               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                      Docket No. 35284

STATE OF IDAHO,                                 )
                                                )     2009 Opinion No. 73
       Plaintiff-Respondent,                    )
                                                )     Filed: November 16, 2009
v.                                              )
                                                )     Stephen W. Kenyon, Clerk
ROBIN J. BELDEN,                                )
                                                )
       Defendant-Appellant.                     )
                                                )

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

       Judgment of conviction for possession of a controlled substance with the intent to
       deliver, vacated.

       Molly J. Huskey, State Appellate Public Defender; Sarah E. Tompkins, Deputy
       Appellate Public Defender, Boise, for appellant. Sarah E. Tompkins argued.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
                  ______________________________________________
MELANSON, Judge
       Robin J. Belden appeals from his judgment of conviction for possession of a controlled
substance with intent to deliver.   Specifically, Belden challenges the district court‟s order
denying his motion to suppress. For the reasons set forth below, we vacate Belden‟s judgment of
conviction.
                                               I.
                                FACTS AND PROCEDURE
       An unnamed confidential informant (CI) began working with police in 2007 in order to
reduce the CI‟s pending drug charge. The CI told officers that she believed she could obtain
marijuana from a man by the first name of Robin who lived in the area and was participating in
the sheriff‟s labor program. Officers provided the CI with photographs of men with the first
name of Robin who had recent criminal charges, and the CI identified the photograph of Robin
Belden as the man from whom marijuana could be purchased.

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       The CI and her car were searched for drugs, and she was wired with a recording device.
The CI was supplied with money for a controlled drug buy with Belden at a residence in a
mobile home park. An officer monitoring the drug transaction visually observed the CI enter a
residence and emerge sometime later with marijuana. The observing officer later told another
officer that the drug sale had taken place inside a mobile home located at space 23. In addition,
the CI provided officers with a description of the layout of the home at space 23. Based on the
information received from the observing officer and the CI, the officer applied for a warrant to
search the home at space 23. The magistrate granted a warrant to search the home at space 23.
       The officer who applied for the warrant and other officers entered the home at space 23.
Upon entering, the officer determined that the layout did not match the CI‟s description of the
home where the drug sale occurred. The officer also noticed that a bill near the phone did not
belong to Belden. The police then immediately left. After leaving space 23, the officer spoke
with the manager of the mobile home park and determined that Belden lived at the home in space
25. The officer then returned to the same magistrate, seeking a warrant to search the home at
space 25. After hearing the officer‟s testimony, the magistrate granted the search warrant for
space 25. A search of the home at space 25 resulted in the discovery of marijuana, packaging
materials, and a scale.
       Belden was charged with possession of a controlled substance with intent to deliver. I.C.
§ 37-2732(a)(1)(B). He filed a motion to suppress the evidence found at his home in space 25,
asserting that the magistrate did not have probable cause to issue the warrant for his residence.
The district court held a hearing and denied Belden‟s motion to suppress. Belden proceeded to
trial and was found guilty by a jury. He appeals, challenging the district court‟s denial of his
motion to suppress.
                                               II.
                                  STANDARD OF REVIEW
       In general, Belden argues that the district court erred when it denied his motion to
suppress the evidence of drug distribution found in his home. More specifically, Belden claims
the district court applied the wrong legal standard, the state intentionally or with reckless
disregard presented false information to the magistrate to obtain a warrant, the warrant lacked
probable cause because there was insufficient indicia of reliability or veracity to support the
claims of the CI, and there was no nexus presented between the drug sale and Belden‟s


