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IN THE SUPREME COURT OF THE STATE OF IDAHO 

Docket No. 45950

STATE OF IDAHO,

 Plaintiff-Respondent,

v.

ANDREW CHARLES MAXIM,

 Defendant-Appellant.

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Boise, August 2019 Term

Opinion Filed: December 4, 2019

Karel A. Lehrman, Clerk

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada 

County. Peter G. Barton, District Judge. 

District court decision denying motion to suppress, reversed, judgment of 

conviction vacated, and case remanded for further proceedings consistent with this 

opinion.

Eric Frederickson, Idaho State Appellate Public Defender, Boise, for appellant.

Brian Richard Dickson argued.

Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Jeffery D. Nye 

argued.

_____________________________

BURDICK, Chief Justice.

Andrew Charles Maxim appeals from the district court’s denial of his motion to suppress 

drug evidence found on his person after police searched the home he was living in without a 

warrant. The district court found that the exclusionary rule need not apply under the 

circumstances because the police would have inevitably discovered the heroin despite any 

alleged illegality. The dispositive issues on appeal are whether a probationer can object to a 

search of his home or person when he has waived his Fourth Amendment rights as a condition of 

probation and whether the district court erred in its inevitable-discovery analysis. 
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I. FACTUAL AND PROCEDURAL BACKGROUND

On September 27, 2017, Officer Kyle Ludwig and a second police officer visited an 

apartment complex in Meridian, Idaho, after police dispatch had received a call from the 

apartment manager. The manager told dispatch that she had heard from a tenant that there was 

suspected drug use in an apartment where children also resided. Upon the officer’s arrival at the 

complex, the manager flagged down the officers and explained that she received the information 

“a day or two before,” but that “strange people” had been in the apartment that morning. 

Upon approaching the apartment, the officers noticed that there were children’s toys on

the concrete patio outside the entrance. Officer Ludwig knocked on the front door and noticed 

there was “some give to the door.” A second later, he knocked louder and more forcefully, and 

by doing so, pushed the door open. After a few second’s pause at the threshold, Officer Ludwig 

entered the apartment and announced himself as police. An unnamed adult female walked 

through the first-floor hallway immediately to the left of entrance, and, upon questioning, 

informed Officer Ludwig that she did not live there. Officer Ludwig instructed her to stand with 

the second officer on the patio. Upon investigating the apartment, Officer Ludwig found one of 

the doors in the first-floor hallway was locked. He knocked on the door and, 20 seconds later, 

Maxim emerged and closed the door behind him. 

Officer Ludwig instructed Maxim to put his hands on his head, and Maxim complied. 

Upon being asked whether he had anything illegal on him, Maxim started patting his pockets and 

said “I have a knife” and began to reach in his pocket. Immediately, Officer Ludwig instructed 

Maxim to return his hands to his head and Maxim obeyed. Affixing Maxim’s hands atop 

Maxim’s head with his left hand, Officer Ludwig led Maxim toward the apartment’s entrance. 

Upon reaching the entryway, Officer Ludwig asked Maxim where the knife was located. Maxim 

said, “It’s in my right pocket,” and continued walking towards the front door. With his right 

hand, Officer Ludwig began to pat down Maxim’s right pocket (while still affixing Maxim’s 

hands to his head with his left hand) and Maxim continued walking. Officer Ludwig ordered 

Maxim to halt, and Maxim complied. Still holding his hands above his head, Officer Ludwig 

turned out Maxim’s pocket with his right hand. After removing the knife and placing it on a 

foyer table, Officer Ludwig reached back and felt through the outturned pocket and removed a 

small, multicolored silicon container. Officer Ludwig would later testify that such containers, in 

his professional experience, often contain heroin. Before opening the container, Officer Ludwig
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asked Maxim how much heroin the container held, and Maxim responded “It’s not mine . . . I 

just picked it up off the table.” Officer Ludwig placed Maxim in handcuffs, and sat him outside 

on the patio. 

The officers searched the apartment, but no children were present, though children 

appeared to live there. The door that Maxim exited was locked, and no response came from 

within upon the officer’s prompting. About a half hour after the officers entered the house, one 

of the children who lived at the apartment was dropped off by the school bus. Officer Ludwig 

placed Maxim in the back of a patrol vehicle, and, upon further questioning, Maxim revealed that 

he was on probation for grand theft and Officer Ludwig had dispatch run his name through the 

system. The search revealed that Maxim had outstanding warrants for failure to appear. Maxim 

allowed the officer to call the apartment owner on his cellphone, and she arrived shortly 

thereafter. She allowed the officers to unlock the hallway door with a screwdriver to reveal a 

bathroom. A second male was found hiding behind the shower curtain. 

The State charged Maxim with felony possession of a controlled substance. Maxim 

promptly filed a motion to suppress “all evidence obtained as the result of an illegal, warrantless 

entry into [his] residence and/or an illegal pat-down.” Maxim argued that there were no exigent 

circumstances to justify the officer’s warrantless entry of the home because no facts 

demonstrated an imminent emergency. He also claimed that Officer Ludwig unlawfully frisked 

him because, despite admitting to possessing a knife in his pocket, the circumstances were 

insufficient for Officer Ludwig to reasonably believe that Maxim was armed and presently 

dangerous. 

