IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 32368
STATE OF IDAHO, )
) 2007 Opinion No. 17
Plaintiff-Respondent, )
) Filed: March 22, 2007
v. )
) Stephen W. Kenyon, Clerk
RICHARD LEE McBAINE, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Michael E. Wetherell, District Judge.
Order denying motion to suppress evidence, affirmed.
Molly J. Huskey, State Appellate Public Defender; Elizabeth A. Allred, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
Attorney General, Boise, for respondent.
______________________________________________
LANSING, Judge
Richard Lee McBaine appeals from the district court’s order denying his motion to
suppress evidence found in a search of his home that was conducted pursuant to his oral and
written consents. The issue presented is whether McBaine’s consents were tainted by an earlier
unlawful entry of the home by a police officer.
I.
BACKGROUND
Ada County Deputies Ron Santucci and Cliff Exley were dispatched to McBaine’s
residence at approximately 7:18 p.m. in response to a report from an unidentified caller that
McBaine was manufacturing methamphetamine in his home. Deputies arrived at the trailer park
where McBaine’s residence was located at about 7:39 p.m. and made contact with fourteen-year-
old J.L. who was standing outside and who identified herself as the calling party. J.L. told the
deputies that she had called about the “meth lab” at the request of thirteen-year-old K.Q., who
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was concerned because her stepfather “had some kind of lab or was making drugs in their
house.” K.Q. lived with her five-year-old sister, A.Q., her mother, Rosa Quinton, and her
mother’s boyfriend, McBaine. Deputies Santucci and Exley then went to McBaine’s residence
to investigate.
When the deputies knocked on McBaine’s door, he came outside to speak to them. When
McBaine opened the door, Deputy Santucci could see a female, later identified as Quinton,
standing inside. Deputy Santucci told Quinton he would like to come inside and talk to her.
McBaine responded that he would prefer they talk to Quinton outside. Deputy Santucci said he
would rather speak to Quinton separately. Neither McBaine nor Quinton gave Santucci
permission to enter, but he nevertheless stepped four or five feet inside the trailer to where
Quinton was standing. K.Q. and A.Q. were also inside, seated on a sofa, near Quinton.
While Deputy Exley was interviewing McBaine outside, Deputy Santucci told Quinton
they were investigating a report of a meth lab and they were worried about the children living in
that environment. Quinton denied the existence of a lab. Deputy Santucci then asked K.Q. to
come outside with him, which she did. Once outside and away from Quinton and McBaine,
K.Q. told Deputy Santucci that she had seen a meth lab in McBaine’s and Quinton’s bedroom,
and she specifically identified some of the items she saw. K.Q. also said that McBaine had
“been staying up all night cooking meth.”
After speaking with K.Q., Deputy Santucci went back to talk to Deputy Exley and
McBaine. Deputy Santucci told McBaine that they wanted to look inside the residence to make
sure there was no meth lab, particularly because children should not be living in that
environment. According to the deputies’ subsequent testimony, which was accepted by the
district court, McBaine gave the deputies oral consent to search the residence. During the search,
however, the deputies were unable to gain access to McBaine’s bedroom because the door was
locked. McBaine said he had accidentally locked the bedroom door and could not get in.
Because the officers were most interested in the contents of the master bedroom, Deputy
Santucci contacted the narcotics supervisor for assistance. Detective Javier Bustos was sent to
the scene, arriving at approximately 8:07 p.m.
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Detective Bustos testified that he spoke with McBaine for approximately ten minutes,
during which time he informed McBaine of his Miranda1 rights and told him that, based on the
information provided by the deputies, Bustos would attempt to obtain a search warrant or,
alternatively, McBaine could allow access to the bedroom. McBaine then signed a written form
giving consent to a search of the home, and he unlocked the bedroom door. A search of the
room revealed evidence of a methamphetamine lab. McBaine admitted he had been “cooking”
methamphetamine for approximately one year.
After the State charged McBaine with trafficking in methamphetamine, Idaho Code § 37-
2732B(a), and manufacturing a controlled substance where children are present, I.C. § 37-
2737A, he filed a motion to suppress the evidence found in his home. The district court denied
the motion. McBaine thereafter pleaded guilty, reserving his right to appeal the order denying
his suppression motion. On appeal McBaine argues that the evidence should have been
suppressed because his consents to the search of his home were products of Deputy Santucci’s
initial unjustified entry and were involuntary.
II.
