State v. Wright

• Decision Date: 06 April 1989
• Docket Number: No. 17057,17057
• Citation: 772 P.2d 250,115 Idaho 1043
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Ronald Allen WRIGHT, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 250

772 P.2d 250

115 Idaho 1043

STATE of Idaho, Plaintiff-Respondent, v. Ronald Allen WRIGHT, Defendant-Appellant.

No. 17057.

Court of Appeals of Idaho.

April 6, 1989.

Jay A. Kohler, Hart & Kohler Law Offices, Idaho Falls, for defendant-appellant.

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

WALTERS, Chief Judge.

The appellant, Ronald Allen Wright, conditionally entered a plea of guilty to a charge of possessing a controlled substance. His plea reserved the right to seek appellate review of an order denying his motion to suppress evidence seized pursuant to a search warrant. I.C.R. 11(a)(2). For reasons explained below, we affirm the order refusing to suppress the evidence.

A brief summary of the facts is as follows. After Officer Ericsson of the Idaho Falls, Idaho, police department arrested Robert Burnside on a drug-related charge in 1984, he received information from confidential informants regarding Burnside and other persons in the Idaho Falls area who were reportedly involved in Burnside's drug organization. One of the "other persons" involved was Ronald Wright. On August 29, 1986, warrants were issued in Bonneville County to search Burnside's vehicle and two residences, including Wright's home. The warrants were based upon Ericsson's affidavit and his testimony presented to a magistrate that Burnside, a Boise resident, planned to transport a large quantity of methamphetamine from Boise to Idaho Falls within the following week. The search of Wright's house occurred two days following the issuance of the warrants and shortly after the officers found Burnside in Idaho Falls. The search revealed marijuana cigarettes, methamphetamine, and drug paraphernalia. As a result, Wright was charged with possession of a controlled substance (methamphetamine),) I.C. § 37-2732. ¹ When the district court refused to suppress the evidence obtained during the search, Wright entered a conditional plea of guilty. The district court ordered that judgment be withheld and placed Wright on probation for three years. Wright then brought this appeal.

Wright challenges the judge's order denying the suppression motion, on several grounds. First, he maintains that the search warrant was issued without probable cause. Next, he contends the affidavit, submitted to the magistrate in support of the warrant, contained intentionally false and misleading statements by the affiant, Ericsson. Third, he argues that the warrant violated I.C.R. 41(c) by failing to contain language directing execution of the warrant within fourteen days. He further asserts that I.C.R. 41(d) was violated when the return on the warrant was made by an officer who was not present during execution of the warrant. Finally, he submits that the warrant was "anticipatory" of future events, and was therefore unconstitutional.

I. Probable Cause

The first point of inquiry is whether the magistrate erred in determining there was probable cause to issue a warrant to search Wright's home. In this regard, it must be determined whether there was a substantial basis, under the totality of the circumstances, for the magistrate to conclude that probable cause existed. State v. Lang, 105 Idaho 683, 672 P.2d 561 (1983). As author of the lead opinion on the appeal in this case, my review of the record persuades me that the magistrate was correct, although the other members of this Court conclude otherwise. (See special concurring opinions of Swanstrom, J., and Burnett, J., infra, determining that the search nevertheless will be upheld under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).) The following discussion in this Part, therefore, represents the analysis and view of this author only.

Officer Ericsson's affidavit and testimony, presented to support the issuance of the warrant to search Wright's home, contained the following information, in a loosely chronological fashion. He related that since 1984 he had received information from confidential informants reporting that three of Robert Burnside's most trusted acquaintances were helping Burnside handle the majority of Burnside's methamphetamine business in the local county area. The three acquaintances were identified by the informants as Ed Casey, Bruce Lines, and the appellant, Ronald Wright. Ericsson stated that he personally had observed Burnside frequenting the addresses of the three acquaintances several times in the prior two years. He related that he had last seen Burnside eight days earlier on August 21, 1986, when he observed Burnside and Lines replacing a door panel on Burnside's automobile. Ericsson said he followed Burnside to a bar where he observed Burnside contact an individual in the company of Ed Casey, and Ericsson represented that he had arrested Casey earlier that day for delivery of a controlled substance to an undercover officer. Ericsson then averred that the informants he had "used in this case have been proven reliable on several different occasions, with several warrants and arrests being obtained through information gathered from these individuals." He further confirmed that several convictions had resulted from information provided by these informants.

