1

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 43873

STATE OF IDAHO,

Plaintiff-Appellant,

v.

BRYAN A. SANTANA,

Defendant-Respondent.

)

)

)

)

)

)

)

)

)

)

2017 Opinion No. 20

Filed: March 6, 2017

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Third Judicial District, State of Idaho, 

Canyon County. Hon. D. Duff McKee, District Judge. Hon. Dan C. Grober, 

Magistrate.

Order of the district court, on intermediate appeal from the magistrate, affirming 

order granting motion to suppress, reversed and remanded. 

Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy 

Attorney General, Boise, for appellant. 

Tera A. Harden, Canyon County Public Defender; Barbara Ferre, Deputy Public 

Defender, Caldwell, for respondent. 

________________________________________________

MELANSON, Judge 

The State appeals from the district court’s order on intermediate appeal affirming the 

magistrate’s order granting a motion to suppress evidence seized during a search of Bryan A. 

Santana’s residence. For the reasons set forth below, we reverse the district court’s order and 

remand to the magistrate for further proceedings.

I.

FACTS AND PROCEDURE

Santana pled guilty to a charge of driving under the influence and was placed on 

probation. At sentencing, the magistrate used a preprinted form containing optional conditions 
2

of probation, checking off the conditions that applied to Santana. The form contained an 

optional condition of a Fourth Amendment waiver, which was not checked. The magistrate did 

not orally pronounce that a Fourth Amendment waiver was a condition of Santana’s probation. 

The magistrate did require that Santana comply with all rules and reporting requirements of the 

probation department. Santana was also ordered to not consume alcohol or any other 

mood-altering substance unless prescribed by a physician.

Almost six weeks after sentencing, Santana’s probation officer required Santana to sign a 

probation agreement. The probation agreement contained a Fourth Amendment waiver, 

authorizing any law enforcement officer, peace officer or probation officer to search Santana and 

his residence. When Santana signed the probation agreement, he admitted in writing that he used 

alcohol and marijuana three days earlier. Two days after this admission, Santana tested positive 

for marijuana. Twelve days later, Santana’s probation officer and a police officer conducted a 

warrantless search of Santana’s home. Santana was not present and did not consent to the 

search. The search revealed marijuana and drug paraphernalia. Santana was subsequently 

charged with possession of possession of marijuana and drug paraphernalia.

Santana filed a motion to suppress, arguing that the search violated his Fourth 

Amendment rights. Specifically, Santana argued that the search was conducted without his 

consent and that the State lacked the requisite reasonable grounds. The magistrate found that the 

Fourth Amendment waiver was not a valid condition of Santana’s probation because it was not 

announced in the oral pronouncement of his sentence nor set forth in the probation order. The 

magistrate commented that there was disagreement among other judges as to whether the 

probation agreement could set a Fourth Amendment waiver as a condition of probation when it is 

not contained in the probation order. The magistrate granted Santana’s motion to suppress and 

encouraged the State to appeal so other judges would have guidance for future cases.

The State appealed to the district court. On intermediate appeal, the district court 

affirmed the magistrate’s order suppressing evidence. The district court concluded that the 

probation order, not the probation agreement, set the substantive terms of probation. The district 

court alternatively affirmed on the basis that the State did not have the requisite reasonable 

grounds to conduct a search of Santana’s residence. The State again appeals.
3

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 follow 

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 reverse the decision 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, 

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. Fourth Amendment Waiver as Condition of Probation

On appeal, the State argues the probation agreement provided for a Fourth Amendment 

waiver as a condition of Santana’s probation. Specifically, the State asserts that the probation 

order contemplated a Fourth Amendment waiver by requiring Santana to cooperate with the rules 

and terms of the probation department. Idaho Code Section 19-2601(2) vests the sentencing 

court with the authority to set the substantive terms and conditions of probation. The statute 

does not mention the probation department, and the Idaho Supreme Court has stated that the 
4

probation order, not the probation agreement, sets the conditions of probation. Franklin v. State, 

87 Idaho 291, 296, 392 P.2d 552, 554 (1964).

However, the failure to include the conditions of probation in the probation order is not 

dispositive in every case. See Ex Parte Medley, 73 Idaho 474, 480-81, 253 P.2d 794, 797-98 

(1953). In Medley, the Court determined that the failure to include the conditions of probation in 

the probation order was not fatal because the sentencing court orally advised the probationer of 

the condition. Id. Moreover, the probationer acknowledged that he was aware of the condition

before accepting probation. The Court reasoned that the probationer had notice of the condition 

and knew what was expected of him. Id. In another case, the order of probation simply referred 

to the terms and conditions set forth in the probation agreement, but the order itself did not 

contain the conditions of probation. State v. Mummert, 98 Idaho 452, 454, 566 P.2d 1110, 1112 

(1977). In Mummert, the Idaho Supreme Court allowed the probation agreement to set forth the 

substantive conditions of probation because the agreement was provided to the defendant in 

court, at the time of the order, and in the presence of the judge. Thus, the validity of a Fourth 

Amendment waiver as a condition of Santana’s probation hinges on whether he received notice 

of the condition at the time of sentencing.

