State v. Kapelle
| Decision Date | 07 May 2014 |
| Docket Number | Docket No. 40475,2014 Opinion No. 39 |
| Court | Idaho Court of Appeals |
| Parties | STATE OF IDAHO, Plaintiff-Respondent, v. GEORGE ALAN KAPELLE, Defendant-Appellant. |
Stephen W. Kenyon, Clerk
Appeal from the District Court of the First Judicial District, State of Idaho, Bonner County. Hon. Benjamin R. Simpson, District Judge.
Judgment of conviction for manufacturing in marijuana and unlawful possession of a firearm, affirmed.
Fred R. Palmer, Sandpoint, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy Attorney General, Boise, for respondent. Nicole L. Schafer argued.
George Alan Kapelle appeals from his judgment of conviction for manufacturing marijuana and unlawful possession of a firearm. Specifically, he argues the district court erred in denying his motion to suppress. For the reasons set forth below, we affirm.
In July 2011, officers received a confidential tip that a wanted felon was hiding in an abandoned trailer on Artisan Way in Bonner County. Officers went to the area described in the tip and discovered a single-wide trailer in a remote area. The trailer appeared abandoned. The officers parked near the bottom of the driveway leading to the trailer and proceeded on foot with their guns drawn. The officers were dressed in plain clothes and had their badges hanging visibly on their chests. The officers did not observe any no-trespassing signs, although Kapelle later provided evidence one existed at the bottom of his driveway along with a makeshift gate heoccasionally used to block his driveway. As the officers neared the trailer, they could hear loud music and voices coming from within. One of the officers walked around to the rear in order to prevent any escape from a back window.
Kapelle, engaged in a "virtual party"1 online, observed the officer in his backyard and came out his front door to investigate. The officer in front of the trailer informed Kapelle they were with the sheriff's office and inquired whether the wanted suspect was there. The officer in the rear overheard the conversation and walked to the front of the trailer. Kapelle informed both officers that he knew the suspect and that he did not allow the suspect at his trailer anymore because of an incident where the suspect pointed a gun at Kapelle. One officer then informed Kapelle they could not leave until they knew if the suspect was in the trailer. The officers asserted they asked permission to come inside and Kapelle agreed.2 Once inside, the officers immediately smelled the odor of raw marijuana. Kapelle asked the officers to leave and they refused. Kapelle eventually signed a consent form to search the trailer. The officers seized thirty-seven marijuana plants, scales, and other accessories. The officers also observed a firearm inside the trailer. The next day, officers discovered Kapelle had been previously convicted of a felony in California.
The state charged Kapelle with trafficking in marijuana, I.C. § 37-2732B(a)(1), and unlawful possession of a firearm, I.C. § 18-3316. Kapelle moved to compel the state to reveal the identity of the confidential informant. Kapelle also moved to suppress the evidence seized from his trailer. The district court denied both motions. Kapelle entered a conditional guilty plea to an amended charge of manufacturing a controlled substance, I.C. § 37-2732(a), and unlawful possession of a firearm. Kapelle also reserved his right to challenge the pretrial rulings. The district court imposed a unified sentence of five years, with a minimum period of confinement of two years, and placed Kapelle on probation. Kapelle appeals.
The standard of review of a suppression motion is bifurcated. When a decision on a motion to suppress is challenged, we accept the trial court's findings of fact that are supported by substantial evidence, but we freely review the application of constitutional principles to the facts as found. State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct. App. 1996). At a suppression hearing, the power to assess the credibility of witnesses, resolve factual conflicts, weigh evidence, and draw factual inferences is vested in the trial court. State v. Valdez-Molina, 127 Idaho 102, 106, 897 P.2d 993, 997 (1995); State v. Schevers, 132 Idaho 786, 789, 979 P.2d 659, 662 (Ct. App. 1999).
Kapelle argues the officers entered the curtilage of his property without any legitimate societal purpose and, thus, conducted an unlawful warrantless search. The state concedes the officers entered the curtilage but contends that, because the officers were there for a legitimate societal purpose (apprehension of a dangerous felon), such entry was lawful.