ANALYSIS
In reviewing a trial court’s ruling on a motion to suppress evidence, we accept the trial
court’s findings of fact if they are supported by substantial evidence, but we freely review the
application of constitutional principles to the facts as found. State v. Abeyta, 131 Idaho 704, 708,
963 P.2d 387, 391 (Ct. App. 1998).
A. Unlawful Entry
The sanctity and privacy of a home is protected by the Fourth Amendment’s prohibition
against unreasonable searches and seizures. Therefore, absent circumstances that fit within a
recognized exception to the warrant requirement, evidence acquired through the warrantless
search of a home must be suppressed. State v. Revenaugh, 133 Idaho 774, 776, 992 P.2d 769,
771 (1999); State v. Johnson, 110 Idaho 516, 522-23, 716 P.2d 1288, 1294-95 (1986).
Here, there were multiple entries into McBaine’s home by officers. The first occurred
when Deputy Santucci entered without permission and briefly spoke with McBaine’s wife. This
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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initial entry was unquestionably unlawful. Deputy Santucci entered without permission, and the
State concedes on appeal that there is no exception to the warrant requirement that applies to this
entry. The district court found that the later entries were made with McBaine’s consent. A
defendant’s voluntary consent to a search relieves government agents of the warrant requirement.
State v. Lafferty, 139 Idaho 336, 339, 79 P.3d 157, 160 (Ct. App. 2003); State v. Fee, 135 Idaho
857, 862, 26 P.3d 40, 45 (Ct. App. 2001). McBaine contends, however, that his oral and written
consents to search the home were tainted by Deputy Santucci’s earlier illegal entry, and therefore
evidence found during the consent searches must be suppressed. We conclude that the evidence
presented on McBaine’s suppression motion shows no taint or causal link between Deputy
Santucci’s brief illegal entry and McBaine’s subsequent consents, and therefore the unlawful
intrusion does not require suppression of evidence found in the consent search.
The exclusionary rule calls for suppression of evidence that is gained through
unconstitutional governmental activity. Segura v. United States, 468 U.S. 796, 815 (1984); State
v. Wigginton, 142 Idaho 180, 184, 125 P.3d 536, 540 (Ct. App. 2005). This prohibition against
use of derivative evidence extends to the indirect as well as the direct fruit of the government’s
misconduct. Segura, 468 U.S. at 804; Wong Sun v. United States, 371 U.S. 471, 484 (1963).
Nevertheless, “[s]uppression is not justified unless ‘the challenged evidence is in some sense the
product of illegal governmental activity.’” Segura, 468 U.S. at 815 (quoting United States v.
Crews, 445 U.S. 463, 471 (1980)). That is, “evidence will not be excluded as ‘fruit’ unless the
illegality is at least the ‘but for’ cause of the discovery of the evidence.” Id. Where a defendant
has moved to suppress evidence allegedly gained through unconstitutional police conduct, the
State bears the ultimate burden of persuasion to prove that the challenged evidence is untainted,
but the defendant bears an initial burden of going forward with evidence to show a factual nexus
between the illegality and the State’s acquisition of the evidence. Alderman v. United States, 394
U.S. 165, 183 (1969); Wigginton, 142 Idaho at 184, 125 P.3d at 540; State v. Babb, 136 Idaho
95, 98, 29 P.3d 406, 409 (Ct. App. 2001). This requires a prima facie showing that “the evidence
sought to be suppressed would not have come to light but for the government’s unconstitutional
conduct.” Wigginton, 142 Idaho at 184, 125 P.3d at 540 (quoting United States v. Nava-
Ramirez, 210 F.3d 1128, 1131 (10th Cir. 2000)). See also Nardone v. United States, 308 U.S.
338, 341 (1939). By expressing the query as a “but for” test, we do not imply that a defendant
bears the burden to prove a negative--that the State would not or could not have discovered the
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evidence on any set of hypothetical circumstances that could have arisen absent the illegal
search. Rather, the defendant need only show that, on the events that did take place, the
discovery of the evidence was a product or result of the unlawful police conduct.
