State v. Johnson

DONALDSON, C.J.,

concurring in Part I, concurring in the result in Part II, and specially concurring.

DONALDSON, Chief Justice, concurring to Part I, concurring to the result of Part II, and specially concurring.

I concur with the majority opinion of Justice Bistline to the extent that the facts of this case clearly indicate a search took place and not merely a viewing. The record indicates that when the landlord opened the door to the apartment, the officer observed that there were still personal items in the apartment which, according to the officer’s own words, “indicated someone still lived there.” At that point, the officer should have realized he could not enter the apartment without the consent of the tenant. Thus, he should have closed the door to the apartment and gone to get a warrant based on the affidavit of the landlord. What the officer did instead, again according to his own testimony, was to step five or six feet into the room. It was not until the officer had stepped five or six feet into the room that he was in a position to observe “suspicious- plants.” Hence, the act of walking into the apartment and looking around with the knowledge that the apartment was still occupied was a search. The officer had no warrant to search at that point and since there was no consent or exigent circumstances to justify a warrantless search, the search was illegal. Also, the warrant that was subsequently issued was based on the information acquired through this illegal search and, therefore, the warrant was also illegal.

While the fourth amendment to the United States Constitution serves to protect many places and things in which a person has a reasonable expectation of privacy, it most acutely protects against governmental intrusion into the sanctity of a person’s home. Boyd v. United States, 116 U.S. 616, 630 , 6 S.Ct. 524, 532 , 29 L.Ed. 746 (1886). “Without question, the home is accorded the full range of Fourth Amendment protections.” Lewis v. United States, 385 U.S. 206, 211 , 87 S.Ct. 424, 427 , 17 L.Ed.2d 312 (1966).

An officer cannot merely step into someone’s home and “view” its contents in the same way he may view that person’s yard from a public street or view a partially opened package at the post office. The expectations of privacy over a package in the mail and one’s yard as seen from a public street are significantly less than the expectation of privacy one has in his own home.

In the case of the United States v. Jacobsen, 466 U.S. 109 , 104 S.Ct. 1652 , 80 *531 L.Ed.2d 85 (1984), the United States Supreme Court was dealing with a package that had been partially torn open by a forklift at an airport Federal Express office. Employees at the scene opened the package and a tube contained therein and discovered white powder in plastic bags. When federal narcotics officers arrived on the scene they observed the damage to the package and the tube and removed the plastic bags which the employees had put back into the package. The U.S. Supreme Court relied on the case of Walter v. United States, 447 U.S. 649 , 100 S.Ct. 2395 , 65 L.Ed.2d 410 (1980), which also involved a package which was the subject of a private search before it was searched by federal authorities. The court stressed that the invasion of privacy must, in such cases, be evaluated by the degree to which the government agents exceeded the scope of the private search. Jacobsen, supra at 114-15 , 104 S.Ct. at 1657 ; Walter, supra at 657 , 100 S.Ct. at 2402 .

It is important to note that the court in Walter and Jacobsen did not analogize the private search of packages in the mail to private searches of one’s home. See, e.g., Walter, supra at 654, 100 S.Ct. at 2400 . The underlying assumption in both cases is that by putting the package into the complete control of a third party for transmission, the person who owned that package necessarily reduced his expectation of privacy in the package. This assumption is manifest in the court’s statement that,

“Such containers may be seized, at least temporarily, without a warrant. Accordingly, since it was apparent that the tube and plastic bag contained contraband and little else, this warrantless seizure was reasonable, for it is well-settled that it is constitutionally reasonable for law enforcement officials to seize ‘effects’ that cannot support a justifiable expectation of privacy without a warrant, based on probable cause to believe they contain contraband.” Jacobsen, supra at 121-22 , 104 S.Ct. at 1661 .

I cannot accept the argument that the defendant’s home in this case is subject to the same lack of justifiable expectations of privacy as the package in Jacobsen . The United States Supreme Court has not, and I believe would not, go so far as to equate the two. To do so would be to permit an officer to enter and search without a warrant through every piece of personal property in one’s home simply because a third party, such as a landlord, had done so previously. As the Colorado Supreme Court stated in People v. Brewer, 690 P.2d 860 (Colo.1984), “The decision in Jacobsen was based in part on the minimal intrusion involved in the governmental search of an unwrapped package, and has never been used to justify an invasion of privacy as substantial as entry into a house.” Id. at 864 n.3.

If a warrant had been issued upon the authority of an affidavit of the landlord as to what he observed in the defendant’s apartment, the fact that his observations were the result of an unauthorized private entry of the apartment would not have tainted the warrant. Id. at 863. This is the type of responsible law enforcement activity the fourth amendment and the exclusionary rule are intended to encourage. Unfortunately, the officer attempted to shortcut this process and the result is evidence tainted by an illegal search.

Justice Bistline, however, goes much farther in his analysis of the exclusionary rule than the facts of this case warrant. Hence, I concur only in the result of Part II. Suffice it to say that in this state, “evidence, procured in violation of defendant’s constitutional immunity from search and seizure, is inadmissible and will be excluded if request for its suppression be timely made.” State v. Rauch, 99 Idaho 586, 592-93 , 586 P.2d 671, 677-78 (1978). Therefore, this Court should be content to hold that (1) the officer’s warrantless search was illegal, (2) the warrant that was subsequently issued was based upon information acquired through the illegal search *532 and, therefore, was also illegal, and (3) the illegally obtained evidence should be excluded.