We need not determine whether the officers' conduct constituted an illegal search because, even assuming a Fourth Amendment violation, Kapelle has failed to demonstrate this tainted his subsequent consent. The exclusionary rule calls for suppression of evidence that is gained through unconstitutional governmental activity. Segura v. United States, 468 U.S. 796, 815 (1984); State v. Wigginton, 142 Idaho 180, 184, 125 P.3d 536, 540 (Ct. App. 2005). This prohibition against the use of derivative evidence extends to the indirect as well as the direct fruit of the government's misconduct. Segura, 468 U.S. at 804; Wong Sun v. United States, 371 U.S. 471, 484 (1963). Nevertheless, "[s]uppression is not justified unless 'the challenged evidence is in some sense the product of illegal governmental activity.'" Segura, 468 U.S. at 815 (quoting United States v. Crews, 445 U.S. 463, 471 (1980)). That is, "evidence will not be excluded as 'fruit' unless the illegality is at least the 'but for' cause of the discovery of the evidence." Id. Where a defendant has moved to suppress evidence allegedly gained through unconstitutional police conduct, the state bears the ultimate burden of persuasion to prove that the challenged evidence is untainted, but the defendant bears an initial burden of going forward with evidence toshow a factual nexus between the illegality and the state's acquisition of the evidence. Alderman v. United States, 394 U.S. 165, 183 (1969); Wigginton, 142 Idaho at 184, 125 P.3d at 540; State v. Babb, 136 Idaho 95, 98, 29 P.3d 406, 409 (Ct. App. 2001). This requires a prima facie showing that the evidence sought to be suppressed would not have come to light but for the government's unconstitutional conduct. Wigginton, 142 Idaho at 184, 125 P.3d at 540; see United States v. Nava-Ramirez, 210 F.3d 1128, 1131 (10th Cir. 2000); see also Nardone v. United States, 308 U.S. 338, 341 (1939). By expressing the query as a "but for" test, we do not imply that a defendant bears the burden to prove a negative--that the state would not or could not have discovered the evidence on any set of hypothetical circumstances that could have arisen absent the illegal search. State v. McBaine, 144 Idaho 130, 134, 157 P.3d 1101, 1105 (Ct. App. 2007). Rather, the defendant need only show that, on the events that did take place, the discovery of the evidence was a product or result of the unlawful police conduct. Id.
In McBaine, officers were investigating the report of a methamphetamine lab located inside McBaine's house. Officers knocked on the front door and McBaine answered. One of the officers observed McBaine's girlfriend inside and told her that he desired to come inside and speak with her. McBaine responded that he would rather the officers speak with his girlfriend outside. The officer stated he preferred to speak to the girlfriend alone and then entered the house without permission from McBaine or the girlfriend. Shortly thereafter, the officer went back outside. McBaine subsequently gave the officers consent to search his house. The search resulted in the discovery of a methamphetamine lab. McBaine moved to suppress the evidence and the district court denied the motion.
On appeal, McBaine argued the discovery of the lab should have been suppressed because his consent was the product of the officer's unjustified entry into his house. Id. at 133, 157 P.3d at 1104. This Court examined the consequences of the unlawful entry and emphasized that the entry did not yield any incriminating information. The officer did not search for contraband and did not act in a threatening or overbearing manner. Further, the officer's intrusion had ended before consent was requested of McBaine. Thus, the Court held McBaine failed to demonstrate a causal link between the illegal entry by the officer and McBaine's subsequent consent to search. Id. at 135, 157 P.3d at 1106.
The circumstances in this case are analogous to those in McBaine. Here, the officers' entry upon the curtilage and alleged search did not yield any incriminating evidence, nor anyevidence which would have affected Kapelle's decision to grant them consent to enter and search his trailer. While the officers approached Kapelle with their guns drawn, the officers did not aim their guns at Kapelle and kept them pointed toward the ground. Given the circumstances of the encounter (searching for a dangerous suspect), it was reasonable for the officers to take precautions. Furthermore, the officers' conversation with Kapelle appeared to be nonaccusatory and cordial in nature. When requesting consent to search Kapelle's home, an officer inquired, The officers did not threaten Kapelle or create an overbearing environment through any unlawful search in his curtilage. Therefore, we hold Kapelle has failed to demonstrate his consent to enter and search, and the resulting evidence, was the direct or indirect result of any illegal search.
Kapelle's argument on appeal focuses on the attenuation doctrine. That doctrine requires a...
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