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residence. This Court will only address Belden‟s argument that the magistrate‟s finding of
probable cause was not supported by substantial evidence.
       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).
       When probable cause to issue a search warrant is challenged on appeal, the reviewing
court‟s function is to ensure that the magistrate had a substantial basis for concluding that
probable cause existed. Illinois v. Gates, 462 U.S. 213, 239 (1983); State v. Josephson, 123
Idaho 790, 792, 852 P.2d 1387, 1389 (1993); State v. Lang, 105 Idaho 683, 684, 672 P.2d 561,
562 (1983). In this evaluation, great deference is paid to the magistrate‟s determination. Gates,
462 U.S. at 236; State v. Wilson, 130 Idaho 213, 215, 938 P.2d 1251, 1253 (Ct. App. 1997). The
test for reviewing the magistrate‟s action is whether he or she abused his or her discretion in
finding that probable cause existed. State v. Holman, 109 Idaho 382, 387, 707 P.2d 493, 498 (Ct.
App. 1985). When a search is conducted pursuant to a warrant, the burden of proof is on the
defendant to show that the search was invalid. State v. Kelly, 106 Idaho 268, 275, 678 P.2d 60,
67 (Ct. App. 1984).
       The Fourth Amendment to the United States Constitution states:
               The right of the people to be secure in their persons, houses, papers, and
       effects, against unreasonable searches and seizures, shall not be violated, and no
       warrants shall issue, but upon probable cause, supported by oath or affirmation,
       and particularly describing the place to be searched, and the persons or things to
       be seized.

       Article I, Section 17, of the Idaho Constitution is virtually identical to the Fourth
Amendment, except that “oath or affirmation” is termed “affidavit.” In order for a search
warrant to be valid, it must be supported by probable cause to believe that evidence or fruits of a
crime may be found in a particular place. Josephson, 123 Idaho at 792-93, 852 P.2d at 1389-90.
When determining whether probable cause exists:


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       The task of the issuing magistrate is simply to make a practical, commonsense
       decision whether, given all the circumstances set forth in the affidavit before him,
       including the “veracity” and “basis of knowledge” of persons supplying hearsay
       information, there is a fair probability that contraband or evidence of a crime will
       be found in a particular place.

Gates, 462 U.S. at 238; see also Wilson, 130 Idaho at 215, 938 P.2d at 1253.
                                               III.
                                          ANALYSIS
       Belden asserts that the evidence presented to the magistrate was insufficient to
demonstrate a nexus between Belden‟s home at space 25 and illegal activity. The state contends
that probable cause existed to search the home at space 25 because the officer determined that
Belden lived there, a drug transaction occurred nearby, and space 23 had been eliminated. The
state further argues that Belden‟s home was subject to search because of his status as a “drug
dealer.”
       Probable cause to search requires a nexus between criminal activity and the item to be
seized, and a nexus between the item to be seized and the place to be searched. U.S. CONST.
amend. IV; State v. Yager, 139 Idaho 680, 686, 85 P.3d 656, 662 (2004). Most courts require
that a nexus between the items to be seized and the place to be searched must be established by
specific facts, and an officer‟s general conclusions are not enough. Yager, 139 Idaho at 686, 85
P.3d at 662. Although probable cause to believe that a person has committed a crime does not
necessarily give rise to probable cause to search that person‟s home, magistrates are entitled to
draw reasonable inferences about where evidence is likely to be kept, based on the nature of the
evidence and the type of offense. State v. Molina, 125 Idaho 637, 642, 873 P.2d 891, 896 (Ct.
App. 1994).
       To support his argument that there was not a nexus between the drug sale and his
residence, Belden relies on State v. Mische, 448 N.W.2d 415 (N.D. 1989). In that case, Mische
sold drugs to an undercover officer at his parents‟ home. Because Mische‟s parents lived in the
home and that is where the drug transaction took place, the police applied for a warrant to search
that home. When no drugs were discovered at Mische‟s parents‟ home, officers determined
Mische resided at a different location and returned to the magistrate and applied for a warrant to
search Mische‟s home. In upholding the suppression of drugs found at Mische‟s home for lack
of a nexus between the drug transaction and the residence, the North Dakota Supreme Court