In response, the State asserted a number of alternative arguments. First, the State 

contended that Maxim did not have “standing” to object to the searches because he did not have 

a “reasonable or legitimate expectation of privacy in the area searched. . . .” To prove this, the 

State pointed out that Maxim denied living at the apartment when asked by Officer Ludwig and 

that he waived his Fourth Amendment rights under his terms of probation. Next, the State argued 

the officers did not need a warrant to search the apartment because they were performing their 

community-caretaking function. Lastly, the State argued that even if there were Fourth 

Amendment violations, the exclusionary rule need not apply because “the police would have 

utilized certain proper and predictable investigatory procedures; and . . . such procedures would 

have inevitably led to the discovery of the evidence . . . .” 
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Maxim responded by arguing that he lived at the apartment at the time of the search and 

that he was not required to have an ownership interest in the apartment to have a reasonable 

expectation of privacy. Maxim asserted that he retained Fourth Amendment standing because the 

officers were unaware of the waiver at the time of the alleged violations. 

The district court held a hearing on the motion in late December 2017. At the hearing, 

Maxim testified that he had been living at the apartment for almost a month prior to his arrest. 

Officer Ludwig testified that he did not know of Maxim’s probation status at the time he entered 

the apartment or frisked Maxim. At the hearing, the district court found that Maxim made a 

sufficient showing to shift the burden to the State. The district court took the rest of the issues 

under advisement. On January 30, 2018, the district court entered a written decision and order 

denying Maxim’s motion and concluded that discovery of the heroin was inevitable. Since the 

discovery was inevitable and the exclusionary rule would not apply, the district court reasoned it 

was not necessary “to determine whether the actual entry and pat-down of Maxim were lawful” 

or to “analyze the effectiveness of Mr. Maxim’s waiver unknown to the officers at the time.” 

Shortly thereafter, Maxim pleaded guilty to possession of heroin, reserving the right to 

appeal the denial of the motion to dismiss. He timely appealed. 

II. ISSUES ON APPEAL

1. Can the existence of a Fourth Amendment waiver make an otherwise unreasonable search 

of a probationer’s home reasonable even if the police were not aware of the waiver at the 

time of the search? 

2. Did the district court err in finding that the evidence would have been inevitably 

discovered?

III. STANDARD OF REVIEW

When reviewing a decision on a motion to suppress, this 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. Mullins, 164 Idaho 493, 496, 432 P.3d 42, 

45 (2018) (quoting State v. McNeely, 162 Idaho 413, 414–15, 398 P.3d 146, 147–48 (2017)). 

IV. ANALYSIS

The Fourth Amendment to the United States Constitution protects “[t]he right of the 

people to be secure in their persons, houses, papers, and effects, against unreasonable searches 

and seizures . . . .” U.S. Const. amend. IV. The “basic purpose” of the Fourth Amendment “is to 

safeguard the privacy and security of individuals against arbitrary invasions by governmental 
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officials.” Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018) (quoting Camara v. 

Municipal Court of City and County of San Francisco, 387 U.S. 523, 528 (1967)). “The 

Founding generation crafted the Fourth Amendment as a response to the reviled ‘general 

warrants’ and ‘writs of assistance’ of the colonial era, which allowed British officers to rummage 

through homes in an unrestrained search for evidence of criminal activity.” Id. (citation omitted) 

(internal quotation marks omitted). 

Determining whether government activity constitutes a “search” under the Fourth 

Amendment is an inquiry that has evolved with the times. In the early days, the search doctrine 

was “tied to common-law trespass,” and asked whether the government “obtain[ed] information 

by physically intruding on a constitutionally protected area.” United States v. Jones, 565 U.S. 

400, 405, 406 n. 3 (2012). In recent times, the Supreme Court has established that “the Fourth 

Amendment protects people, not places,” and expanded the concept of the Amendment to 

government violations of an “expectation of privacy” that “society is prepared to recognize as 

‘reasonable.’” Carpenter, 138 S. Ct. at 2213 (quoting Smith v. Maryland, 442 U.S. 735, 740

(1979)). Both historically and textually, a person’s home is the centerpiece of the Amendment’s 

constitutional protection. Collins v. Virginia, 138 S. Ct. 1663, 1670 (2018). 

But even if a Fourth Amendment search has occurred, the Fourth Amendment only 

forbids unreasonable searches and seizures. As expressed in the Amendment’s text, a search 

conducted without a warrant is presumptively unreasonable. Id. at 1670. But the United States 

Supreme Court and this Court have recognized certain exceptions to the Amendment’s warrant 

requirement. State v. Wulff, 157 Idaho 416, 337 P.3d 575 (2014); Illinois v. Rodriguez, 497 U.S. 

177 (1990). For example, consent may render a Fourth Amendment search reasonable. Wulff, 

157 Idaho at 419, 337 P.3d at 578; Rodriguez, 497 U.S. at 181. This is true where a probationer 

has consented to a search by virtue of a term in a probation agreement. See State v. Jaskowski, 

163 Idaho 257, 260, 409 P.3d 837, 840 (2018). 

If a Fourth Amendment violation has taken place, then, generally speaking, a defendant 

may seek to have the court exclude evidence obtained by the unconstitutional police conduct. 

