Consent was attenuated from initial unlawful entry

Admittedly and unquestionably illegal police entry was followed by requests for consent. The initial entry revealed no evidence of crime. The court found the subsequent consents to be attenuated from the illegal entry, defendant’s argument being the psychological impact of seeing the illegal entry which affected his actions thereafter, which the court rejected. State v. McBaine, 144 Idaho 130, 157 P.3d 1101 (2007)*:

Here, there were multiple entries into McBaine’s home by officers. The first occurred when Deputy Santucci entered without permission and briefly spoke with McBaine’s wife. This initial entry was unquestionably unlawful. Deputy Santucci entered without permission, and the State concedes on appeal that there is no exception to the warrant requirement that applies to this entry. The district court found that the later entries were made with McBaine’s consent. A defendant’s voluntary consent to a search relieves government agents of the warrant requirement. State v. Lafferty, 139 Idaho 336, 339, 79 P.3d 157, 160 (Ct. App. 2003); State v. Fee, 135 Idaho 857, 862, 26 P.3d 40, 45 (Ct. App. 2001). McBaine contends, however, that his oral and written consents to search the home were tainted by Deputy Santucci’s earlier illegal entry, and therefore evidence found during the consent searches must be suppressed. We conclude that the evidence presented on McBaine’s suppression motion shows no taint or causal link between Deputy Santucci’s brief illegal entry and McBaine’s subsequent consents, and therefore the unlawful intrusion does not require suppression of evidence found in the consent search.

. . .

In McBaine’s case, before officers even knocked on his door they were informed by J.L. that there was a methamphetamine lab in the residence. No evidence of any kind was gained during Deputy Santucci’s unlawful intrusion. He did not then see, hear, smell or otherwise detect any evidence of the methamphetamine lab. Nor did this intrusion even make Santucci aware of the presence of witnesses Quinton and K.Q., both of whom were visible through the open door before he entered. From an evidentiary standpoint, his unlawful entry yielded nothing. During the brief intrusion, Deputy Santucci did not search for contraband and did not act in a threatening or overbearing manner, but merely spoke to Quinton momentarily before exiting. Santucci’s intrusion apparently had ended before consent to a search was requested of McBaine.

Even if it could be said that Santucci’s interview of K.Q. was somehow tainted or suppressible merely because Santucci was inside the home when he asked K.Q. to exit with him, there is no evidence that the officers used information from K.Q. in order to induce McBaine’s consent to a search. According to the testimony at the suppression hearing, the officers merely informed McBaine that they “had information” that there was a methamphetamine lab in his home. This was information that the officers had already received from J.L. before they interviewed K.Q. There is no evidence that Santucci’s conversation with K.Q., or with McBaine’s wife inside the residence, was somehow exploited to secure McBaine’s subsequent consent to a search.

McBaine’s appellate counsel argues that McBaine’s consent should be deemed tainted by the psychological effect of having seen an officer enter his home without permission. According to the argument, this could have led McBaine to conclude there was no point in resisting the officer’s requests that he consent to a full search. The defect in this argument is that it bears no support in the evidence. To the contrary, the evidence shows that McBaine resisted the initial requests for access to his bedroom where the incriminating evidence was ultimately found. It was only after Detective Bustos arrived and told McBaine that the officers would attempt to obtain a search warrant if he would not give them access to the bedroom that he ultimately consented. Moreover, McBaine’s own testimony at the suppression hearing contradicts his counsel’s argument, for McBaine testified that he never consented at all to a search of his home. He claimed that it was his understanding when he signed the consent form that he was agreeing only to a search of his vehicle. There is thus an absence of any evidence to support the theory on appeal that McBaine’s consent was a direct or indirect fruit of Deputy Santucci’s initial brief, but illegal, intrusion.

An officer near the University of North Dakota saw a couple arguing, so he stopped to see what was the problem, in case it was a domestic situation getting out of hand. He talked with the couple, smelled alcohol on their breath and determined they were under 21, so they were arrested for consumption by a minor. The initial stop was justified by the community caretaking function. State v. Olson, 2007 ND 40, 2007 N.D. LEXIS 39 (March 22, 2007).*