               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 41167

STATE OF IDAHO,                 )                       2014 Unpublished Opinion No. 783
                                )
    Plaintiff-Respondent,       )                       Filed: October 23, 2014
                                )
v.                              )                       Stephen W. Kenyon, Clerk
                                )
MICHAEL TRELBY CUNNINGHAM, JR., )                       THIS IS AN UNPUBLISHED
                                )                       OPINION AND SHALL NOT
    Defendant-Appellant.        )                       BE CITED AS AUTHORITY
                                )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Bonner County. Hon. Jeff M. Brudie, District Judge. Hon. Barbara Buchanan,
       Magistrate.

       Order of the district court, on intermediate appeal from the magistrate, affirming
       judgment of conviction for possession of marijuana and possession of
       paraphernalia, affirmed.

       Thornton Law Office, Sandpoint, for appellant. Valerie P. Thornton argued.

       Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
       Attorney General, Boise, for respondent. Nicole L. Schafer argued.
                 ________________________________________________
MELANSON, Judge
       Michael Trelby Cunningham, Jr. appeals from the district court’s order, entered in its
intermediate appellate capacity, affirming Cunningham’s judgment of conviction for possession
of marijuana and possession of paraphernalia. Specifically, he contends the district court erred in
affirming the magistrate’s order denying his motion to suppress evidence obtained pursuant to a
search warrant. For the reasons set forth below, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       Officers applied for a warrant to search Cunningham’s apartment.            The following
evidence was presented to the magistrate, through the testimony of two officers, in support of the
application. Cunningham lived in an apartment connected to the rear of a house. Cunningham’s
neighbor, who lived in the house, contacted police after smelling a strong odor of marijuana


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coming from Cunningham’s apartment and reported that there was frequent, short-term traffic at
Cunningham’s apartment. As a result, the police began monitoring Cunningham’s apartment,
but no unusual activity was observed. The neighbor contacted police a number of times over a
three-month period about the smell of marijuana coming from Cunningham’s apartment. The
neighbor expressed concerns that her son, who was asthmatic, was affected by any type of smoke
in the home. In addition to contacting the police, the neighbor’s mother expressed the concerns
directly to Cunningham, after which the smell of marijuana was not detected for approximately
one month. However, the smell of marijuana returned and another call from the neighbor to the
police followed.
       In response to the final call, an officer went to the neighbor’s residence, where she
indicated she could smell marijuana coming from Cunningham’s apartment. The neighbor
described to the officer the history of her discussions with the police regarding Cunningham’s
apartment and the marijuana concerns and also explained that it had been an ongoing issue since
the neighbor moved in approximately four months prior. The officer was allowed in all open
rooms of the house to try to detect the odor. In the son’s bedroom was a door connecting the
house to Cunningham’s apartment. The neighbor reported that the door was covered with a
blanket in order to prevent the odor from entering her son’s room and the officer did not detect
the odor of marijuana in the bedroom. The neighbor also reported the heat ducts in her house
were shared with Cunningham’s apartment and she believed the smell came into her home
through the vents from the heat ducts. The officer could smell the distinct odor of marijuana in
an area below a vent, which was located in the ceiling near the front entrance of the neighbor’s
residence, away from the wall shared by the neighbor and Cunningham.
       Finally, the officers testified that Cunningham had two prior marijuana-related incidents.
However, the officer who testified explained that it was not clear from the database he searched
whether Cunningham was charged in either instance. The neighbor also reported there was
frequent, short-term traffic at Cunningham’s apartment and that she had recorded several license
plate numbers. The officer who received the license plate numbers did not recall any details
about the owners of the vehicles. The neighbor further expressed concerns that, since the
residence appeared to be a single-family house from the outside, people might have thought she
was selling marijuana.




