                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                                Docket No. 45632
  STATE OF IDAHO,                                    )
                                                     )
           Plaintiff-Respondent,                     )          Boise, December 2018 Term
                                                     )
  v.
                                                     )          Opinion Filed: December 19, 2018
  JOHN MULLINS,                                      )
                                                     )          Karel A. Lehrman, Clerk
           Defendant-Appellant.                      )
                                                     )


       Appeal from the District Court of the Sixth Judicial District, State of Idaho,
       Bannock County. Hon. Robert C. Naftz, District Judge.

       District court denial of motion to suppress, affirmed.

       Eric D. Frederickson, State Appellate Public Defender, Boise, for appellant.
       Kimberly A. Coster, Deputy State Appellate Public Defender argued.

       Hon. Lawrence G. Wasden, Idaho Attorney General, Boise for respondent. Jeffery D.
       Nye, Deputy Attorney General argued.
                               _____________________________

BURDICK, Chief Justice.
       In an appeal arising out of Bannock County, John Mullins challenges the district court’s
denial of his motion to suppress. Mullins and his wife, Tera, were arrested at the federal
courthouse in Pocatello after security officers found a vial of methamphetamine in Tera’s
backpack. The Pocatello police seized the methamphetamine, 65 plastic baggies, and $403 from
the backpack. Prior to taking Mullins and Tera to jail, the couple’s personal effects, including the
backpack, were placed into the Mullinses’ pickup that was in the parking lot pursuant to Tera’s
instruction. A K-9 officer later ran his drug dog around the pickup, and the dog positively alerted
to the presence of drugs in the pickup. The police obtained a search warrant for the pickup based
on the dog sniff alert as well as the other evidence seized from the backpack. During the search,
the police found methamphetamine in the pickup. Mullins moved to suppress the drug evidence
found in the pickup claiming the warrant lacked probable cause because the police placed the
backpack, which had previously contained methamphetamine, into the pickup. Thus, Mullins


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contended, the dog would have alerted to the residual odor in the backpack rendering its sniff
alert unreliable. The district court denied the motion, stating Mullins had not shown the police
deliberately or recklessly omitted information from the affidavit to mislead the magistrate judge,
and, that even without the dog sniff, there was sufficient evidence to issue the warrant. Mullins
timely appeals, and we affirm.
                   I.    FACTUAL AND PROCEDURAL BACKGROUND
       On March 1, 2016, Mullins and his wife Tera arrived at the federal courthouse in
Pocatello, Idaho. When Mullins entered the courthouse he was carrying a backpack and as he
approached security he handed it to Tera who placed it into a plastic bin that goes through a
security scanner. One item in the backpack, later determined to be a stapler, did not clear the
security scan. The security officer operating the scanner asked Tera for permission to look in the
backpack and Tera granted him permission. While searching the backpack, the security officer
found a small, brownish vial containing a white powdery substance inside as well as 65 small,
plastic baggies. The backpack also contained $403 in cash. The security officer radioed for a
U.S. Marshall and the U.S. Marshall called the Pocatello police.
       Sergeant Diekemper and Detective Edwards responded. Sergeant Diekemper spoke with
Mullins and Tera and asked them about the vial that was found in the backpack. Tera stated the
backpack was hers, though both Tera and Mullins confirmed they possessed the backpack
coming into the courthouse. However, both denied ownership of the vial. The substance in the
vial tested presumptively positive for methamphetamine. Subsequently, both Mullins and Tera
were placed under arrest for possession of methamphetamine. The police kept the
methamphetamine, baggies, and money in their possession, but asked Tera what she wanted to
do with the backpack and the other personal effects that she could not take to jail. Tera asked that
the backpack and the other personal effects be put into the Mullinses’ pickup, which was in the
courthouse parking lot. The police then accompanied Tera to the pickup and put the backpack in
the pickup at Tera’s direction, and locked the vehicle.
       Based on the baggies and cash that were found with the methamphetamine in the
backpack, Sergeant Diekemper and Detective Edwards thought that there may be evidence of
drug distribution in the Mullinses’ pickup. Sergeant Diekemper contacted Officer Peterson, who
had a drug detection dog, and asked him to conduct an exterior sniff of the pickup. Officer
Peterson’s dog positively alerted during the sniff, indicating there was a possibility of drugs in


