State v. Carlson

4 P.3d 1122, 134 Idaho 471, 2000 Ida. App. LEXIS 15

• Court: Idaho Court of Appeals
• Decided: February 29, 2000
• Docket: 24639, 24640, 24641
• Status: Published

Opinions

PERRY, Chief Judge.

These cases were consolidated for appeal. Stephen Gary Carlson appeals from a judgment of conviction entered upon his guilty plea to possession of a controlled substance with the intent to deliver, I.C. § 37-2732(a)(1)(B), and trafficking in marijuana, I.C. § 37-2732B(a)(l)(B). Holly Helen Carlson appeals from a judgment of conviction entered upon her guilty plea to manufacture of a controlled substance where children are present. I.C. § 37-2737A. James Charles Carlson appeals from a judgment of conviction entered upon his guilty plea to possession of a controlled substance with the intent to deliver. I.C. § 37-2732(a)(l)(B). The Carlsons each reserved their right to appeal from the district court's denial of their motions to suppress. For the reasons set forth below, we affirm.

I.

BACKGROUND

A search warrant affidavit was presented to a magistrate in support of an application for a search warrant. After reviewing the affidavit, a magistrate found probable cause that evidence of a crime would be found at the Carlsons’ residence and issued a search warrant for the Carlsons’ property. The warrant authorized the seizure of marijuana, cultivation equipment, records or instruments of illegal drug sales or possession, and paraphernalia.

The search of the residence yielded, among other things, approximately ninety-one cannabis plants of differing sizes, processed marijuana, methamphetamine, and paraphernalia. The Carlsons were each subsequently charged with various violations of the Uniform Controlled Substances Act, I.C. §§ 37-2701 to -2751. The Carlsons, through common defense counsel, filed motions to suppress the evidence seized in the search of their property which the district court denied after a hearing.

Subsequently, the Carlsons each entered I.C.R. 11 conditional guilty pleas reserving their right to appeal the denial of the motions to suppress. Stephen Carlson pled guilty to possession of marijuana with the intent to deliver and trafficking in marijuana. Holly Carlson pled guilty to manufacturing a controlled substance while children are present. James Carlson pled guilty to possession of marijuana with intent to deliver. The Carl-sons appeal.

II.

ANALYSIS

The Fourth Amendment to the United. States Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article I, Section 17 of the Idaho Constitution is virtually identical to the Fourth Amendment, except that “oath or affirmation” is termed “affidavit.” The Carlsons allege that both constitutional provisions were violated here. However, they do not contend that Article I, Section 17 of the Idaho Constitution provides greater protection than its Fourth Amendment counterpart. Because the Carlsons have not presented any cogent reason why Article I, Section 17 of the Idaho Constitution should be applied differently than the Fourth Amendment with respect to the search involved here, we will rely upon judicial interpretation of the Fourth Amendment in rendering our decision.

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 were 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). The Carlsons do not dispute the district court’s factual findings.

The Carlsons challenge the district court’s denial of their motion to suppress. They allege that the information contained in the affidavit in support of the application for the search warrant was unreliable, stale, and, when taken as a whole, otherwise insufficient to amount to probable cause. Thus, according to the Carlsons, the district court erred when it determined that probable cause supported the issuance of the search warrant.

When probable cause to issue a search warrant is challenged on appeal, the reviewing court’s function is to ensure that the magistrate had a substantial basis for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983); State v. Josephson, 123 Idaho 790, 792, 852 P.2d 1387, 1389 (1993); State v. Lang, 105 Idaho 683, 684, 672 P.2d 561, 562 (1983). In this evaluation, great deference is paid to the magistrate’s determination. Gates, 462 U.S. at 236, 103 S.Ct. at 2331, 76 L.Ed.2d at 546; State v. Wilson, 130 Idaho 213, 215, 938 P.2d 1251, 1253 (Ct.App.1997). The test for reviewing the magistrate’s action is whether he or she abused his or her discretion in finding that probable cause existed. State v. Holman, 109 Idaho 382, 387, 707 P.2d 493, 498 (Ct.App.1985).

