State v. Johnson ( 1985 )

HUNTLEY, Acting Chief Judge.

John L. Johnson is charged with violating I.C. § 37-2732, which proscribes the manufacture of a controlled substance. Johnson was held to answer and, before trial, moved to suppress all evidence obtained from a search of his apartment. The trial court denied that motion, and the matter was certified for appeal. We conclude that the trial court erred in denying the motion to suppress, and remand the cause to the trial court for further proceedings consistent with this opinion.

At the hearing on the motion to suppress, police officer Earl Sorenson testified that the landlord, Joe Clevenger, invited him into Johnson’s apartment when Johnson was not present. The landlord wanted the officer to observe what Clevenger believed to be “suspicious plants”. Clevenger had first seen the plants when he had previously entered Johnson’s apartment while Johnson was not at home. Johnson was unaware of and did not consent to the officer’s entry into his home. When the officer entered Johnson’s apartment at the landlord’s behest, he immediately noted several personal effects which clearly indicated to him that someone was residing therein. He then looked behind the door, observed what he believed to be marijuana, left the apartment, obtained a warrant and returned to the apartment to seize the suspected contraband.

The affidavit in support of the warrant stated:

1. Your Affiant received an order to respond to a suspicious call from Joe Clevenger, landlord of the above address.

2. Mr. Clevenger indicated that the individual renting apartment # 7 had been told to move due to non-payment of rent. He further indicated that last night, April 12th, 1982, he had entered the apartment to see if the renter had moved and observed suspicious plants growing in five-gallon buckets.

3. On this date, April 13, 1982, your Affiant was requested by Mr. Clevenger to enter the apartment and observe these plants and was let into the apartment by Mr. Clevenger and observed said plants.

4. Based upon your Affiant’s experience, he believes the plants to be marijuana and further believes that due to the large number of plants, additional usable material, paraphernalia and records will be located in said apartment.

Items 3 and 4 of the affidavit were based on the officer’s personal observations while inside Johnson’s home. Johnson argues that items 3 and 4 ought to be excised from the affidavit because they are the fruits of the poisonous tree, i.e. the officer’s warrantless and unjustified entry into his home. He claims that if items 3 and 4 are excised from the affidavit, the affidavit does not contain sufficient non-conclusory information to permit the magistrate to find probable cause for the issuance of the warrant. We agree with both propositions.

There were three searches in this case. The first search, that conducted by the landlord, presents no problem for Fourth Amendment analysis as the Fourth Amendment proscribes only governmental action; a search by a private individual does not fall within Fourth Amendment proscriptions. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921).

Our inquiry focuses on the second and third searches, those conducted by the officer. Clearly, Johnson had a legitimate expectation of privacy in his home. There was no evidence that he had abandoned his residence. On the contrary, the only evidence was that he was still residing there. The evidence adduced at the hearing and the arguments presented by counsel did not clearly establish whether the rental period had expired. Even if the rental period had expired, however, this does not inevitably terminate Mr. Johnson’s justified privacy expectation, for it may generally be said that a tenant would be justified in expecting the landlord to resort to the eviction procedures required by law rather than to self-help. United States v. Botelho, 360 F.Supp. 620 (D.Hawaii 1973). Because the home “is accorded the full range of Fourth Amendment protections,”¹ it is beyond question that an unconsented police entry into a residential unit, be it a house, apartment, or hotel or motel room, constitutes a search.² Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). See W.R. LaFave, Criminal Procedure, Vol. 1, pp. 169-171 (1984).

Officers may only conduct a search of an individual’s home without first obtaining a search warrant where the search is incident to an arrest,³ in response to exigent circumstances,⁴ or where there is proper consent.⁵ In the instant case, the officer did not have probable cause to arrest Johnson, nor did he have an arrest warrant. There were no exigent circumstances which justified entry without a warrant. The only possible basis upon which the officer might lawfully have entered the apartment would be the landlord’s consent. We therefore inquire whether the landlord had the authority to consent. In the seminal decision of United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the United States Supreme Court concluded:

That when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed an authority over or other sufficient relationship to the premises or affects sought to be inspected.

The Court then explained what it meant by “common authority”:

Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant, historical and legal refinements, ... but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

It may generally be said that a lessor who has granted the lessee exclusive possession over a certain area may not, during the period of the tenancy,⁶ give an effective consent to a police search of that area. This is so whether the arrangement involves the rental of a house,⁷ an apartment,⁸ a room in a rooming house,⁹ hotel¹⁰ or even a locker.¹¹ The rule is not otherwise merely because the lessor has by express agreement or by implication reserved the right to enter for some special and limited purpose. In this case, at best, the landlord may have believed that he and the tenant had a good faith dispute as to whether the tenant owed additional rent. However, he knew that he had not evicted Johnson and that Johnson had not abandoned the apartment, as all of his personal possessions were still there. The landlord simply had no authority to consent to the officer’s entry. Hence, the officer’s entry was unlawful and violated Mr. Johnson’s legitimate expectation of privacy in his home which is protected by the Fourth Amendment. Since items 3 and 4 set forth in the affidavit in support of the warrant were the result of the officer’s personal observations made while unlawfully on the premises, such statements were clearly the “fruit of the poisonous tree” and must be deleted from the affidavit. Wong Sun v. United, States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

However, where the police have a source independent of the illegality from which they would have discovered the challenged evidence, the evidence seized is nonetheless admissible. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). Since items 1 and 2 of the affidavit were not derived from nor exploitive of any illegality, we consider whether these items, standing alone set forth sufficient non-conclusory facts to permit a magistrate to find probable cause for the issuance of a search warrant. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court abandoned the “rigidity” of the “two-pronged test” established by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) which required an affiant to set forth facts showing that an informant was reliable and his or her information was credible. The Court stated:

In its place we reaffirm the totality of the circumstances analysis that traditionally has informed probable cause determinations ... The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons applying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to insure that the magistrate had a “substantial basis for ... concluding” that probable cause existed ... we are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli. Illinois v. Gates at p. 2332.

