               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 43873

STATE OF IDAHO,                                ) 2017 Opinion No. 20
                                               )
       Plaintiff-Appellant,                    ) Filed: March 6, 2017
                                               )
v.                                             ) Stephen W. Kenyon, Clerk
                                               )
BRYAN A. SANTANA,                              )
                                               )
       Defendant-Respondent.                   )
                                               )

       Appeal 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.

       Order of the district court, on intermediate appeal from the magistrate, affirming
       order granting motion to suppress, reversed and remanded.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for appellant.

       Tera A. Harden, Canyon County Public Defender; Barbara Ferre, Deputy Public
       Defender, Caldwell, for respondent.
                 ________________________________________________

MELANSON, Judge
       The 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.
                                               I.
                                 FACTS AND PROCEDURE
       Santana 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



                                                1
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.
       Almost 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 possession of marijuana and drug paraphernalia.
       Santana 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.
       The 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 have the requisite reasonable
grounds to conduct a search of Santana’s residence. The State again appeals.




                                                2
                                                II.
                                   STANDARD OF REVIEW
       For an appeal from the district court, sitting in its appellate capacity over a case from the
magistrate division, this Court’s standard of review is the same as expressed by the Idaho
Supreme Court. The Supreme Court reviews the magistrate record to determine whether there is
substantial and competent evidence to support the magistrate’s findings of fact and whether the
magistrate’s conclusions of law follow from those findings. State v. Korn, 148 Idaho 413, 415,
224 P.3d 480, 482 (2009). If those findings are so supported and the conclusions follow
therefrom, and if the district court affirmed the magistrate’s decision, we affirm the district
court’s decision as a matter of procedure. Id. Thus, the appellate courts do not review the
decision of the magistrate. State v. Trusdall, 155 Idaho 965, 968, 318 P.3d 955, 958 (Ct. App.
2014). Rather, we are procedurally bound to affirm or reverse the decision of the district court.
Id.
       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).
                                                III.
                                           ANALYSIS
A.     Fourth Amendment Waiver as Condition of Probation
       On appeal, the State argues the probation agreement provided for a Fourth Amendment
waiver as a condition of Santana’s probation. Specifically, the State asserts that the probation
order contemplated a Fourth Amendment waiver by requiring Santana to cooperate with the rules
and terms of the probation department. Idaho Code Section 19-2601(2) vests the sentencing
court with the authority to set the substantive terms and conditions of probation. The statute
does not mention the probation department, and the Idaho Supreme Court has stated that the


                                                 3
probation order, not the probation agreement, sets the conditions of probation. Franklin v. State,
87 Idaho 291, 296, 392 P.2d 552, 554 (1964).
       However, the failure to include the conditions of probation in the probation order is not
dispositive in every case. See Ex Parte Medley, 73 Idaho 474, 480-81, 253 P.2d 794, 797-98
(1953). In Medley, the Court determined that the failure to include the conditions of probation in
the probation order was not fatal because the sentencing court orally advised the probationer of
the condition. Id. Moreover, the probationer acknowledged that he was aware of the condition
before accepting probation. The Court reasoned that the probationer had notice of the condition
and knew what was expected of him. Id. In another case, the order of probation simply referred
to the terms and conditions set forth in the probation agreement, but the order itself did not
contain the conditions of probation. State v. Mummert, 98 Idaho 452, 454, 566 P.2d 1110, 1112
(1977). In Mummert, the Idaho Supreme Court allowed the probation agreement to set forth the
substantive conditions of probation because the agreement was provided to the defendant in
court, at the time of the order, and in the presence of the judge. Thus, the validity of a Fourth
Amendment waiver as a condition of Santana’s probation hinges on whether he received notice
of the condition at the time of sentencing.
       A defendant has the right to decline probation when he or she deems its conditions too
onerous and may, instead, serve the suspended portion of the sentence. State v. McCool, 139
Idaho 804, 807, 87 P.3d 291, 294 (2004); State v. Gawron, 112 Idaho 841, 843, 736 P.2d 1295,
1297 (1987). It is essential that defendants receive notice of the substantive conditions of their
probations at sentencing for two reasons. First, notice apprises defendants of what conduct the
court expects of them. See Medley, 73 Idaho at 480-81, 253 P.2d at 797-98. Second, notice
affords defendants the opportunity to consider the terms and determine whether to accept
probation. See McCool, 139 Idaho at 807, 87 P.3d at 294.
       In the instant case, Santana did not receive notice at sentencing that a Fourth Amendment
waiver would be a condition of his probation. In fact, the sentencing court specifically omitted
the checkbox for a Fourth Amendment waiver on the probation order. The court likewise did not
mention a Fourth Amendment waiver as a condition of probation during oral pronouncement of
Santana’s sentence. Santana was not apprised that he would be consenting to searches of his
residence.   Likewise, Santana was not afforded the opportunity to consider the Fourth