Mapp v. Ohio, 367 U.S. 643, 655 (1961). As the United States Supreme Court originally 

explained: “[T]he purpose of the exclusionary rule ‘is to deter—to compel respect for the 

constitutional guaranty in the only effectively available way—by removing the incentive to 

disregard it.’” Id. at 656. But the United States Supreme Court has also recognized circumstances 
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where the exclusionary rule need not apply, finding under the circumstances that the costs of 

exclusion outweigh the goals of deterrence. Herring v. United States, 555 U.S. 135, 137 (2009) 

(“Our cases establish that such suppression is not an automatic consequence of a Fourth 

Amendment violation. . . . the question turns on the culpability of the police and the potential of 

exclusion to deter wrongful police conduct.”). 

As applied, a defendant bringing a motion to suppress must show that there was a Fourth 

Amendment search, that he has standing to challenge the search, and that the search was 

unreasonable. State v. Hoskins, 165 Idaho 217, 220–21, 443 P.3d 231, 234–35 (2019). If the 

defendant makes this showing—for example, by demonstrating a “search” which violated his

Fourth Amendment rights and the absence of a warrant—then the burden will shift to the State to 

show an exception to the warrant requirement exists or that the search was reasonable under the 

circumstances. Id.

This case asks what happens when police unconstitutionally enter a home, frisk an 

individual, arrest him, and, only after all that, discover that the individual has signed a Fourth 

Amendment waiver as a condition of probation. 

The State’s answer is that no violation actually occurs. Under the State’s view, once 

Maxim signed the Fourth Amendment waiver as a term of probation, he could no longer 

maintain a reasonable expectation of privacy as required to assert a Fourth Amendment violation. 

This, the State argues, is the “standing” requirement of the Fourth Amendment. Under this view, 

the State posits a scenario where, once a probationer has signed a Fourth Amendment waiver, no 

Fourth Amendment violation can ever occur, no matter how egregious the police conduct. As 

explained below, we cannot agree.

There are a few glitches in the State’s proposed analysis. The State attempts to wedge 

Maxim’s Fourth Amendment waiver into the “search” and “standing” components of the Fourth 

Amendment analysis, despite this Court’s precedent holding that such waivers represent consent

to searches and thus implicate the “reasonableness” component of the analysis. 

First, we must correct the State’s misinterpretation of Fourth Amendment standing. 

Standing in the Fourth Amendment context is used as shorthand for the question of whether the 

defendant personally has a reasonable expectation of privacy in the place searched. See State v. 

Mann, 162 Idaho 36, 39 n.1, 394 P.3d 79, 82 n.1 (2017). Originally, the term was used because 

Fourth Amendment rights, like almost all Constitutional rights, are personal. So, much like 
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Article III standing requires a plaintiff to have personally suffered an injury in order to bring a 

claim in federal court, a criminal defendant must show that his Fourth Amendment rights have 

been violated to claim the protection of the exclusionary rule. See Byrd v. United States, 138 S. 

Ct. 1518, 1530 (2018); United States v. Salvucci, 448 U.S. 83, 85 (1980) (“[D]efendants charged 

with . . . possession may only claim the benefits of the exclusionary rule if their own Fourth 

Amendment rights have in fact been violated.”). Indeed, as indicated by the cases cited by the 

State, standing is most useful in contexts where third parties are implicated. Minnesota v. Carter, 

525 U.S. 83, 85–91 (1998) (rejecting a defendant’s argument that he could object to the search of 

an acquaintance’s purse that he dumped drugs into moments before police arrived on the scene); 

Rawlings v. Kentucky, 448 U.S. 98, 100–06 (1980) (determining that two defendants could not 

object to the “search” of an apartment when the duo were only present in the apartment for the 

“business transaction” of packaging illegal drugs). Thus, the focus of Fourth Amendment 

standing centers on whether the defendant’s Fourth Amendment rights were violated, not 

whether the defendant has a reasonable expectation of privacy. Here, Maxim quite clearly asserts 

his Fourth Amendment rights were violated. Indeed, the State concedes that Maxim lived at the 

apartment which was searched by the officers. Surely, a search and seizure of Maxim’s person 

implicates his Fourth Amendment rights. Who else would those rights belong to? 

Instead of Fourth Amendment standing, the State’s arguments are better construed to 

assert that the police action in this case does not qualify as a “search” under the Fourth 

Amendment. Indeed, whether police activity constitutes a Fourth Amendment search is the 

question that engendered the “reasonable expectation of privacy” language. See Katz v. United 

States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). While there are various formulations of 

what constitutes a “search” under the Fourth Amendment, there is no question that a police 

officer entering into a home is a “search” under the Fourth Amendment: “When the Government 

obtains information by physically intruding on persons, houses, papers, or effects, a search 

within the original meaning of the Fourth Amendment has undoubtedly occurred.” Florida v. 

Jardines, 569 U.S. 1, 5 (2013) (citation and internal quotation marks omitted). 