Where a defendant has not shown the requisite nexus between the unlawful police
activity and the challenged evidence, suppression must be denied. Crews, 445 U.S. 463. An
illustrative case is United States v. King, 222 F.3d 1280 (10th Cir. 2000) where police conducted
a “protective sweep” search of the defendant’s house while arresting him. During the sweep,
officers saw a shotgun. They returned later with a search warrant and conducted a search that
yielded other weapons, drugs, and paraphernalia. The Tenth Circuit Court of Appeals held that
even if the protective sweep violated the Fourth Amendment, the defendant had shown no factual
nexus between this violation and the seizure of evidence in the subsequent search because the
affidavit supporting the warrant application did not refer to the protective sweep or anything seen
in the house during the sweep. The court also held that the defendant had shown no basis for
suppression of his own incriminating statements because there was no demonstration of a factual
nexus between the sweep and his admissions.
A similar case is United States v. Sacco, 563 F.2d 552, 558 (2nd Cir. 1977), where the
government had illegally tapped the defendant’s telephone. The defendant contended that
various investigations into his criminal activities were a result of the illegal wiretap. The trial
court found, however, that the government authorities had not used information from the
wiretaps in the prosecution and the defendant had not met his initial burden of producing
evidence demonstrating taint.
This Court’s decision in Wigginton, although factually dissimilar, is also instructive.
There, the defendant was stopped on suspicion of driving under the influence. The trooper made
observations leading him to believe that Wigginton was intoxicated, and the officer could smell
an overwhelming odor of alcohol coming from inside the vehicle. After Wigginton had passed
field sobriety tests, the trooper informed him that the trooper was going to search the vehicle
because, based on the strong odor coming from the car, there was probable cause to believe that
the car held an open container of alcohol, in violation of Idaho law. During the course of the
stop, a second officer arrived, accompanied by a drug detection dog. Before the officers began
searching the vehicle, the second officer walked the drug dog around the vehicle and, at some
point, the dog alerted to the presence of drugs. In searching the vehicle, the two officers found
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ingredients and equipment commonly used in manufacturing methamphetamine. After being
charged with a drug offense, Wigginton sought suppression of evidence found in the vehicle
because, among other grounds, use of the drug dog illegally extended the length of the stop
without reasonable suspicion of drug activity. This Court held that even if Wigginton’s roadside
detention was unlawfully lengthened by the use of the drug dog, suppression of items found in
the vehicle was not appropriate because before the drug dog was employed, the officers already
possessed probable cause to search the car for an open container, and the first trooper had
already announced his intention to conduct the search. The interlude with the dog, we noted,
only briefly delayed an already justified and planned search, and therefore Wigginton had
demonstrated no factual nexus between the illegal conduct and the evidence that he sought to
suppress. Wigginton, 142 Idaho at 184, 125 P.3d at 540. See also United States v. Kandik, 633
F.2d 1334, 1335 (9th Cir. 1980) (holding defendant had not established a connection or taint
between illegally seized evidence, which was suppressed, and unsuppressed witness testimony);
United States v. Sand, 541 F.2d 1370 (9th Cir. 1976) (holding defendants failed to show nexus
between evidence acquired illegally and evidence gained by government through subsequent
investigation); Cruse v. State, 584 P.2d 1141 (Alaska 1978) (no showing that evidence in search
pursuant to a warrant was tainted by earlier illegal search of defendant’s car trunk because
officers were able to obtain the warrant based on evidence wholly independent of the unlawful
search); Powers v. State, 440 N.E.2d 1096 (Ind. 1982) (no showing that search warrant was
tainted by earlier illegal interceptions of telephone conversations by government informant);
WAYNE R. LAFAVE, SEARCH AND SEIZURE, § 11.2(b) at 49 (4th ed. 2004).
In McBaine’s case, before officers even knocked on his door they were informed by J.L.
that there was a methamphetamine lab in the residence. No evidence of any kind was gained
during Deputy Santucci’s unlawful intrusion. He did not then see, hear, smell or otherwise
detect any evidence of the methamphetamine lab. Nor did this intrusion even make Santucci
aware of the presence of witnesses Quinton and K.Q., both of whom were visible through the
open door before he entered. From an evidentiary standpoint, his unlawful entry yielded
nothing. During the brief intrusion, Deputy Santucci did not search for contraband and did not
act in a threatening or overbearing manner, but merely spoke to Quinton momentarily before
exiting. Santucci’s intrusion apparently had ended before consent to a search was requested of
McBaine.
