IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 31880
STATE OF IDAHO,
Plaintiff-Appellant,

v. ERNESTO CRUZ,
Defendant-Respondent. ) ) ) ) ) ) ) ) ) ) 2007 Opinion No. 41
Filed: June 12, 2007
Stephen W. Kenyon, Clerk

Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bannock County. Hon. Ronald E. Bush, District Judge.
Order granting motion to suppress, reversed and case remanded

. Hon. Lawrence G. Wasden, Attorney Ge neral; Thomas Tharp, Deputy Attorney General, Boise, for appellant. Thomas Tharp argued.
Molly J. Huskey, State Appellate Public Defender; Daniel R. Anderson, Deputy Appellate Public Defender, Boise, for respondent. Daniel R. Anderson argued.

______________________________________________ SCHWARTZMAN, Judge Pro Tem The state appeals from the di strict court’s order suppressing evidence the state sought to admit in the prosecution of Ernesto Cruz. For the reasons set forth below, we reverse and
remand.
I.
FACTS AND PROCEDURE Cruz was paroled after being convicted of possession of a controlled substance. Cruz agreed to abide by several parole conditions, in cluding that he would “submit to a search of person or property, to include residence and vehicle, at any time and place by any agent of Field and Community Services and [he] does waive constitutional right to be free from such searches.” Almost a year after Cruz was released on parole, a parole officer received an uncorroborated tip from a probatione r that Cruz was selling narco tics at a studio apartment. Although that apartment was not the residence that Cruz had reported to his supervising parole

1officer, the probationer further informed the paro le officer that Cruz was living at the studio apartment. The parole officer who received th e tip consulted with Cruz ’s supervising parole
officer and learned that Cruz wa s not home during a recent home visit and that Cruz had recently stated that he wished to move from his repor ted address. Additionally, two police officers, acting as part of a task force with parole officer s, drove by Cruz’s reporte d residence two to three times a day for a week and a half but never observe d Cruz’s vehicle parked in the area. The two police officers and the parole officer who receive d the tip then observed Cruz’s vehicle parked, two evenings in a row, near the apartment where he was reported to have been selling narcotics and living. On the second evening they observe d Cruz’s vehicle parked nearby, the parole officer and two police officers went to the ap artment to determine if he had changed his residence without permission and whether he was complying with the terms of his probation. The parole officer knocked on the front door, identified herself, and asked for Cruz. Cruz suggested that they give him a ch ance to exit to speak w ith them outside of the apartment. The officers then ordered Cruz to show his hands, but Cruz kept his le ft hand hidden behind the partially-opened door. The officers forcibly entere d the apartment, handcuffed Cruz after a brief struggle, and took steps to ensure their safe ty by making a protective sweep and securing the apartment. Cruz’s girlfriend and her son, the resident oc cupants of the apartment, were both present
when the officers entered. As one of the police officers closed the front door, he discovered four plastic bindles of methamphetamine lying on the floor in the area behi nd the front door where
Cruz’s left arm had been. Cruz admitted that th e methamphetamine belonged to him. The parole
officer discovered other items be longing to Cruz in the apartment, including two pairs of jeans and a few shirts on the bed; work boots on the floor; a coat; bottles containing drugs prescribed to him on top of a dresser; and his ce ll phone charger on an end table. The state charged Cruz with possession of a controlled su bstance, I.C. § 37-2732(c)(1), for the methamphetamine found behind the front door. 1 Cruz moved to suppress this evidence as the fruit of an unlawful search. After a hearing, the district court issued an extensive decision, granting Cruz’s motion to suppress. The di strict court found that, although Cruz was not permanently residing at his girlfriend’s apartment, he visited the apartment almost every day and

1 The officers also found marijuana and drug paraphernalia during their search of the apartment. Neither Cruz nor his girlfriend we re charged with possessing this contraband.

