State v. Prestwich

• Decision Date: 14 November 1989
• Docket Number: No. 18045,18045
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Keith PRESTWICH, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 298

783 P.2d 298

116 Idaho 959

STATE of Idaho, Plaintiff-Respondent, v. Keith PRESTWICH, Defendant-Appellant.

No. 18045.

Supreme Court of Idaho.

Nov. 14, 1989.

Denman & Reeves, Idaho Falls, for defendant-appellant. Reginald Reeves, argued.

Jim Jones, Atty. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., argued, for plaintiff-respondent.

JOHNSON, Justice.

This is a marijuana growing case that has been the subject of two prior opinions of the Court of Appeals. In Prestwich I (State v. Prestwich, 110 Idaho 966, 719 P.2d 1226 (Ct.App.1986)) the Court of Appeals held that the search warrant pursuant to which approximately 400 marijuana plants were seized from Keith Prestwich's home was issued without probable cause. However, the Court of Appeals remanded the case to the trial court for an evidentiary hearing to decide on the objective reasonableness of the reliance of the police officers on the warrant according to the good faith standards established in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

On remand the trial court ruled that the marijuana plants should not be suppressed because the police officers who seized them reasonably relied on the validity of the warrant. In Prestwich II (State v. Prestwich, 115 Idaho 317, 766 P.2d 787 (Ct.App.1988)) the Court of Appeals affirmed the decision of the trial court. We granted review of the decision of the Court of Appeals.

We have reviewed and considered the briefs, the record, the transcript, the exhibits and the two opinions of the Court of Appeals. We have also listened to and considered the oral arguments of the parties that were presented to us. Based on this review and consideration we concur with the decision of the Court of Appeals in Prestwich II, so far as it goes. We supplement the opinion of the Court of Appeals with our analysis of one aspect of Leon that was not considered by the Court of Appeals.

Preliminarily, we note that Prestwich has not questioned the applicability of Leon under the unreasonable search and seizure provision of our constitution (article 1, § 17). We also note that our Court of Appeals has previously held that Leon is applicable under article 1, § 17. State v. Rice, 109 Idaho 985, 712 P.2d 686 (Ct.App.1985) rev. denied (1986). Although in Prestwich II the Court of Appeals indicated that this Court has not yet addressed the applicability of Leon under our state constitution (109 Idaho at 989 n. 2, 712 P.2d at 690 n. 2), by the denial of review in Rice, this Court implicitly approved the applicability of Leon under article 1, § 17. Hays v. State, 115 Idaho 315, 316, 766 P.2d 785, 786 (1988).

We also point out that on this appeal the question of probable cause for issuing the search warrant was not before the Court of Appeals and is not before us. Prestwich I held that there was no probable cause to issue the warrant. That is the law of this case, and it need not be revisited here.

Following the remand ordered by the Court of Appeals in Prestwich I, the trial court held an evidentiary hearing and concluded that the officers who seized the marijuana plants could have reasonably relied on the validity of the warrant. The trial court also concluded that none of the four exceptions to this good faith rule of Leon existed in this case. In its opinion in Prestwich II the Court of Appeals addressed only two of these four exceptions, the one relating to the magistrate's abandoning a neutral and detached judicial role (the neutral and detached judicial role exception) and the one relating to the supporting evidence being " 'so lacking in indicia of probable cause as to render belief in its existence by the officers unreasonable.' " (the so lacking probable cause exception). 115 Idaho at 320-21, 766 P.2d at 790-91. We accept the analysis of the Court of Appeals as to the standard of review to be applied and as to the two exceptions addressed in Prestwich II. We write here only to address the other exceptions to the Leon rule that were considered by the trial court but were not addressed by the Court of Appeals.

I. ARE THE OTHER EXCEPTIONS TO THE LEON RULE PROPERLY BEFORE THE COURT IN THIS APPEAL?

On this review of the decision of the Court of Appeals Prestwich has raised for the first time the exception to the Leon good faith rule relating to the magistrate's having been misled by information that the officer who applied for the warrant knew was false, or would have known was false, except for the officer's reckless disregard of the truth (the false information exception).

