State v. Bicknell

91 P.3d 1105, 140 Idaho 201, 2004 Ida. LEXIS 94

• Court: Idaho Supreme Court
• Decided: May 20, 2004
• Docket: 29085, 29087
• Status: Published

Opinions

EISMANN, Justice.

These are appeals from orders suppressing evidence obtained pursuant to a search warrant on the ground that the search warrant was invalid because it was based upon an affidavit of a Washington State Patrol Detective that had been notarized by a notary public rather than signed in front of the magistrate judge. We reverse the orders suppressing evidence and remand these cases for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

On March 15, 2002, a Rathdrum police officer appeared before a magistrate judge seeking a search warrant for evidence related to the crime of automobile theft. In connection with the application for a search warrant, the officer presented the magistrate with the affidavit of a Washington State Patrol Detective that had been notarized by an Idaho notary public. In that affidavit, the detective detailed an investigation that had begun in Washington regarding a vehicle that had been stolen, partially stripped, and then sold. That investigation led to the Rathdrum residence of the defendants-respondents Regina Bicknell and Shaun Mercer, where the detective believed parts of the stolen vehicle were located. The Washington detective did not appear at the hearing. Based upon the affidavit, the magistrate issued a warrant to search the residence and another building in Rathdrum.

At approximately 6:02 a.m. on March 19, 2002, several law enforcement officers executed the search warrant on the residence. During the search, they observed controlled substances and other items associated with controlled substances, as well as a shotgun and a pistol. They also found Bicknell and Mercer in the bedroom of the house. Mercer, a convicted felon, could not legally possess firearms.

Based upon the observations made during the search, the Rathdrum officer returned to the magistrate seeking a second search warrant to seize evidence of the manufacturing, sale, or possession of controlled substances and the illegal possession of firearms. The magistrate issued the search warrant, which the officers executed the same day. On March 20, 2002, the State charged Bicknell and Mercer in separate complaints with trafficking in methamphetamine or amphetamine, a felony. They each waived a preliminary hearing and were held to answer in the district court. On May 2, 2002, the State filed an information in each of their cases.

On May 6, 2002, Bicknell and Mercer each filed motions to suppress on the ground that the affidavit of the Washington detective, which was the basis for issuing the first search warrant, had not been sworn to before a judge. They argued that because the first search warrant was invalid, the second search warrant was also invalid since it was issued based upon evidence discovered when the first search warrant was executed. The district court heard the motions to suppress on July 19, 2002, and on August 15, 2002, it entered orders in each ease suppressing the evidence. The district court held that the affidavit of the Washington detective did not comply with Idaho Criminal Rule 41(c) because it was notarized by a notary public rather than executed before a judge and that the search warrant was therefore invalid.

On August 23, 2002, the State filed a motion in each case seeking approval from the district court for an interlocutory appeal of the orders suppressing evidence. The district court gave that approval on September 11, 2002. On September 23, 2002, the State filed motions in this Court under Idaho Appellate Rule 12 seeking permission to appeal the orders granting the motions to suppress, and we granted that permission by order issued on November 4, 2002. On that same day the State filed its notice of appeal in each case. Both cases were later consolidated for the appeal.

II. ANALYSIS

On February 9, 2004, Bicknell filed a motion to dismiss this appeal, and Mercer did so on March 4, 2004. They argued that this Court did not have jurisdiction because the appeal was filed as a permissive appeal under Idaho Appellate Rule 12 rather than as an appeal as a matter of right under Idaho Appellate Rule 11(c)(7), which provides that an appeal as a matter of right may be taken to the Supreme Court from an order of the district court granting a motion to suppress. They assert that this Court does not have jurisdiction over the appeal because Rule 12 did not apply and the State’s notices of appeal were untimely under Rule 11(c)(7), having been filed more than forty-two days after the order granting the motions to suppress.

It is clear that this Court has jurisdiction to hear the State’s appeals. The orders granting the motions to suppress were interlocutory orders. State v. Young, 136 Idaho 113, 29 P.3d 949 (2001). They were not transformed into final judgments simply because Idaho Appellate Rules 11(c)(7) and 14(a) granted the State the right to appeal such orders simply by filing a notice of appeal within forty-two days. No final judgments have yet been entered in either of these cases. Thus, these cases do not involve the failure to file a timely notice of appeal from a final judgment. The Idaho Constitution grants this Court the plenary power to review any decision of the district court. State v. Lewis, 96 Idaho 743, 536 P.2d 738 (1975). We exercised our discretion to grant the State’s request to appeal pursuant to Idaho Appellate Rule 12 because these cases present a significant issue, the resolution of which will be of practical importance in the administration of the criminal justice system. The Defendants have not convinced us that we erred in the exercise of that discretion, and therefore we will consider these appeals on their merits. North Pacific Insurance Co. v. Mai, 130 Idaho 251, 939 P.2d 570 (1997); State v. Thompson, 119 Idaho 67, 803 P.2d 973 n. 1 (1990); Menitt v. State, 113 Idaho 142, 742 P.2d 397 (1986); Stockwell v. State, 98 Idaho 797, 573 P.2d 116 (1977). Our granting the State’s requests for interlocutory appeals under Rule 12 in these cases should not be interpreted as indicating we will do so in the future. If the State wants to insure that it can appeal an order granting a motion to suppress, it should file a timely notice of appeal pursuant to Idaho Appellate Rule 11(c)(7).

