The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
The Court has before it two motions to suppress filed by defendant Bolivar. The Court held an evidentiary hearing on November 10, 2010, and took the motions under advisement. For the reasons explained below, the Court will deny the motion to suppress the firearm, and will grant the motion to suppress Bolivar's confession.
In the course of a search of an apartment shared by Bolivar and Philine Black, the police found the sawed-off shotgun that forms the basis for the charges in this case. Bolivar claims that the search violated his Fourth Amendment rights. The police respond that the gun was discovered during a valid probation search following Black's arrest on a probation violation warrant. The Court agrees that the search was proper and will deny the motion to suppress the weapon.
After finding the shotgun, the police questioned Bolivar and he admitted ownership of the weapon. Bolivar claims that his confession should be suppressed because he was not given the full Miranda warning as required. The Court finds that the Miranda warning was deficient and requires suppression of the confession.
On January 20, 2010, Philine Black was convicted of frequenting a place where controlled substances are used, a misdemeanor under Idaho Code § 37-2732(d). She was placed on probation for a term of six months. As part of her probation, she agreed that she would "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." See Probation Agreement, Dkt. 23-1.
On March 18, 2010, a petition of probation violation was filed alleging that Black violated her probation by (1) admitting to using methamphetamine and marijuana during the month of March; (2) failing to complete eight hours of work detail by February 26, 2010; and (3) missing eleven scheduled drug tests. On March 25, 2010, Twin Falls Police Officers Silvester and Trump assisted Jamie Staples, Black's probation officer, in serving an arrest warrant on Black at the apartment she shared with Bolivar. Both Black and Bolivar signed the lease agreement as tenants. See Lease, Dkt. 18-7.
When the officers arrived at the apartment, Black let them in. See Trump Affidavit, Dkt. 18-4 at 1. Bolivar was not present, as he was incarcerated at the Twin Falls County Jail.
The officers arrested Black on her probation violation warrant, and conducted a search of the apartment. During his testimony at the suppression hearing, Officer Silvester gave varied testimony on whether Probation Officer Staples had told him prior to the search that Bolivar resided in the apartment with Black. The one consistent element of his testimony on this issue was that he remembered little, and that was confirmed by his inconsistent attempts to recall what happened. For example, he testified early-on in cross examination that Staples may have informed him that Bolivar resided in Black's apartment. Then, in response to the Court's questions, he testified that Staples did not so inform him. That about-face prompted defense counsel to ask follow-up questions that elicited his testimony that it was possible Staples told him but not probable. These different accounts confirm Officer Silvester's initial testimony that he did not have -- as he sat there on the stand -- a good recollection of what Staples told him.
His memory was sharper six months earlier during his grand jury testimony. See Exhibit L. There, he testified as follows:
The probation officer asked me if I would help her search Ms. Black's residence. I learned at that time that Mr. Bolivar was Ms. Black's boyfriend and that he had also been living in that apartment.
Id. at p. 3. This testimony suggests that Probation Officer Staples told Officer Silvester -- before the search of Black's apartment began -- that Bolivar resided with Black. However, there is some ambiguity even in that statement. Testifying that he learned "at that time" that Bolivar resided at the apartment, Silvester could be referring to the time when the probation officer asked him to help in the search or it could refer to the time when the search was undertaken. This latter interpretation is consistent with Silvester's recorded statements during the search when he seems to indicate that he is not aware that Black has a roommate. However, for purposes of this motion, the Court will assume that Silvester knew that Bolivar was a resident of the apartment before the search began.
The apartment had a single bedroom, used by Black. In that bedroom, on the night stand beside Black's bed, officers found a marijuana pipe containing burnt residue. Officer Trump tested the residue and found that it tested positive for marijuana. Id. Black admitted that the drug paraphernalia was hers. Id.
Along the left wall of that bedroom were two closet doors about 3 to 4 feet apart. See Exhibit M. In the course of his search in that bedroom, Officer Silvester opened the closet door on the right. The interior closet space was not divided, but there was a distinct break or space between clothing hanging on the right side and clothing hanging on the left side. Officer Silvester recalled seeing men's and women's clothing "not mixed together," but he could not recall on which side of the closet each was kept. On cross examination, he testified that it was possible that the men's clothing was on the right side. Defendant Bolivar testified that his clothes were kept in the right half of the closet while Black's clothes were kept on the left side. The Court finds that Officer Silvester, upon opening the right closet door, encountered only men's clothes.
After opening the right side closet door, Officer Silvester saw a purple backpack hanging from a hanger in the middle of the closet. He testified that he could just reach in and grab it, and did not have to crawl in through the closet to reach it. The backpack was zippered shut with no protrusions.
At this time, Officer Silvester was wearing a microphone and recorder that picked up his conversations during the search. A portion of that recording, beginning with Officer Silvester's discovery of the backpack and his subsequent questioning of Black, is transcribed as follows:
Officer: Philine, what's in this backpack?
Black: (Inaudible) I don't know