State v. Nunez

• Decision Date: 03 April 2003
• Docket Number: No. 27954.,27954.
• Citation: 67 P.3d 831,138 Idaho 636
• Parties: STATE of Idaho, Plaintiff-Appellant, v. Ignacio Moro NUNEZ, Defendant-Respondent.
• Court: Idaho Supreme Court

67 P.3d 831

138 Idaho 636

STATE of Idaho, Plaintiff-Appellant, v. Ignacio Moro NUNEZ, Defendant-Respondent.

No. 27954.

Supreme Court of Idaho, Boise, January 2003 Term.

April 3, 2003.

Hon. Alan G. Lance, Attorney General, Boise, for appellant. Kenneth K. Jorgensen, Deputy Attorney General, argued.

Philip H. Gordon, Boise, for respondent. Phillip H. Gordon argued.

TROUT, Chief Justice.

This is an appeal from a district court order suppressing evidence seized pursuant to a search warrant.

I. FACTUAL AND PROCEDURAL BACKGROUND

Detective Kelly Montoya (Montoya) appeared before Magistrate Judge Renae Hoff (Judge Hoff) on two separate occasions for the purpose of obtaining search warrants for two different residences, a house at 619 Elgin Street in Caldwell (the Caldwell residence) and a trailer at 121 North First in Middleton (the Middleton residence). Mr. Gearld Wolff, Canyon County Deputy Prosecuting Attorney (Wolff), was also present at both of the hearings, which took place on November 16, 2000 and December 6, 2000. At the November 16th hearing, Montoya was placed under oath and testified regarding information supplied from three confidential informants, CI1, CI2, and CI3, over the course of two and a half to three months. CI1 was involved in four controlled purchases of methamphetamine. On two separate occasions, CI1 purchased two "eight balls," an eighth of an ounce of methamphetamine, from one drug dealer. The first purchase was made six weeks prior to the hearing and the second about a month before the hearing. In addition, on two other occasions, CI1 purchased a single "eight ball" from another drug dealer. The first purchase occurred months prior to the hearing and the other, five weeks prior to the hearing. Based on CI1's personal observation, the drug traffic at the Caldwell residence was "nonstop" and the home was referred to as a "drive-in," due to the high-volume of traffic and the fact the purchasers of the drugs did not always turn off their car engines while they waited. CI1 also described how one of the drug dealers at the Caldwell residence broke down the drugs into "eight balls" for sale from the Caldwell residence, and another drug dealer would take three ounces of methamphetamine to sell at a local bar. After selling all of the drugs in his possession, this drug dealer would return to the Caldwell residence, drop off the money exchanged for the drugs, obtain more drugs, and go back to the bar again.

Montoya testified regarding information CI2 personally witnessed in the month prior to the hearing. CI2 said there were drugs at the Caldwell residence 24 hours a day, seven days a week. CI2 also corroborated CI1's account of the "nonstop" drug trafficking from the Caldwell property, wherein one drug dealer sold "eight balls" from the Caldwell residence and the other sold three ounces of methamphetamine at a time from a local bar. In addition, CI2 described the Caldwell residence as a holding house. From CI2's account, defendant Ignacio Moro Nunez (Nunez) was the main supplier, appearing at the Caldwell residence twice a day to exchange drugs and money. CI2 also told Montoya that Nunez had a firearm. Finally, CI2 reportedly purchased an ounce of methamphetamine personally from Nunez. Nunez initially attempted to sell CI2 something short of an ounce, and when CI2 complained, Nunez explained he had only money on him at that point, but would return with the requested drugs. According to CI2, Nunez left the Caldwell residence, went to an undisclosed location, and returned one hour later with the ounce as promised. From the information supplied by CI2, Montoya believed there was approximately a quarter to a half-pound of methamphatemine and $10,000 in cash held at the Caldwell residence throughout the day.

Montoya testified that CI2 had been to the Caldwell residence the day of the hearing, November 16th, and personally witnessed an ounce of marijuana, an ounce of cocaine, and two ounces of methamphetamine. CI2 explained these drugs were all that was left, the rest had been sold. CI2 also observed drug paraphernalia, including various types of scales, packaging material, and plastic bags, as well as records documenting the drug transactions.

Montoya further testified regarding information gathered from CI3 over the course of several weeks prior to the hearing. CI3 told Montoya that Nunez was also called "Nacho." In addition, CI3 confirmed information supplied by another, unidentified confidential informant relating to the existence of property in Middleton owned by Nunez. According to CI3, and corroborating CI2's account, Nunez held the mainstay of his narcotics at the Middleton residence, delivering the drugs periodically to the Caldwell residence.