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Even if it could be said that Santucci’s interview of K.Q. was somehow tainted or
suppressible merely because Santucci was inside the home when he asked K.Q. to exit with him,
there is no evidence that the officers used information from K.Q. in order to induce McBaine’s
consent to a search. According to the testimony at the suppression hearing, the officers merely
informed McBaine that they “had information” that there was a methamphetamine lab in his
home. This was information that the officers had already received from J.L. before they
interviewed K.Q. There is no evidence that Santucci’s conversation with K.Q., or with
McBaine’s wife inside the residence, was somehow exploited to secure McBaine’s subsequent
consent to a search.
McBaine’s appellate counsel argues that McBaine’s consent should be deemed tainted by
the psychological effect of having seen an officer enter his home without permission. According
to the argument, this could have led McBaine to conclude there was no point in resisting the
officer’s requests that he consent to a full search. The defect in this argument is that it bears no
support in the evidence. To the contrary, the evidence shows that McBaine resisted the initial
requests for access to his bedroom where the incriminating evidence was ultimately found. It
was only after Detective Bustos arrived and told McBaine that the officers would attempt to
obtain a search warrant if he would not give them access to the bedroom that he ultimately
consented. Moreover, McBaine’s own testimony at the suppression hearing contradicts his
counsel’s argument, for McBaine testified that he never consented at all to a search of his home.
He claimed that it was his understanding when he signed the consent form that he was agreeing
only to a search of his vehicle. There is thus an absence of any evidence to support the theory on
appeal that McBaine’s consent was a direct or indirect fruit of Deputy Santucci’s initial brief, but
illegal, intrusion.
McBaine’s argument on appeal has focused entirely upon application of the “attenuation
doctrine,” which addresses circumstances where evidence derived from illegal police activity
may not be subject to suppression. That doctrine requires a determination “whether the chain of
causation proceeding from the unlawful conduct has become so attenuated or has been
interrupted by some intervening circumstance so as to remove the ‘taint’ imposed upon that
evidence by the original illegality.” Crews, 445 U.S. at 471. McBaine’s argument misses the
mark because, as we have held, here there was no “taint” to purge. As the United States
Supreme Court has stated, “attenuation analysis is only appropriate where, as a threshold matter,
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courts determine that ‘the challenged evidence is in some sense the product of illegal
governmental activity.’” New York v. Harris, 495 U.S. 14, 19 (1990) (quoting Crews, 445 U.S.
at 471). There being no tainted evidence here, there is no occasion for application of the
attenuation doctrine.
B. Voluntariness of Consent
McBaine may also be arguing that, quite apart from Deputy Santucci’s unlawful entry,
McBaine’s consent to the search of his home was involuntary. Consent to a search will justify a
warrantless search by law enforcement officers only if the consent was voluntary. Schneckloth v.
Bustamonte, 412 U.S. 218 (1973). Thus, the State must show that the consent was not the result
of duress or coercion, either direct or implied. Id. at 248; State v. Whiteley, 124 Idaho 261, 264,
858 P.2d 800, 803 (Ct. App. 1993). Whether a consent to a search was voluntarily given is a
question of fact to be determined from the totality of all the circumstances. Schneckloth, 412
U.S. at 227; State v. Varie, 135 Idaho 848, 852, 26 P.3d 31, 35 (2001). The State bears the
burden to demonstrate the voluntariness of a consent. Bumper v. North Carolina, 391 U.S. 543,
548 (1968); State v. Kilby, 130 Idaho 747, 749, 947 P.2d 420, 422 (Ct. App. 1997). In a
suppression hearing where voluntariness is an issue, the power to assess the credibility of the
witnesses, resolve any conflicts in the testimony, weigh the evidence, and draw factual
inferences is vested in the trial court. Abeyta, 131 Idaho at 708, 963 P.2d at 391.
The district court’s findings that McBaine’s oral and written consents to search his
residence were given freely and voluntarily are supported by substantial evidence in the record.
In this regard, the trial court resolved all factual discrepancies in favor of the State’s witnesses,
including the issue of credibility. On appeal, McBaine argues no facts creating involuntariness
other than Deputy Santucci’s initial unlawful entry into McBaine’s home. As we have held that
the evidence shows no exploitation of that unlawful entry to gain McBaine’s consent nor any
other causal connection between the two, McBaine has shown no error in the trial court’s
determination that his consent was voluntary.
III.
CONCLUSION
We have found no error in the district court’s disposition of McBaine’s suppression
motion. Therefore, the order denying the motion to suppress evidence is affirmed.
Judge GUTIERREZ CONCURS.
