Opinion No. 20
from the District Court of the Third Judicial District, State
of Idaho, Canyon County. Hon. D. Duff McKee, District Judge.
Hon. Dan C. Grober, Magistrate.
of the district court, on intermediate appeal from the
magistrate, affirming order granting motion to suppress,
reversed and remanded.
Lawrence G. Wasden, Attorney General; John C. McKinney,
Deputy Attorney General, Boise, for appellant.
A. Harden, Canyon County Public Defender; Barbara Ferre,
Deputy Public Defender, Caldwell, for respondent.
State appeals from the district court's order on
intermediate appeal affirming the magistrate's order
granting a motion to suppress evidence seized during a search
of Bryan A. Santana's residence. For the reasons set
forth below, we reverse the district court's order and
remand to the magistrate for further proceedings.
pled guilty to a charge of driving under the influence and
was placed on probation. At sentencing, the magistrate used a
preprinted form containing optional conditions of probation,
checking off the conditions that applied to Santana. The form
contained an optional condition of a Fourth Amendment waiver,
which was not checked. The magistrate did not orally
pronounce that a Fourth Amendment waiver was a condition of
Santana's probation. The magistrate did require that
Santana comply with all rules and reporting requirements of
the probation department. Santana was also ordered to not
consume alcohol or any other mood-altering substance unless
prescribed by a physician.
six weeks after sentencing, Santana's probation officer
required Santana to sign a probation agreement. The probation
agreement contained a Fourth Amendment waiver, authorizing
any law enforcement officer, peace officer or probation
officer to search Santana and his residence. When Santana
signed the probation agreement, he admitted in writing that
he used alcohol and marijuana three days earlier. Two days
after this admission, Santana tested positive for marijuana.
Twelve days later, Santana's probation officer and a
police officer conducted a warrantless search of
Santana's home. Santana was not present and did not
consent to the search. The search revealed marijuana and drug
paraphernalia. Santana was subsequently charged with
possession of marijuana and drug paraphernalia.
filed a motion to suppress, arguing that the search violated
his Fourth Amendment rights. Specifically, Santana argued
that the search was conducted without his consent and that
the State lacked the requisite reasonable grounds. The
magistrate found that the Fourth Amendment waiver was not a
valid condition of Santana's probation because it was not
announced in the oral pronouncement of his sentence nor set
forth in the probation order. The magistrate commented that
there was disagreement among other judges as to whether the
probation agreement could set a Fourth Amendment waiver as a
condition of probation when it is not contained in the
probation order. The magistrate granted Santana's motion
to suppress and encouraged the State to appeal so other
judges would have guidance for future cases.
State appealed to the district court. On intermediate appeal,
the district court affirmed the magistrate's order
suppressing evidence. The district court concluded that the
probation order, not the probation agreement, set the
substantive terms of probation. The district court
alternatively affirmed on the basis that the State did not