Montoya also testified that he had personally observed Nunez at the Middleton residence. In addition, Montoya indicated that further police investigation uncovered county property records reflecting Nunez owned the Middleton residence, and a neighbor verified that an individual called "Nacho" actually lived at the Middleton residence.

Based on this information, Montoya requested two search warrants: one for the Caldwell residence and the other for the Middleton residence. Montoya asked to search for (1) controlled substances, including but not limited to methamphetamine/amphetamine, cocaine, and marijuana; (2) drug paraphernalia, including scales, balances, plastic bags, and packaging materials; (3) personal books, papers, ledgers and documents associated with drug distribution; (4) U.S. currency; and (5) firearms. Judge Hoff issued both warrants for the purposes sought. Warrant 1387 provided Montoya with authority to search the Caldwell residence and 1388 provided Montoya with authority to search the Middleton residence. The November 16th warrants stated that they must be returned to the magistrate within ten days or they would expire.

Hours after the warrants were issued, Montoya was shot in the line of duty in an unrelated matter and the warrants were never executed. Therefore, on December 6, 2000, Montoya appeared again with Wolff before Judge Hoff to seek reissuance of the warrants for the same residences and the same purposes. Montoya was not separately sworn in at this second appearance, nor was he reminded that his testimony was under oath.

At this second appearance on December 6th, Judge Hoff took "judicial notice" of what had been presented to her on November 16th and Montoya provided new testimony related to recent drug activity at the Caldwell residence. Montoya explained to Judge Hoff that CI2 had indicated that the Caldwell residence had shut down for a couple of days, but was back up and running the night before the December 6th hearing. The night before the hearing, CI2 personally observed an ounce of methamphetamine as well as a large amount of foot and vehicular traffic at the Caldwell residence. CI2 also stated that one of the drug dealers from the Caldwell residence had moved in with Nunez at the Middleton residence. Based on these facts, Montoya testified that he believed the same pattern of activity was occurring with the same individuals as he had testified November 16th. In addition, Montoya further articulated the connection between the drug activity at the Caldwell residence and the Middleton residence. The crux of this connection was based on information from the confidential informants, who stated Nunez was the main supplier of drugs to the Caldwell residence and stored the drugs at the Middleton residence.

At the conclusion of Montoya's testimony, Judge Hoff again issued warrants 1387 and 1388, writing directly on the previous warrants, "Reissued this 6th day of Dec 2000" with a second signature. On December 12, 2000, Warrant 1388 was executed. Based in large part on the evidence seized pursuant to the search, Nunez was subsequently charged with trafficking in methamphetamine and/or amphetamine and possession of a controlled substance.

On March 2, 2001, Nunez filed an "Amended Motion to Suppress Evidence," which the state opposed. Rather than holding a hearing on the issue, both parties submitted "Stipulated Facts" and memoranda to the district court. On October 16, 2001, the district court filed a Memorandum, Decision and Order granting the Motion to Suppress holding (1) there is no legal authority for reissuing an expired search warrant; (2) the December 6th warrants were not supported by sworn testimony or affidavit, because Montoya was not separately sworn at the December 6th hearing; (3) neither the November 16th nor the December 6th search warrants for the Middleton property were supported by probable cause; and (4) Judge Hoff failed to act as a neutral and detached magistrate on December 6th when she took judicial notice of the testimony presented to her on November 16th.

II. STANDARD OF REVIEW

A trial court's ruling on a motion to suppress evidence combines issues of law and fact. This Court will not overturn the trial court's factual findings unless they are clearly erroneous. State v. Revenaugh, 133 Idaho 774, 776, 992 P.2d 769, 771 (1999). However, in light of the trial court's factual findings, this Court exercises free review over whether the constitutional requirements have been met. Id.

III. DISCUSSION

The Fourth Amendment to the United States Constitution and Article I, § 17 of the Idaho Constitution provide a legal limit on government action to protect individuals from unreasonable searches and seizures. State v. Slater, 133 Idaho 882, 885, 994 P.2d 625, 628 (Ct.App.1999). Searches and seizures without a valid warrant are presumptively unreasonable and, therefore, illegal, unless they come within a recognized exception to the warrant requirement. Id. at 886, 994 P.2d at 629. The exclusionary rule is the judicial remedy for addressing illegal searches and bars the admission or use of evidence gathered pursuant to the illegal search. Stuart v. State, 136 Idaho 490, 496, 36 P.3d 1278,...