State v. Wengren

• Decision Date: 31 January 1995
• Docket Number: No. 20647,20647
• Citation: 126 Idaho 662,889 P.2d 96
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Lars E. WENGREN, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 96

889 P.2d 96

126 Idaho 662

STATE of Idaho, Plaintiff-Respondent, v. Lars E. WENGREN, Defendant-Appellant.

No. 20647.

Court of Appeals of Idaho.

Jan. 31, 1995.

[126 Idaho 664] James H. Paulsen, Sandpoint, for appellant.

Larry EchoHawk, Atty. Gen., Douglas A. Werth, Deputy Atty. Gen., Boise, for respondent. Douglas A. Werth argued.

PERRY, Judge.

A judgment of conviction was entered against Lars Wengren subsequent to his conditional plea of guilty, pursuant to Idaho Criminal Rule 11(a)(2), to felony possession of marijuana in excess of three ounces. I.C. § 37-2732(e). On appeal from the conviction, he asserts error in the district court's denial of his: (1) motion to dismiss for an insufficient showing of probable cause at the preliminary hearing; (2) motion to suppress based on defects in the process of obtaining the search warrant and the warrant itself; and (3) motion to dismiss based on speedy trial grounds and other constitutional infirmities. We uphold the rulings of the district court and affirm the judgment of conviction.

FACTS AND PROCEDURAL BACKGROUND

On July 23, 1992, at approximately 5:15 a.m., officers of the Sandpoint Police Department, the Idaho Tax Bureau and the Idaho Bureau of Narcotics executed a search warrant at a residence owned by Barry Wengren and Roberta Ward. At the time, Lars Wengren, Timothy Charters, Howard Nusbaum, and Barry Wengren, occupied the home, which was located at 802 Michigan Street in Sandpoint. During the search, the officers found baggies containing marijuana in the Lars Wengren originally was charged with trafficking in marijuana, failure to affix a controlled substance tax stamp and possession of marijuana with intent to deliver. As a result of the preliminary hearing in his case, Wengren was bound over to the district court on two counts--trafficking and failure to affix a tax stamp. Wengren filed pre-trial motions to dismiss and to suppress evidence seized under the search warrant that he alleged was invalid. Following an evidentiary hearing, the motions were denied by the district court. Wengren then filed another motion to dismiss raising speedy trial issues. This motion too was denied. Wengren negotiated a plea agreement whereby the state amended the charge to one count of possession of more than three ounces of marijuana in exchange for Wengren's plea of guilty to the amended information. The district court accepted Wengren's conditional plea of guilty pursuant to I.C.R. 11(a)(2) allowing Wengren to reserve for appeal certain adverse rulings. The district court also agreed to stay the execution of the sentence pending appeal. The judgment of conviction was entered on April 27, 1993, from which Wengren timely appealed.

                [126 Idaho 665] kitchen and in each of the bedrooms, and marijuana plants in a fourth bedroom which had been converted to a "grow room."   The occupants of the home were arrested following the search
                

ISSUES ON APPEAL

1. MOTION TO DISMISS

The first issue presented by Wengren on appeal is whether the evidence adduced at the preliminary hearing was sufficient to support the magistrate's finding of probable cause. Wengren contends that, pursuant to I.C. § 19-815A, it was error for the district court to deny his motion to dismiss where there was no reasonable or probable cause to believe that Wengren had committed the crimes of trafficking and failure to affix a tax stamp.

A showing of probable cause, not a showing of guilt beyond a reasonable doubt, is required at a preliminary examination. State v. Greensweig, 102 Idaho 794, 796, 641 P.2d 340, 342 (Ct.App.1982). A finding of probable cause need only be based upon substantial evidence. I.C.R. 5.1(b); State v. Williams, 103 Idaho 635, 645, 651 P.2d 569, 579 (Ct.App.1982). If, under any reasonable view of the evidence, including permissible inferences, it appears likely that an offense occurred and that the accused committed it, we will not disturb a district judge's denial of a motion challenging probable cause. State v. Williams, 103 Idaho at 644, 651 P.2d at 578.

