State v. Turek

• Decision Date: 02 March 2011
• Docket Number: No. 36596.,36596.
• Citation: 250 P.3d 796,150 Idaho 745
• Court: Idaho Court of Appeals
• Parties: STATE of Idaho, Plaintiff–Appellant, v. Clifton TUREK, Defendant–Respondent.

150 Idaho 745

250 P.3d 796

STATE of Idaho, Plaintiff–Appellant,

v.Clifton TUREK, Defendant–Respondent.

No. 36596.

Court of Appeals of Idaho.

March 2, 2011.

Review Denied May 16, 2011.

Hon. Lawrence G. Wasden, Attorney General; Rosemary Emory, Deputy Attorney General, Boise, for appellant.

Clifton Turek, Bonners Ferry, pro se respondent.

GUTIERREZ, Judge.

The State of Idaho appeals from the district court's order granting Clifton Turek's motion to suppress evidence. For the reasons set forth below, we affirm.

I.FACTS AND PROCEDURE

On the morning of September 2, 2008, Turek was convicted of driving under the influence of intoxicants and placed on two years of supervised misdemeanor probation. One of the conditions of Turek's probation, to which he agreed, was that he was required to:

[s]ubmit to searches of his/her person, residence, and any property under his/her control, without a warrant pursuant to probation supervision, at the request of the Probation Officer or Law Enforcement.¹

He was also instructed to contact the Boundary County Adult Misdemeanor Probation office within two business days.

At approximately 12:21 p.m. on the same day, before Turek had met with the probation department, two probation officers and a sheriff's officer went to Turek's residence to conduct an "initial probation home visit." The officers did not get an answer after knocking on the door, but they could hear music coming from the residence and saw smoke coming from the chimney. The sheriff's officer proceeded to the back of the house and opened an unlocked shed door, looking for Turek. The officer discovered an active marijuana growing operation inside the shed. Turek was not present at any point and had not been advised that a visit and/ or search would be taking place that day.

Turek was charged with manufacturing marijuana, Idaho Code § 37–2732(a)(1)(B), and possession of drug paraphernalia, I.C. § 37–2734A. He filed a motion to suppress evidence of the marijuana growing operation as having been found during an unconstitutional search. Following a hearing, the district court granted the motion. The state now appeals.

II.ANALYSIS

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 are 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). At a suppression hearing, the power to assess the credibility of witnesses, resolve factual conflicts, weigh evidence, and draw factual inferences is vested in the trial court. State v. Valdez–Molina, 127 Idaho 102, 106, 897 P.2d 993, 997 (1995) ; State v. Schevers, 132 Idaho 786, 789, 979 P.2d 659, 662 (Ct.App.1999).

The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed...." United States v. United States Dist. Court for Eastern Dist. of Michigan, Southern Division, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752, 764 (1972). Establishing that a search is reasonable ordinarily requires that the government demonstrate probable cause to a neutral magistrate and obtain a particularized warrant authorizing the search. State v. Purdum, 147 Idaho 206, 208, 207 P.3d 182, 184 (2009). There are, however, limited exceptions to the warrant requirement for intrusions that are reasonable under the circumstances, such as searches conducted with consent voluntarily given by a person who has the authority to do so. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854, 859–60 (1973) ; State v. Stewart, 145 Idaho 641, 644, 181 P.3d 1249, 1252 (Ct.App.2008) ; State v. Dominguez, 137 Idaho 681, 683, 52 P.3d 325, 327 (Ct.App.2002). Idaho precedent holds that a felony² probationer's consent to searches incorporated as a condition of probation provides justification for warrantless searches of the probationer's residence. Purdum, 147 Idaho at 208–09, 207 P.3d at 184–85; State v. Gawron, 112 Idaho 841, 843, 736 P.2d 1295, 1297 (1987) ; State v. Buhler, 137 Idaho 685, 687, 52 P.3d 329, 331 (Ct.App.2002).

