State v. Nelson

• Decision Date: 26 November 1986
• Docket Number: No. 16099,16099
• Citation: 731 P.2d 788,112 Idaho 245
• Parties: STATE of Idaho, Plaintiff-Respondent, v. John L. NELSON, Jr., Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 788

731 P.2d 788

112 Idaho 245

STATE of Idaho, Plaintiff-Respondent, v. John L. NELSON, Jr., Defendant-Appellant.

No. 16099.

Court of Appeals of Idaho.

Nov. 26, 1986.

Addendum Jan. 21, 1987.

David A. Frazier (argued), and Thomas A. Mitchell, Coeur d'Alene, for appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Michael A. Henderson, Deputy Atty. Gen., Boise, for respondent.

WALTERS, Chief Judge.

Following a jury trial, John Nelson was convicted of delivery of cocaine. He appeals, contending the trial court erred (1) in refusing to suppress evidence seized pursuant to a search warrant; (2) in failing to instruct the jury as to the applicable law; and (3) in admitting certain drug-related items in evidence over objections based on lack of foundation. Nelson also asserts there was insufficient evidence to support the jury's verdict. We reverse due to error in instructing the jury about circumstantial evidence, and we remand for a new trial.

The record reveals the following facts. In March, 1984, police officers arranged for the purchase of cocaine by an informant. The informant was wired with a transmitter and given $625 in recorded bills to make the purchase. The informant, Ron Johnson, went to the house of Darryl McCarthy in Coeur d'Alene and gave McCarthy the money to buy the cocaine. McCarthy then called James O'Neil who later delivered the cocaine to McCarthy's house. Johnson, whom O'Neil distrusted, hid in a closet in McCarthy's house while O'Neil and McCarthy exchanged the money and the cocaine. When O'Neil left the house, the officers followed him to the house of the appellant, John Nelson. In the meantime, the officers had met and talked with the informant who gave them the cocaine he had purchased through McCarthy. According to the officers, the informant indicated that he overheard O'Neil state that he had to take the money back to where he had obtained the cocaine. ¹ The officers, who had placed Nelson's house under surveillance, applied to a magistrate for a warrant to search Nelson's house.

While the officers were procuring the warrant, Nelson got in his car and drove away from his house. He was stopped by the officers and detained for approximately forty-five minutes while the warrant was Prior to trial Nelson moved to suppress the evidence discovered during the searches. The district court refused to suppress, holding that there was probable cause for the searches and, even if probable cause did not exist, that the officers had acted in good faith in executing the warrant. At trial, the prosecution offered into evidence several of the drug-related items seized during the searches. Nelson objected to admission of these items, contending that the state had not shown that the items were used for or in connection with the alleged cocaine delivery. Nelson also requested that certain jury instructions, including an instruction dealing with circumstantial evidence, be given. The district court refused to give Nelson's circumstantial evidence instruction on the ground that it was covered by other instructions given to the jury. The judge also refused Nelson's other instructions and gave instructions to which Nelson objected. The jury found Nelson guilty of delivery of cocaine. With these facts, we turn to Nelson's issues on appeal.

[112 Idaho 247] being obtained. The facts of Nelson's departure from his house and his detention by the surveillance team were communicated to the officer who was applying for the search warrant. As a result, the issued warrant authorized a search of Nelson, his car, and his house. Police then conducted the searches authorized by the warrant. In one of Nelson's socks, the officers found $550 of the recorded bills. In Nelson's house, the officers found various items that could be used by a dealer in cocaine. These items included cocaine reference manuals, a scale, substances that could be used to dilute cocaine, and a "hot box"--a device used to determine the melting point of cocaine to judge its purity. The officers also found magazines which had been cut up to make "bindles" or small envelopes in which cocaine is frequently packaged. The remains of a page from a magazine found at Nelson's house matched the bindle in which the cocaine purchased by the informant was contained. However, no cocaine was found either on Nelson or in his house or vehicle. Nelson was charged with delivery of cocaine based on the cocaine delivered to McCarthy.

