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The Court issued two more criminal cases today. One with a favorable result for the defense and the other. . . .

First, the good news. The Court reversed the denial of a motion to suppress in State v. Frederick, http://www.isc.idaho.gov/opinions/State%20v%20%20Frederick%20-%20FINAL.pdf. In Frederick, the state conceded that the search was illegal under Arizona v. Gant, but argued that a "good-faith" exception should apply because the search was conducted prior to the issuance of Gant. The Court rejected the state's argument in this case, while holding out the possibility of applying the good-faith exception under different facts. The Court wrote:

"It is our view that retroactivity rules do not preclude application of the good faith exception when an officer relies on case law. We note, however, that the Supreme Court has emphasized that the good faith described in United States v. Leon 'must be objectively reasonable.' The burden of proving that such objectively reasonable good faith reliance existed is on the State. In this case, the State has failed to meet that burden." (Internal citations and parenthetical phrases omitted.)

The Court also held that Mr. Frederick had not preserved his state constitutional claim for appeal because he failed to mention the claim in his argument before the district court, did not cite to any authority expressly mentioning the state constitution, and did not obtain a ruling on the issue from the district court.

And speaking of not preserving an issue for appeal, the Court found in Kelly v. State that a pro se petitioner had waived his claim that he had not received adequate notice before his post-conviction petition was dismissed. In doing so, the Court reiterated the rule in DeRushé v. State that "an appellant may not challenge the sufficiency of the notice contained in the state's motion for summary disposition, and accompanying memoranda, for the first time on appeal." It also rejected Kelly's argument that he had not received any notice of some claims as not supported by the record.

The most useful part of the opinion for practitioners appears in a footnote where the Court says:

"To properly preserve this issue for appeal, an applicant would merely have to raise the issue below so that the district court had an opportunity to rule on it. For example, where the petitioner for post-conviction relief receives a motion for summary dismissal and does not feel that the motion for summary dismissal and accompanying memoranda provides him with sufficient notice of the grounds for summary dismissal - under the standard established in DeRushé - he may file a motion with the district court under I.R.C.P. 7, objecting to the motion for summary dismissal on the basis that it fails to provide him with sufficient notice. Likewise, the petitioner could object to the sufficiency of the notice at the summary dismissal hearing before the district court. Finally, if the district court grants the State's motion for summary dismissal, the petitioner may file an I.R.C.P. 11 motion for reconsideration, citing to DeRushé and arguing that the State's motion and accompanying memoranda did not provide sufficient notice."

Unfortunately, Mr. Kelly never asked for an attorney to represent him at the district court and his petition was dismissed before DeRushé was issued.

Kelly v. State, http://www.isc.idaho.gov/opinions/kelly%20opn.pdf