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State of Idaho v. Clifton Turek

March 2, 2011

STATE OF IDAHO, PLAINTIFF-APPELLANT,
v.
CLIFTON TUREK, DEFENDANT-RESPONDENT.



Appeal from the District Court of the First Judicial District, State of Idaho, Boundary County. Hon. Steven C. Verby, District Judge.

The opinion of the court was delivered by: Gutierrez, Judge

2011 Opinion No. 8

Stephen W. Kenyon, Clerk

Order granting motion to suppress evidence, affirmed.

The State of Idaho appeals from the district court's order granting Clifton Turek's motion to suppress evidence. For the reasons set forth below, we affirm.

I.FACTS AND PROCEDURE

On the morning of September 2, 2008, Turek was convicted of driving under the influence of intoxicants and placed on two years of supervised misdemeanor probation. One of the conditions of Turek's probation, to which he agreed, was that he was required to:

[s]ubmit to searches of his/her person, residence, and any property under his/her control, without a warrant pursuant to probation supervision, at the request of the Probation Officer or Law Enforcement.*fn1

He was also instructed to contact the Boundary County Adult Misdemeanor Probation office within two business days.

At approximately 12:21 p.m. on the same day, before Turek had met with the probation department, two probation officers and a sheriff's officer went to Turek's residence to conduct an "initial probation home visit." The officers did not get an answer after knocking on the door, but they could hear music coming from the residence and saw smoke coming from the chimney. The sheriff's officer proceeded to the back of the house and opened an unlocked shed door, looking for Turek. The officer discovered an active marijuana growing operation inside the shed. Turek was not present at any point and had not been advised that a visit and/or search would be taking place that day.

Turek was charged with manufacturing marijuana, Idaho Code § 37-2732(a)(1)(B), and possession of drug paraphernalia, I.C. § 37-2734A. He filed a motion to suppress evidence of the marijuana growing operation as having been found during an unconstitutional search. Following a hearing, the district court granted the motion. The state now appeals.

II. ANALYSIS

The standard of review of a suppression motion is bifurcated. When a decision on a motion to suppress is challenged, we accept the trial court's findings of fact which are supported by substantial evidence, but we freely review the application of constitutional principles to the facts as found. State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct. App. 1996). At a suppression hearing, the power to assess the credibility of witnesses, resolve factual conflicts, weigh evidence, and draw factual inferences is vested in the trial court. State v. Valdez-Molina, 127 Idaho 102, 106, 897 P.2d 993, 997 (1995); State v. Schevers, 132 Idaho 786, 789, 979 P.2d 659, 662 (Ct. App. 1999).

The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The "physical entry of the home is the chief evil against ...


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