When determining whether probable cause exists:

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him [or her], including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Gates, 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. See also Wilson, 130 Idaho at 215, 938 P.2d at 1253. If a search is conducted pursuant to a warrant, the burden of proof is on the defendant to show that the search was invalid. State v. Kelly, 106 Idaho 268, 275, 678 P.2d 60, 67 (Ct.App.1984).

The affidavit presented to the magistrate in support of the application of the search warrant in this case stated:

On 09-22-97 the affiant was contacted by an informant, concerning the possession and cultivation of marijuana at the above described location. The informant stated that he had personally witnessed the defendant, Steve Carlson, growing marijuana, harvesting it, drying it, and storing it at his home. A description of the property layout, and the home itself was given to the affiant over the phone. This was corroborated by Deputy Dunsbergen during the early morning hours of 09-23-97 when he developed a sketch of the home and property at the request of the affiant. The informant stated that about 14 days prior he had personally observed growing marijuana plants on the property, harvested and drying marijuana plants hanging in the garage.

The informant stated that his desire to remain anonymous was from his fear that the defendant would retaliate against him, stating that the defendant had a number of weapons in his home, and that he used “crank” and was violent.

At bout [sic] 0900 hrs. on 09-23-97 I spoke with Detective Rinehart of the Twin Falls Police concerning this defendant, as he has a business in the city of Twin Falls, ID. Det. Rinehart stated that he had been told by another Detective that the defendant was known by the street name of “Pop” and that he was suspected illegal [sic] manufacturing of suppression devices for firearms at his welding shop in Twin Falls.

In discussing this investigation with Sheriff Weaver and Undersheriff Roberts, Undersheriff Roberts stated that some time ago she had been involved in a call concerning a juvenile male who had possession of marijuana and claimed that it was obtained from another male juvenile that lived at the above described home. This matched information given the affiant by the informant that the defendant had a teenaged son in the home along with a wife and another child of about one year old.

Undersheriff Roberts stated that in that earlier case, she had learned that allegedly this young man living at the home of the defendant was allegedly selling marijuana and having others selling for him, that she had heard from another person that their son owed $500.00 to the boy living in the defendant’s home for marijuana.

On 9-23-97 at about 0930 hrs., the affiant and Undersheriff Roberts drove to the defendant’s home in Jerome County. On the mail box I saw that there was [sic] the names of “Pop” and “Bugg” rather than any proper names on the mail box in front of the home. Also, from examination of the exterior layout, the informant information seemed detailed, even including a pen for ducks and geese behind the home.

On 10-01-97 the affiant spoke with the informant again. He stated that as of Saturday 09-27-97, he observed in the defendant’s garage there was [sic] a large growing marijuana plant, and plastic hanging in the garage to shelter the plant.

A. Nexus

Initially, we address the Carlsons’ assertion that information concerning Stephen Carlson’s alleged manufacturing of firearm suppression devices in Twin Falls should have been stricken from the affidavit and not considered by the magistrate because that allegation shows no nexus between criminal activity and the residence for which the search warrant was sought. Assertions in the affidavit must establish a sufficient nexus between criminal activity, the things to be seized, and the place to be searched to lead to the issuance of a warrant. State v. Sorbel, 124 Idaho 275, 278, 858 P.2d 814, 817 (Ct.App.1993). We agree that no nexus was established between the alleged illegal activity — manufacturing suppression devices for firearms at a welding shop in Twin Falls— and the residence for which the search warrant was sought. Thus, this information must be stricken from the affidavit. Therefore, this information was improperly before the magistrate and this Court will not consider that portion of the affidavit in its analysis.

B. Reliability

The Carlsons argue that the hearsay information contained within the affidavit was not reliable and, therefore, the magistrate impermissibly considered that information in its determination of probable cause. The evidence offered in support of a warrant may include hearsay, provided there is a substantial basis for crediting the hearsay. State v. Wengren, 126 Idaho 662, 666, 889 P.2d 96, 100 (Ct.App.1995). Where the warrant application is based in part upon information provided by an informant, factors supporting probable cause may include facts in the affidavit indicating the reliability of the informant and the basis of the informant’s knowledge. State v. Chappie, 124 Idaho 525, 527, 861 P.2d 95, 97 (Ct.App.1993). The reliability of the information supplied by an informant is highly relevant in determining the value of the hearsay information supplied by that informant and, thus, in making a determination of probable cause. State v. Molina, 125 Idaho 637, 640, 873 P.2d 891, 894 (Ct.App.1993).

