State v. Follinus

855 P.2d 863, 124 Idaho 26, 1993 Ida. LEXIS 131
CourtIdaho Supreme Court
DecidedJune 30, 1993
Docket19441, 19839
StatusPublished
Cited by7 cases

This text of 855 P.2d 863 (State v. Follinus) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Follinus, 855 P.2d 863, 124 Idaho 26, 1993 Ida. LEXIS 131 (Idaho 1993).

Opinions

[27]*27JOHNSON, Justice.

This is a drug case. The primary 'issue presented is whether the trial court improperly refused to suppress evidence seized during the search of a residence pursuant to a search warrant after the occupants of the residence were arrested and the residence secured. We conclude that the trial court correctly denied the motions to suppress, although we apply the independent source doctrine, rather than the inevitable discovery doctrine upon which the trial court relied.

We decline to address a challenge to the use of evidence obtained through a telephone conversation that was allegedly recorded in violation of Washington law, because there was no objection to the admission of evidence and because the use of the evidence would not be fundamental error, if it were error. We reject the claim that the district judge denied Follinus due process of law by leading Follinus to believe the judge had not heard a disparaging remark Follinus made and depriving Follinus of the opportunity to request the judge to disqualify himself. We conclude that Folli-nus’s sentence is not unreasonable.

I.

THE BACKGROUND AND PRIOR PROCEEDINGS.

Joseph Follinus and Patricia Howe, common-law spouses, were the subjects of an investigation by state and federal drug enforcement officers. The officers initiated the investigation after an informant contacted federal drug enforcement officers in the state of Washington and told them of Follinus’s attempt to purchase a large amount of ephedrine, a precursor drug used in the production of methamphetamine. Under the supervision of federal officers, the informant made telephone calls from Washington to Follinus in Idaho to arrange the purchase of ephedrine. The phone calls were recorded by a federal officer in Washington with the consent of the informant.

Later, the informant and a federal officer met Follinus in Idaho and delivered ephedrine to Follinus. Follinus invited the informant and the officer to his nearby residence. Once inside, Follinus and Howe discussed details of their methamphetamine manufacturing process and showed the officer substances and equipment used in the process.

After leaving the residence, the federal officer, the informant, and one other officer went to obtain a search warrant from a magistrate judge. Other officers remained at the scene and maintained surveillance of the residence. Follinus left the residence and drove to a nearby gas station. The officers who were surveilling the residence followed Follinus and arrested him. The officers handcuffed Follinus, placed him in the back of a police car, and took him to the residence. The officers who transported Follinus testified that Follinus consented to a search of the residence.

Upon returning to the residence, the officers informed Howe, who remained inside the residence, that Follinus had consented to a search. Howe refused to admit the officers without a warrant. The officers forcibly entered the residence, subdued and arrested Howe, and made a protective sweep of the premises. The officers remained inside the residence until the other officers returned with the search warrant. Pursuant to the warrant, the officers searched the residence and seized incriminating evidence.

Follinus and Howe were charged separately with various drug offenses. Folli-nus and Howe each filed motions to suppress the evidence seized from the residence. Follinus proceeded with a suppression hearing on his motion. Howe, by stipulation, agreed to adopt the record, transcript, and rulings in Follinus’s case.

The trial court denied Follinus’s motion to suppress, ruling that suppression was not required because any evidence obtained before the search warrant arrived would inevitably have been discovered under the search warrant.

Howe entered an Alford plea on the charge of possession of ephedrine with intent to manufacture methamphetamine. See North Carolina v. Alford, 400 U.S. 25, [28]*2891 S.Ct. 160, 27 L.Ed.2d 162 (1970). The state dismissed the other charges against Howe. Howe conditioned her plea on her right to appeal from the order denying suppression.

Follinus went to trial and was convicted by a jury. The trial judge sentenced Folli-nus to a minimum period of confinement of seven years and a subsequent indeterminate period of confinement not to exceed thirteen years on each of three charges, with the sentences to run concurrently. Follinus appealed the denial of his motion to suppress, his conviction, the sentence, and the trial court’s summary denial of a motion for reduction of sentence. Howe appealed the denial of her motion to suppress. The appeals were consolidated.

II.

THE SEARCH AND SEIZURE DOES NOT REQUIRE SUPPRESSION.

Follinus and Howe assert that the evidence seized from the residence must be suppressed, because the police officers’ warrantless entry into the residence before the search warrant was issued constituted an illegal search and seizure of all of the evidence contained in the house. We disagree.

Even if the warrantless entry violated the Fourth Amendment, as Howe and Follinus argue, suppression is not necessary because an independently procured search warrant provided an independent source for the evidence seized from the residence. A wholly independent search warrant, procured without reference to information obtained through an illegal war-rantless entry, constitutes an independent source for seizure of the evidence sufficient to purge any taint on the evidence from a prior illegal entry and can serve as a basis for denying suppression of evidence obtained by illegal police conduct. Murray v. U.S., 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988); Segura v. U.S., 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).

This Court recognized the independent source doctrine in State v. Hoak, 107 Idaho 742, 692 P.2d 1174 (1984). In Hoak, the police made a warrantless entry into a home to arrest the defendants. Two police officers remained on the premises while the third brought the defendants to jail and went to the magistrate judge to obtain a search warrant. The third officer then returned to the residence with the warrant and initiated a search of the residence. The Court held that the warrant was an independent source derived solely from information prior to and independent of the illegal arrest and dissipated any taint on the evidence resulting from the prior illegal entry. Id. at 750, 692 P.2d at 1182.

Virtually the same circumstances exist in this case. The only difference is that the officers in this case had already left the residence to secure the warrant before the illegal entry occurred. Follinus and Howe concede that the police did not use any information gained by the illegal entry in procuring the search warrant. Follinus and Howe argue, however, that the independent source doctrine does not apply because the police entered the residence and detained Howe inside the residence. This argument is unpersuasive.

The officers had probable cause to arrest Howe based on the information obtained before the entry.

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Related

State v. Norton
254 P.3d 77 (Idaho Court of Appeals, 2011)
Follinus v. State
908 P.2d 590 (Idaho Court of Appeals, 1995)
State v. Soto
900 P.2d 800 (Idaho Court of Appeals, 1995)
State v. Babb
877 P.2d 905 (Idaho Supreme Court, 1994)
State v. Sarabia
875 P.2d 227 (Idaho Supreme Court, 1994)
State v. Follinus
855 P.2d 863 (Idaho Supreme Court, 1993)

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Bluebook (online)
855 P.2d 863, 124 Idaho 26, 1993 Ida. LEXIS 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-follinus-idaho-1993.