¶1concurring in the result:
¶2Deja vu, from the French, “I’ve seen this before.” Here we have the very same probation officer, accompanied by a city police officer, making a late nocturnal visit in search of an elusive probationer who is not there, but gaining entry to the home and finding instead drugs and paraphernalia. See State v. Fleenor, 133 Idaho 552, 989 P.2d 784 (Ct.App.1999). The only major difference is that in this ease a frisk of the resident was not necessary, as she voluntarily disgorged the methamphetamine from her pocket upon being questioned.
¶3I concur in the result reached herein, however, because I believe that Misner voluntarily consented to the entry of the officers to look around for Nottingham and verify that he was not hiding there. Once inside, an officer noticed some drug paraphernalia in plain view, and thereafter Misner voluntarily produced drugs from her person. On that basis, I would support the denial of Misner’s motion to suppress.
¶4Where I draw the constitutional line, however, is in somehow endowing Nottingham with the authority to peremptorily, and in absentia, waive Misner’s constitutional rights to the sanctity of her own home on these meager facts. Officer Mesler is there on double hearsay that Nottingham has given this address as his purported residence to another probation officer. Nottingham is not there; nor is he even called as a witness for the State at the suppression hearing to relate his connection with and authority over the premises. Had Misner objected to entry of the two officers and attempted to deny them admittance, I would find a violation of her constitutional rights under this scenario. Compare State v. Devore, 134 Idaho 344, 348 at fn. 2, 2 P.3d 153, 157 at fn. 2 (Ct.App.2000) (where the Department of Corrections took the constitutional high road by having the home owner sign an acknowledgement and consent form that she was living with a probationer and subject to the same restrictions as that individual, including the waiver of Fourth Amendment rights).
¶5The point to be remembered is this: the Fourth Amendment protects persons, and not simply places, against unreasonable searches and seizures. See Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Before Nottingham can waive Misner’s Fourth Amendment rights, a stronger showing than demonstrated here needs to be made.