In State v. Lang, 105 Idaho 683, 672 P.2d 561, 567 (1983), this Court adopted the Gates formulation. We note, however, that the Gates majority emphasized “that an informant’s ‘veracity,’ ‘reliability,’ and ‘basis of knowledge’ are all highly relevant in determining the value of his report.” Gates at 2327. The Gates majority also reaffirmed the principle that “sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.” Gates at 2332. (Emphasis added).

In the instant case the State would have us accept the proposition that the landlord was simply a citizen informant. Such citizen informants are usually deemed reliable. Yet the landlord may not have been a typical “citizen informant” in that he had some dispute with Johnson about whether he should continue his tenancy. The facts of this case give rise to the inference that the landlord may not have been motivated solely by a sense of “good citizenship”; instead he may have been motivated by vindictive feelings toward a tenant with whom he was in some disagreement. More problematic, however, is the fact that the actual information provided by the informant landlord was totally conclusory in nature. The only information Clevenger conveyed to the officer was that Clevenger had observed “suspicious plants” growing in five-gallon buckets. Clevenger did not tell the officer in what way the plants were “suspicious” or, if he did, the officer did not relate that information to the magistrate in the affidavit. Without more, we have only speculation, innuendo and a bare conclusion. If, in fact, by “suspicious” the landlord meant that he thought the plants were marijuana, the affidavit presents no information from which the magistrate could reasonably conclude that the landlord would know marijuana when he saw it. There was no information that Clevenger knew what a marijuana plant looked like. The landlord did not describe the plants’ sizes, the shape and number of their leaves, or their color so that the officer and magistrate could assess whether the plants were, in fact, probably contraband.

In a similar case, State v. Woodall, 100 Wash.2d 74, 666 P.2d 364 (1983), the Washington Supreme Court reversed two convictions for the possession of a controlled substance where the search was conducted pursuant to a warrant based on an affidavit which stated:

A reliable informant who has proven to be reliable in the past has given information to Duane Golphenee that he/she has been in the house within the last twelve hours and had personally observed marijuana being used in the house. The informant is familiar with the appearance of marijuana.

In analyzing the sufficiency of this affidavit, the Washington court used the Aguilar-Spinelli formulation. However, in a footnote, the Washington court observed that, after Woodall was written, the United States Supreme Court decided Illinois v. Gates, which disapproved of a rigid adherence to the Aguilar-Spinelli standards. Nonetheless, the Washington Court remarked, “The conclusory affidavit provided to the magistrate in the instant case was inadequate under any test. ” Woodall, supra, at 367. (Emphasis added).

The affidavit in the instant case is likewise conclusory and even less specific as to the basis or meaning of the landlord’s suspicions. As the affidavit did not establish probable cause, the warrant should not have issued; the search pursuant thereto was not lawful and the evidence seized in the course of the search must be suppressed.

Reversed and remanded for further proceedings consistent with this opinion.

McFADDEN and TOWLES, Acting JJ„ concur.

1 . Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966).

2 . The State submits that police viewing of suspected contraband derived as the result of a private search is not a search within the meaning of the Fourth Amendment as long as the view is confined to the scope and product of the initial search. The cases cited by the State, however, pertain to situations where an individual has turned over to the government the results of a private search. In such cases, the suspected contraband comes into plain view of the authorities through no illegal act on their parts. In the instant case, however, the suspected contraband was not turned over to the authorities; instead the landlord invited the officer to enter a private dwelling to observe the contraband first-hand. In this case, the suspected contraband was not in plain view; and the landlord had neither personally seized nor delivered it to the police. The officer had to enter the private dwelling in order to see it. The fact that the Fourth Amendment does not reach the landlord does not mean that the officer, a government official, is also immune from its sanctions simply because he accompanied the landlord.

3 . Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

4 . United States v. Rubin, 474 F.2d 262 (3d Cir. 1973), certiorari denied; 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68; United States v. Perez, 440 F.Supp. 272 (N.D.Ohio 1977), affirmed 571 F.2d 584 (6th Cir.), certiorari denied 435 U.S. 998, 98 S.Ct. 1652, 56 L.Ed.2d 88 (upholding warranties search for explosives); State v. McCleary, 116 Ariz. 244, 568 P.2d 1142 (1977) (upholding warrantless search for bound and gagged robbery victims).

5 . Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

6 . The tenancy ends, at least for Fourth Amendment purposes, upon abandonment by the tenant. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960).

7 . Chatman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961).

8 . People v. Boorem, 184 Colo. 233, 519 P.2d 939 (1974).

9 . State v. Warfield, 184 Wis. 56, 198 N.W. 854 (1924).

10 . Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964).

11 . People v. Miller, 19 Ill.App.3d 161, 310 N.E.2d 808 (1974).