The State’s argument overlooks that the concept of privacy announced in Katz exists in 

addition to, not in replacement of, the traditional property concept of searches. Id. at 5. So while 

the Fourth Amendment protects a broader “zone of privacy” than explicitly listed in the 

Amendment, that “zone” can be easily defined by the “the unambiguous physical dimensions of 
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an individual’s home.” Payton v. New York, 445 U.S. 573, 589 (1980). Indeed, the “physical 

entry of the home is the chief evil against which the wording of the Fourth Amendment is 

directed.” United States v. U.S. Dist. Court, 407 U.S. 297, 313 (1972) (citations omitted). So,

“when it comes to the Fourth Amendment, the home is first among equals.” Collins v. Virginia, 

138 S. Ct. 1663, 1670 (2018) (quoting Jardines, 569 U.S. at 6). Indeed, “at the very core of the 

Fourth Amendment stands the right of a man to retreat into his own home and there be free from 

unreasonable governmental intrusion.” Payton, 445 U.S. at 589–90 (quoting Silverman v. United 

States, 365 U.S. 505, 511 (1961)).

As a result, the warrantless entry into a home is presumptively unreasonable. State v. 

Maland, 140 Idaho 817, 822, 103 P.3d 430, 435 (2004). This presumption may be overcome 

when the State proves an exception to the warrant requirement, such as consent or exigency. 

State v. Wulff, 157 Idaho 416, 419, 337 P.3d 575, 578 (2014). Such exceptions mean that the 

search would be “reasonable” and, therefore, not violate the Fourth Amendment. But to accept 

that no Fourth Amendment “search” occurs when police enter a private home without a warrant 

would so severely distort the Fourth Amendment as to render it unrecognizable. Here, there is 

no dispute that the officers entered the apartment without a warrant or permission. The State thus 

bears the burden to show an exception to the warrant requirement. 

This is where Maxim’s Fourth Amendment waiver enters the analysis. Our case law on 

Fourth Amendment waivers has consistently and correctly viewed them under the rubric of 

consent to searches, and thus, affecting the reasonableness prong of the analysis:

The common guiding principle underlying our decisions . . . is that courts 

evaluating the scope of the Fourth Amendment waiver must look to the language 

used in the condition of probation in order to determine whether the search was 

objectively reasonable. 

State v. Jaskowski, 163 Idaho 257, 261, 409 P.3d 837, 841 (2018) (emphasis added). So, despite 

the State’s insistence that Maxim’s consent affects the “search” component of the analysis and 

not the “reasonableness” component, we cannot agree. Indeed, to parrot an observation from the 

late Supreme Court Justice Antonin Scalia: “To describe a consented search as a noninvasion of 

privacy and thus a non-search is strange in the extreme.” Illinois v. Rodriguez, 497 U.S. 177, 186 

(1990).

Thus, we must determine whether the officer’s actions in this case were reasonable. To 

determine whether the officers’ actions were reasonable, we look first to the language of the 
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Fourth Amendment waiver. State v. Jaskowski, 163 Idaho 257, 261, 409 P.3d 837, 841 (2018).

Specifically, the State pointed out that Maxim had agreed to the following term: 

Search: I consent to the search of my person, residence, vehicle, personal 

property, and other real property or structures owned or leased by me, or for 

which I am the controlling authority conducted by any agent of [the Idaho 

Department of Correction] or a law enforcement officer. I hereby waive my rights 

under the Fourth Amendment and the Idaho constitution concerning searches.

The State is correct that this is a broad grant of consent. It is not conditioned on the “at the 

request of” language like that of Jaskowski. See id. Rather, it is like the language1 in State v. 

Gawron, 112 Idaho 841, 843, 736 P.2d 1295, 1297 (1987). But these Fourth Amendment waivers 

do not eviscerate Fourth Amendment rights, they only tip the scales of the reasonableness 

analysis. In Gawron, this Court responded to the defendant’s argument that such broad waivers 

are an unreasonable invasion of Fourth Amendment rights by recognizing that “such persons 

conditionally released to societies have a reduced expectation of privacy, thereby rendering 

intrusions by government authorities ‘reasonable’ which otherwise would be unreasonable or 

invalid under traditional constitutional concepts.” Id. As a result, the State’s suggestion that such 

a waiver categorically precludes a probationer from succeeding in a motion to suppress is 

incorrect. To be sure, the challenge is more difficult, but not impossible. 

With this modified analysis in mind, we must look to the reasonableness of the 

government’s actions considering “all the circumstances of the particular governmental invasion 

of a citizen’s personal security.” Terry v. Ohio, 392 U.S. 1, 19 (1968). In doing so, we freezeframe the factual circumstances to focus on what the officers knew at the time of the alleged 

violation. See id. at 20 (determining whether police action was unreasonable by looking to 

whether “the officer’s action was justified at its inception, and whether it was reasonably related 

in scope to the circumstances which justified the interference in the first place.”). 

Here, the determinative fact in this case is that the officers did not know about Maxim’s 

Fourth Amendment waiver at the time of the alleged unconstitutional conduct. In fact, they did 

not even know that Maxim was in the apartment. At oral argument, the State conceded that the

 1 The term of probation at issue in Gawron provided:

That probationer does hereby agree and consent to the search of his person, automobile, real 

property, and any other property at any time and at any place by any law enforcement officer, 

peace officer, or probation officer, and does waive his constitutional right to be free from such 

searches.

State v. Gawron, 112 Idaho 841, 842, 736 P.2d 1295, 1296 (1987)
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officer’s actions in entering the apartment were unreasonable, so it’s puzzling how the discovery 

of a waiver retroactively makes the actions reasonable. Had the officers known that a probationer 

who signed a Fourth Amendment waiver resided at the apartment, this equation would surely be 

different. But the only question presented by these facts is whether the existence of a Fourth 

Amendment waiver can transform the officer’s otherwise illegal actions into reasonable ones 

despite being unaware of the waiver at the time he acted. 