                                                4
Amendment waiver before deciding to accept probation. Thus, the Fourth Amendment waiver
was not a condition of Santana’s probation.
       Probation is an agreement between the court and the probationer. The probation order
sets the substantive conditions of the probation and represents the agreement between the
probationer and the court.    The probation agreement is in the nature of an administrative
document that procedurally sets forth how the substantive conditions will be enforced. For
example, the probation order may require a probationer to submit to drug tests as a condition of
probation. The probation agreement could then set forth the time and place the drug tests would
be conducted; however, it could not expand the condition to include a search of the probationer’s
vehicle at the time of the drug test. Our determination does not mean that a probation agreement
may never set the conditions of probation. 1 Rather, we hold that only the sentencing court may
set the substantive conditions of probation. Thus, because Santana’s probation agreement was
prepared by his probation officer and signed nearly six weeks after the sentencing court ordered
Santana’s probation, the Fourth Amendment waiver in the probation agreement was not a valid
condition of Santana’s probation.
B.     Probation Agreement as Basis for Consent to Search
       The State argues that, even if the probation agreement did not set a substantive condition
of probation, Santana consented to the search of his residence when he signed the probation
agreement containing the Fourth Amendment waiver. Although a warrantless entry or search of
a residence is generally illegal and violative of the Fourth Amendment, such an entry or search
may be rendered reasonable by an individual’s consent. State v. Johnson, 110 Idaho 516, 522,
716 P.2d 1288, 1294 (1986); State v. Abeyta, 131 Idaho 704, 707, 963 P.2d 387, 390 (Ct. App.
1998). In such instances, the State has the burden of demonstrating consent by a preponderance
of the evidence. State v. Kilby, 130 Idaho 747, 749, 947 P.2d 420, 422 (Ct. App. 1997). The
State must show that consent was not the result of duress or coercion, either direct or implied.
Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973); State v. Whiteley, 124 Idaho 261, 264, 858


1
       In Mummert for example, the probation agreement set the conditions of probation where
it was presented to the probationer at the same time as the probation order stating that all
conditions of probation would be set forth in the probation agreement. Mummert, 98 Idaho at
454, 466 P.2d at 1112.

                                               5
P.2d 800, 803 (Ct. App. 1993). The voluntariness of an individual’s consent is evaluated in light
of all the circumstances. Whiteley, 124 Idaho at 264, 858 P.2d at 803. Consent to search may be
in the form of words, gestures, or conduct. State v. Knapp, 120 Idaho 343, 348, 815 P.2d 1083,
1088 (Ct. App. 1991). Whether consent was granted voluntarily, or was a product of coercion, is
a question of fact to be determined by all the surrounding circumstances. State v. Hansen, 138
Idaho 791, 796, 69 P.3d 1052, 1057 (2003).
       In the instant case, Santana reported to the probation department pursuant to a condition
of probation as set forth in the probation order. Santana’s probation officer provided Santana the
probation agreement and required him to sign it. When Santana was told to sign the probation
agreement, he did not have an attorney present and was not advised that he had the right to have
an attorney present.     This distinguishes Santana’s circumstances because, generally, the
probation agreement is provided to a probationer with the probation order at sentencing where an
attorney is present.   In light of these facts, Santana did not choose to waive his Fourth
Amendment rights. Rather, he signed the probation agreement because he believed doing so was
a condition of his probation. It is unlikely Santana would waive his Fourth Amendment rights
unless he believed he was required to under the terms of his probation. Mere acquiescence to a
claim of authority does not amount to consent. State v. Huskey, 106 Idaho 91, 94, 675 P.2d 351,
354 (Ct. App. 1984). Thus, insofar as Santana consented to the search of his residence by
signing the probation agreement, his consent was the product of coercion. Santana did not
consent to the search of his residence when he signed the probation agreement containing the
Fourth Amendment waiver. Accordingly, the district court did not err in granting Santana’s
motion to suppress in this regard.
C.     Warrantless Search
       The State argues that, even if Santana did not waive his Fourth Amendment rights, there
was reasonable suspicion that evidence of a probation violation would be found in his residence.
A condition of Santana’s probation was that he not consume alcohol or any other mood-altering
substance unless prescribed by a physician. Almost six weeks after that condition was set forth
in the probation order, Santana admitted in writing that he used alcohol and marijuana three days
earlier. Two days later, Santana tested positive for marijuana use. Twelve days later, based on
this information, the probation department initiated a search of Santana’s residence.         The