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Judge Pro Tem SCHWARTZMAN, SPECIALLY CONCURRING
I concur wholeheartedly in the result reached by the majority. However, because the first
consent to search followed almost immediately after the initial unlawful entry and interview with
K.Q.,2 I would engage in an “attenuation analysis” just to be on the constitutional safe side.
Whether a consent to search is voluntary under the Fifth Amendment is an entirely
separate question from whether a consent to search is tainted by a prior Fourth Amendment
violation. See New York v. Harris, 495 U.S. 14, 23 (1990); Brown v. Illinois, 422 U.S. 590, 599
(1975). Voluntary consent occurring after an unlawful warrantless entry does not automatically
expunge the taint of the Fourth Amendment violation. State v. Zavala, 134 Idaho 532, 536, 5
P.3d 993, 997 (Ct. App. 2000). And consent to search will not expunge the taint of unlawful
police conduct where the events are irrevocably intertwined. State v. Kerley, 134 Idaho 870,
874, 11 P.3d 489, 493 (Ct. App. 2000).
Once an illegality has been shown, a court must decide whether the evidence has come
about by exploitation of that illegality or instead by means sufficiently distinguishable to be
purged of the primary taint. Id. at 875, 11 P.3d at 494 (citing Wong Sun v. United States, 371
U.S. 471 (1963)). Relevant factors include the presence of intervening circumstances, temporal
proximity, and the purpose and flagrancy of the official misconduct. Id.; see also United States
v. Washington, 387 F.3d 1060, 1073 (9th Cir. 2004). Applying the above criteria to the facts
established herein, I find that the subsequent incriminating evidence obtained in this case did not
come about by exploitation of the illegal entry, but instead by means sufficiently distinguishable
to be purged of any primary taint.3
The test for determining whether the primary taint of a prior constitutional violation has
been purged is commonly referred to as an attenuation analysis or attenuation test, and advances
the exclusionary rules “twin aims of deterrence and judicial integrity.” Washington, 387 F.3d at
1072-73 (citing Brown, 422 U.S. at 599-600); see also Note, State v. Zavala: Consent to Search
2
Without the first-hand information provided by K.Q., the police would not have had
sufficient reliable information to obtain a search warrant.
3
Although the district court did not engage in an inquiry as to whether the taint of the
illegal entry had been purged, its findings and the record are sufficient to make such a
determination so that remand would not be necessary. Brown, 422 U.S. at 604.
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as Attenuating the Taint of Illegal Searches and Seizures, 38 IDAHO L. REV. 135 (2001). My
attenuation analysis is compelled by the following facts and circumstances:
(1) The officers were faced with a challenging situation in the field. A
fourteen-year-old caller notified the police that her thirteen-year-old friend was
living in the same household where McBaine was allegedly manufacturing
methamphetamine;
(2) when McBaine answered the door and voluntarily spoke outside to one of
the officers, the other officer could plainly see the mother just inside the
threshold;
(3) K.Q. and her young sister - both potential victims-were also seated on a
sofa near the mother and were easily visible from the doorway;
(4) the officer’s “trespass” in crossing the threshold, while unlawful, was brief
and the intrusion minimal, at worst a minor and technical invasion of McBaine’s
rights. See United States v. Seidman, 156 F.3d 542, 549 (4th Cir. 1998). The
officer’s intent was to contact and speak with a willing juvenile witness and her
mother in a potentially volatile situation apart from the very adult whom the
juvenile claimed was manufacturing methamphetamine in the same home in
which she lived. The entry was not made for the ulterior purpose of extracting a
consent to search from McBaine;
(5) no contraband evidence of any kind was observed or seized by the officer
during this brief encounter;
(6) the officer thereafter followed McBaine’s request to talk outside with any
of the other residents;
(7) the general atmosphere was kept congenial and was not calculated to
cause surprise, fright and confusion through a show of force; Id.; compare Brown,
422 U.S. at 605;
(8) in effect, the officer could have achieved the same result by simply
knocking on the open door and requesting the juvenile and her mother to
accompany him outside to talk;
(9) the integrity of the judicial system will not be compromised by denying
suppression of evidence in this case. The conduct of the police here does not rise
to the level of purposeful or flagrant misconduct requiring prophylactic exclusion
of evidence. See Rawlings v. Kentucky, 448 U.S. 98, 110 (1980).
Accordingly, all of the state’s subsequent evidence was attenuated and sufficiently
distinguishable from the illegal entry so as to be fully purged of any primary taint.
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