarette butts, an empty pack of "Zig-Zag" rolling papers, a bag apparently containing marijuana residue, and five plant stems which field-tested positive for marijuana. Ross also found mail recently sent to Josephson at the address listed in the affidavit.

Based on the information contained in the affidavit regarding the anonymous caller and the warrantless garbage search, the magistrate issued a search warrant on May 14, 1991, allowing the police to search Josephson's residence for evidence associated with the growing of marijuana, the buying, selling and/or use of marijuana, and for evidence regarding occupancy or ownership of the premises. In executing the search warrant, Ross was accompanied by other officers and two Idaho Tax Commission employees. One of the Tax Commission employees located an eyeglass case with a corner of an envelope sticking out. Cocaine was discovered in the envelope.

Josephson was subsequently charged by information with possession of cocaine. Josephson moved to suppress the evidence seized pursuant to the search warrant based on various constitutional and statutory violations. The district court initially was inclined to grant the motion to suppress on the basis that the information in the affidavit was impermissibly stale to support a finding of probable cause. However, following a review of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the district court determined that the good faith exception to the exclusionary rule applied. Accordingly, the district court denied Josephson's motion to suppress. Josephson then pled guilty, conditioned upon the right to appeal the district court's denial of his motion to suppress. This appeal followed.

When a magistrate issues a search warrant which is later questioned on appeal, this Court's function on review is to ensure that the magistrate had a substantial basis for concluding that probable cause existed, and in this regard, great deference is to be paid to the magistrate's decision. 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). It necessarily follows that this Court's review of the magistrate's decision is only based on those facts which were properly before the magistrate at the time of its decision. Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). See also State v. Johnson, id.; State v. Lang, id.

In this case, Officer Ross presented to the magistrate an affidavit in support of the search warrant. Although there was also a hearing conducted regarding the issuance of the search warrant, there is no record from that proceeding. Therefore, the only facts which can be reviewed in determining whether the magistrate had a substantial basis for finding probable cause must come from the affidavit. An examination of the affidavit reveals that there were essentially two sources of information from which probable cause could be found, the statements made by the anonymous caller and the findings of the warrantless garbage search. We examine each of these sources separately.

First, regarding the statements made by the anonymous caller, our 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). Under the "totality of circumstances" test, the magistrate's inquiry as well as this Court's inquiry 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?" State v. Lang, 105 Idaho at 684, 672 P.2d at 562, citing Illinois v. Gates, 462 U.S. at 238, 103 S.Ct. at 2332.

The "totality of circumstances" test was applied to facts similar to this case in State v. Johnson, 110 Idaho 516, 716 P.2d 1288 (1986). In Johnson, the affidavit in support of the search warrant set forth facts regarding a call from the defendant's landlord who told police that he had observed suspicious plants inside the defendant's apartment. This Court, applying the "totality of the circumstances" test, found that the magistrate could not have found probable cause to issue the search warrant based on such information. It was pointed out that because the affidavit did not indicate how the caller could identify marijuana, assuming marijuana is what the caller meant by "suspicious plants," the magistrate could not determine the caller's basis of knowledge for reaching such a conclusion. Similarly, the caller failed to describe the plants in terms that would have permitted the magistrate to determine if the plants were in fact contraband. Finally, the affidavit provided no information as to the veracity or reliability of the landlord's hearsay information.

The caller's statements in this case fail to establish probable cause for the same reasons as those found in Johnson. The affidavit expressly states that there was no inquiry by police as to how the anonymous caller in this case was able to identify growing marijuana plants. Nor were there facts in the affidavit indicating that the caller gave a description of the plants sufficient to support a determination that they were probably marijuana. Thus, the basis of the caller's knowledge could not be determined by the magistrate. Furthermore, the veracity of the caller's statements is in question in this case. While it is true that veracity can be obtained through corroboration when the identify of the caller is unknown, Illinois v. Gates, id.; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); State v. Newell, 115 Idaho 1133, 772 P.2d 1227 (1989), the affidavit provides no corroborating evidence to support the hearsay allegations of the caller in this case. Officer Ross only checked the power company's records to determine that Josephson lived at the address given by the caller. Nowhere in the affidavit are there any facts relating to observations by Ross that there was an outbuilding on Josephson's property which was continually lighted, or that there was an abnormal amount of traffic at the Josephson's residence, or even whether Josephson was employed or not. ¹ The only other investigation conducted by Ross was to run a records search which revealed that Josephson had been charged--not convicted--of possession of marijuana in 1973 and 1975. Certainly such information does not help to establish probable cause that Josephson was in possession of marijuana on May 14, 1991. Nor does it corroborate any of the information given by the caller. Accordingly, under the totality of the circumstances test, we conclude that the facts obtained from the anonymous caller are insufficient to support a finding of probable cause.

The next source of information we must examine is that information obtained by Ross from the warrantless garbage search. As mentioned earlier, Ross searched Josephson's garbage and seized mail recently sent to Josephson, two marijuana cigarette butts, an empty pack of "Zig-Zag" rolling papers, a bag apparently containing marijuana residue, and five plant stems ranging in length from one and one-half inches to two and...