State v. Mathews

*866ON REHEARING

MeDEVITT, Justice.

Appellant Marcus Mathews (Mathews), arrested and charged with first degree murder under I.C. §§ 18-4001, 18-4002, and 18-4003 for the death of his estranged wife, Holly Morris, in Lewiston, Idaho, appeals an order of the district court denying his motion to suppress evidence obtained in a search of his property on the Nez Perce Indian Reservation. Mathews asserts that the search warrant was invalid because it was obtained and executed without prior tribal court approval. Specifically, Mathews argues that the state’s jurisdiction to order a search of Indian property in Indian country is precluded by the exclusive and plenary jurisdiction of the federal government over Indian affairs, by federal preemptive legislation, and by tribal sovereignty. This case, State v. Mathews, Docket No. 20154, is on rehearing.

Mathews also appeals an order of the district court denying his motion for postconviction relief. That ease is Mathews v. State, Docket No. 21127. Mathews urges this Court to overturn the decision of the trial court that an unsigned warrant is not facially deficient. We first discuss Mathews v. State, Docket No. 21127.

I.

FACTS PERTAINING TO BOTH APPEALS

On January 16,1992, Mathews was arrested and charged with the murder of his estranged wife, Holly Morris (Morris), who was found dead in her home in Lewiston, Idaho. Mathews is an enrolled member of the Nez Perce Indian Tribe, and was living on the reservation at the time of Morris’s death. A few days prior to Mathews’s arrest, Officer Greene of the Lewiston Police Department prepared two affidavits in support of requests for search warrants for Mathews’s home on the reservation and the home of Mathews’s sister and brother-in-law, Donna and Bill Henry, also on the reservation. Officer Greene informed Officer Ed Rolfe of the Lapwai office of the Bureau of Indian Affairs (BIA) of the warrants. Rolfe contacted Judge Miles of the Nez Perce Tribal Court and informed her that the warrants were being prepared. Judge Miles told Rolfe she would meet the officers at her office prior to the search to review the warrants pursuant to the Nez Perce Tribal Law and Order Code.

On January 13, 1992, Officer Greene took the affidavits for the search warrants to Nez Perce County Magistrates Perry and Elliott. Judge Perry signed the documents regarding the warrant for the Mathews’s home and Judge Elliott was given all the documents relating to the search warrant for the Henry residence. Judge Elliott notarized the officer’s oath on the Affidavit for Search Warrant and signed all other documents regarding the warrant except the detention order and the search warrant. The warrant and detention order were signed the following day, on January 14,1992, after they had been executed.

The Lewiston Police Department, accompanied by Deputy Don Taylor of the Nez Perce County Sheriffs Office and a BIA officer, executed the search warrants at the Henry home on the Nez Perce Reservation without obtaining the prior approval of Judge Miles. The Lewiston police did confer with the BIA, with tribal prosecutor Elliot Moffett, and with the Idaho Attorney General and the United States Attorney’s office before executing the warrants. As a result of the searches, the Lewiston officers recovered, on execution of the unsigned warrant, the murder weapon and a pair of tennis shoes that matched tracks found at the scene of the crime. Mathews was then arrested and charged with the first degree murder of Morris.

Mathews moved to suppress the evidence obtained from the Henry home on the grounds that the state authorities lacked jurisdiction to execute a warrant in Indian Country. This motion was denied and Mathews entered an Idaho Criminal Rule 11 plea of guilty preserving this issue for appeal.

II.

PROCEDURAL BACKGROUND IN MATHEWS V. STATE, DOCKET NO. 21127

Concurrent with his appeal from his Judgment of Conviction, Mathews filed a petition *867for post-conviction relief. The petition asked the district court to vacate Mathews’s sentence due to the involuntariness of his plea. The issues raised included the ineffective assistance of counsel and prosecutorial, police and judicial misconduct. Each of the issues raised centered on legal and factual questions based upon the execution of an unsigned search warrant. Thereafter, the state filed a motion for summary disposition and Mathews filed an answer and cross-motion. Oral arguments were heard and the district court issued its opinion denying post-conviction relief. Mathews also appealed this order.

On appeal this Court was unable to determine from the record whether or not Ms. Henry, the occupant of the home searched, questioned the validity of the warrant, (i.e. its lacking a signature), before the search was conducted and if Judge Elliott was aware he had not signed the search warrant. This Court on September 8, 1996, remanded this case to the trial court for a determination of these two issues.