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opined that “it seems apparent that after the search of [Mische‟s parents‟] residence did not
reveal the contraband, the officers were on a „fishing expedition‟ prohibited by the Fourth
Amendment.” Id. at 421.
       In this case, an officer testified at the initial warrant hearing that a controlled drug
transaction involving a CI took place at space 23 in a mobile home park. Specifically, the officer
testified that visual surveillance was established and an officer (other than the one who testified
before the magistrate at the search warrant hearings) watched the CI enter space 23. The
surveillance officer later observed the CI emerge from space 23 with marijuana allegedly
purchased from Belden. Based on his experience in law enforcement, the officer testified that
the CI‟s wire recording appeared to be consistent with a drug transaction. However, the officer
stated that the recording was of marginal quality and that he could not identify Belden as the man
speaking. The testifying officer also provided the magistrate with photographs of the location of
the drug buy, illustrating that the residence at space 23 was a blue/gray mobile home.
       After the failed search of the residence at space 23, the officer discovered that Belden
lived at the mobile home in space 25. The officer then applied to the magistrate to change the
original search warrant from space 23 to space 25. At the second warrant hearing, the officer
described space 25 as a tan mobile home with brown trim. That description did not match the
testimony provided by the surveillance officer, nor the photographs presented, at the first
hearing. The magistrate did not ask for, nor did the officer provide, an explanation as to why the
description of the drug buy location varied between the two hearings. A magistrate must
determine if probable cause exists to support the issuance of a warrant, based on the facts set
forth in affidavits and from recorded testimony in support of the application for the warrant.
State v. Hagedorn, 129 Idaho 155, 160, 922 P.2d 1081, 1086 (Ct. App. 1996). Neither the CI nor
the surveillance officer testified at the second hearing. Indeed, the information presented to the
magistrate at the second warrant hearing demonstrated only that Belden lived at space 25. No
additional evidence was introduced to show that a drug transaction occurred at space 25.
       The state contends that there is an exception to the warrant requirement that allows a
finding of probable cause to search a drug dealer‟s home where there is evidence showing that
the homeowner is engaged in regular and large-scale drug trafficking. See, e.g., State v. Nunez,
138 Idaho 636, 641-42, 67 P.3d 831, 836-37 (2003); State v. O’Keefe, 143 Idaho 278, 286-89,
141 P.3d 1147, 1155-58 (Ct. App. 2006). However, because no evidence of regular and large-


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scale drug trafficking by Belden was presented to the magistrate, we need not address that
contention. The state also argues that, because space 23 was eliminated as a possible location for
the drug buy, it was reasonable for the magistrate to infer that the transaction occurred at
Belden‟s home two doors down. This argument is akin to the “fishing expedition” denounced by
the court in Mische. Mere proximity to space 23 was not enough to establish that evidence of a
drug transaction was likely to be found at space 25.
       While our standard of review requires us to afford deference to the magistrate‟s decision,
we conclude that Belden met his burden of proof in demonstrating that the search of space 25
was invalid for lack of a nexus between the place to be searched and the item to be seized. The
evidence presented at the hearing pointed to space 23 as the location of the controlled drug buy.
The evidence presented was considerable and included not only the CI‟s account of the drug buy,
but also an observing officer‟s account and photographs. At the second hearing, space 25 was
identified as Belden‟s home, but no other evidence was presented to the magistrate to
demonstrate a fair probability that contraband would be found there. This decision does not
stand for the proposition that mistaken testimony at a warrant hearing cannot later be corrected.
There may have been a reasonable explanation for the surveillance officer‟s identification of
space 23 as the location of the controlled drug buy. In this case, however, no explanation was
offered and no additional evidence was presented to the magistrate except the fact that Belden
resided at space 25. Therefore, the magistrate did not have a substantial basis for concluding that
there was probable cause to search the residence at space 25.
       Belden raises a number of other issues on appeal. Because the issue of probable cause is
dispositive, we decline to review Belden‟s remaining arguments.
                                               IV.
                                        CONCLUSION
        Based on the totality of the circumstances, we conclude that the magistrate did not have
a substantial basis for determining that probable cause existed to search Belden‟s home. Belden
has carried his burden by demonstrating that the warrant to search the home at space 25 was
issued without sufficient probable cause because no nexus existed between the illegal drug
transaction and the residence. Therefore, the district court erred in denying Belden‟s motion to
suppress. Accordingly, Belden‟s judgment of conviction for possession of a controlled substance
with intent to deliver is vacated.
       Judge GUTIERREZ and Judge GRATTON, CONCUR.

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