In this case, an informant told police of an ongoing marijuana operation at the Carlson residence. The informant reported personally observing, on or about September 8, 1997, marijuana being grown, harvested, dried, and stored in the Carlsons’ home. Subsequently, on September 27, 1997, the informant observed a large growing marijuana plant and plastic hanging in the Carl-sons’ garage to shelter the plant. Such personal observations are considered one of the strongest possible indications of basis of knowledge. State v. Lindsey, 115 Idaho 184, 186, 765 P.2d 695, 697 (Ct.App.1988); State v. Vargovich, 113 Idaho 354, 356, 743 P.2d 1007, 1009 (Ct.App.1987).

Additionally, information may be sufficiently reliable to support a probable cause finding if the information is corroborated by independent evidence. Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327, 332 (1959). Here, the informant told the officer that, based on his observations of growing, harvesting, drying, and stored marijuana, that an ongoing marijuana operation was in place at the residence. Furthermore, the informant stated that Stephen Carlson’s teenage son lived at the residence.

After receiving the informant’s information, the officer contacted other law enforcement officers who provided a variety of information. Those officers stated that a young man living at the Carlson home had allegedly sold marijuana in the past. This information provided independent evidence of narcotics activity by a teenage male who lived at the residence. Moreover, information supplied by the informant included the layout of the property and the home itself. This information was verified when police officers drove by the address provided by the informant and confirmed the information regarding the exterior layout of the property, including the location of animal pens behind the home.

The Carlsons also assert that the informant had a grievance against them and, thus, a motive to fabricate the information provided to the officer.¹ The Carlsons allege that, because the magistrate was unaware of this grievance, it could not have made a proper determination regarding the reliability of the informant. The record reveals that the district court held several in camera hearings after the Carlsons were sentenced. During one of the hearings, the officer who submitted the affidavit in support of the search warrant application testified that although he “thought” the informant may have harbored a general animosity toward the Carlsons, the informant did not have a specific grievance against them. The district court also conducted an ex parte, in camera hearing wherein the informant was interviewed by the court. According to the district court, the informant stated that there was no grievance and that he or she was simply a person wanting to report a crime because he or she did not like criminal activity. Thus, there is no support in the record for the Carlsons’ assertion, and the Carlsons have failed to show how the absence of this information would have affected the magistrate’s determination.

The Carlsons further contend that the informant had a motive to fabricate his or her statement to the officer. They assert that because the magistrate was not advised that the informant was offered, and accepted, a reward for his or her information, the magistrate could not properly assess the informant’s credibility. The record indicates that the officer told the informant, on October 1, that “there could be some monetary considerations.” The informant did not solicit the information regarding any possible reward. Furthermore, the informant was made aware of the possibility of a reward well after his or her first conversation with the officer on September 22. Based on the record before this Court, it does not appear that the information regarding a reward was a motivating factor in the informant’s statements because the informant did not solicit that information from the officer and was not aware of it at the time of his or her initial statement. Therefore, the Carlsons’ assertion that a reward was a motive for the informant to fabricate his or her statement is not supported by the record on appeal. Based on the foregoing, we hold that the magistrate properly relied upon the hearsay information in its probable cause determination.

C. Staleness

Next, the Carlsons argue that the information in the affidavit was stale, as it was based upon an informant’s reported observations which occurred approximately twenty-four days prior to the affidavit being subscribed. The Carlsons assert that, because there was no continuing observation of the home or location, the informant’s information was stale when finally acted upon by the police.