                                                6
magistrate concluded this information was insufficient to support reasonable suspicion.
Specifically, the magistrate determined that the length of time after Santana’s admission and the
absence of facts indicating drugs would be in his residence rendered the information too remote
to justify a search.
        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). 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. Id. Even in the absence of a warrantless search condition, a parole or
probation officer may conduct a search of a parolee or probationer and his or her residence if the
officer has reasonable grounds to believe that the parolee or probationer has violated a parole or
probation condition and the search is reasonably related to the disclosure or confirmation of that
violation. See State v. Klingler, 143 Idaho 494, 497-98, 148 P.3d 1240, 1243-44 (2006).
        In Klingler, the Idaho Supreme Court upheld the warrantless search of an unsupervised
probationer’s residence based upon an unsubstantiated tip from police that Klingler may be
dealing drugs, coupled with the probationer’s drug history which indicated a heightened need for
supervision. Id. at 498, 148 P.3d at 1244. Thus, the mere likelihood of facts justifying the
search can be sufficient to constitute reasonable grounds. Id.; see also State v. Anderson, 140
Idaho 484, 487-88, 95 P.3d 635, 638-39 (2004) (unconfirmed tips from a neighbor regarding
detected odor of suspected methamphetamine lab, coupled with prior drug history and other
rumors, sufficient to establish reasonable grounds or reasonable suspicion for warrantless search
as a condition of bail pending appeal).
        There is no magic number of days before information becomes stale. State v. Gomez, 101
Idaho 802, 808, 623 P.2d 110, 116 (1980). Rather, the question of whether information is fresh
or stale must be analyzed in light of the circumstances. Id. An important factor in the staleness
analysis is the nature of the criminal conduct. Id. Additionally, if the crime suspected of is of a
protracted or continuous nature, a time delay in the sequence of events is of less significance.
State v. Alexander, 138 Idaho 18, 24, 56 P.3d 780, 786 (Ct. App. 2002).




                                                7
       In this case, Santana admitted to violating a condition of his probation by ongoing use of
alcohol and marijuana. Because the underlying charge involved substance abuse and Santana
admitted to ongoing substance abuse, these probation violations can be characterized as a crime
of protracted nature.    See id. (holding that certain nefarious activities, such as narcotics
trafficking, are continuous in nature and, as a result, are less likely to become stale even over an
extended period of time.) Additionally, the search occurred only twelve days after a drug test
confirmed Santana’s marijuana use. Based on these facts, the information was not too stale to
establish reasonable grounds. Thus, the probation officer had the requisite reasonable grounds to
search Santana’s residence even without a valid Fourth Amendment waiver. Accordingly, the
magistrate erred in concluding that the probation officer lacked the requisite reasonable suspicion
to search Santana’s residence. Because there was reasonable suspicion to search Santana’s
residence, the district court erred in suppressing the evidence.
                                                IV.
                                         CONCLUSION
       A Fourth Amendment waiver was not a condition of Santana’s probation, and Santana
did not consent to a search of his residence by signing the probation agreement. However,
Santana’s probation officer had reasonable grounds to suspect that evidence of a probation
violation would be in Santana’s residence. Thus, the search of Santana’s residence did not
violate the Fourth Amendment, and the district court erred in affirming the magistrate’s order
suppressing evidence.     Accordingly, the district court’s order, affirming the magistrate on
intermediate appeal, is reversed and the case is remanded to the magistrate for further
proceedings.
       Judge GUTIERREZ and Judge HUSKEY, CONCUR.




                                                 8
