State v. Josephson
| Decision Date | 14 December 1993 |
| Docket Number | No. 20240,20240 |
| Citation | 867 P.2d 993,125 Idaho 119 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Michael Travis JOSEPHSON, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Robert R. Chastain, Boise, argued for defendant-appellant.
Larry EchoHawk, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen., Boise, for plaintiff-respondent. Michael A. Henderson argued.
This case presents a question of the validity of a warrantless search.
Michael Travis Josephson entered a conditional plea of guilty to possession of a controlled substance with intent to deliver, I.C. § 37-2732. Pursuant to I.C.R. 11(a)(2), he reserved the right to appeal the district court's denial of his motion to suppress evidence. Josephson contends on appeal, as he did before the district court, that the evidence should have been suppressed because it was obtained pursuant to an unconstitutional, warrantless search of his residence. Because we conclude that the search was legal, we affirm the denial of the motion to suppress.
The facts giving rise to Josephson's conviction in the instant case began with an earlier unrelated conviction on two counts of misdemeanor assault. For the misdemeanor assault convictions, on July 12, 1990, the district court for Ada County, Judge Gerald Schroeder presiding, sentenced Josephson to three months in county jail, a $300 fine, and 100 hours of community service on each count. The sentences were ordered to be served consecutively with credit for time served. Because Josephson had already spent nine months in jail awaiting trial, Judge Schroeder properly held that he had no further jail time to serve. The fine and community service were suspended, and Josephson was placed on two years' probation for each count with the probationary periods also to be served consecutively. The judgment of conviction set out terms of probation, including the condition that Josephson would consent to searches of his person or property and waive his constitutional right to be free from such searches. The record does not indicate that Josephson was informed of this condition of probation at sentencing or was provided a copy of the judgment at that time, but he was informed by the court that he would be "on the standard terms and conditions of probation."
Following his sentencing for the assault convictions, Josephson failed to report to his probation officer. Consequently, on October 9, 1990, he was arrested on a bench warrant for absconding from supervision. The district court then released Josephson from custody upon the condition that he report to his probation officer and comply with the terms of probation. Two days later, Josephson met with his probation officer and signed a probation agreement, specifically initialing each term of the probation ordered by the district court. In accordance with the probation order, the probation agreement included a consent to search which stated:
[T]he probationer does hereby agree and consent to the search of his person, automobile, real property, and any other property at any time and at any place by any law enforcement officer, peace officer, or probation officer, and does waive his constitutional right to be free from such searches.
On February 2, 1992, acting on an informant's tip, Josephson's probation officer and police officers entered and searched Josephson's residence. The officers did not obtain a warrant for the search, relying instead upon the consent in Josephson's probation agreement. Controlled substances and drug paraphernalia were seized, and Josephson was arrested for possession of a controlled substance with intent to deliver. It is that arrest and ensuing prosecution which gives rise to this appeal.
In defending against the charge of possession with intent to deliver, Josephson moved to suppress the evidence found during the search, arguing that the warrantless search violated the prohibitions against unreasonable searches and seizures of the Fourth Amendment to the United States Constitution and Article I, § 17 of the Idaho Constitution. 1 Specifically, he challenges the legality of Judge Schroeder's order placing him on probation and the validity of the waiver of his right against unreasonable searches and seizures, which was required as a condition of probation. Josephson urges that if Judge Schroeder's probation order itself was not lawful, or if the consent to search that was a condition of that probation was invalid, then the search of Josephson's residence was illegal, and the fruits of the search must be suppressed.
A number of the arguments presented by Josephson were previously raised by him in an appeal from Judge Schroeder's order in the assault case denying Josephson's I.C.R. 35 motion to have the probation deemed invalid. 2 In State v. Josephson, 124 Idaho 286, 858 P.2d 825 (Ct.App.1993) (hereinafter "Josephson I "), this Court affirmed Judge Schroeder's denial of that motion, and in so doing addressed several of the issues raised in the instant appeal. We there held that, although Josephson's full jail sentence had already been served when he was placed on probation, the district court had authority to order probation, suspending execution of the fine and community service components of the sentence. In Josephson I, we also held that the probation term requiring a consent to search was reasonably related to the purpose of Josephson's probation and that imposition of such a condition is not limited to cases where the convicted defendant is being conditionally released from incarceration. We will not review again those contentions that were fully considered and rejected by this Court in Josephson I. We will, however, consider two additional arguments not presented in Josephson I. These concern the voluntariness of his waiver of his Fourth Amendment rights and the authority of the courts to require such a waiver as a term of probation in misdemeanor cases.
Josephson contends that the consent to searches of his person and property contained in the probation agreement was involuntary. He asserts that his consent was coerced because, had he refused to sign, he would have been arrested for refusal to comply with the terms of probation and would have spent additional time in jail awaiting a hearing on the matter. The court below found that Josephson signed the consent knowingly, voluntarily and intelligently.
A question whether a waiver of Fourth Amendment rights was voluntary, knowing, and intelligent is a factual issue turning on the accused's state of mind, and lending itself best to resolution by the trial court. State v. Gawron, 112 Idaho 841, 736 P.2d 1295 (1987). Therefore, we defer to the factual findings of the trial court unless they are clearly erroneous. However, we exercise free review over the lower court's determination as to whether constitutional requirements have been satisfied in light of facts found. State v. Weber, 116 Idaho 449, 776 P.2d 458 (1989). We conclude that the district court's finding that Josephson's consent to search was voluntary is supported by the evidence and that Josephson's Fourth Amendment rights were not violated.
We recognize that when Josephson signed the probation agreement he had to weigh the possibility of re-arrest should he refuse to sign. However, that possibility alone does not render his decision to sign involuntary. The fact that a defendant considering proposed probation terms is faced with a choice between two alternatives, neither of which are to his liking, does not make the chosen alternative involuntary in a constitutional sense. If the rule were otherwise, any informed and intelligent guilty plea would be "involuntary" merely because the only alternative-submitting to a trial on the charges--is distasteful to the defendant.
Furthermore, the procedural history indicates that Josephson did not, in fact, consider the consent involuntary or objectionable until after a search pursuant to the consent resulted in his arrest. Had Josephson found the consent to...
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