We hold that a Fourth Amendment waiver cannot salvage an otherwise unreasonable 

entry into a home under the Fourth Amendment if the police officers were unaware of the waiver 

at the time of the unconstitutional search. We are not alone in this common-sense approach. See 

Samson v. California, 547 U.S. 843, 856 n.5 (2006) (“Under California precedent . . . an officer 

would not act reasonably in conducting a suspicionless search absent knowledge that the person 

stopped for the search is a parolee.”); United States v. Job, 871 F.3d 852, 859 (9th Cir. 2017) 

(“Police officers must know about a probationer’s Fourth Amendment search waiver before they 

conduct a search in order for the waiver to serve as a justification for the search.”). The 

discovery of a Fourth Amendment waiver after the fact should not serve as a deus ex machina

allowing the State to rewrite the story in the courtroom when the police’s actions were 

unconstitutional outside of it. See State v. Saldivar, 165 Idaho 388, 393, 446 P.3d 446, 451 

(2019) (noting that a similar argument by the State dealing with a parolee “is essentially a post 

hoc justification for the conduct of the police, based on information the police did not know at 

the time.”)

Even if the officer’s actions were unreasonable, the drug evidence could still be 

admissible under the inevitable-discovery exception to the exclusionary rule. See Nix v. 

Williams, 467 U.S. 431, 440–41 (1984). The United State Supreme Court has defined the 

inevitable-discovery doctrine based on a weakened deterrence ground: “If the prosecution can 

establish by a preponderance of the evidence that the information ultimately or inevitably would 

have been discovered by lawful means . . . then the deterrence rationale has so little basis that the 

evidence should be received.” Id. at 444. “The premise is that law enforcement should be ‘in the 

same, not a worse, position that they would have been’ absent the misconduct.” State v. 

Downing, 163 Idaho 26, 31, 407 P.3d 1285, 1290 (2017). 

In Nix v. Williams, the United States Supreme Court held that evidence relating to the 

discovery of a murder victim’s body could still be admissible despite Sixth Amendment 
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violations that helped lead to its discovery. 467 U.S. at 444. There, police officers picked up a 

murder suspect, and, in the process of transporting him, deliberately elicited incriminating 

statements in violation of his right to counsel. Id. at 436. The questioning resulted in the 

defendant leading the police officers to the body of his murder victim. Id. However, independent 

of those events, a search team was combing the same area because the victim’s clothes had been 

discovered nearby. Id. The team was within a few miles of locating the body, but the search was 

halted once the defendant agreed to cooperate. Id.

The Supreme Court agreed with the lower courts that the evidence relating to the victim’s 

body was not subject to the exclusionary rule despite the illegality of the interrogation, because 

the State had carried its burden to show that the evidence inevitably would have been discovered. 

Id. at 450. The search was undertaken five hours prior to the questioning, and was only 

suspended after the defendant agreed to cooperate with police. Id. at 449. The leader of the 

search testified that the search party would have searched the area where the body was found, 

was instructed to search culverts (which is where the body was hidden), and would have resumed 

its task if the defendant did not actually lead police to the body. Id. Based on this testimony, the 

Court was satisfied that the evidence would have inevitably been found. Id. at 450. Thus, 

excluding the evidence in such a situation would put the State in a worse position than it would 

have been in without the illegality. Id. at 447. 

Here, if we put the police in the same position they would be in without the police 

misconduct, the police are left with no other investigatory wheels in motion. As we have stated 

on prior occasions, “the inevitable discovery exception does not permit us to speculate on the 

course of action the investigation could have taken in the absence of [the Constitutional 

violation]—even if that alternate course likely would have yielded the evidence.” Downing, 163 

Idaho at 32, 407 P.3d at 1291. A police investigation often takes branching paths. The inevitablediscovery doctrine presupposes parallel paths leading toward the inevitable discovery of 

evidence. If, because of illegal police action, one path arrives at the evidence before the other 

does, then the State will be permitted to prove that the existing alternative path would have 

yielded the evidence even if the existing alternative path was cut short due to the discovery of the 

evidence. However, the split in the investigation which creates these parallel paths must occur 

prior to or independent of the illegality, not because of it. The question is not what legal path the 

police would have inevitably taken which could have yielded the evidence. The question is what 
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legal path the police actually took which would have inevitably yielded the evidence. We again 

stress the astute observation of our Court of Appeals: “The inevitable discovery doctrine ‘is not 

intended to swallow the exclusionary rule whole by substituting what the police should have 

done for what they really did.’” Id. (quoting State v. Holman, 109 Idaho 382, 392, 707 P.2d 493, 

503 (Ct. App. 1985)) (internal quotation marks and alterations omitted). 