In granting Turek's motion to suppress, the district court concluded that no exception to the rule against warrantless searches applied to render the search of the outbuilding constitutional. The court first examined the condition of Turek's probation which required that he "submit to searches of his ... person, residence, and any property under his ... control without a warrant, pursuant to probation supervision at the request of the Probation Officer or Law Enforcement." The court found that the provision required that Turek submit to searches only at the request of the probation department or law enforcement. Because the officers on the scene did not request that Turek submit to a search of his property (as he was not present), the court concluded that the requisite consent was not granted by virtue of Turek's agreement to the conditions of probation. The court also found that because the officers had no right to search Turek's property pursuant to his probation agreement, the plain view doctrine could not justify the search when they found evidence of a marijuana operation in the shed, because they had discovered the evidence in a place they had no right to be.

The state advances two arguments on appeal in support of its contention that the district court erred in granting Turek's motion to suppress. First, it contends that the entry into the shed was reasonable and lawful, describing the action of the probation officer as a "visit." The state also contends that the district court erred in interpreting the probation condition as requiring the probation officers or law enforcement to request permission to search at the scene.

We first dispense with the state's contention that probation officer "visits" without a warrant or without meeting a warrant exception are permissible. For its argument, the State relies upon a twenty-eight-year-old case, State v. Pinson, 104 Idaho 227, 657 P.2d 1095 (Ct.App.1983). In Pinson, the defendant had not consented to searches as a condition of probation. His probation officer received telephone calls from Pinson's mother saying that he was in possession of drugs and may have burglarized a trailer next to the mother's home. The probation officer and a deputy sheriff went to the mother's home where Pinson was staying and confronted him at the front door. When Pinson asked for a search warrant, the officer said that he did not need one because, as a probation officer, he had authority to conduct warrantless searches of those under his supervision. Pinson then allowed the officers to enter. Shortly thereafter they asked him to pull up the legs of his pants. They noticed that there were lumps in his socks and directed him to remove the hidden items, which turned out to be marijuana and associated paraphernalia. In upholding the entry into the residence and search of Pinson's person, this Court held that the officer's entrance into the residence did not in itself constitute a search or an unreasonable intrusion. Id. at 233, 657 P.2d at 1101. However, the next sentence in Pinson notes that the probation officer had reasonable grounds to believe that Pinson had violated the terms of his probation and the search was related to confirming that violation. Id. Therefore, the entry was supported by reasonable suspicion which is consistent with well-developed law in this area that establishes that probation searches may be conducted without consent when the officers are there to investigate reasonable suspicion of violation of probation terms. See State v. Klingler, 143 Idaho 494, 497, 148 P.3d 1240, 1243 (2006) ; State v. Anderson, 140 Idaho 484, 487, 95 P.3d 635, 638 (2004).

Accordingly, we conclude that the state's reliance on Pinson is misplaced because in that case the entry was supported by reasonable suspicion, which is not present here, and neither Idaho appellate courts nor the United States Supreme Court has subsequently held that probation officers may enter probationers' homes without a warrant in the absence of either consent or reasonable suspicion. Moreover, even if Pinson is properly interpreted as authorizing entries without consent or reasonable suspicion, Pinson was addressing only an entry made after the probation officer had requested and been denied permission by the probationer. It did not endorse a warrantless entry made without the probationer's knowledge as occurred in the instant case.

We next examine whether Turek's agreement to submit to warrantless searches "at the request of" a probation officer or law enforcement official as a condition of his probation constituted requisite consent to render the search constitutional. The state contends that Turek waived his Fourth Amendment right to be free from warrantless searches when he agreed to the probation condition such that he consented in advance to the search and there was no need to obtain his consent at the scene, despite the language stating that Turek must submit to a search "at the request of" probation or law enforcement officials.

In Gawron, 112 Idaho 841, 736 P.2d 1295, the Idaho Supreme Court examined the effect of a probation condition by which Gawron had agreed to be subject to warrantless searches. There, a detective was investigating recent burglaries and found evidence linking them to Gawron, who was on probation. A term of his probation provided:

That probationer does hereby agree and consent to the search of his person, automobile, real property, and any other property at any time and at any place by any law enforcement officer, peace officer, or probation officer, and does waive his constitutional right to be

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