On remand, the trial court held an evidentiary hearing and issued Findings on Remand. The trial court found in part:

This Court FINDS that Ms. Henry questioned the validity of the search warrant prior to the time of the search.
The testimony of Corporal Thomas H. Greene, Jr. and Ms. Donna Heniy conflict on this issue; however, even assuming that the appellant (Mathews) has the burden of proof, the evidence establishes a preponderance that shortly after the law enforcement officers entered the Henry residence on January 13,1992, and before any search of that residence, Ms. Henry was shown a copy of the search warrant which contained no Judge’s signature. At that time, Ms. Henry questioned the validity of the search warrant by pointing out that the copy was not signed nor dated.
Corporal Greene testified that he deceived Ms. Henry by showing her his affidavit for the search warrant with Judge Elliott’s signature when she asked why there was no signature on the warrant. Corporal Green intended for Ms. Henry to believe that the affidavit with Judge Elliott’s signature was in fact the warrant.
This Court FINDS that at the time Corporal Greene and the other officers left his chambers on January 13,1992, Judge Elliott had found that there was probable cause to search the Henry residence; Judge Elliott intended to sign the search warrant for the Henry residence; Judge Elliott believed he had signed the search warrant for the search of the Henry residence; and Judge Elliott thought the officers would execute the search warrant after they left his office____ The only reasonable conclusion to be drawn is that Judge Elliott simply made a mistake, i.e., he thought he had signed the search warrant for the search of the Henry residence at the time the officers left his chambers on January 13, 1992, but he had not.

III.

ISSUES ON APPEAL IN MATHEWS V. STATE, DOCKET NO. 21127

The first issue is whether Mathews’s plea was involuntary because he was deprived of his right to effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article I, § 13 of the Idaho Constitution in that a reasonably competent defense counsel would have discovered, investigated and moved to suppress the evidence illegally obtained and the failure of Mathews’s counsel to do so was deficient and prejudiced Mathews because there is a reasonable probability that, but for counsel’s error, Mathews neither would have pled to, nor would have been found guilty of, first degree murder.

The second issue is whether the action of the state through the prosecutor, police and judge violated Mathews’s constitutional right to due process and a fair trial, as mandated by the Fourth and Fourteenth Amendments to the United States Constitution and Article I, §§ 13,17 and 18 of the Idaho Constitution.

*868Finally, the third issue is whether the district court erred in summarily dismissing Mathews’s petition for post-conviction relief and granting the state’s motion for summary disposition, without conducting an evidentiary hearing.

The resolution of the above-stated issues is dependent upon whether the district court erred in summarily disposing of Mathews’s post-conviction application, given the search warrant was not signed by a magistrate or district judge.

IV.

ANALYSIS IN MATHEWS V. STATE, DOCKET NO. 21127

A. STANDARD OF REVIEW

A summary disposition under I.C. § 19-4906(b) is the procedural equivalent to a summary judgment motion under I.R.C.P. 56. Matthews v. State, 122 Idaho 801, 807, 839 P.2d 1215, 1221 (1992). A post-conviction application may be dismissed summarily where its allegations, even if true, would not entitle the applicant to relief. Id. Summary dismissal may be appropriate, even if the applicant’s alleged facts are uncontroverted by the state, because while underlying facts must be regarded as true, the applicant’s conclusions need not be so accepted. Phillips v. State, 108 Idaho 405, 407, 700 P.2d 27, 29 (1985). Bald and unsupported allegations recited by a petitioner are insufficient to entitle him to an evidentiary hearing. Pulver v. State, 93 Idaho 687, 692, 471 P.2d 74, 79 (1970), overruled on other grounds by State v. Tucker, 97 Idaho 4, 539 P.2d 556 (1975). A summary dismissal based on the pleadings does not require a hearing; neither does a summary dismissal require the district court to file findings of fact and conclusions of law. Deford v. State, 105 Idaho 865, 867, 673 P.2d 1059, 1061 (1983).

B. THE SEARCH WARRANT WAS INVALID

We address first the question of the sufficiency of an unsigned warrant as this underlies all issues raised in the post-conviction appeal.

It is factually undisputed that the search warrant for the Henry home, where the murder weapon and shoes were discovered,1 was not signed by a magistrate when the search took place on January 13, 1992. On January 13, 1992, Officer Greene took the proposed warrant, affidavit and acknowledgement of oath from the deputy prosecuting attorney to the district court where Magistrate Elliott reviewed the documents pertaining to the Henry home. He examined the request for a search warrant and witnessed the signature by Officer Greene on the affidavit. Judge Elliott then signed the acknowledgment on the affidavit and the acknowledgment of oath. In Judge Elliott’s affidavit filed in the course of this post-conviction relief proceeding, he stated he found that probable cause existed to believe that the evidence mentioned in the affidavit could be found at the Henry home and that he fully intended to sign the warrant. He then swears:

Apparently I forgot. Nevertheless, I fully intended to issue the search warrant to the B & D Henry residence as a valid search warrant. The fact that I neglected to sign the search warrant should in no way be taken to mean that I did not think probable cause existed or that I intended to in any way hinder the execution of the search warrant I was issuing.