The question becomes whether the State can prove that the evidence in question would 

have been inevitably discovered even if the police illegality is removed from the equation. The 

State did not meet this burden. Here, unlike Nix, there was no parallel path which would have led 

to the discovery of the evidence. There were no investigatory efforts aimed at Maxim. In 

addition, the district court’s analysis relied in a large measure on prolonged timelines that could 

not have accounted for all the permutations of possible events. The district court reasoned that “if 

[the officers] had stayed outside the apartment and the occupants had ignored their requests to 

respond,” the officers would not have abandoned their inquiry, and “the [apartment] owner 

would have eventually given consent for the officers to enter.” The district court reasoned that 

because Maxim’s girlfriend stated she was unaware Maxim was in her apartment, it is likely 

“had [she] been contacted before Mr. Maxim [was] found and arrested . . . she still would have 

permitted the police to enter and search the apartment before permitting her child to enter.” Once 

in the apartment with the owner’s consent, the officers would not have ignored a locked 

bathroom during their search, and would therefore have located Maxim. Having found him 

hiding “[a]fter a long suspicious wait for consent,” they would have run his name through their 

system, found his arrest warrant, searched him, and discovered the heroin. In Nix, the evidence 

was found “within a short time” and in “essentially the same condition” as a result of the 

independent search. 467 U.S. at 438. Here, there is simply too much time and too many 

independent actors to presume that the officer would have found the evidence in a short period of 

time or in essentially the same condition. As a result, we determine that the district court erred by 

speculating about what the police could have done instead of what they did do. 

V. CONCLUSION

We reverse the district court’s order denying Maxim’s motion to suppress. We hold that a 

Fourth Amendment waiver which is unknown to an officer at the time of a Fourth Amendment 

violation cannot be relied on to assert that the search was reasonable. We also determine that the 

district court misapplied the inevitable discovery doctrine by engaging in a speculative analysis 
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that did not rely on an investigative path set in motion prior to or independent of the unlawful 

police activity. We vacate the district court’s judgment of conviction, reverse its denial of 

Maxim’s motion to suppress, and remand for further proceedings consistent with opinion. 

Justices STEGNER and MOELLER CONCUR. 

BEVAN, Justice, dissenting in part.

This is a case about the proper scope of and the entitlement to the protections of the 

Fourth Amendment by a probationer who has explicitly “waiv[ed his] rights under the Fourth 

Amendment and the Idaho Constitution concerning searches.” In my view, the proper legal

standard for this case requires Maxim, as the defendant asserting his Fourth Amendment rights 

were violated, to first establish three things: “the defendant [1] ‘must come forward with 

evidence sufficient to show there was a Fourth Amendment search, [2] [the defendant] has 

standing to challenge the search, and [3] the search was illegal.’ ” State v. Hoskins, 165 Idaho 

217, 220–21, 443 P.3d 231, 234–35 (2019). Without a proper showing that Maxim has standing 

to challenge the search, the remaining merits of Maxim’s claims, including the unreasonableness 

of the officers’ conduct, is immaterial to the analysis of the Court. I would therefore affirm the 

district court’s denial of the motion to suppress because Maxim lacks standing. The majority and 

I agree on the district court’s inappropriate application of the inevitable discovery doctrine, but 

that analysis is unnecessary given my conclusion that Maxim lacks standing to assert a 

constitutional violation here. 

To reiterate, as to Maxim’s waiver of his constitutional rights, the probation agreement 

which he signed required two things of him, both consent to search and a waiver of his rights 

under the United States and Idaho constitutions:

Search: I consent to the search of my person, residence, vehicle, personal 

property, and other real property or structures owned or leased by me, or for 

which I am the controlling authority conducted by any agent of IDOC of a law 

enforcement officer. I hereby waive my rights under the Fourth Amendment and 

the Idaho constitution concerning searches.

(Emphasis added).

We recently held that the “common guiding principle underlying our decisions in [these 

kinds of cases] is that courts evaluating the scope of the Fourth Amendment waiver must look to 

the language used in the condition of probation in order to determine whether the search was 

objectively reasonable.” State v. Jaskowski, 163 Idaho 257, 261, 409 P.3d 837, 841 (2018). That 

common guiding principle requires that we view the clause as a whole and not evaluate the 
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reasonableness of the search before we determine whether Maxim has standing to assert his 

rights. State v. Mann, 162 Idaho 36, 41, 394 P.3d 79, 84 (2017) (“[E]ven if a search is 

unreasonable, a defendant must have a privacy interest that was invaded by the search in order to 

suppress evidence discovered in the search.”) (quoting Rakas v. Illinois, 439 U.S. 128, 133–34 

(1978)). For example, in Mann, this Court held that an unauthorized driver of a rental car lacks 

standing to challenge a search of the rental car. Mann, 162 Idaho at 42, 394 P.3d at 85.When a 

search is challenged, the defendant bears the burden of showing that he or she had a reasonable 

expectation of privacy in the place searched. Id. (citation omitted); see also State v. Bottelson, 

102 Idaho 90, 92, 625 P.2d 1093, 1095 (1981) (“[T]o claim the protection of the fourth 

amendment, a person must show that he had a legitimate expectation of privacy in the invaded 

place.”). The majority gets the cart before the horse and conditions its Fourth Amendment 

analysis on whether the defendant’s rights were violated, not whether the defendant held a 

reasonable expectation of privacy that society is willing to recognize as legitimate. I believe such 

an analytical paradigm is erroneous.