2spent one to two nights a week there. The di strict court ruled that Cruz had a reasonable expectation of privacy in his girl friend’s apartment entitling him to challenge the search, and that the search was unlawful because Cruz did not have authority, as a nonresident of the apartment, to consent to the search. The state appeals.
II.
STANDARD OF REVIEW The standard of review of a suppression mo tion is bifurcated. When a decision on a motion to suppress is challenged, we accept the tr ial court’s findings of fact which are supported by substantial evidence, but we freely review the application of constituti onal 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 inferen ces is vested in the trial court. State v. Valdez-Molina
, 127 Idaho 102, 106, 897 P.2d 993, 997 (1995); State v. Schevers , 132 Idaho 786, 789, 979 P.2d 659, 662 (Ct. App. 1999).
III.
ANALYSIS A warrantless search is presumptively unreasona ble unless it falls within certain special and well-delineated exceptions to the warrant requirement in the Fourth Amendment of the United States Constitution and Article I, Section 17 of the Idaho Constitution. State v. Curl , 125 Idaho 224, 225, 869 P.2d 224, 225 (1993); State v. McIntee , 124 Idaho 803, 804, 864 P.2d 641, 642 (Ct. App. 1993). Even if a search is improp er, however, only an individual with a privacy
interest that was invaded by the search may obtain s uppression of evidence found. State v.
Hanson , 142 Idaho 711, 716, 132 P.3d 468, 473 (Ct. App. 2006). We agree with the district court that Cruz had a reasonable expectation of privacy in his girlfriend’s apartment which he frequented regularly, either as a social guest or “part-time” resi dent, and that he was therefore entitled to challenge the reasonableness of the search. See Minnesota v. Olson, 495 U.S. 91, 100 (1990); United States v. Rhiger, 315 F.3d 1283, 1287 (10th Cir. 2003); United States v. Pollard, 215 F.3d 643, 647-48 (6th Cir. 2000); Morton v. United States
, 734 A.2d 178, 182 (D.C. 1999);
State v. Missouri , 603 S.E.2d 594, 597-98 (S.C. 2004); State v. Hess, 680 N.W.2d 314, 322-23 (S.D. 2004). See also 6 Wayne R. LaFave, Search and Seizure § 11.3(b), at 151-52 (4th ed. 2004).

3The state argues that the search of Cruz’s girlfriend’s apartment was reasonable because, as a parolee subject to searches of his person or residence at any time, Cruz had a significantly diminished expectation of privacy. Idaho appella te courts have long-r ecognized that parolees and probationers have a diminished expectation of privacy and will enforce Fourth Amendment waivers as a condition of parole or probation. See, e.g. State v. Gawron , 112 Idaho 841, 843, 736 P.2d 1295, 1297 (1987); State v. Peters , 130 Idaho 960, 963, 950 P.2d 1299, 1302 (Ct. App. 1997). Even in the absence of a warrantless search c ondition, a parole or probation officer may conduct a search of a parolee or probationer and his or her residence if the officer has “reasonable grounds” to believe that he or she has violated a parole or probation condition and the search is reasonably relate d to the disclosure or conf irmation of that violation. See State v. Klingler , 143 Idaho 494, 497-98, 148 P.3d 1240, 1243-44 (2006). In Klingler , the Idaho Supreme Court upheld the wa rrantless search of an unsupervised probationer’s residence based upon an unsubstantiated tip from a police detective th at Klingler “may be dealing drugs,” coupled with the probationer’s drug history which indicated a heightened need for supervision.
Id. , 143 Idaho at 498, 148 P.3d at 1 244. Thus, the mere likelihood of facts justifyi ng the search can be sufficient to constitute reasonable grounds. Id

. See also State v. Anderson , 140 Idaho 484, 487-88, 95 P.3d 635, 638-39 (2004) (unconfirmed tips from a neighbor regarding detected odor of suspected methamphetamine lab, coupled with prior drug history and other rumors,
sufficient to establish “reasonabl e grounds” or “reasonable suspici on” for warrantless search as a condition of bail pending appeal). The United States Supreme Court has recently analyzed the constitutionality of warrantless searches of parolees and proba tioners under the gene ral Fourth Amendment approach of examining the tota lity of the circumstances. See Samson v. California , ___ U.S. ___, ___, 126 S. Ct. 2193, 2197 (2006); United States v. Knights , 534 U.S. 112, 118 (2001). Whether a search is reasonable is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s priv acy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests. Samson , ___ U.S. at ___, 126 S. Ct. at 2197; Knights , 534 U.S. at 118-19.
In Knights , a probationer challenged a warrantless sear ch of his residence. The Supreme Court noted that the probationer’s expectation of privacy was significantly diminished by a condition of his probation whereby he was subject to a search of his person or residence, without