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       The officer applied for a warrant to search Cunningham’s apartment. Based upon the
testimony of the two officers, who provided all of the above evidence, the warrant was granted.
The search warrant was executed and officers found a small amount of marijuana, a number of
items of paraphernalia, a locked box containing $9,050 in cash, and several pieces of mail
addressed to Cunningham.
       The state charged Cunningham with possession of a controlled substance, I.C. § 37-
2732(C)(3), and possession of drug paraphernalia, I.C. § 37-2734(A). Cunningham moved to
suppress evidence of the items seized, contending that there was insufficient evidence to support
a finding of probable cause to issue the search warrant for his apartment. The magistrate denied
the motion and Cunningham pled guilty to possession of marijuana and possession of
paraphernalia. Cunningham then appealed the denial of his motion to suppress to the district
court, which affirmed. Cunningham again appeals.
                                                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 following
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 dismiss the decisions 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,


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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:
       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.




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                                               III.
                                           ANALYSIS
        Cunningham argues the magistrate erred when it determined that probable cause
supported the issuance of a warrant to search his apartment. Specifically, Cunningham alleges
the reliability and veracity of the informant was insufficient, the information contained in the
affidavit in support of the application for the search warrant was unsubstantiated hearsay, and
there was no nexus demonstrated between Cunningham’s apartment and the suspected criminal
activity.
        Initially, we address Cunningham’s contention that the warrant to search his apartment
was not supported by probable cause because the reliability and veracity of the informant was
insufficient. This Court has stated that, where the information comes from a known citizen
informant rather than an anonymous tipster, the citizen’s disclosure of her identity, which carries
the risk of accountability if the allegations turn out to be fabricated, is generally deemed
adequate to show veracity and reliability. State v. Larson, 135 Idaho 99, 101, 15 P.3d 334, 336
(Ct. App. 2000). A known citizen is one who provides facts from which his or her identity can
be readily ascertained. See id. at 102, 15 P.3d at 337. In this case, the neighbor not only
provided her name, but had previously provided information to law enforcement regarding
Cunningham’s apartment. Additionally, the officer had personal contact with the neighbor at her
residence and her identity was provided at the time of the affidavit in support of the search
warrant. These facts support the conclusion that the neighbor was a citizen informant whose
veracity should be presumed. Under these circumstances, there was a substantial basis for
crediting the information provided by the neighbor.
        Next, we address Cunningham’s contention that the search warrant was not supported by
probable cause because the information contained in the affidavit supporting the application for
the warrant was based upon unsubstantiated hearsay. The evidence offered in support of a
warrant may include hearsay, provided there is a substantial basis for crediting the hearsay. State
v. Wengren, 126 Idaho 662, 666, 889 P.2d 96, 100 (Ct. App. 1995).             Where the warrant
application is based in part upon information provided by an informant, factors supporting
probable cause may include facts in the affidavit indicating the reliability of the informant and
the basis of the informant’s knowledge. State v. Chapple, 124 Idaho 525, 527, 861 P.2d 95, 97
(Ct. App. 1993). The reliability of the information supplied by an informant is highly relevant in


                                                5
determining the value of the hearsay information supplied by that informant and, thus, in making
a determination of probable cause. State v. Molina, 125 Idaho 637, 640, 873 P.2d 891, 894 (Ct.
App. 1993). Information may be sufficiently reliable to support a probable cause finding if the
information is corroborated by independent evidence. Draper v. United States, 358 U.S. 307,
313 (1959); State v. Carlson, 134 Idaho 471, 476, 4 P.3d 1122, 1127 (Ct. App. 2000).
          In this case, the reliability of the information was supported by corroborating evidence
from an officer who also smelled the distinct odor of marijuana in an area of the neighbor’s
residence where a heating vent was located. The finding of probable cause was not based upon
unsubstantiated hearsay statements, as Cunningham alleges. Thus, the magistrate did not err in
considering the corroborated hearsay statements in making its determination of probable cause.
          Finally, Cunningham asserts that the evidence presented was insufficient to demonstrate
that probable cause existed to search his apartment because there was no nexus between the
suspected criminal activity and Cunningham’s apartment. In order to provide an adequate basis
for a determination of probable cause to issue a search warrant, the affidavits must establish a
sufficient 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). 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,
the trial court is 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. Molina, 125 Idaho at 642, 873 P.2d
at 896.
          In this case, no one directly observed marijuana or paraphernalia in Cunningham’s
apartment prior to the officers’ search. However, there was evidence that a crime was committed
in Cunningham’s apartment--specifically, that marijuana was present in his apartment. Both the
neighbor and the officer smelled the odor of marijuana in an area of the neighbor’s residence
near a heating vent that the neighbor said was connected to Cunningham’s apartment. The
neighbor said that no marijuana odor had been detected before Cunningham moved into the
apartment. In addition, the neighbor reported frequent short-term traffic at the apartment. This
evidence provides a sufficient nexus between the criminal activity--possession of marijuana; the
items to be seized--marijuana and paraphernalia; and the place to be searched--Cunningham’s
apartment.