The staleness of information regarding the presence of items in a certain place depends upon the nature of the factual scenario involved. State v. Turnbeaugh, 110 Idaho 11, 13, 713 P.2d 447, 449 (Ct.App.1985). In a determination of whether information contained within a search warrant affidavit is stale, there exists no magical number of days within which information is fresh and after which the information becomes stale. The question must be resolved in light of the circumstances of each case. State v. Gomez, 101 Idaho 802, 808, 623 P.2d 110, 116 (1980). An important factor in a staleness analysis is the nature of the criminal conduct. If the affidavit recounts criminal activities of a protracted or continuous nature, a time delay in the sequence of events is of less significance. Id. Certain nefarious activities, such as narcotics trafficking, are continuing in nature and, as a result, are less likely to become stale even over an extended period of time. See Turnbeaugh, 110 Idaho at 14, 713 P.2d at 450.

In the case at bar, there was an approximate lapse of twenty-four days from the time of the informant’s initial observations and the issuance of the search warrant. The informant’s information detailed a marijuana operation — a continuing criminal enterprise. Furthermore, the informant’s second report regarding the observation of a marijuana plant in the garage was based upon an incident approximately three days prior to the issuance of the search warrant and approximately twenty days after his or her initial observations. The implication from the informant’s report is that the marijuana operation continued in the interim twenty-four-day period. Under the circumstances of this ease, we hold that the lapse of time between the informant’s initial observation and the swearing of the affidavit in support of the application of the search warrant did not render the information stale. Thus, this information was also properly relied upon by the magistrate in its determination of probable cause.

D. Probable Cause

We have determined that the information contained in the affidavit, absent that which was necessarily stricken, was neither unreliable nor stale. Therefore, we next turn to the Carlsons’ contention that the affidavit was insufficient to provide the magistrate with probable cause to issue the search warrant.

Whether probable cause exists to support the issuance of a search warrant is determined by the magistrate from the facts set forth in affidavits and from recorded testimony in support of the application for the warrant. I.C.R. 41(c); Josephson, 123 Idaho at 792, 852 P.2d at 1389; State v. Hagedorn, 129 Idaho 155, 160, 922 P.2d 1081, 1086 (Ct.App.1996). In dealing with probable cause, the Court is concerned with probabilities. Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1890 (1949). “These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men [and women], not legal technicians, act.” Id. Probable cause is a fluid concept, “turning on the assessment of probabilities in particular factual contexts.” Gates, 462 U.S. at 232, 103 S.Ct. at 2329, 76 L.Ed.2d at 544.

Idaho Code Section 37-2732B states that any person who knowingly possesses twenty-five marijuana plants or more, is guilty of the felony of trafficking in marijuana. Additionally, I.C. § 37-2732(a)(l)(A) makes the manufacture of marijuana, a schedule I substance, a felony. The affidavit contained reliable, nonstale information that an informant had observed growing, harvested, drying and stored marijuana. Thus, a practical reading of the evidence in the affidavit supplied probable cause to the magistrate that a crime was being committed on the property to be searched. Therefore, the district court properly denied the Carlsons’ motions to suppress on the basis that the magistrate lacked probable cause to issue the search warrant.²

III.

CONCLUSION

We conclude that the hearsay information contained in the affidavit in support of the issuance of a search warrant was neither unreliable or stale in this case. Therefore, we hold that the affidavit provided the magistrate a substantial basis for concluding that probable cause existed before issuing the search warrant. Accordingly, the district court’s orders denying the Carlsons’ motions to suppress are affirmed.

Judge Pro Tern SWANSTROM, concurs.

1 . Following sentencing, the Carlsons apparently moved to withdraw their guilty pleas, and to suppress the results of the search and dismiss the charges. As a result, the district court held several hearings. Initially, we note that the record on appeal indicates that the hearing on the Carl-sons’ motions was held prior to the filing of the written motions. Additionally, the record on appeal does not contain these written motions. The district court eventually denied these motions. The denial of these motions is not an issue on appeal.

2 . On appeal, the Carlsons cite the Court to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). However, there is no Franks motion contained within the record on appeal. Therefore, we will not consider an argument based on Franks in any context other than how it relates to the reliability of the hearsay information contained in the affidavit.