4a warrant or reasonable cause, by any probation officer or law enforcement o fficer at any time. The Court held that, when an officer has “reaso nable suspicion” that a probationer subject to a search condition is engaged in criminal activit y, there is enough likeliho od that criminal conduct is occurring that an intrusion on the probationer’s significantly diminished privacy interests is
reasonable. Knights , 534 U.S. at 121. The Supreme Court declined to decide, however, whether the probation condition so diminished, or comple tely eliminated, the probationer’s reasonable expectation of privacy that a search unsupported by individualized suspicion would have been
reasonable. See id. , 534 U.S. at 120 n.6.
In Samson , the Supreme Court addressed the constitutionality of a search of a parolee on a public street conducted by an officer who possessed no individualized suspicion of the defendant, other than his knowledge that the defendant was a parolee. The parolee had agreed to a search condition, set forth by California law, wher eby he was subject to search or seizure by a parole officer or other peace officer at any time, with or without a search warrant and with or
without cause. See Cal. Penal Code Ann. § 3067(a) (West 2000) . The Supreme Court held that a completely suspicionless search of the parol ee on a public street was reasonable because the parolee’s diminished expectation of privacy was outwei ghed by the state’s substantial interest in supervising parolees. See Samson , ___ U.S. at ___, 126 S. Ct. at 2197-02. The parolee did not have an expectation of privacy th at society would recognize as legi timate because of his status as a parolee, including the broad search condition. Id. , ___ U.S. at ___, 126 S. Ct. at 2199. While the Supreme Court reasoned that parolees have even fewer expectations of privacy than probationers, it disavowed the proposition that parolees, like prisoners, have no Fourth Amendment rights, id. , ___ U.S. at ___ & n.2, 126 S. Ct . at 2198 & n.2, and recognized California’s prohibition against “arbitrary, cap ricious or harassing” parole searches. Id.
, ___ U.S. at ___, 126 S. Ct. at 2202. Subsequent to Samson , the Fifth Circuit addressed a paro lee’s challenge of a warrantless search of his girlfriend’s apartment conduc ted while he was an overnight guest. See United States v. Taylor , 482 F.3d 315 (5th Cir. 2007). The officers who conducted the search had
obtained a misdemeanor arrest warrant for the parolee based on a complaint made against him
for malicious mischief. The offi cers were also aware that the pa rolee had failed to report to the county field office as dir ected and had information that the pa rolee was located at his girlfriend’s apartment and could be in possession of a gun th at she had recently purchased. The officers

5went to the apartment and, after knocking and receiving no response, forcibly entered. They found the parolee hiding in a back bedroom and th e gun in a dresser drawer in another bedroom. A condition of the parolee’s supervised release subjected him to search es of his person, his residence, or his vehicle at any time. The paro lee sought to suppress the gun, arguing that he had a reasonable expectation of privacy in the apartm ent as an overnight guest and that the search was unlawful because he expressly consented only to searches of his person, his residence, and his vehicle. The court held that the parole e was entitled to no greater Fourth Amendment protections in his girlfriend’s apar tment than he would have received or could assert with respect
to his own home. Id. , 482 F.3d at 318. Because the search was based upon reasonable suspicion that the parolee was involved in criminal activity and, pursuant to Knights
, would have been
lawful if it had occurred in hi s home, the court held that th e defendant’s Fourth Amendment rights had not been violated. Id. , 482 F.3d at 319. See also United States v. Lopez , 474 F.3d 1208, 1214 (9th Cir. 2006) (search of residen ce where parolee was living after absconding supervision was reas onable, pursuant to Samson , because search conditi on subjected parolee to suspicionless searches of himself or his residence). Like the parole condition in Samson , Cruz’s parole condition significantly diminished his reasonable expectation of privacy because it subj ected him to searches of person or property, including residence and vehicle, at any time and place and did not expressly require reasonable suspicion or reasonable grounds. In contrast, the state has a subs tantial interest in monitoring and enforcing limitations on the behavior of probationers and parolees. See Samson , ___ U.S. at ___, 126 S. Ct. at 2200. The search was conduc ted by a parole officer, acting with police officers, and therefore did not exceed the scope of the search condition, which expressly authorized searches by any agent of Field and Community Services. Nothing precludes law enforcement officials’ cooperation w ith a parole officer’s request to assist in a parole search. State v. Vega , 110 Idaho 685, 688, 718 P.2d 598, 601 (Ct. A pp. 1986). Moreover, the record
does not indicate that the officers conducted the sear ch with the intent to harass Cruz or to use Cruz’s suspected presence solely as a pretext to search Cruz ’s girlfriend, her son, or their apartment. See State v. Misner , 135 Idaho 277, 281, 16 P.3d 953, 957 (Ct. App. 2000). The officers were prompted to conduct the search by a tip that Cruz was selling narcotics and living at the apartment, as well as information that Cruz had recently stated th at he wished to move from his reported address and was not at his re ported address during a recent home visit. The