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                                                  IV.
                                         CONCLUSION
       There was substantial and competent evidence to support a finding of probable cause that
contraband or evidence of a crime would be found in Cunningham’s apartment. We hold that the
district court did not err in affirming the magistrate’s denial of the motion to suppress.
Accordingly, the district court’s order on intermediate appeal affirming Cunningham’s judgment
of conviction for possession of marijuana and possession of paraphernalia is affirmed.
       Judge LANSING, CONCURS.
       Chief Judge GUTIERREZ, DISSENTING.
       When considering a challenge to probable cause supporting a search warrant, an appellate
court must ensure that the magistrate had a substantial basis for concluding that probable cause
existed. Illinois v. Gates, 462 U.S. 213, 238-39 (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).
Because I conclude that the magistrate did not have a substantial basis for determining that
probable cause existed, I respectfully dissent.
       In this appeal, the layout of the property that was searched is important to understand
why probable cause did not exist. At the probable cause hearing, two detectives testified and
provided details about the property in Sandpoint. The property consisted of a single-family
dwelling, occupied by the informant, with an “addition” that served as an apartment, occupied by
Cunningham. The addition was set back from the street; to access the addition from the street,
Detective Beers informed the magistrate that a person would have to go through a gate in a low
fence and proceed to a sliding glass door in the addition. This was not the only door to the
addition, though, as the dwelling and addition shared a common wall. The common wall was
part of the informant’s son’s bedroom, and there was a door between the son’s bedroom and the
addition.
       Besides describing the property, the two detectives also explained their interaction with
the informant. On the day of the probable cause hearing, Detective Beers received a call from
the informant, who stated that she smelled a strong odor of marijuana “coming from the vent.”
During the call, she also explained that the dwelling and addition “share some sort of vent.”
Detective Beers was out of the county; thus, he called Detective Sanger and asked Detective
Sanger to go to the dwelling.


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       Detective Sanger responded to the dwelling where he met the informant. The informant
filled in the detective about the ongoing issue with the marijuana smell and her previous contacts
with Detective Beers and a corporal. The informant also showed Detective Sanger around her
dwelling and led him into all of the rooms of the dwelling. The informant “indicated that the
vents, which are the heating ducts that come in through the ceiling, are shared with the
[addition], and that is where she could smell the marijuana.” Detective Sanger did not state that
he could smell marijuana in any of the rooms he visited; rather, Detective Sanger “smell[ed] the
distinct odor of marijuana around the front door entrance where there was a vent immediately
above [him].” Detective Sanger then went to the son’s bedroom, the room that adjoins the
addition, but he could not smell any marijuana in that room. In the son’s room, Detective Sanger
noted that there was a blanket over the door that led to the addition, and the informant told
Detective Sanger that she placed the blanket there to keep the odor out. During his visit to the
dwelling, Detective Sanger and the informant discussed her concerns, and during the visit, the
informant also told the detective that she was familiar with the smell of marijuana because she
had previously used it.
       Detective Beers also recounted his prior interactions with the informant. Three months
before, Detective Beers was apprised that the informant could smell a strong odor of marijuana.
Apparently, the informant had also noted short-term traffic at the addition. With this knowledge,
Detective Beers surveilled the residence “a number of times” to determine whether there was any
traffic going to and from the addition, but he did not see anything. The informant also provided
a few licenses plate numbers from cars that she alleged visited the addition, but Detective Beers
did not recall any of the owners of the licensed cars and he did not indicate that he did any
further investigation of this information.
       A month before the probable cause hearing, the informant contacted Detective Beers
again. The informant’s son reported to the informant that he smelled marijuana in the dwelling
earlier in the day, but the informant did not smell any marijuana upon her return to the dwelling.
Detective Beers did not indicate that he made any further investigation of this incident, but he
noted that during the three-month period, he had talked to and emailed the informant several
times. Detective Beers also knew that the informant’s mother had talked to Cunningham at least
twice regarding the odor. With all of this information, the magistrate found probable cause and
issued the search warrant.


