                IN THE SUPREME COURT OF THE STATE OF IDAHO

                                       Docket No. 45282

STATE OF IDAHO,                         )                    Boise, December 2018 Term
                                        )
        Plaintiff-Respondent,           )                    Filed: June 10, 2019
                                        )
v.                                      )                    Karel A. Lehrman, Clerk
                                        )
MARK TRAVIS GARNETT,                    )                    SUBSTITUTE OPINION. THE
                                        )                    OPINION PREVIOUSLY
        Defendant-Appellant.            )                    RELEASED FEBRUARY 20,
                                        )                    2019 IS HEREBY
_______________________________________ )                    WITHDRAWN.


       Appeal from the District Court of the First Judicial District of the State of Idaho,
       Kootenai County. John T. Mitchell, District Judge.

       The judgment of conviction is affirmed.

       Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant.
       Jason C. Pintler argued.

       Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Mark W.
       Olson argued.
                               _____________________

BRODY, Justice.
       This appeal arises from the district court’s denial of a motion to suppress evidence found
in a backpack during a probation search of a residence. Mark Garnett was an overnight guest in
the residence of an absconded felony probationer. Probation officers searched the residence,
including an attached storage room, and found Garnett’s locked backpack containing a stolen
firearm. Garnett, a felon, was arrested and charged with unlawful possession of a firearm. He
sought to suppress the evidence found in the backpack, but the district court denied his motion
because it determined that while he had standing to challenge the search of the backpack, the
officer had reasonable suspicion that the absconded probationer owned, possessed, or controlled
the backpack. Following a jury trial, Garnett was found guilty. Garnett appealed his conviction,
arguing that the district court should have applied a reasonable belief standard and that had it


                                                 1
done so the motion to suppress would have been granted. We affirm the district court’s decision
and the judgment of conviction.
                 I.     FACTUAL AND PROCEDURAL BACKGROUND
       Tamara Brunko, a woman on felony probation, drew the attention of her probation officer
when she became non-compliant with the terms and conditions of her release on probation.
Because one of the terms of her probation was consenting to searches of her residence, Brunko’s
probation officer, Jason Haines, decided to conduct a welfare check and perform a search of her
residence.
       Bringing along other officers, Haines arrived at Brunko’s single-wide trailer where she
reportedly resided. Andrew Soy, Brunko’s boyfriend who also resided at the residence, answered
the door of the trailer. When asked, Soy told Haines that Brunko was still living at the residence
but that he had not recently seen her. Soy stepped aside and allowed the officers into the
residence. Another individual by the name of Mark Garnett was found lying on a sofa in the
living room. Garnett was known by one of the probation officers who had supervised him during
a recent parole stint; however, Garnett was not on probation or parole at the time of the search.
Garnett and Soy both silently waited on the couch while the officers searched the residence for
any signs of Brunko.
       After failing to find Brunko in the residence, Haines began to search for evidence of
Brunko’s parole violations that could include drug-related items or a urinalysis-tampering kit. He
made his way to a ramshackle storage room built onto the side of the trailer. The make-shift
storage room featured an assortment of miscellaneous items in bags and in plastic drawers that
appeared to be used by various members of the residence. Haines moved a large empty box off a
shelf and found a hidden camouflage backpack with a lock on it. Believing that the backpack
belonged to Brunko—probationers sometimes conceal contraband by using locks and safes in an
attempt to dissuade officers from searching—Haines bypassed the lock and found a Glock 19
pistol, two magazines, and ammunition. Mail addressed to Garnett was also found inside of the
backpack.
       It was soon determined that the pistol was stolen and Garnett was arrested. He was
charged with unlawful possession of a firearm and grand theft. Before his trial, Garnett filed a
motion to suppress the evidence found in his backpack, arguing that the search violated his
reasonable expectation of privacy. The district court held a motion hearing and ultimately denied