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the pickup. Following the dog sniff, Detective Edwards remained with the pickup while Sergeant
Diekemper obtained a search warrant for the pickup. Sergeant Diekemper and Detective
Edwards then searched the pickup and found vials of methamphetamine, drug paraphernalia, and
$1,000 in cash.
        Based on the search of the pickup, Mullins was charged with possession of a controlled
substance with intent to deliver. Mullins moved to suppress 1 the evidence found in the pickup,
challenging the evidence upon which the warrant was based. Mullins contended that the police
had not described the “personal effects” put into the pickup prior to the dog sniff, so the
magistrate judge who issued the warrant could not have known the backpack that had previously
contained methamphetamine was put back into the pickup before the sniff. Mullins also argued
the dog sniff did not provide probable cause because the police placed the backpack into the
pickup, knowing it had methamphetamine residue in it, and the dog would alert to it. When
asked at the suppression hearing if the drug dog could detect residual odors Officer Peterson
stated, “[h]e can. It’s not even a question. He can.” Based on this, Mullins contended there would
not have been probable cause for the warrant if either the “personal effects” had been described
to include the backpack, or if the sniff was excluded from the probable cause determination.
        The district court denied Mullins’s motion to suppress stating there was no evidence the
police had intentionally or recklessly omitted information from the warrant in an attempt to
mislead the magistrate judge, nor was there any evidence the police placed the backpack in the
pickup to make sure the dog would alert on it. The court noted it was Tera who asked that the
backpack be placed in the pickup. The court also concluded that even excluding the information
Mullins was challenging, there was still sufficient information for the magistrate judge to
conclude there was probable cause to issue the warrant. Mullins subsequently entered a
conditional plea of guilty to an amended charge of possession of a controlled substance, retaining
his right to appeal the denial of his motion to suppress. The district court withheld judgment and
sentenced Mullins to four years of probation. Mullins timely appeals the district court’s denial of
his motion to suppress.
                                        II.    ISSUE ON APPEAL
        Whether the district court erred when it denied Mullins’s motion to suppress.

1
 There was some question at the hearing if Mullins was actually moving to suppress, or was in actuality moving to
dismiss. In deciding the motion, the judge stated there was no “basis for suppressing the evidence” and he had to
“deny the motion to suppress and/or dismiss.” On appeal, both parties are treating it as a motion to suppress.

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                               III.   STANDARD OF REVIEW
       “The standard of review of a suppression motion is bifurcated.” State v. Watts, 142 Idaho
230, 232, 127 P.3d 133, 135 (2005). “When a decision on a motion to suppress is challenged, the
Court accepts the trial court’s findings of fact that are supported by substantial evidence, but
freely reviews the application of constitutional principles to the facts as found.” State v.
McNeely, 162 Idaho 413, 414–15, 398 P.3d 146, 147–48 (2017) (quoting State v. Page, 140
Idaho 841, 843, 103 P.3d 454, 456 (2004)).
       [T]he defendant ha[s] the burden of convincing the trial court that the information
       challenged in the affidavit was false and that the officers supplied the information
       either knowingly and intentionally or with reckless disregard for the truth. Unless
       the trial court committed clear error in reaching its findings as to these issues, we
       will affirm the motion to suppress.
State v. Peightal, 122 Idaho 5, 7, 830 P.2d 516, 518 (1992).
                                       IV.    ANALYSIS
       For a search warrant to be valid, it must be based on probable cause. State v. Nunez, 138
Idaho 636, 642, 67 P.3d 831, 837 (2003). In Franks v. Delaware, the United States Supreme
Court held that a defendant can void a search warrant and suppress the fruits of the search when
the affidavit used to procure the warrant (1) contains a knowingly and intentional or recklessly
false statement, (2) that is material to the probable cause determination. 438 U.S. 154, 155–56
(1978). This Court has applied Franks and said,
       [t]he Court in Franks held that if the defendant in an evidentiary hearing
       establishes by a preponderance of the evidence that the false statement was
       included in the warrant affidavit by the affiant knowingly and intentionally, or
       with reckless disregard for the truth, and with false information discarded, the
       remaining content of the affidavit is insufficient to establish probable cause, then
       “the search warrant must be voided and the fruits of the search excluded to the
       same extent as if probable cause was lacking on the face of the affidavit.”
State v. Lindner, 100 Idaho 37, 41, 592 P.2d 852, 856 (1979) (quoting Franks, 438 U.S. at 156).
However, this Court “has made clear that a warrant is valid even if probable cause is based on
false evidence so long as the evidence is not presented intentionally or with reckless disregard
for the truth.” State v. Fisher, 140 Idaho 365, 370, 93 P.3d 696, 701 (2004).
       In State v. Guzman, this Court extended the rule in Franks to also apply to deliberate or
reckless omissions of information in affidavits. 122 Idaho 981, 983–84, 842 P.2d 660, 662–63
(1992). We stated, “[w]e can conceive of no cogent reason why Franks should not be extended
to challenges to affidavits based on deliberate or reckless omissions of facts which might cause a

