State v. Revenaugh

• Decision Date: 09 December 1999
• Docket Number: No. 24350.,24350.
• Citation: 992 P.2d 769,133 Idaho 774
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Tod M. REVENAUGH, Defendant-Appellant.
• Court: Idaho Supreme Court

992 P.2d 769

133 Idaho 774

STATE of Idaho, Plaintiff-Respondent, v. Tod M. REVENAUGH, Defendant-Appellant.

No. 24350.

Supreme Court of Idaho, Boise, September 1999 Term.

December 9, 1999.

Rehearing Denied February 3, 2000.

Frederick G. Loats, Coeur d'Alene, for appellant.

Hon. Alan G. Lance, Attorney General, Boise, for respondent. Karen A. Hudelson, Deputy Attorney General, argued.

TROUT, Chief Justice.

Tod M. Revenaugh appeals from the district judge's denial of his motion to suppress evidence. Revenaugh argues that because the warrant authorizing the search of his residence was based in part on information obtained from at least one, and possibly two illegal searches, the warrant is invalid and all evidence seized pursuant to that warrant should have been suppressed. Because we believe that the motion was properly denied, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

On May 5, 1997, Deputy Stewart Miller of the Kootenai County Sheriff's office was dispatched to a business on a malicious injury to property call. The owner of the property showed Deputy Miller four holes which appeared to be caused by bullets. By inserting an ink pen into the holes, Deputy Miller determined that the trajectory of the bullet holes pointed toward a residence approximately fifty to sixty yards away. Deputy Miller then walked toward the residence to determine whether the occupants had any information concerning the bullet holes.

Deputy Miller proceeded to walk up the normal walkway to the residence. When he reached a point approximately six to eight feet from the open front door, he observed three individuals, one of whom was later identified as the occupant of the residence, Tod Revenaugh, engaged in some activity around two large black plastic garbage bags, and one small clear baggie. At the same time, Deputy Miller observed one of the men holding a green stalk and apparently trimming leaves from that stalk. Additionally, Deputy Miller smelled the strong odor of marijuana.

At that time, Deputy Miller yelled "stop" and then heard someone from the house yell "cop" as the door was slammed shut. Deputy Miller then pushed the door open and ordered everyone out of the house. Two of the individuals immediately exited the house. Revenaugh did not emerge right away, but was eventually persuaded to exit by the other two individuals.

Deputy Miller then read Revenaugh his Miranda warnings and Revenaugh informed him that he was the renter of the house. Deputy Miller asked for permission to search the residence and Revenaugh denied that request. At that point, Deputy Miller summoned other officers for assistance. After those officers arrived, Deputy Miller and other officers entered the residence in order to make sure there was no one else in the house. During that time, Deputy Miller observed marijuana and paraphernalia on a counter in the residence. After discovering a closed door which felt very warm and hearing noises from inside the room which sounded like a house fan, the officers exited the house and decided to wait for a K-9 unit. After the arrival of the K-9 unit, the officers again entered the house and entered the closed room. During this search, Deputy Miller observed several hundred growing marijuana plants and paraphernalia. Following this search, Deputy Miller applied for and received a search warrant. Pursuant to the search warrant, 465 marijuana plants and related paraphernalia were seized. Based on this evidence, Revenaugh was arrested and charged with trafficking in marijuana.

On May 20, 1997, a preliminary hearing was held at which the magistrate judge determined there was probable cause and bound Revenaugh over for trial. Prior to trial, Revenaugh's counsel filed a motion to suppress all evidence taken from Revenaugh's residence on the grounds that the warrant authorizing the seizure was based on illegally obtained evidence. After briefing and a hearing, the trial judge made oral findings of fact and held that (1) that the first warrantless search was justified as a protective sweep, (2) that the second search conducted with the K-9 unit was unconstitutional,¹ and (3) that the warrant would have been issued even without the information obtained from the second, illegal, search. The district court therefore denied Revenaugh's motion to suppress. Thereafter, Revenaugh entered into a written Rule 11 conditional guilty plea, reserving his right to appeal the denial of his motion to suppress. The court entered judgment, imposing a unified six-year sentence with five years fixed. This appeal then followed.