                                                2
Garnett’s motion to suppress evidence, finding that while Garnett had a legitimate expectation of
privacy in his backpack as an overnight guest, Haines had the requisite reasonable suspicion to
believe that the backpack was owned, possessed, or controlled by Brunko. The basis for this
decision rested upon the officer’s reasonable grounds to believe that Brunko had violated the
terms of her probation by “walking away from treatment at the [drug rehabilitation] Center,
being dishonest with her probation officer of her failure to complete treatment, missing drug
tests, submitting an altered [urine] sample, testing positive for heroin, and her child not showing
up for school.” Additionally, the locked backpack, lacking any indicia of ownership and found
concealed in a shared storage room, could have contained evidence of Brunko’s violations.
       Thereafter, a jury found Garnett guilty of unlawful possession of a firearm and he was
sentenced to a fixed term of five years of incarceration. Garnett now appeals, arguing that the
district court employed the wrong standard in denying his motion to suppress evidence.
                                  II.     ISSUE ON APPEAL
   A. Whether the district court properly denied Defendant’s motion to suppress evidence using
       a reasonable suspicion standard.
                               III.     STANDARD OF REVIEW
       When this Court reviews a district court’s grant or denial of a motion to suppress
evidence, the standard of review is bifurcated: the Court accepts the trial court’s findings of fact
unless clearly erroneous, but freely reviews the application of constitutional law to the facts.
State v. Cohagan, 162 Idaho 717, 720, 404 P.3d 659, 662 (2017).
                                        IV.    ANALYSIS
       This case centers upon a single question—by what standard? By what standard ought the
district court assess whether an officer performing a search of a probationer’s belongings had the
requisite assurance that an item was owned, possessed, or controlled by the probationer in
determining the proper scope of a search? Garnett does not challenge the officers’ authority to
search the residence, but challenges the permissible scope of the officers’ search into what was
ultimately determined to be a backpack that belonged to Garnett, an overnight guest. The district
court in this case held that, based on the totality of the circumstances, an officer must have had a
reasonable suspicion that a probationer had control of an item. However, Garnett contends that
the Supreme Court of the United States requires use of a reasonable belief standard instead, and
therefore the district court erred in denying his motion to suppress evidence. Appellant further

                                                 3
argues that the State failed to produce enough evidence for the district court to hold that the
officer possessed a reasonable belief that Brunko possessed common authority over the
backpack.
       Before probing into the case law at issue in this case, this Court must determine whether
Garnett has preserved this matter for appeal. The State argues that while Garnett argued that
evidence should be suppressed, he did not argue the specific legal theory that a reasonable belief
standard should be used rather than a reasonable suspicion standard. The State’s position is
untenable. This Court has held that fresh substantive issues may not be raised for the first time on
appeal, but that specific legal arguments in support of a position may evolve. Ada Cnty. Highway
Dist. v. Brooke View, Inc., 162 Idaho 138, 142 n.2, 395 P.3d 357, 361 n.2 (2017). Since this case
focuses only on the appropriate legal standard to be used in deciding whether a probationer has
ownership, possession, or control of an item, and not on a new substantive issue, the issue is
properly before the Court.
       Unreasonable searches and seizures are prohibited by the Fourth Amendment of the
United States Constitution. U.S. CONST. amend. IV. Warrantless searches are per se unreasonable
unless conducted under a recognized exception to the warrant requirement. State v. Barker, 136
Idaho 728, 730, 40 P.3d 86, 88 (2002). Consenting to a search is a well-recognized exception to
the warrant requirement, and Idaho law has made it clear that a probationer can consent to a
search of all their property as a condition of probation. State v. Hansen, 151 Idaho 342, 345, 256
P.3d 750, 753 (2011). A probationer’s consent to search as a condition of probation constitutes a
waiver of Fourth Amendment rights. Id. Yet, “[t]he burden is on the State to show that the
consent exception applies.” Id. at 346, 256 P.3d at 754.
       The person consenting to a search must have either actual authority to consent to a
search, or authority that is reasonably apparent. Id. Actual authority to consent to a home search
rests upon “mutual use of the property by persons generally having joint access or control for
most purposes.” Id. (quoting United States v. Matlock, 415 U.S. 164, 171 n.7 (1974)).
“A warrantless search can still be upheld if the person consenting does not actually have
authority as long as the police officer reasonably believes that the person giving consent has the
authority to do so.” Id.
       This case does not involve a dispute concerning the initial entrance of a home prior to a
search, but rather involves a dispute regarding the correct legal standard by which to determine

