State v. Foster

718 P.2d 1286, 110 Idaho 848, 1986 Ida. App. LEXIS 416
CourtIdaho Court of Appeals
DecidedMay 8, 1986
DocketNo. 15593
StatusPublished
Cited by4 cases

This text of 718 P.2d 1286 (State v. Foster) is published on Counsel Stack Legal Research, covering Idaho Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Foster, 718 P.2d 1286, 110 Idaho 848, 1986 Ida. App. LEXIS 416 (Idaho Ct. App. 1986).

Opinion

ON DENIAL OF PETITION FOR REHEARING

This Opinion Supercedes the Prior Opinion Issued January 2, 1986, Which is Withdrawn.

WALTERS, Chief Judge.

Walter Ray Foster was convicted by a jury of burglary in the first degree and of grand theft. On appeal, Foster raises two issues challenging his conviction: (1) whether the trial court erred in admitting evidence obtained pursuant to a search, with a warrant, of Foster’s car; (2) whether Foster was denied a fair trial because of jury bias. We hold that the evidence was admissible. We also hold that nothing in the record indicates that Foster did not have a fair trial by an impartial jury. We affirm.

I

First, we address the admissibility of evidence seized from Foster’s car. The record reveals the following facts. During the weekend of October 29, 1983, the home of Robert and Sharon Knudsen was burglarized. Many items of personal property were stolen, including guns, coins, and jewelry. Foster was a suspect in the burglary. On November 2, 1983, Foster was involved in a traffic accident near Pocatello, Idaho. Foster’s automobile was seriously damaged. While the accident was being investigated by a Pocatello police officer, another officer arrived at the accident scene and decided to seize the Foster vehicle, which he suspected contained items from the Knudsen burglary. Foster objected to the seizure and indicated he wanted the vehicle, towed to the property of one Earl Ellis. The vehicle was instead towed to the police station. Meanwhile, other officers obtained a warrant to search the car. The search disclosed many of the items stolen from the Knudsen home. Prior to trial, Foster sought to have this evidence suppressed as being the product of an illegal search and seizure. The trial judge denied Foster’s suppression motion and allowed the evidence to be admitted. On appeal, Foster challenges the propriety of allowing this evidence to be admitted. His challenge has two aspects. Foster first contends that the initial, warrantless seizure of the car was illegal. Second, Foster asserts that there was not probable cause for issuing the warrant to search his car.

Prior to addressing the precise issues presented by Foster, we must first resolve another question posed by the facts of this case. At first blush, this case would seem to render itself subject to consideration under some form of vehicular search analysis. See Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 578 (1982); California v. Carney, — U.S. -, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). However, testimony at trial indicated that the car was severely damaged in the accident and ultimately had to be towed to remove it from the accident scene. In our view, the car had been rendered immobile as a result of the accident. Therefore, the reasoning often applied in vehicular cases, stemming [850]*850from a car’s inherent mobility, is not applicable to this situation. Rather, having been rendered immobile, the car should more appropriately be viewed as a container. Accordingly, the validity of the seizure and subsequent search should be judged under standards applicable to containers, not automobiles.

As to the initial seizure, it is well established that where the police have probable cause to believe a container holds contraband and there are exigent circumstances, the fourth amendment permits seizure of the container while the police obtain a search warrant. United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). Here, there were exigent factors that made the seizure necessary. Based on statements by the brother of Foster’s alleged accomplice, the police suspected Foster and Burk of the burglary of the Knudsen home. The officers also knew that the son of one of Foster’s friends, who owned a jewelry store in Utah, had recently arrived in Pocatello. The Pocatello police had contacted the police departments of Salt Lake City and Ogden, Utah, and asked them to be watching for Burk and Foster. Burk’s brother also reported that Foster was going to Boise to sell some of the stolen items. At the wreck, Foster was adamant about not wanting the police near his car. Foster wanted a wrecker to tow the car to the property of Earl Ellis, a person whom the police believed had been involved recently with stolen goods. One officer testified that it would have taken probably less than five minutes for the car to be moved so that the police could not observe it.

Foster asserts that the officer who actually “seized” the vehicle did not know all these facts personally, and, therefore, did not have probable cause to seize the vehicle. However, probable cause is based on the knowledge of the “officers” doing the search and seizure, not any one individual. See, State v. Cook, 106 Idaho 209, 677 P.2d 522 (Ct.App.1984). Here, the evidence clearly indicated that the seizure and search was the result of several officers working together. There was justification for the initial seizure and we hold that the seizure was legal.

After securing the car and having it towed to the police station, the officers obtained a warrant to search the car. Foster asserts that there was no probable cause for issuing the warrant and that the affidavit supporting the warrant was deficient. We note first that the magistrate’s determination of probable cause is granted great deference by the appellate court. State v. Lang, 105 Idaho 683, 672 P.2d 561 (1983). We review the record to insure that the magistrate had a substantial basis for finding that probable cause existed. Id. Here, we hold that the magistrate did have the substantial basis for determining that probable cause existed for issuing the warrant.

The magistrate properly applied a “totality of the circumstances” test in evaluating the affidavit supporting the search warrant. State v. Lang, supra; State v. Fowler, 106 Idaho 3, 674 P.2d 432 (Ct.App.1983). A review of that affidavit discloses that the victim of the robbery, Mr. Knudsen, had been contacted by someone identifying himself as Dave Burk. Mr. Knudsen. reported to the prosecutor’s investigator that Dave Burk told him that his brother, Val, and Foster were responsible for the burglary. Dave Burk further told Knudsen that Foster had some of the stolen items and was on his way to Boise to sell them. Also, the affidavit discloses that Mrs. Knudsen had reported that Val Burk had attempted to sell some of the stolen goods to her brother-in-law. The affidavit also states that the affiant had personal knowledge that Val Burk and Foster were companions and associates. It reveals that Foster was acting nervously at the wreck, that he did not want officers near his wrecked car, and that he wanted the car towed to Earl Ellis’ property. The affidavit states' that Ellis had recently pled guilty [851]*851to grand theft by possession of stolen property.

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Bluebook (online)
718 P.2d 1286, 110 Idaho 848, 1986 Ida. App. LEXIS 416, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-foster-idahoctapp-1986.