At the preliminary hearing, Officer Kramer testified as to evidence found in Lars Wengren's bedroom: zig zag papers, a bong pipe with burnt residue, twenty-six baggies containing green leafy residue, four similar baggies alongside twenty dollar bills, three books about growing marijuana, and numerous pieces of paper bearing only first names and telephone numbers. Officer Kramer also testified that the key to the room where eighty-six marijuana plants were being grown was found in the medicine cabinet in the main bathroom of the residence. Accordingly, the magistrate concluded there was probable cause to believe that the crimes charged had occurred and that Wengren had participated in the manufacture and possession of a controlled substance. We find no error in the magistrate's conclusion and hold that the district court correctly denied Wengren's motion to dismiss for lack of probable cause.

2. MOTION TO SUPPRESS

Wengren raises several issues concerning the validity of the search warrant which led to the discovery of contraband in the residence. He first asserts that the warrant was obtained and served by an officer who was not properly certified, a fact which was undisclosed to the magistrate issuing the warrant. Secondly, Wengren asserts that the warrant was improperly based on hearsay. Finally, Wengren contends that there was no probable cause to conduct a search of the home described in the warrant because the address was not set forth in the warrant.

A. POST-Certification

Idaho Code § 19-5109(b) prescribes that a peace officer in the State of Idaho In his brief, Wengren recognizes the dates relevant to establishing Officer Kramer's alleged lack of authority with regard to the application for and execution of the search warrant in this case. However, Wengren misinterprets these facts. Although Officer Kramer was employed with Bonner County in August 1990, she served as a dispatcher until December 6, 1991, at which time she joined the Narcotic Task Force. Only when she assumed the duties of a special agent with the task force did she qualify as a peace officer, pursuant to I.C. § 19-5101(d), and become subject to the POST-certification requirements. The record indicates that Officer Kramer was POST-certified in October 1992, within one year of her starting date as a peace officer. We therefore hold that Wengren's contention that the search warrant should be invalidated because of Officer Kramer's non-compliance with the statutes governing POST-certification of peace officers to be unsupported by the record.

[126 Idaho 666] must be certified by the Idaho Police Officers Standards Training Council (POST) within one year of employment. Section 19-5109(c) specifies that an officer who has not complied with the certification requirement may not exercise the powers conferred on a peace officer. Based on this statute, Wengren argues that Officer Kramer was not duly certified and therefore not authorized to procure and execute the search warrant on July 23, 1992.

We find Wengren's related claim that the magistrate was misled by Officer Kramer's failure to disclose that she was not POST-certified to be without merit. A defendant must show by a preponderance of the evidence that the affidavit was recklessly or intentionally misleading. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); State v. Fairchild, 121 Idaho 960, 965, 829 P.2d 550, 555 (Ct.App.1992). In this case, Officer Kramer testified under oath as to her employment with the Narcotic Task Force which began on December 6, 1991. She did not specifically testify about her POST-certification status and was not asked whether she had completed her certification training. As noted, pursuant to the statute, Officer Kramer had until December 1992 to fulfill those requirements. We conclude that there was sufficient evidence for the district court to hold that the magistrate was not misled with regard to Officer Kramer's dates of employment and certification status so as to invalidate the July 1992 warrant.

Wengren also challenges the search, contending that the warrant was illegally served by Officer Kramer who was not POST-certified on the date the search was conducted. The district court held that the warrant was not personally served by Officer Kramer and that it was not necessary for Officer Kramer to have been certified on July 22, 1992, for her to act as a peace officer. It is clear from the record that Officer Kramer did not personally serve the warrant, and accordingly we find no basis to invalidate the search. Therefore, we need not address whether I.C. § 19-5109(c) prohibits service of a search warrant by an uncertified officer, within one year of the officer's starting date as a peace officer, when that officer subsequently becomes certified as required.

B. Hearsay and House Description

Wengren next asserts that the evidence presented to the magistrate on the application for the search warrant primarily consisted of unreliable hearsay and was thus insufficient to support a finding of probable cause for issuance of the warrant. Wengren challenges the hearsay on hearsay derived from the calls to Officer Gow from an anonymous informant, who communicated information learned from his daughter who had been living with Lars Wengren. Wengren also contests the double hearsay which had been passed on to Officer Kramer by other officers, whose sources were the ex-wife of a friend of Barry Wengren's and a girlfriend of Lars Wengren. Wengren also contests the use of the hearsay derived from a confidential informant who supplied Officer Kramer with information that Lars Wengren was dealing marijuana on the beach near the home.

Hearsay may be the basis for issuance of a search warrant "so long as there [is] a substantial basis for crediting the hearsay." United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) The totality...