State v. Larson
| Decision Date | 20 July 2000 |
| Docket Number | No. 25115.,25115. |
| Citation | 6 P.3d 843,134 Idaho 593 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Russell LARSON, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Marilyn Paul, Jerome, for appellant.
Hon. Alan G. Lance, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
Russell Larson appeals from a judgment of conviction and sentence entered upon his plea of guilty to possession of a controlled substance. I.C. § 37-2732(c)(1). For the reasons set forth below, we affirm.
Police officers obtained a search warrant for the residence of James Orr. While they were in the process of executing the warrant, the telephone rang. One of the officers answered the telephone. During the conversation, the caller twice asked whether the officer was "Jim." Each time, the officer responded that he was, even though his name was not "Jim." The officer asked the caller if he had any "stuff." The caller responded affirmatively. The officer asked the caller to come right over, and the caller agreed. Approximately five minutes later, the officer observed an individual approaching the residence. When the individual got to within approximately three feet of the front door of the residence, the officer came out of the house, noticed that the individual had what appeared to be a pistol in his waistband, and ordered the individual to raise his hands. The individual did not comply, and the officer wrestled him to the ground. Upon conducting a search, the officer discovered methamphetamine and two firearms. The individual was arrested and identified as Russell Larson.
Larson was charged with possession of a controlled substance with the intent to deliver. He moved to suppress the evidence seized, and the district court denied the motion. Larson and the state entered into a plea agreement in which Larson pled guilty to an amended charge of simple possession, reserving his right to appeal the denial of his suppression motion and his sentence. The district court sentenced Larson to a unified five-year term, with three years fixed, suspended execution of the sentence, and placed Larson on three years' probation. Larson appeals.
Larson challenges the district court's denial of his motion to suppress. 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 which were 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).
Larson argues that because the search of Orr's residence was illegal, all evidence seized subsequent to that search is fruit of the poisonous tree and must be suppressed. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Specifically, Larson asserts that the warrant to search Orr's residence was invalid, and that "but for" the violation of Orr's constitutional rights, Larson would not have been summoned to Orr's residence and no evidence against him would have been seized.
Fourth Amendment rights are personal rights which may not be vicariously asserted. Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 424-26, 58 L.Ed.2d 387, 394-95 (1978). A search may be challenged when a personal interest under the Fourth Amendment is asserted and a legitimate expectation of privacy is shown to exist in the area searched or the items seized. State v. Brown, 113 Idaho 480, 483-84, 745 P.2d 1101, 1104-05 (Ct.App.1987). In determining whether an individual has standing to challenge a search, the question is whether governmental officials violated any legitimate expectation of privacy held by that individual. See Rawlings v. Kentucky, 448 U.S. 98, 106, 100 S.Ct. 2556, 2562, 65 L.Ed.2d 633, 642 (1980).
In United States v. Congote, 656 F.2d 971 (5th Cir. Unit B 1981), the court addressed an argument similar to Larson's. In that case, the court considered the question of whether Congote had standing to assert a violation of other individuals' Fourth Amendment rights. Congote had telephoned an apartment where government agents were conducting an illegal search. The court found that by answering the telephone the agents "grossly exceed[ed]" the Assistant United States Attorney's instructions to secure the residence. The court held that although the entry into the apartment and the act of answering a telephone may have been illegal, Congote possessed no reasonable expectation of privacy in the residence and, thus, had no standing to challenge the legality of the search of the apartment.
In the instant matter, we conclude that Larson lacks standing to challenge the search of Orr's residence. Larson argues that "but for" the officers' illegal conduct in searching Orr's residence, evidence used against him would not have been seized. However, any violation of Orr's constitutional rights cannot be, as a matter of law, a "poisonous tree" insofar as Larson's suppression motion is concerned. Nevertheless, whether Larson has standing to contest the search of Orr's residence is not dispositive to this Court's analysis of whether Larson's Fourth Amendment rights were violated.
As we interpret Larson's argument on appeal, it also challenges the district court's conclusion that the Fourth Amendment was not violated when the officer, who answered the telephone, misrepresented his identity. A law enforcement agent may record conversations between himself or herself and another party without violating the Fourth Amendment. United States v. Sileven, 985 F.2d 962, 966 (8th Cir.1993).
The United States Supreme Court has recognized that the Fourth Amendment does not protect "a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." Hoffa v. United States, 385 U.S. 293, 302, 87 S.Ct. 408, 413, 17 L.Ed.2d 374, 382 (1966). Additionally, "[c]riminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer." Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 820-21, 2 L.Ed.2d 848, 851 (1958). It is noteworthy that the use of trickery and subterfuge by police has been approved in a number of circumstances. See Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) (); Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966) (); United States v. Contreras-Ceballos, 999 F.2d 432 (9th Cir.1993) (); Leahy v. United States, 272 F.2d 487 (9th Cir.1960) (); United States v. Salter, 815 F.2d 1150 (7th Cir.1987) ().
During appellate oral argument, Larson conceded that, had the officer deceived him during a face-to-face encounter, Hoffa and its progeny would apply and no Fourth Amendment violation would have occurred. However, Larson appears to argue that, because the officer's deception occurred over the telephone, as opposed to during a face-to-face conversation, Hoffa is distinguishable. We disagree. The reasoning in Hoffa, that "a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it," is equally applicable in the case where a police officer misrepresents his or her identity over the telephone. That Larson did not know the officer's true identity is irrelevant. See United States v. Passarella, 788 F.2d 377, 380 (6th Cir.1986). Accordingly, the Fourth Amendment was not violated by the officer's misrepresentation of his identity over the telephone.1
Larson asserts that the district court...
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...L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 131, n. 1, 99 S.Ct. at 424, n. 1, 58 L.Ed.2d 387 (1978); State v. Larson, 134 Idaho 593, 595, 6 P.3d 843, 845 (Ct.App.2000); State v. Peters, 130 Idaho 960, 961-62, 950 P.2d 1299, 1300-01 (Ct.App.1997); State v. Vasquez, 129 Idaho 129, 13......