The district court granted the motions to dismiss because it concluded that the issuance of the search warrant violated the procedure set forth in that portion of Idaho Criminal Rule 41(c), which provides, “A warrant shall issue only on an affidavit or affidavits sworn to before a district judge or magistrate or by testimony under oath and recorded and establishing the grounds for issuing a warrant.” The district court construed the phrase “sworn to before a district judge or magistrate” as requiring that the affiant appear personally before the district judge or magistrate and execute the affidavit in the judge’s presence.

There is no showing that the procedure followed in this case to obtain the search warrant in any way violated either the Constitution of the United States or the Constitution of the State of Idaho. The Fourth Amendment to the United States Constitution states that no “warrants shall issue, but upon probable cause, supported by oath or affirmation.” The “oath or affirmation” requirement of the Fourth Amendment is a formal assertion of, or attestation to, the truth of what is said. United States v. Turner, 558 F.2d 46 (2d Cir.1977); United States v. Brooks, 285 F.3d 1102 (8th Cir.2002). The Defendants have not cited, nor have we found, any authority supporting the proposition that the Fourth Amendment requires that an affidavit submitted in connection with an application for a search warrant must be signed in the presence of the person issuing the warrant. Likewise, our state Constitution does not contain any such requirement. Article I, § 17, simply provides that “no warrant shall issue without, probable cause shown by affidavit.” There is no requirement that the affidavit, if it is in writing,¹ be signed in the presence of the person issuing the search warrant. At the time of the adoption of our Constitution, one of the duties of a notary public was “[t]o take depositions and affidavits, and administer oaths and affirmations, in all matters incident to the duties of the office, or to be used before any court, judge, officer, or board in this Territory.” REY. STAT. OF IDAHO TERR. § 289(3) (1887). Had the framers of our Constitution intended to exclude affidavits signed before a notary public from being used to obtain a search warrant, they would certainly have drafted Article I, § 17, to do so.

In State v. Yoder, 96 Idaho 651, 534 P.2d 771 (1975), the Court invalidated a statute that required the magistrate, before issuing a search warrant, to “examine on oath the complainant and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed by the parties making them.” The Yoder Court invalidated the statute because it was in conflict with Idaho Criminal Rule 41(c) and therefore infringed upon this Court’s inherent power to formulate rules of practice and procedure within the courts of Idaho. This Court’s rule making power goes to procedural, as opposed to substantive, rules. State v. Beam, 121 Idaho 862, 828 P.2d 891 (1992). The Yoder Court could not have invalidated the statute unless its requirements were procedural, not substantive.

Thus, the issue presented in this case is whether the alleged procedural violation of Idaho Criminal Rule 41(c) justifies the suppression of evidence obtained through execution of the search warrant issued in this case. Each time the exclusionary rule is applied it exacts a substantial social cost because relevant and reliable evidence is kept from the trier of fact, the search for truth at trial is deflected, and persons who would otherwise be incarcerated are allowed to escape the consequences of their actions. Pennsylvania Bd. of Prob. and Parole v. Scott, 524 U.S. 357, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998); State v. Bottelson, 102 Idaho 90, 625 P.2d 1093 (1981). The exclusionary rule is not an appropriate sanction for the procedural error alleged here.

The Defendants argue that the exclusion of evidence can be based upon mere procedural errors in the issuance of a search warrant, citing State v. Zielinski, 119 Idaho 316, 805 P.2d 1240 (1991), and State v. Mathews, 129 Idaho 865, 934 P.2d 931 (1997). In Zielinski no record was made of the oral testimony upon which the search warrant was based. The Zielinski Court held the search warrant invalid, but not simply because a procedural statute and criminal rule required that a record be made of the oral affidavit that is presented in support of the search warrant. Rather, the Zielinski Court quoted with approval from Ebersole v. State, 91 Idaho 630, 428 P.2d 947 (1967), for the proposition that the failure to have a record of the testimony given in support of the search warrant created “such a lack of fundamental fairness and deviation from established rules of procedure as to necessitate the conclusion that [the defendant] has not been afforded the protection of the due process clauses of the Constitutions of the United States and this State.” 119 Idaho at 319, 805 P.2d at 1243. The Mathews Court held invalid a search warrant that had not been signed. The majority did not base their opinion simply upon statutory requirements that the search warrant be signed, but upon a “substantive right in a citizen to refuse to permit a search pursuant to an unsigned warrant” that was “affirmed by Article XXI, Section 2 of the Idaho Constitution.” 129 Idaho at 869, 934 P.2d at 935. The Mathews majority also cited Article I, § 17, as establishing a substantive right to a signed search warrant. Id. Neither of these cases held a search warrant invalid for mere procedural errors in the issuance of the warrant. Rather, in both cases the Court held that the error in question also impacted the constitutional rights of the defendant.

The Defendants in these cases have not shown how the alleged procedural error in the issuance of the search warrant here in any way impacted any of their substantive rights. Therefore, such error affords no basis for suppressing the evidence obtained during the search pursuant to the warrant. The exclusionary rule was not created as a remedy for errors in following procedures, whether imposed by rule or statute, that were not designed to implement or protect constitutional rights. Therefore, the district court erred in granting the motions to suppress.

III. CONCLUSION

The orders granting the motions to suppress are reversed and these cases are remanded for further proceedings consistent with this opinion.

Chief Justice TROUT, and Justices SCHROEDER and KIDWELL concur.

1 . The word "affidavit" in Article I, § 17, is not limited to written affidavits, but it also includes the recording of sworn testimony. State v. Badger, 96 Idaho 168, 525 P.2d 363 (1974).