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       The magistrate’s task, in a probable cause hearing, is to determine whether 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 State v. Wilson, 130 Idaho 213, 215, 938 P.2d 1251, 1253 (Ct. App. 1997).
Based on the oral statements made at the probable cause hearing, I conclude that the magistrate
lacked a substantial basis for probable cause when she determined that there was a fair
probability that contraband or evidence of a crime would be found in the addition.
       The only odor that was detected by Detective Sanger was at the front door entrance to the
dwelling, not the sliding glass door that accesses the addition. What is more, Detective Sanger
did not state that he smelled marijuana in any other room in the dwelling. Importantly, Detective
Sanger explicitly stated that he did not smell marijuana in the son’s room, which had a blanket-
covered door that adjoined the addition. In short, Detective Sanger stated that he smelled
marijuana, but his statements did not suggest the geographic source of the odor, did not identify
who smoked the marijuana, and did not establish a fair probability that evidence or contraband
would be found in the addition.
       The unstated inference drawn by the majority and, presumably, the magistrate is that the
odor Detective Sanger smelled originated from the vent near the front door entrance of the
dwelling; the inference also relies on the assumption that the vent is connected to heating or
cooling ductwork that is shared with ductwork in the addition, again presuming there is ductwork
in the addition. However, this inference is not supported by Detective Sanger’s statements in
which he stated that he could smell the odor near the front door entrance of the dwelling.
Although Detective Sanger noted that there was a vent present near this entrance, Detective
Sanger did not state that the odor was emanating from the vent. The inference is also belied by
the statements of Detective Sanger, explaining that he could not smell marijuana in the son’s
bedroom--the room closest to the addition and the room that shared a door with the addition.
The informant’s comments to Detective Sanger described shared ductwork between the dwelling
and the addition, with vents in the rooms, but Detective Sanger did not verify whether the
ductwork was shared between the dwelling and addition and whether the vent near the front
entrance was connected to the shared ductwork. Even if the dwelling and addition shared
ductwork, and the vents connected to the shared ductwork, it stands to reason that Detective
Sanger would have detected the presence of marijuana odor from another vent inside the
dwelling, especially a vent closer to the addition, or near the door in the son’s bedroom.


                                                9
However, Detective Sanger did not state that he smelled the odor of marijuana in any room, but
only near the front door entrance.
       The informant’s statements from the day at issue similarly fail to elucidate that the odor
was originating from the addition. The informant had explained to Detective Sanger that she
smelled the odor of marijuana from a vent on the date at issue, although Detective Sanger did not
identify to which vent the informant was referring.       The only form of corroboration was
Detective Sanger’s statement that he smelled the odor near the front door entrance, where he also
noted there was vent, but he did not state that the odor emanated from the vent.
       In considering the totality of the statements, I also note that I do not “presume” the
veracity of the informant’s statements that were relayed by Detective Beers and Detective Sanger
to the magistrate. In fact, the statements at the hearing cut against the informant’s veracity.
Detective Beers was apprised of the informant’s claim that there was short-term traffic
frequenting the addition. However, Detective Beers stated that he surveilled the addition “a
numbers of times” to determine if there was short-term traffic frequenting the addition, but he
“didn’t see any.”
       In summary, there was not a substantial basis for the magistrate to find that there was a
fair probability that contraband or evidence of a crime would be found in the addition.
Therefore, I would hold that the magistrate abused her discretion when she determined there was
probable cause and issued the search warrant, and would conclude that the district court erred by
affirming the dismissal of the motion to suppress. Accordingly, I respectfully dissent.




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