I Motion to Suppress

Nelson urges that the evidence discovered in the searches should not have been admitted because his initial detention by the officers was wrongful and therefore the fruits of that illegal detention should be suppressed. Nelson also contends that there was not probable cause for issuing the search warrant. We conclude that the trial court did not err in denying the suppression motion for either reason.

Nelson argues that his initial stop by the officers was wrongful and the ensuing forty-five minute detention, while the warrant was being obtained, violated the standards established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Terry upheld brief investigative stops where there are articulable and reasonable suspicions that criminal activity is afoot, even though there may not be probable cause for an actual arrest. Here the record abundantly supports the conclusion that the initial stop of Nelson was reasonable. After O'Neil had delivered the cocaine, O'Neil declared that he was taking the money back to where he had obtained the drugs. The officers followed him to Nelson's house and, upon identifying that location, proceeded to obtain a search warrant. The officers were aware that, several years before, Nelson had been charged with trafficking in cocaine. The officers logically and reasonably could infer that a person leaving Nelson's house may have been involved in O'Neil's cocaine delivery and may have evidence, such as the recorded bills or more cocaine, in his possession. Thus the detention of a person who was at the house when O'Neil was followed there, and who then tried to leave while the officers were procuring the warrant, was justified. See United States v. Elkins, 732 F.2d 1280 (6th Cir.1984).

While the initial stop was justified, the reasonableness of the length of the Nelson also asserts that the officer who applied for the warrant gave false information to the magistrate, specifically information that O'Neil had driven evasively as he was going to Nelson's house. Nelson urges that this allegedly false information was given intentionally or with reckless disregard for the truth, thus requiring that the information be excised from the facts upon which the magistrate found probable cause to issue the warrant. State v. Lindner, 100 Idaho 37, 592 P.2d 852 (1979) (applying Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)). Under Lindner the defendant must show by a preponderance of the evidence that material false information was included in the affidavit for probable cause. Id.

                [112 Idaho 248] detention itself is a closer question.  Based on the United States Supreme Court's holding in United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985), we conclude that the detention was not violative of Nelson's constitutional right against unreasonable searches and seizures.  In Sharpe, the Court refused to set a "bright line" time limit for determining the propriety of an investigative stop.  Rather than establish a hard-and-fast time limit, the Court stated that the appropriate inquiry is "whether the officers diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant."  Id., 470 U.S. at 686, 105 S.Ct. at 1575.   Thus the Court recognized that in some circumstances, the length of the stop may be longer than in others.  The Court noted that a reviewing court should "take care to consider whether the officers are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing."  Id.  Here the officers were in such a situation.  The officers had already commenced application for the warrant to search Nelson's house.  When Nelson left the house and was stopped, this information was relayed to the officer applying for the warrant, who then included a request to the magistrate that the warrant cover Nelson and his car.  We find no fault with the officers' actions in stopping and detaining Nelson.  Furthermore, the record clearly establishes that the officers were diligent in pursuing their investigation
                

The officer testifying before the magistrate, Officer Kane, relayed to the magistrate information he had received from the officers who were following O'Neil. Kane told the magistrate where Kane had obtained the information and that he believed the officers who gave it to him were reliable. He described O'Neil's actions as driving on side streets as if O'Neil was checking to see if he was being followed. The officer who gave this information to Kane testified that he thought O'Neil's driving was such that O'Neil might have been trying to avoid surveillance. We have reviewed the testimony detailing O'Neil's driving. That testimony describes where O'Neil went. However, whether the driving was or was not "evasive" is not apparent from the record. The officers testified that they thought it was evasive. Although O'Neil himself was called as a witness at the suppression hearing, he gave no testimony about his driving. In short, Nelson has failed to meet his threshold burden under Franks and Lindner of making a prima facie showing of falsity.

Nelson also contends the warrant was issued without probable cause and that the resulting searches were thus unreasonable. Nelson asserts that "the fatal flaw in the findings [sic] of probable cause ... is the lack of evidence connecting...