6officers also observed Cruz’s vehicle parked in fr ont of the apartment the evening before and the evening of the search. The pa role search was ther efore based upon a reasonable suspicion or reasonable grounds that Cruz was vi olating the terms of his parole by living at th e apartment and possessing or selling narco tics there. If Cruz’s parole officer were required to obtain a warrant to
conduct a search of a residence other than Cruz’s reported residence, Cr uz would be able to evade close supervision by spending much of his time and conducting illegal or prohibited activities at a residence he had not reported as his own. Allowing Cruz and other parolees to play this shell game with parole officers would defeat the state’s substantial interest in closely monitoring parolees. We hold that Cruz was entitled to no great er Fourth Amendment protections as a houseguest in his girlfriend’s apartment than he would have received in his own home. See Taylor , 482 F.3d at 318. Because a search suppor ted by a reasonable suspicion of possible parole violations would have been upheld had it occurred at Cr uz’s own residence, Cruz cannot obtain suppression of th e items seized in his girlfriend’s apartment. 2 In sum, Cruz’s Fourth Amendment rights were not violat ed because the government’s substa ntial interest in supervising parolees outweighs Cruz’s significantly diminish ed expectation of privacy in his girlfriend’s apartment. 3

2 It is arguable that even this reasonable su spicion requirement has been eliminated after the Samson decision. We need not consider this possibi lity in Cruz’s case, however, because the parole officer had reasonable suspic ion prior to the entry and search. See Taylor , 482 F.3d at 319 n.2.

3 In so holding, we do not address the questi on of whether the warrantless search may have violated the Fourth Amendment rights of Cruz’s girlfrie nd and her son. See Taylor
, 482 F.3d at 319. (However, the state conceded at oral argument on appeal that any evidence found in the apartment would most likely be suppressible as to them had the state sought to prosecute.) Because neither Cruz’s girlfriend nor her son were charged, it is constitutionally irrelevant for purposes of our opinion whether Cruz possessed authority to consent to a search of the apartment. See and compare State v. Barker , 136 Idaho 728, 40 P.3d 86 (2002) (warrantless search of fanny pack in apartment where parol ee resided with his girl friend did not violate girlfriend’s Fourth Amendment rights because o fficer had reasonable suspicion that parolee had joint control and thus authorit y to consent to the search) with State v. Buhler , 137 Idaho 685, 52 P.3d 329 (Ct. App. 2002) (warrantless search of third party’s residence where parolee was allegedly staying for a couple of days violated third party’s Fourth Amendment rights because parolee lacked actual or appare nt authority to consent to the search pursuant to his parole agreement). But Cruz did not need authority from anyone else to waive his own Fourth Amendment rights.

7Cruz also asserts that Article I, Section 17 of the Idaho Constitution should confer greater protections for parolees than the Fourth Ame ndment of the United States Constitution. Cruz correctly notes that Article I, Section 17 of th e Idaho Constitution provid es greater protections
than the Fourth Amendment of the United Stat es Constitution in certain circumstances. See, e.g. State v. Guzman , 122 Idaho 981, 987, 842 P.2d 660, 666 (1992); State v. Thompson , 114 Idaho 746, 749-51, 760 P.2d 1162, 1165-67 (1988). However, in these cas es, the Idaho Supreme Court has provided greater protection to Idaho citizens based on th e uniqueness of our state, our Constitution, and our long-standing jurisprudence. See State v. Donato , 135 Idaho 469, 472, 20 P.3d 5, 8 (2001). None of these factors suppor t a divergence from the interpretation of the Fourth Amendment by the United States Supreme C ourt in this case. We therefore decline to adopt Cruz’s interpretati on of the Idaho Constitution.
IV.
CONCLUSION The district court erred in granting Cruz’s motion to suppress. Accordingly, we reverse the district court’s order suppressing the meth amphetamine evidence sei zed during the parole search and remand the case for further proceedings consistent with the holding in this case. Judge LANSING and Judge GUTIERREZ, CONCUR.

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