II. STANDARD OF REVIEW

When reviewing a trial court's ruling on a defendant's motion to suppress, we defer to the trial court's factual findings unless they are clearly erroneous. State v. Medley, 127 Idaho 182, 185, 898 P.2d 1093 (1995). However, in light of the trial court's factual findings, we exercise free review over whether the constitutional requirements have been met. See id.

III. DISCUSSION

A. Deputy Miller's Initial Warrantless Entry into Revenaugh's Residence Falls Within the Protective Sweep Exception to the Warrant Requirement.

It is a fundamental principle of Fourth Amendment law² that "searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639, 651 (1980); see also Welsh v. Wisconsin, 466 U.S. 740, 749, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732, 742 (1984)

; State v. Curl, 125 Idaho 224, 225, 869 P.2d 224, 225 (1993). Consequently, such searches are unconstitutional unless a "specifically enumerated exception to this rule applies." State v. Johnson, 110 Idaho 516, 522, 716 P.2d 1288, 1294 (1986). In 1990, the United States Supreme Court defined one such exception, upholding a protective sweep of a residence after the suspect had been arrested. See Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 1098, 108 L.Ed.2d 276, 286 (1990). In Buie, the Court announced the rule that following the in-home arrest of a suspect, the police could conduct a protective sweep of the premises provided that they had a reasonable, articulable suspicion "that the area to be swept harbors an individual posing a danger to those on the arrest scene." Id.

Buie involved a protective sweep after an in-home arrest. In contrast, in this case, Revenaugh was detained, rather than arrested at the time the warrantless entry occurred. Furthermore, the detention occurred immediately outside of Revenaugh's residence rather than inside, as was the case in Buie. Therefore, in deciding whether Deputy Miller's warrantless entry in Revenaugh's residence was justified as a protective sweep, we must first determine whether the protective sweep exception to the warrant requirement applies where the suspect is only detained and not formally placed under arrest at the time the protective sweep is conducted. Additionally, we must determine if the protective sweep exception applies when the suspect is detained outside of the residence.

i. The Protective Sweep Exception Applies Even When the Suspect is Not Formally Arrested.

From the record in this case, it is unclear when Revenaugh was formally placed under arrest. However, it is undisputed that no formal arrest took place until after Deputy Miller conducted the protective sweep of the residence. In fact, according to Deputy Miller's testimony at the preliminary hearing, Revenaugh was not even handcuffed and placed in the police vehicle until after the protective sweep. While Revenaugh had not been placed under arrest or handcuffed, it is clear that he was nevertheless in a custodial situation at the time the protective sweep took place. Deputy Miller testified that after he ordered Revenaugh and the others out of the house, he called his reserve deputy over to watch the suspects. Additionally, Deputy Miller had given Revenaugh his Miranda warnings prior to asking whether anyone else was in the residence. These facts make it apparent that Revenaugh was not free to leave and was, for all relevant purposes, in the custody of the law enforcement officers. Therefore, the question we now face is whether the fact that Revenaugh was not formally placed under arrest renders the protective sweep exception to the warrant requirement inapplicable. We hold that it does not.

Although we have not previously addressed this question, other courts have upheld protective sweeps conducted before the suspect is formally arrested. See e.g., United States v. Meza-Corrales, 183 F.3d 1116 (9th Cir.1999)

; United States v. Garcia, 997 F.2d 1273, 1282 (9th Cir.1993). In Meza-Corrales, the Ninth Circuit upheld a protective sweep conducted while the suspect was held, but not arrested, outside of the residence. In so holding, the court noted that the officers were justified in detaining Meza-Corrales outside of the residence because they had a reasonable suspicion that he was involved in criminal activity that had occurred or was about to occur inside the residence. Id. at 1123-24. The court also held that the protective sweep was justified because the officers had a reasonable basis to believe that there were others inside the residence who could pose a threat to the officers, or destroy evidence hidden inside the residence. Id. at 1124.

Similarly, Deputy Miller, like the officers in Meza-Corrales, had a reasonable belief that Revenaugh was involved in criminal activity that had occurred or was about to occur inside the residence and Deputy Miller was clearly justified in detaining Revenaugh outside. Therefore, under the facts of this case, any distinction between a "detention" and a formal arrest of Revenaugh is negligible. The concern for the safety of officers which justifies allowing officers to conduct warrantless protective sweeps following the arrest of a suspect is just as applicable where the suspect has been detained while the officers attempt to ascertain the extent of the situation. In either...