At issue is whether Maxim had standing to challenge the search. Standing is simply 

“shorthand for the question [of] whether the [defendant] had a legitimate expectation 

of privacy in the area that was searched.” Hoskins, 165 Idaho at 221, 443 P.3d at 235 (quoting 

Mann, 162 Idaho at 44 n. 1, 394 P.3d at 87 n. 1). Whether a defendant has an expectation of 

privacy is a two part inquiry. Smith v. Maryland, 442 U.S. 735, 740 (1979). 

The first [question] is whether the individual, by his conduct, has “exhibited an 

actual (subjective) expectation of privacy,”—whether . . . the individual has 

shown that “he seeks to preserve [something] as private.” The second question is 

whether the individual’s subjective expectation of privacy is “one that society is 

prepared to recognize as ‘reasonable,’ ”—whether . . . the individual’s 

expectation, viewed objectively, is “justifiable” under the circumstances.

Id. (citing Katz v. United States, 389 U.S. 347, 351–61 (1967) (internal citations omitted)). 

Probationers have a reduced expectation of privacy. United States v. Knights, 534 U.S. 

112, 119 (2001) (“Inherent in the very nature of probation is that probationers do not enjoy the 

absolute liberty to which every citizen is entitled.”); State v. Gawron, 112 Idaho 841, 843, 736 

P.2d 1295, 1297 (1987) (“[S]uch persons conditionally released to societies have a reduced 

expectation of privacy, thereby rendering intrusions by government authorities ‘reasonable’ 

which otherwise would be unreasonable or invalid under traditional constitutional concepts.”). 

“Probation is simply one point . . . on a continuum of possible punishments ranging from solitary 
15

confinement in a maximum-security facility to a few hours of mandatory community service.” 

Griffin v. Wisconsin, 483 U.S. 868, 874 (1987). Many options lie between those two extremes 

like “probation—which can itself be more or less confining depending upon the number and 

severity of restrictions imposed.” Id. “[I]t is always true of probationers . . . that they do not 

enjoy ‘the absolute liberty to which every citizen is entitled, but only . . . conditional liberty 

properly dependent on observance of special [probation] restrictions.” Id. (quoting Morrissey v. 

Brewer, 408 U.S. 471, 480 (1972)). 

Whether Maxim’s alleged privacy interest is “justifiable under the circumstances” is met

with a “no” from me. 

[I]t must be remembered that the very assumption of the institution of probation is 

that the probationer is more likely than the ordinary citizen to violate the law. . . . 

The recidivism rate of probationers is significantly higher than the general crime 

rate. . . . And probationers have even more of an incentive to conceal their 

criminal activities and quickly dispose of incriminating evidence than the ordinary 

criminal because probationers are aware that they may be subject to supervision 

and face revocation of probation, and possible incarceration, in proceedings in 

which the trial rights of a jury and proof beyond a reasonable doubt, among other 

things, do not apply. . . . 

Knights, 534 U.S. at 120 (internal citations and quotations omitted). 

The scope of probation is determined by the terms of the probation agreement. See 

Jaskowski, 163 Idaho at 261, 409 P.3d at 841 (explaining that resolution of these cases depends 

on the specific language of the waiver at issue). In Gawron, for example, the police had 

performed a warrantless search of Gawron’s residence after learning Gawron was involved in 

multiple burglaries and it was revealed after a brief investigation that Gawron was on probation. 

Id. at 842, 736 P.2d at 1296. Gawron’s probation agreement read:

That probationer does hereby agree and consent to the search of his person, 

automobile, real property, and any other property at any time and at any place by 

any law enforcement officer, peace officer, or probation officer, and does waive 

his constitutional right to be free from such searches.

Id. (emphasis added). On appeal, Gawron argued the probation condition which required 

submission to warrantless searches was an unreasonable invasion of his Fourth Amendment 

rights. Id. This Court disagreed and held the reasonableness of the search need not be addressed

because Gawron had expressly waived his constitutional right to be free from warrantless 

searches. Id. at 843, 736 P.2d at 1297. To compare, in Jaskowski an officer pulled Jaskowski 

over for an outstanding arrest warrant. Id. at 258, 409 P.3d at 838. Knowing Jaskowski was on 
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probation, the officer called his probation officer who later arrived at the stop. Id. The probation 

officer informed Jaskowski he would search the vehicle and then performed the search without 

Jaskowski’s permission. Id. The terms of Jaskowski’s probation agreement were:

I shall submit and I agree to . . . warrantless searches of my person, personal 

property, electronic devices, automobiles, residence, and outbuildings at the 

request of my Probation Officer, by the Probation Officer, Peace Officer, and/or 

his designee; with or without Probable Cause; any time day or night. . . . 

Id. (emphasis added). This Court challenged the State’s expansive reading of Gawron that a 

probation condition on warrantless searches is always a complete waiver of Fourth Amendment 

rights, regardless of the actual language in the probation condition. Id. at 259, 409 P.3d at 839. 

Rather, this Court explained “[i]t is well settled that when the basis for a search is consent, the 

state must conform its search to the limitations placed upon the right granted by the consent.” Id. 

at 260, 409 P.3d at 840 (quoting State v. Turek, 150 Idaho 745, 749, 250 P.3d 796, 800 (Ct. App. 

2011)). This Court then held the warrantless search of Jaskowski’s vehicle exceeded the scope of 

his Fourth Amendment waiver because Jaskowski’s waiver “was conditioned upon the probation 

officer requesting to conduct a search and that any search conducted without such a prefatory 

request is not objectively reasonable.” Id. 