Referring to the day before his affidavit was presented to the magistrate, Ericsson further stated that on August 28, 1986, he had been contacted by Kent Madsen, a special agent of the F.B.I. Madsen informed Ericsson that he, Madsen, had a confidential informant supply him with information concerning Burnside. Ericsson's affidavit continued:

This informant is a close associate of one of the suspects and was personally present and privy to the conversation between Burnside and the suspect Burnside told about the impending drug delivery. Information given by this informant as to the person involved in this drug trafficing [sic] operation, their residences, places of employment, and their association with Burnside and drug dealing have all been coorborated [sic] by myself in the following regards: Edwin Casey has been arrested for delivering methamphetamine to an undercover officer and is currently in jail for this offense. Bruce Lines has been known by this officer to associate with Robert Burnside and assist him in replacing a door panel on his car and other informants have indicated in the past that Lines sold narcotics out of his business on Ninth Street. Past investigations by myself have disclosed that Robert Burnside frequents the residence of Ron Wright at 439 Gladstone and this residence has been the source of methamphetamine in cases where persons delivered methamphetamine to myself. The confidential informant provided information concerning several of the same players as I mentioned before, this being Ron Wright, Ed Casey and Bruce [Lines] and a Frank [last name unknown]. This informant stated that Robert Burnside delivers usually six pounds or more of methamphetamine to these people on a regular basis. The informant has personally seen Bob Burnside deliver pounds of methamphetamine to Ed Casey and Bruce Lines and has also seen Robert Burnside deliver methamphetamine to Ron Wright. The informant was present during the past week when Robert Burnside spoke with one [of] these individuals and stated that he would return to Idaho Falls with more methamphetamine prior to the time that school started. School starts in this area next Tuesday, that being the 2nd day of September, 1986. According to this informant Robert Burnside brings the methamphetamine to Idaho Falls in his Chevy Camero. With the information obtained from Special Agent Madsen's informant leads me to believe that this information is true and correct and that there is probable cause to believe that Robert Burnside will be delivering a large quanity [sic] of methamphetamine within the next week, therefore I believe we have probable cause to obtain a Search Warrant for the residence of Ron Wright that being 439 Gladstone Ave, Idaho Falls, Bonneville County, State of Idaho.

Ericsson's affidavit then represented that significant quantities of methamphetamine can be easily concealed and that F.B.I. agent Madsen's informant had said that Burnside transported methamphetamine in his automobile, most likely in the door panels. Finally, in applying for the search warrant, Officer Ericsson testified that Burnside lives in Boise and does not have a residence in the Idaho Falls area. Accordingly, Ericsson requested warrants to search Burnside's automobile and the residences of Bruce Lines and Ronald Wright.

Wright questions the sufficiency of the information presented to the magistrate by Officer Ericsson in several particulars. He argues that the information attributed to the informants was nothing more than "casual rumor circulating in the underworld" and an accusation based merely on Wright's general reputation. He submits that the statements of the informants were vague and conclusory in nature without sufficient data to determine the veracity, reliability and basis of the informant's knowledge. He argues that Ericsson's personal observation of Burnside at the addresses of Casey, Lines and Wright, "several times in the last two years," without more specificity as to dates, renders that information suspect because of staleness. He suggests that there was no evidence of the reliability of the F.B.I. informant, or of the basis of that informant's knowledge with regard to the information provided to F.B.I. agent Madsen. I am not persuaded by Wright's assertions.

Affidavits for search warrants must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). "A magistrate's determination of probable cause should be accorded great deference by the appellate court.... Similarly, such affidavits should be tested by standards less rigorous then those governing the admissibility of evidence...