We first note that Prestwich did not assert the false information exception in the statement of issues in his brief in Prestwich II or in his argument before the Court of Appeals. In his brief he listed the same issues that he had listed in his brief in Prestwich I, i.e., (1) whether the magistrate's authorization of a nighttime search was an abuse of discretion, and (2) whether the evidence presented by the officer supported a finding of probable cause for the issuance of a search warrant. However, in his points and authorities and in the body of the brief in Prestwich II he cited Leon and invoked the neutral and detached judicial role exception. The Court of Appeals interpreted Prestwich's contentions as more accurately an application of the so lacking probable cause exception. 115 Idaho at 320-21, 766 P.2d at 790-91.

We are presented first with the question of whether the false information exception is properly an issue in this appeal. The State has asserted that since this exception was not listed in the issues on appeal in Prestwich's initial brief in this appeal and since the Court of Appeals did not address this exception, it would be improper for us to do so on review. While we would have preferred that Prestwich had specifically addressed the false information exception in the statement of issues that were presented to the Court of Appeals, we conclude that the issue is properly before us, and we will address it.

I.A.R. 35 contains the following provisions:

(a) Appellant's Brief. The brief of the appellant shall contain the following divisions under appropriate headings:

....

(4) Issues Presented on Appeal. A list of the issues presented on appeal, expressed in the terms and circumstances of the case but without unnecessary detail. The statement of the issues should be short and concise, and should not be repetitious. The issues shall fairly state the issues presented for review. The statement of issues presented will be deemed to include every subsidiary issue fairly comprised therein.

....

(b) Respondent's Brief. The brief of the respondent shall contain the following divisions under appropriate headings:

....

(4) Additional Issues Presented on Appeal. In the event the respondent contends that the issues presented on appeal listed in appellant's brief are insufficient, incomplete, or raise additional issues for review, the respondent may list additional issues presented on appeal in the same form as prescribed in Rule 35(a)(4) above.

This Court and the Court of Appeals have held that the failure of the appellant to include an issue in the statement of issues required by I.A.R. 35(a)(4) will eliminate the consideration of that issue in the appeal. Jensen v. Doherty, 101 Idaho 910, 911, 623 P.2d 1287, 1288 (1981); Drake v. Craven, 105 Idaho 734, 736, 672 P.2d 1064, 1066 (Ct.App.1983) rev. denied (1984). However, this Court has indicated that this rule might be relaxed where the issue was addressed by authorities cited or arguments contained in the briefs. Bolen v. Baker, 69 Idaho 93, 99, 203 P.2d 376, 379 (1949); State v. Dennard, 102 Idaho 824, 825 n. 2, 642 P.2d 61, 62 n. 2 (1982); State v. Hoisington, 104 Idaho 153, 159, 657 P.2d 17, 23 (1983).

Here, the whole purpose of the remand to the trial court by the Court of Appeals in Prestwich I was the consideration of the Leon good faith rule. On remand the trial court considered all four exceptions to the Leon rule. In responding to Prestwich's brief in Prestwich II, the State rephrased the issue on appeal, as follows: "On remand did the district court correctly apply the Leon good faith exception to the exclusionary rule in reaffirming its prior denial of Prestwich's motion to suppress evidence?" These circumstances placed the Leon rule and all its exceptions at issue in this appeal. Nevertheless, we understand how the Court of Appeals was misled by Prestwich's presentation of the issues and therefore did not address the false information exception.

We also note that the fourth exception to the Leon rule was addressed by the trial court in its decision on remand, but has not been raised even before this Court on review of the decision of the Court of Appeals. This exception relates to the warrant being so facially deficient in failing to particularize the place to be searched or the things to be seized that the officer could not reasonably presume the warrant to be valid. We conclude that there is no basis for considering this exception here, since the warrant accurately described the place to be searched and the things to be seized.

II. DOES THE FALSE INFORMATION EXCEPTION APPLY TO THE CIRCUMSTANCES OF THIS CASE?

Prestwich asserts that he made a threshold showing that the information from the anonymous informants was false and that the police knew, or should have known, of its falsity. He argues that a simple, sincere observation of Prestwich's premises would have disclosed that the information provided by the anonymous callers could not have been true.

The false information exception finds its origin in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). See State v. Schaffer, 107 Idaho 812, 819, 693 P.2d 458, 465 (Ct.App.1984). Franks has been applied by this Court in a case in which probable cause for the issuance of a search warrant was at issue. State v. Lindner, 100 Idaho 37, 592 P.2d 852 (1979). There, it was admitted that the...