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State of Idaho v. Michael Rowe Russo

March 4, 2013


Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Gregory M. Culet, District Judge.

The opinion of the court was delivered by: Schwartzman, Judge Pro Tem

2013 Opinion No. 15

Stephen W. Kenyon, Clerk

Judgment of conviction for rape, kidnapping, and burglary, affirmed.

A jury found Michael Rowe Russo guilty of one count of rape, one count of first degree kidnapping, and one count of burglary. Russo appeals from the judgment of conviction, arguing the district court erred by failing to suppress a video found on his cell phone because the detectives had no basis to search his person or the phone's contents once the phone was discovered. Russo also argues the district court erred by allowing the State to present Idaho Rule of Evidence 404(b) testimony of his deviant sexual interests. For the reasons set forth below, we affirm.


In the pre-dawn hours of August 27, 2009, a masked intruder entered J.W.'s apartment and violently raped her at knifepoint several times in different ways. During the rape, J.W. heard her assailant open a cell phone and saw a light associated with the taking of a picture or video. The culprit eventually left the apartment and J.W. called the police to report the crime. The detectives who responded to J.W.'s report immediately suspected Russo because he had been previously questioned in connection with several other rapes and a sexual assault in the area. Around 5:45 a.m., roughly an hour after the rape, detectives set up surveillance outside Russo's apartment and began securing a search warrant. A search warrant was issued at 11:10 a.m. that authorized searches of Russo's apartment and motorcycle. While the detectives had Russo's apartment under surveillance, they observed Russo leave his residence three times. On the third occasion, which occurred at 11:50 a.m., the detectives detained Russo and then searched him. That search produced Russo's cell phone. The detective who seized the phone did not view the phone's contents; however, once the phone was turned over to another detective, that detective searched through the phone under the guise of determining ownership. The phone contained a video, which the State believed Russo filmed of his and the victim's genitals during the rape. Soon thereafter, Russo was arrested. The detectives applied for an amended search warrant to further search the phone found on Russo's person. The amended warrant also sought to search the communal laundry room and two other phones found in Russo's apartment. The searches produced pornography depicting simulated rape, latex gloves, and clothing loosely matching J.W.'s report of what her attacker was wearing.*fn1 Also, one of Russo's neighbors informed the detectives that Russo had knocked on her door at around 6:00 a.m. and demanded that she clear out her laundry so he could do his laundry.

A grand jury indicted Russo for rape, kidnapping, and burglary. Prior to trial, Russo moved to suppress the cell phone, and its contents, obtained during the warrantless search of his person. The district court denied the suppression motion. The district court determined the search warrant allowed the detectives to search for a cell phone and the inevitable discovery doctrine resolved any timing issues regarding the subsequent viewing of the phone's contents.

Prior to trial, the State also moved to admit Rule 404(b) evidence, to which Russo objected. The district court excluded most of the evidence, but allowed some evidence regarding Russo's possession of pornographic material depicting simulated rape and his statements to a detective in a prior investigation about his sexual fantasies involving rape. The matter proceeded to a jury trial where the jury convicted Russo as charged. The district court imposed concurrent sentences of a determinate term of life imprisonment for the rape; a unified term of life, with forty years determinate, for the kidnapping; and a determinate term of ten years for the burglary. Russo appeals.


A. Suppression Motion

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 that 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 to the United States Constitution prohibits unreasonable searches and seizures. Warrantless searches are presumed to be unreasonable and, therefore, violative of the Fourth Amendment. State v. Weaver, 127 Idaho 288, 290, 900 P.2d 196, 198 (1995); State v. Newman, 149 Idaho 596, 599, 237 P.3d 1222, 1225 (Ct. App. 2010). The State may overcome this presumption by demonstrating that a warrantless search either fell within a well-recognized exception to the warrant requirement or was otherwise reasonable under the circumstances. Weaver, 127 Idaho at 290, 900 P.2d at 198; Newman, 149 Idaho at 599, 237 P.3d at 1225.

The State claims the search of Russo's person was justified as a Terry frisk. In Terry v. Ohio, 392 U.S. 1 (1968), the United States Supreme Court created a stop-and-frisk exception to the Fourth Amendment warrant requirement. The stop and the frisk constitute two independent actions, each requiring a distinct and separate justification. State v. Babb, 133 Idaho 890, 892, 994 P.2d ...

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