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seemingly straightforward affidavit to mislead the magistrate.” Id. at 983, 842 P.2d at 662
(quoting State v. Beaty, 118 Idaho 20, 24, 794 P.2d 290, 294 (Ct. App. 1990)). “The failure to
inform a magistrate of a known exculpatory fact may be misleading, if not more misleading, than
the furnishing of false information in applying for a search warrant.” Id. at 983–84, 842 P.2d at
662–63 (quoting Beaty, 118 Idaho at 24, 794 P.2d at 294).
          The first requirement in Franks considers whether the defendant has proved the affidavit
underlying the warrant contains a deliberate or recklessly false statement or omission. Franks,
438 U.S. at 156; see also Guzman, 122 Idaho at 983–84, 842 P.2d at 662–63. Mullins argues
there was a deliberate or reckless omission from the affidavit underlying the warrant because the
affidavit did not state that the backpack had been placed into the pickup prior to the dog sniff;
rather, it only stated “personal effects” were placed into the pickup. Mullins argues “the affidavit
fails to inform the magistrate that the drug dog . . . was, without question, able to detect the
residual odor” from the backpack. Thus, Mullins contends, the drug dog alert was meaningless
and misleading. This argument is unavailing. At the evidentiary hearing on the suppression
motion, the district court asked Mullins’s counsel, “[d]o you believe that the detectives placed
that backpack back in there and purposely did not disclose that to the magistrate when they
presented the affidavit of probable cause?” Mullins’s counsel responded, “I can’t say that . . . I
mean, I don’t know. It could have been just, you know, just—not negligence but just, you know,
them thinking personal effects and not thinking that they needed to specify.” Thus, Mullins
conceded that the police stating “personal effects” in the affidavit, rather than listing each item
including the backpack, did not even amount to negligence.
          This Court has stated that a negligent misrepresentation is not sufficient to satisfy the rule
articulated in Franks. Fisher, 140 Idaho at 370, 93 P.3d at 701. “[N]egligent or innocent
misrepresentations, even if necessary to establish probable cause, will not invalidate a warrant.”
Lindner, 100 Idaho at 41, 592 P.2d at 856. Here, Mullins conceded that the police were not even
negligent, let alone intentional or reckless. Moreover, there is no evidence in the record that
Sergeant Diekemper, the officer who applied for the search warrant, knew of the drug dog’s
ability to detect residual odors from the backpack in the Mullinses’ pickup. The district court
stated:
          I didn’t hear any testimony from either of the detectives with regard to that—that
          they did this on purpose. It was actually T[e]ra who asked that her property be
          placed back into the truck. She was given the opportunity to say, don’t put it back

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       in the truck. . . . There was no testimony that suggested that the officers or the
       detectives did this on purpose to make sure that the drug dog would hit on the
       vehicle so that they could execute the search warrant.
Thus, the district court found that Mullins “failed to prove by a preponderance of evidence that
the information included and omitted from the affidavit was done intentionally or recklessly in
order to mislead the magistrate in his determination of probable cause to issue the search
warrant.”
       The district court’s finding is supported by substantial evidence. See Weinstein v.
Prudential Prop. & Cas. Ins. Co., 149 Idaho 299, 315, 233 P.3d 1221, 1237 (2010) (“Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”) (citation omitted). Here, the evidence supports the district court’s determination
that the police did not intentionally, or in reckless disregard of the truth, omit from the affidavit
that the backpack was in the pickup and that the drug dog could detect residual odor. Put simply,
Mullins has shown no evidence of a deliberate or reckless inclusion or omission in the affidavit
on the part of the police that was intended to mislead the magistrate judge. Moreover, there is no
evidence in the record that Sergeant Diekemper knew of the drug dog’s ability to detect residual
odors—thus he would not be able to intentionally or recklessly omit something he did not know.
Accordingly, we affirm the district court’s denial of Mullins’s motion to suppress.
       Mullins has failed to satisfy the first requirement in Franks—that the affidavit contained
a statement that was deliberately false or in reckless disregard of the truth. Franks, 438 U.S. at
156. Thus, this Court need not reach the second requirement in Franks that considers whether the
false statement was material. Lindner, 100 Idaho at 41, 592 P.2d at 856; Franks, 438 U.S. at 156.
Accordingly, we affirm the district court’s denial of Mullins’s motion to suppress.
                                       V.    CONCLUSION
       We affirm the district court’s denial of Mullins’s motion to suppress.
       Justices HORTON, BRODY, BEVAN and STEGNER, CONCUR.




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