A defendant has the right to decline probation when he or she deems its conditions too 

onerous and may, instead, serve the suspended portion of the sentence. State v. McCool, 139 

Idaho 804, 807, 87 P.3d 291, 294 (2004); State v. Gawron, 112 Idaho 841, 843, 736 P.2d 1295, 

1297 (1987). It is essential that defendants receive notice of the substantive conditions of their 

probations at sentencing for two reasons. First, notice apprises defendants of what conduct the 

court expects of them. See Medley, 73 Idaho at 480-81, 253 P.2d at 797-98. Second, notice

affords defendants the opportunity to consider the terms and determine whether to accept 

probation. See McCool, 139 Idaho at 807, 87 P.3d at 294. 

In the instant case, Santana did not receive notice at sentencing that a Fourth Amendment 

waiver would be a condition of his probation. In fact, the sentencing court specifically omitted 

the checkbox for a Fourth Amendment waiver on the probation order. The court likewise did not 

mention a Fourth Amendment waiver as a condition of probation during oral pronouncement of 

Santana’s sentence. Santana was not apprised that he would be consenting to searches of his 

residence. Likewise, Santana was not afforded the opportunity to consider the Fourth 
5

Amendment waiver before deciding to accept probation. Thus, the Fourth Amendment waiver 

was not a condition of Santana’s probation.

Probation is an agreement between the court and the probationer. The probation order 

sets the substantive conditions of the probation and represents the agreement between the 

probationer and the court. The probation agreement is in the nature of an administrative 

document that procedurally sets forth how the substantive conditions will be enforced. For 

example, the probation order may require a probationer to submit to drug tests as a condition of 

probation. The probation agreement could then set forth the time and place the drug tests would

be conducted; however, it could not expand the condition to include a search of the probationer’s 

vehicle at the time of the drug test. Our determination does not mean that a probation agreement 

may never set the conditions of probation.1

 Rather, we hold that only the sentencing court may 

set the substantive conditions of probation. Thus, because Santana’s probation agreement was 

prepared by his probation officer and signed nearly six weeks after the sentencing court ordered 

Santana’s probation, the Fourth Amendment waiver in the probation agreement was not a valid 

condition of Santana’s probation.

B. Probation Agreement as Basis for Consent to Search

The State argues that, even if the probation agreement did not set a substantive condition 

of probation, Santana consented to the search of his residence when he signed the probation 

agreement containing the Fourth Amendment waiver. Although a warrantless entry or search of 

a residence is generally illegal and violative of the Fourth Amendment, such an entry or search 

may be rendered reasonable by an individual’s consent. State v. Johnson, 110 Idaho 516, 522, 

716 P.2d 1288, 1294 (1986); State v. Abeyta, 131 Idaho 704, 707, 963 P.2d 387, 390 (Ct. App. 

1998). In such instances, the State has the burden of demonstrating consent by a preponderance 

of the evidence. State v. Kilby, 130 Idaho 747, 749, 947 P.2d 420, 422 (Ct. App. 1997). The 

State must show that consent was not the result of duress or coercion, either direct or implied. 

Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973); State v. Whiteley, 124 Idaho 261, 264, 858 

 

1 In Mummert for example, the probation agreement set the conditions of probation where 

it was presented to the probationer at the same time as the probation order stating that all 

conditions of probation would be set forth in the probation agreement. Mummert, 98 Idaho at 

454, 466 P.2d at 1112.
6

P.2d 800, 803 (Ct. App. 1993). The voluntariness of an individual’s consent is evaluated in light 

of all the circumstances. Whiteley, 124 Idaho at 264, 858 P.2d at 803. Consent to search may be 

in the form of words, gestures, or conduct. State v. Knapp, 120 Idaho 343, 348, 815 P.2d 1083, 

1088 (Ct. App. 1991). Whether consent was granted voluntarily, or was a product of coercion, is 

a question of fact to be determined by all the surrounding circumstances. State v. Hansen, 138 

Idaho 791, 796, 69 P.3d 1052, 1057 (2003). 

