The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge
Pending before the Court in the above-entitled matter is Defendant Justin Lyle Izatt's ("Izatt") Amended Motion to Suppress. (Dkt. 14.) The motion is made pursuant to Fed R. Crim P. 12(b)(3)(C). The matter is ripe for the Court's consideration. Having fully reviewed the record herein, the Court finds that the facts and legal arguments are adequately represented in the briefs and record. Accordingly, and in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this motion shall be decided on the record before this Court without oral argument.
FACTUAL AND PROCEDURAL BACKGROUND
The facts in this case regarding the search appear to be undisputed.
On June 27, 2009, Izatt was convicted on driving with a suspended license. (Government's Opp'n to Mot. to Suppress Evidence at 2, Dkt. 19.) Izatt had previously been charged nine times for the same offense, convicted of two drug trafficking crimes and a crime of violence. Id. at 8. As part of Izatt's sentence the Magistrate imposed twelve months of probation which included the following term: "SEARCH/SEIZURE: I agree and consent to the search of my person, automobile, real property and any other property at any time at any place by any probation officer or any police officer and waive my constitutional right to be free from such searches." (Mem. of Points and Authorities in Supp. Def.'s Mot. to Suppress Evidence at 17, Dkt. 18.) On January 4, 2010 Izatt refused to be drug tested. (Government's Opp'n at 2.) On January 14, 2010, the State of Idaho petitioned to have Izatt's probation revoked. (Mem. of Points at 2.) Pursuant to that request a warrant was issued and Izatt arrested on January 19, 2010. Id. at 3. The date set for the hearing on whether Izatt's probation would be revoked was April 22, 2010. Id.
Izatt had been under investigation by Detective Rivers for methamphetamine dealing. (Government's Opp'n at 1.) In July 2009, Detective Rivers received information from a confidential informant about Izatt's methamphetamine dealing and where methamphetamine could be located in his house. Id. at 2. In January of 2010, Izatt's probation officer contacted Detective Rivers because he suspected that Izatt was using and dealing methamphetamine. Id. at 2-3. On February 3, 2010 police officers and Izatt's probation officer arrived at Izatt's residence. Id. Izatt was not home but soon returned in a pickup truck. Because Izatt was known to have his license suspended he was arrested and searched incident to arrest. Id. The search discovered cash and a used glass methamphetamine pipe on Izatt's person. Id. Izatt's house was searched in the area indicated by the confidential informant and returned a digital scale, $500.00 in cash and 126.5 grams of methamphetamine. Id. The house was searched without consent or a warrant. (Mem. of Points at 2.) Izatt has been charged with one count of Possession with Intent to Distribute Methamphetamine. Id. at 1. Izatt now seeks to suppress all evidence obtained during the search.
"Rule 41(e), Federal Rules of Criminal Procedure, provides that the court 'shall receive evidence on any issue of fact necessary to the decision of the motion.' As this language implies, 'evidentiary hearings should not be set as a matter of course, but only when the petition alleges facts which if proved would require the grant of relief.' Suppression may be improper for a reason of law appearing on the face of the motion. Moreover, factual allegations which are general and conclusory or based upon suspicion and conjecture will not suffice, for 'claims that taint attaches to any portion of the Government's case must satisfy the trial court with their solidity and not be merely a means of eliciting what is in the Government's possession before its submission to the jury.'" Cohen v. United States, 378 F.2d 751, 760 (9th Cir. 1967) (citing Nardone v. United States, 308 U.S. 338, 342 (1939) (citations omitted). "The question is whether the allegations in the moving papers, including affidavits if any are filed, are sufficiently definite, specific, detailed, and nonconjectural, to enable the court to conclude that a substantial claim is presented. If the allegations are sufficient, and factual issues are raised, a hearing is required." Cohen, 378 F.2d at 761 (citations omitted).
There are no factual disputes in the record. Izatt does not allege any facts which, if proven, would render a motion to suppress appropriate. Therefore the Court concludes that the motion may be decided as a matter of law based on the pleadings filed with the Court.
When determining the lawfulness of a search a court must remain cognizant that the "touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined 'by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.'" United States v. Knights, 534 U.S. 112, 118-19 (2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). Before the reasonableness of the search can be ascertained it is necessary to determine what Izatt's privacy interest is. Izatt contends that he was not subject to the terms of his probation at the time of the search; and therefore he has the same reasonable expectation of privacy as a law abiding citizen. Alternatively, Izatt contends that if he is found to be subject to the terms of his probation, he still retains a privacy interest sufficient to defeat the government's interest in the search.
Izatt argues that because the search occurred after the state had sought to revoke his probation, his probationary period was tolled pending a hearing and final determination of whether his probation would be revoked. Izatt relies on State v. Harvey, 132 P.3d 1255 (Idaho Ct. App. 2006) for this proposition. In that case, the defendant left the state without notifying his probation officer which lead to the state filing three probation violation charges. Id. at 1257. When he was apprehended the defendant argued that the state's last probation charge and the order reinstating his original sentence were invalid because they were issued after the five year period of his parole. Id. The state argued that the defendant's probation period was tolled while he was outside of the state's jurisdiction and when he was in jail on the final probation violation charge. Id. The court agreed, and found that as "a general principle, a probationary period is tolled while the probationer is not subject to the jurisdiction of the court." Id. at 1258 (citing City of Spokane v. Marquette, 43 P.3d 502, 505 (Wash. 2002)). Izatt particularly relies on the Idaho Court of Appeal's statement that "a probationary period is tolled from the date probation revocation proceedings are commenced until probation is ...