State v. Larson

6 P.3d 843, 134 Idaho 593, 2000 Ida. App. LEXIS 64
CourtIdaho Court of Appeals
DecidedJuly 20, 2000
DocketNo. 25115
StatusPublished
Cited by1 cases

This text of 6 P.3d 843 (State v. Larson) 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. Larson, 6 P.3d 843, 134 Idaho 593, 2000 Ida. App. LEXIS 64 (Idaho Ct. App. 2000).

Opinion

PERRY, Chief Judge.

Russell Larson appeals from a judgment of conviction and sentence entered upon his plea of guilty to possession of a controlled substance. I.C. § 37-2732(e)(l). For the reasons set forth below, we affirm.

I.

BACKGROUND

Police officers obtained a search warrant for the residence of James Orr. While they were in the process of executing the warrant, the telephone rang. One of the officers answered the telephone. During the conversation, the caller twice asked whether the officer was “Jim.” Each time, the officer responded that he was, even though his name was not “Jim.” The officer asked the caller if he had any “stuff.” The caller responded affirmatively. The officer asked the caller to come right over, and the caller agreed. Approximately five minutes later, the officer observed an individual approaching the residence. When the individual got to within approximately three feet of the front door of the residence, the officer came out of the house, noticed that the individual had what appeared to be a pistol in his waistband, and ordered the individual to raise his hands. The individual did not comply, and the officer wrestled him to the ground. Upon conducting a search, the officer discovered methamphetamine and two firearms. The individual was arrested and identified as Russell Larson.

Larson was charged with possession of a controlled substance with the intent to deliver. He moved to suppress the evidence seized, and the district court denied the motion. Larson and the state entered into a plea agreement in which Larson pled guilty to an amended charge of simple possession, [595]*595reserving Ms right to appeal the demal of Ms suppression motion and his sentence. The district court sentenced Larson to a unified five-year term, with three years fixed, suspended execution of the sentence, and placed Larson on three years’ probation. Larson appeals.

II.

ANALYSIS

A. Motion to Suppress

Larson challenges the district court’s demal of Ms motion to suppress. 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 wMch 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).

1. Search of Orr’s residence

Larson argues that because the search of Orr’s residence was illegal, all evidence seized subsequent to that search is fruit of the poisonous tree and must be suppressed. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Specifically, Larson asserts that the warrant to search Orr’s residence was rnvalid, and that “but for” the violation of Orr’s constitutional rights, Larson would not have been summoned to Orr’s residence and no evidence against him would have been seized.

Fourth Amendment rights are personal rights wMch may not be vicariously asserted. Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 424-26, 58 L.Ed.2d 387, 394-95 (1978). A search may be challenged when a personal interest under the Fourth Amendment is asserted and a legitimate expectation of privacy is shown to exist m the area searched or the items seized. State v. Brawn, 113 Idaho 480, 483-84, 745 P.2d 1101, 1104-05 (Ct.App.1987). In determimng whether an individual has standing to challenge a search, the question is whether governmental officials violated any legitimate expectation of privacy held by that individual. See Rawlings v. Kentucky, 448 U.S. 98, 106, 100 S.Ct. 2556, 2562, 65 L.Ed.2d 633, 642 (1980).

In United States v. Congote, 656 F.2d 971 (5th Cir. Unit B 1981), the court addressed an argument similar to Larson’s. In that case, the court considered the question of whether Congote had standing to assert a violation of other individuals’ Fourth Amendment rights. Congote had telephoned an apartment where government agents were conducting an illegal search. The court found that by answering the telephone the agents “grossly exceeded]” the Assistant United States Attorney’s instructions to secure the residence. The court held that although the entry into the apartment and the act of answering a telephone may have been illegal, Congote possessed no reasonable expectation of privacy m the residence and, thus, had no standing to challenge the legality of the search of the apartment.

In the instant matter, we conclude that Larson lacks standmg to challenge the search of Orr’s residence. Larson argues that “but for” the officers’ illegal conduct in searching Orr’s residence, evidence used against Mm would not have been seized. However, any violation of Orr’s constitutional rights cannot be, as a matter of law, a “poisonous tree” insofar as Larson’s suppression motion is concerned. Nevertheless, whether Larson has standmg to contest the search of Orr’s residence is not dispositive to tMs Court’s analysis of whether Larson’s Fourth Amendment rights were violated.

2. Telephone call

As we interpret Larson’s argument on appeal, it also challenges the district court’s conclusion that the Fourth Amendment was not violated when the officer, who answered the telephone, misrepresented Ms identity. A law enforcement agent may record conversations between himself or herself and another party without violating the Fourth Amendment. United States v. Sileven, 985 F.2d 962, 966 (8th Cir.1993).

The UMted States Supreme Court has recognized that the Fourth Amendment does [596]*596not protect “a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” Hoffa v. United States, 385 U.S. 293, 302, 87 S.Ct. 408, 413, 17 L.Ed.2d 374, 382 (1966). Additionally, “[c]riminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer.” Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 820-21, 2 L.Ed.2d 848, 851 (1958). It is noteworthy that the use of trickery and subterfuge by police has been approved in a number of circumstances. See Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) (holding that an officer’s lie to the defendant that his co-conspirator had confessed was insufficient to make an otherwise voluntary confession inadmissible); Lewis v. United States, 385 U.S. 206, 87 S.Ct.

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6 P.3d 843, 134 Idaho 593, 2000 Ida. App. LEXIS 64, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-larson-idahoctapp-2000.