In the instant case, Santana reported to the probation department pursuant to a condition

of probation as set forth in the probation order. Santana’s probation officer provided Santana the 

probation agreement and required him to sign it. When Santana was told to sign the probation 

agreement, he did not have an attorney present and was not advised that he had the right to have 

an attorney present. This distinguishes Santana’s circumstances because, generally, the 

probation agreement is provided to a probationer with the probation order at sentencing where an 

attorney is present. In light of these facts, Santana did not choose to waive his Fourth 

Amendment rights. Rather, he signed the probation agreement because he believed doing so was 

a condition of his probation. It is unlikely Santana would waive his Fourth Amendment rights 

unless he believed he was required to under the terms of his probation. Mere acquiescence to a 

claim of authority does not amount to consent. State v. Huskey, 106 Idaho 91, 94, 675 P.2d 351, 

354 (Ct. App. 1984). Thus, insofar as Santana consented to the search of his residence by 

signing the probation agreement, his consent was the product of coercion. Santana did not 

consent to the search of his residence when he signed the probation agreement containing the 

Fourth Amendment waiver. Accordingly, the district court did not err in granting Santana’s 

motion to suppress in this regard.

C. Warrantless Search

The State argues that, even if Santana did not waive his Fourth Amendment rights, there 

was reasonable suspicion that evidence of a probation violation would be found in his residence. 

A condition of Santana’s probation was that he not consume alcohol or any other mood-altering 

substance unless prescribed by a physician. Almost six weeks after that condition was set forth 

in the probation order, Santana admitted in writing that he used alcohol and marijuana three days 

earlier. Two days later, Santana tested positive for marijuana use. Twelve days later, based on 

this information, the probation department initiated a search of Santana’s residence. The 
7

magistrate concluded this information was insufficient to support reasonable suspicion. 

Specifically, the magistrate determined that the length of time after Santana’s admission and the 

absence of facts indicating drugs would be in his residence rendered the information too remote 

to justify a search.

The Fourth Amendment to the United States Constitution prohibits unreasonable searches 

and seizures. Warrantless searches are presumed to be unreasonable and therefore violative of 

the Fourth Amendment. State v. Weaver, 127 Idaho 288, 290, 900 P.2d 196, 198 (1995). The 

State may overcome this presumption by demonstrating that a warrantless search either fell 

within a well-recognized exception to the warrant requirement or was otherwise reasonable 

under the circumstances. Id. Even in the absence of a warrantless search condition, 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 the parolee or probationer has violated a parole or 

probation condition and the search is reasonably related to the disclosure or confirmation 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 warrantless search of an unsupervised

probationer’s residence based upon an unsubstantiated tip from police that Klingler may be 

dealing drugs, coupled with the probationer’s drug history which indicated a heightened need for 

supervision. Id. at 498, 148 P.3d at 1244. Thus, the mere likelihood of facts justifying 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 reasonable grounds or reasonable suspicion for warrantless search 

as a condition of bail pending appeal).

There is no magic number of days before information becomes stale. State v. Gomez, 101 

Idaho 802, 808, 623 P.2d 110, 116 (1980). Rather, the question of whether information is fresh 

or stale must be analyzed in light of the circumstances. Id. An important factor in the staleness 

analysis is the nature of the criminal conduct. Id. Additionally, if the crime suspected of is of a 

protracted or continuous nature, a time delay in the sequence of events is of less significance. 

State v. Alexander, 138 Idaho 18, 24, 56 P.3d 780, 786 (Ct. App. 2002).
8

In this case, Santana admitted to violating a condition of his probation by ongoing use of 

alcohol and marijuana. Because the underlying charge involved substance abuse and Santana 

admitted to ongoing substance abuse, these probation violations can be characterized as a crime 

of protracted nature. See id. (holding that certain nefarious activities, such as narcotics 

trafficking, are continuous in nature and, as a result, are less likely to become stale even over an 

extended period of time.) Additionally, the search occurred only twelve days after a drug test 

confirmed Santana’s marijuana use. Based on these facts, the information was not too stale to 

establish reasonable grounds. Thus, the probation officer had the requisite reasonable grounds to 

search Santana’s residence even without a valid Fourth Amendment waiver. Accordingly, the 

magistrate erred in concluding that the probation officer lacked the requisite reasonable suspicion

to search Santana’s residence. Because there was reasonable suspicion to search Santana’s 

residence, the district court erred in suppressing the evidence. 

IV.

CONCLUSION

A Fourth Amendment waiver was not a condition of Santana’s probation, and Santana 

did not consent to a search of his residence by signing the probation agreement. However, 

Santana’s probation officer had reasonable grounds to suspect that evidence of a probation 

violation would be in Santana’s residence. Thus, the search of Santana’s residence did not 

violate the Fourth Amendment, and the district court erred in affirming the magistrate’s order 

suppressing evidence. Accordingly, the district court’s order, affirming the magistrate on 

intermediate appeal, is reversed and the case is remanded to the magistrate for further 

proceedings.

Judge GUTIERREZ and Judge HUSKEY, CONCUR.