                                                 4
the permissible bounds of a search of a probationer’s belongings that has already begun. The
district court correctly relied upon this Court’s opinion in State v. Barker, 136 Idaho 728, 40 P.3d
86 (2002), in determining that the officer needed to possess “reasonable suspicion” that Brunko
owned or controlled or possessed the camouflage backpack in order to search it.
       Barker’s holding concerned the proper legal standard to be used when determining the
objective reasonableness of the search of an item during a search of a probationer’s belongings;
the trial court must determine “whether, under the totality of the circumstances, the officers had a
reasonable suspicion that the item was owned, possessed, or controlled by the occupant who
consented to the search.” Barker, 136 Idaho at 731–32, 40 P.3d at 89–90. The facts in Barker
involved a search of a fanny pack found in a shared master bedroom. Id. Tate, a parolee and
cohabitant of the bedroom, had consented to a search of his residence as a condition of parole. Id.
at 730, 40 P.3d at 88. The black fanny pack was found on a counter in a shared bedroom, and a
police K-9 alerted to the possible presence of drugs. Id. Even though Tate’s cohabitant, who was
not on parole, said that the pack was hers, police nevertheless searched it and found drugs. Id.
This Court held that the search was valid because the officers had “reasonable suspicion” that,
even though the female cohabitant claimed sole ownership, Tate had joint possession or control
over the pack:
       We hold that under the totality of the circumstances the officer had reasonable
       suspicion to believe that Tate had common authority over the fanny pack. Tate
       was on parole for the charge of possession of a controlled substance. Prior to
       absconding from supervision, he had submitted a urine sample to his parole
       officer that tested positive for a controlled substance. His parole officer could
       certainly reasonably believe that Tate had resumed using controlled substances.
       The fanny pack was located in the bedroom which was occupied jointly by Tate
       and [the female cohabitant]. It was sitting on a counter near the adjoining
       bathroom, where it was readily available. There was nothing about its location or
       appearance that would indicate that it was owned, possessed, and controlled
       exclusively by [the female cohabitant]. A drug dog alerted to the fanny pack, and
       there is no evidence that the officer had any reason to believe that [the female
       cohabitant] was using controlled substances. Under these facts, the officer could
       reasonably have suspected that Tate had at least joint possession or control of the
       fanny pack.

Id. at 732, 40 P.3d at 90. Thus, this Court has specifically held that the proper legal standard to
use in analyzing the scope of the search of items during a search of a probationer’s belongings is
reasonable suspicion.


                                                 5
       The reasonable suspicion standard used in Barker was gleaned from the 9th Circuit case
United States v. Davis, 932 F.2d 752 (9th Cir. 1991). The Davis court held that “[t]he
permissible bounds of a probation search are governed by a reasonable suspicion standard.” Id. at
758. In Davis, police searched a safe found in a closet during a warrantless search of a
probationer’s apartment. Id. at 755. The safe was found in a closet of a master bedroom, but
police were able to open the safe only because of a combination they found scribbled on a note
found on a person they had arrested earlier. Id. The arrestee argued that the initial probation
search of the residence was valid, but it became improper when police opened the safe using the
combination found in his pocket—the combination being in his possession meant that the
officers could not reasonably suspect the safe was owned, possessed, or controlled by the
probationer. Id. at 759. The 9th Circuit reasoned that the police could have reasonably suspected
the safe was jointly owned, possessed, or controlled by the arrestee and the probationer, because
the arrestee had a significant connection with the probationer’s apartment that included having
his car parked in the front of the residence. Id. at 759. The Ninth Circuit is in agreement with this
Court’s precedent that the reasonable suspicion standard ought to be used in determining the
permissible bounds of a search of a probationer’s belongings.
       In this appeal, Garnett points to United States Supreme Court authority to argue that
Davis and Barker crafted and used an impermissible standard: namely, officers must have a
reasonable belief that a probationer owns, possesses, or controls an item before searching it,
rather than a mere reasonable suspicion. We disagree with Garnett’s assertion.
       Specifically, Garnett contends that Illinois v. Rodriguez has established the reasonable
belief standard for determining the permissible bounds of a search of a probationer’s belongings.
497 U.S. 177 (1990). In Rodriguez, a woman notified police that she had been assaulted by
Rodriguez and that she would take the police to “our” apartment where he was sleeping and
unlock the door so that they could make an arrest. Id. at 179. Rodriguez was thereafter arrested
and the police found drugs and paraphernalia in plain view in the apartment. Id. at 180. He
moved to suppress all evidence, arguing that the woman had no actual authority to consent to
police entering his apartment because she had vacated the apartment weeks earlier. Id. The Court
held that while she possessed no actual authority to consent to entrance of the residence, police
could have reasonably believed that she did have such authority, and accordingly, their entrance
was reasonable. Id. at 186. The Court’s holding was summed up in the following rule statement:

                                                 6
       As with other factual determinations bearing upon search and seizure,
       determination of consent to enter must “be judged against an objective standard:
       would the facts available to the officer at the moment . . . ‘warrant a man of
       reasonable caution and belief’” that the consenting party had authority over the
       premises? If not, then warrantless entry without further inquiry is unlawful unless
       authority actually exists.