Thus, the critical question before this Court is as follows: Do the Constitution of the State of Idaho, the statutes governing the issuance of search warrants, and the Idaho Criminal Rules require a magistrate or dis*869trict judge’s signature in order for a search warrant to be validly issued.

This is a case of first impression in the State of Idaho. Both parties have cited authority from other jurisdictions supporting their respective positions.

This Court from its earliest interpretation of Article I, § 17 of the Idaho Constitution, has held that the right afforded individuals to protection of their persons and homes is so fundamental as to require strict adherence to the constitutional and statutory requirements.

Art. 1, sec. 17 of the constitution, provides: “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue without probable cause shown by affidavit, particularly describing the place to be searched and the person or thing to be seized.”
The right protected by the above provision of our constitution has been deemed of so great importance that a similar provision is found in the constitution of the United States and in the constitution of nearly every state in the Union. Under such constitutional provisions, it is uniformly held that the search-warrant must conform strictly to the constitutional and statutory provisions providing for its issuance.

Purkey v. Maby, 33 Idaho 281, 283, 193 P. 79, 79 (1920).

Idaho Code §§ 19-4401, -41406, and -4407 were adopted in 1864. This is the first case where this Court is urged to approve a warrant that was not signed by a magistrate or district judge.

Idaho Code § 19-4401 provides as follows:

Search warrant defined. — A search warrant is an order in writing, in the name of the state of Idaho, signed by a magistrate, judge or justice directed to an officer or officers named therein, or other officer authorized by law to execute search warrants directing the officer to search for and seize property or intangibles.

Idaho Code § 19-4406 requires the signature of the judge also:

Issuance of warrant. — If the magistrate is thereupon satisfied of the existence of the grounds of the application, or that there is probable cause to believe then-existence, he must issue a search warrant, signed by him with his name of office, to a peace officer in his county, commanding him forthwith to search the person or place named, for the property specified, and to bring it before the magistrate.

Idaho Code § 19-4407 provides a form of warrant which clearly contemplates being signed by a magistrate or district judge.

The state urges that the rules of this Court should prevail over the clear statutory authority contained in Idaho Code §§ 19-4401 and 19-4406 requiring the signature of the court.

Idaho Criminal Rule 41 provides that “[a] search warrant authorized by this rule may be issued by a district judge or magistrate____” Idaho Criminal Rule 41 is not in conflict with the statute or the constitution.

Idaho Code §§ 19-4401, 19-4406, and 19-4407 predate the Constitution of the State of Idaho. These code sections create a substantive right in a citizen to refuse to permit a search pursuant to an unsigned warrant. This substantive right existed prior to the adoption of this State’s Constitution. This substantive right was affirmed by Article XXI, Section 2 of the Idaho Constitution which provides:

Laws continued in force. — All laws now in force in the territory of Idaho which are not repugnant to this Constitution shall remain in force until they expire by their own limitation or be altered or repealed by the legislature.

Article I, Section 17 of the Idaho Constitution further establishes the substantive rights of citizens to require a valid warrant for officers to search their home. The requirement of a signed warrant enables a citizen to know that the search by the officer has in fact been authorized by a magistrate or district judge and is not being conducted at the whim or caprice of the officer.

In this ease, Ms. Henry exercised her right to question the validity of the warrant. The police officers gained admittance *870through deception. Once the lack of a signature is discovered or raised, the search must stop until such time as the lack of a signature may be corrected by the signature of the magistrate. Failure to supply the signature once it is challenged will vitiate any further search under the warrant. “Evidence” obtained in such an unauthorized search is not admissible.

V.

REMAINING ISSUES RAISED ON POST-TRIAL HEARING APPEAL AND APPEAL FROM JUDGMENT OF CONVICTION

Having found the warrant deficient, we need not address the balance of the issues raised on appeal as they are rendered moot.

VI.

CONCLUSION

The district court erred in summarily disposing of Mathews’s post-conviction application. We vacate and remand to the district court for further proceedings consistent with this opinion.

Justice JOHNSON, and Justice Pro Tern JUDD, concur.

. The tennis shoes were not on the return filed on the Henry house warrant, but the state in response to Interrogatory 19 of the Defendant stated:

At the time that the execution of the search warrant at 153 Joseph Street commenced, Marcus Mathews was not at the residence. Mrs. Henry was present at the time the items listed on the return of the warrant dated Januaiy 14, 1992 were seized. A list of those items was prepared prior to Tom Greene departing for execution of the second warrant on Agency Road. Alan Johnson remained behind at the Joseph Street address and was present there when Marcus Mathews returned and at that time seized Mathews’ tennis shoes. The fact that the tennis shoes were not added to the list previously prepared was an oversight.