The majority mistakenly reads our precedent in this arena as representing that a 

probationer’s waiver must at first be analyzed for its reasonableness under the Fourth 

Amendment. That said, our cases hold that the scope of a Fourth Amendment waiver depends on

the terms of the probation agreement. This Court has not ignored the standing question in these 

types of cases, and our appellate courts have even allowed the issue to be raised for the first time 

on appeal. E.g., State v. Hanson, 142 Idaho 711, 718, 132 P.3d 468, 475 (Ct. App. 2006). Indeed, 

a court may find sua sponte that the defendant has not shown standing, no matter if the 

prosecutor brought this flaw to the court’s attention. See United States v. Nadler, 698 F.2d 995, 

998 (9th Cir.1983).

Gawron and Jaskowski are just two examples of different points on the continuum of 

possible probation punishments. See Knights, 534 U.S. at 119. If a waiver includes limiting 

language such as the “at the request of” language employed in Jaskowski, then the scope of the 

waiver is less intrusive and the probationer reserves some expectation of privacy, albeit a limited 

one. On the other hand, if the waiver includes no limiting language such as the language in 

Gawron that waived all Fourth Amendment rights, the probationer has no reasonable expectation 
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of privacy. This is precisely the type of language that governs this case. See Samson v. 

California, 547 U.S. 843, 852 (2006) (quoting Morrissey v. Brewer, 408 U.S. 471, 477 (1972) 

(“[P]ertaining to petitioner’s status as a parolee, ‘an established variation on imprisonment,’ . . . 

including the plain terms of the parole search condition, we conclude that petitioner did not have 

an expectation of privacy that society would recognize as legitimate.”).

I recognize the majority’s concern over the potential “evisceration” of the Fourth 

Amendment carries some weight. Yet given the recognized societal risk that probationers pose, I 

submit that probationers’ expectations of privacy are appropriately limited by the language

employed in the waiver itself. See Jaskowski, 163 Idaho at 260, 409 P.3d at 840. The language in 

the waiver clause is broad for a reason, and it is not for this Court to rewrite it now under the

guise of a reasonableness analysis. Indeed, if the majority harbors concerns about the breadth of 

the waiver clause, the better solution could be to challenge the voluntariness of such a waiver. 

See Gawron, 112 Idaho at 844, 736 P.3d at 1298 (Bistline, J., dissenting) (quoting State v. 

Fogarty, 610 P.2d 140 (Mont. 1980) (“A waiver theory however, does not comport with the 

requirements . . . that a waiver is invalid unless it be made knowingly, intelligently, and 

voluntarily. A choice cannot be termed voluntary where the alternative is prison and even more 

restrictions). That said, Maxim has not raised the voluntariness of his waiver on appeal, and thus 

that issue is not before us. 

The unstated truth is that the Fourth Amendment is alive and well for ordinary citizens 

who are not on probation for criminal behaviors which cause them to lose a panoply of 

constitutional rights. See Idaho Const. art. VI, § 3 (“No person is permitted to vote, serve as a 

juror, or hold any civil office who has, at any place, been convicted of a felony. . . .”); Idaho 

Code § 18-3316 (a person convicted of a felony loses their rights under the Second Amendment 

to keep and bear arms). Society as a whole has an interest that must be weighed in these 

equations. “In assessing the governmental interest side of the balance, it must be remembered 

that ‘the very assumption of the institution of probation’ is that the probationer ‘is more likely 

than the ordinary citizen to violate the law.’ ” Knights, 534 U.S. at 120 (quoting Griffin, 483 U.S. 

at 880). The majority’s basis for distinguishing this case from others where we have upheld the 

waiver–Gawron, Purdum and State v. Garnett, No. 45282, 2019 WL 2416953, at *2 (Idaho June 

10, 2019)—is that in those cases law enforcement knew about the probationer’s status at the 

time of the search. My problem with relying on the officer’s knowledge or lack thereof as the 
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basis for a rule of constitutional law in cases like this one is that it wholly ignores the primary 

question whether the probationer had a reasonable expectation of privacy that society recognizes 

as legitimate in the first place. The potential evisceration of the Fourth Amendment is of no 

moment where the probationer has no such reasonable expectation of privacy to begin with.

Based on the refined precedent of this Court, Maxim reserved no expectation of privacy 

when he waived all of his rights under the Fourth Amendment. Absent from the waiver is any 

limiting language such as the need to request to search that was present in Jaskowski. Maxim 

cannot create a subjective expectation of privacy when he explicitly waived his Fourth 

Amendment rights to search his property. Even assuming Maxim had a subjective expectation of 

privacy, to have standing Maxim must also show his expectation is “one that society is prepared 

to recognize as reasonable.” Maryland, 442 U.S. at 740. Society is not prepared to recognize a 

probationer’s subjective privacy belief where the probationer expressly waives all of his rights 

under the Fourth Amendment. See Samson, 547 U.S. at 852. Based on Maxim’s complete waiver 

of his Fourth Amendment rights, he has failed to show he has a reasonable expectation of 

privacy in his person or the place to be searched. Thus, he lacks standing to assert any rights 

under the Fourth Amendment. For that reason, I respectfully dissent. 

Justice BRODY concurs.