Id. at 188–89 (quoting Terry v. Ohio, 392 U.S. 1, 21–22 (1968)). Thus, in cases centering upon
authority to consent to the entrance of a dwelling, police must possess an objectively reasonable
belief that the person authorizing entry has actual authority over the premises.
       Garnett appears to be blending the case law regarding consensual searches with case law
regarding probation searches. The Supreme Court of the United States has expressly held that
probation searches may use a reasonable suspicion standard. U.S. v. Knight, 534 U.S. 112 (2001).
In Knight, a probationer’s apartment was searched by a sheriff’s deputy who suspected the
probationer was engaging in illegal activity. Id. at 115. The probationer argued that the search
was not conducted as part of his terms of probation, but was instead an investigatory search. Id.
at 116. The U.S. Supreme Court, in assessing the reasonableness of the search, balanced the
government’s interest against the probationer’s expectation of privacy. Id. at 118–21. It
explained that the government has an interest in supervising probationers because probation is a
form of criminal sanction imposed by a court that is designed to curtail an offender’s freedoms;
accordingly, probationers are more likely than the ordinary citizen to violate the law and to
conceal criminal activities because of the risk they face with possible incarceration. Id. While
probationers enjoy many more freedoms than they would if they were incarcerated, “they do not
enjoy the absolute liberty every citizen is entitled.” Id. at 119 (quoting Morrissey v. Brewer, 408
U.S. 471, 480 (1972)). The Court, after balancing these considerations, held that no more than
reasonable suspicion is required to conduct a search of a probationer’s house when a probationer
is subject to a search condition in his or her probation terms. Id. at 121. If the entrance of a
probationer’s home requires only a reasonable suspicion that authority to enter exists, it is not a
stretch to infer that the scope of a search of a probationer’s belongings is constrained by the same
standard.
       The State and the district court supported their use of the reasonable suspicion standard
using Barker and Davis. The reasonable belief standard that Garnett asserts has no application in
this case because the issue is not whether the officers had authority to enter and search the


                                                 7
premises subject to a consensual search, but rather whether the probation officer’s search of the
backpack was within the lawful scope of a probation search. The Supreme Court of the United
States’ holding in Rodriguez addresses the authority to enter dwellings based on consent, not the
scope of a probation search based on the terms of probation. The proper legal standard to be used
in determining the permissible scope of a search of a probationer’s belongings is reasonable
suspicion, not reasonable belief.
       Using the reasonable suspicion standard, the district court properly concluded that the
probation officer in this case had reasonable suspicion that the camouflage backpack was owned,
controlled, or possessed by Brunko. Brunko had violated the terms of her probation by failing a
drug program for a heroin addiction, and she had provided an altered urine sample. Evidence of
these violations could be secreted in a locked and hidden backpack, such as the one found behind
an empty box in the common storage room of Brunko’s residence. Additionally, there were no
external markings of ownership on the backpack and neither Garnett nor Soy notified the
searching officers that the backpack was theirs, even though they knew the officers were
searching the residence for evidence of a probation violation. The district court did note that if
the backpack had been near where Garnett was lying on the couch, then perhaps the analysis
would have been different. But, this unmarked pack was found locked and concealed in a storage
room used by multiple individuals. Therefore, based on the totality of the circumstances, the
probation officer could have possessed reasonable suspicion that Brunko owned, controlled, or
possessed the backpack, making the search reasonable and permissible. The district court did not
err in denying Garnett’s motion to suppress.
                                      V.       CONCLUSION
       In consideration of the foregoing, the district court’s denial of Garnett’s motion to
suppress was proper. The judgment of conviction is affirmed.

       Chief Justice BURDICK, and Justices BEVAN, STEGNER, and HORTON CONCUR.




                                                8
