State Of Idaho v. Vogelpohl
| Decision Date | 05 November 2010 |
| Docket Number | Docket No. 36394,2010 Opinion No. 73 |
| Parties | STATE OF IDAHO, Plaintiff-Respondent, v. FILIP DANNEY aka FILIP VOGELPOHL, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Stephen W. Kenyon, Clerk
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael R. McLaughlin, District Judge.
Order denying motion to suppress evidence, affirmed.
The Cox Law Firm, Boise, for appellant. Sean C. Beaver argued.
Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney General, Boise, for respondent. Mark W. Olson argued.
Filip Danney (aka Vogelpohl) appeals from the judgment of conviction entered upon his conditional guilty plea to trafficking in marijuana. He challenges the denial of his motion to suppress evidence that was gained by police from placement of a global positioning system (GPS) tracking device on his vehicle and contends that the police lacked the requisite reasonable suspicion to expand a traffic stop into a drug investigation. We affirm.
The evidence from the suppression hearing indicated that in March 2007, Ada County Detective Matt Taddicken received an anonymous tip that Danney was potentially connected to a marijuana trafficking ring. Based on this information, Detective Taddicken searched Danney's discarded trash outside his residence numerous times, eventually discovering items bearing the name Filip Vogelpohl, an alias of Danney's, a tissue bearing marijuana residue, a heat-sealed plastic bag, and some sections that appeared to be cut from similar bags. On approximately May 16, 2007, Detective Taddicken located a vehicle registered in Danney's name parked outside Danney's business and placed a GPS tracking device on it. On May 21, via an online program that tracked the location of the GPS device, Detective Taddicken noticed that Danney's vehicle was in and around Arcata, California. The next day, the online tracking program indicated that the vehicle was traveling back toward Boise. Detective Taddicken notified Ada County Sherriff's Office Deputy Matthew Clifford when Danney's vehicle was entering Boise on return from California and told Clifford that the vehicle might contain drugs.
After watching Danney fail to signal for five seconds prior to changing lanes on two occasions, Deputy Clifford initiated a traffic stop. Deputy Clifford asked Danney where he was coming from. Danney replied that he had been at a sandwich restaurant and was on a "lunch break." Deputy Clifford returned to his vehicle where he called Detective Taddicken. Approximately six minutes into the stop, a backup officer arrived, and Deputy Clifford then deployed his drug dog to sniff the vehicle. The dog alerted, and a subsequent search of the vehicle revealed marijuana.
Danney was charged with felony trafficking in marijuana, Idaho Code § 37-2732B(a)(1). He filed a motion to suppress the evidence resulting from the traffic stop on the ground that the stop was unreasonably extended by the drug investigation procedures that were not justified by reasonable suspicion. At the hearing, he objected to admission of evidence gained from the GPS device on the ground that the State had not laid a sufficient foundation. The district court admitted the GPS evidence and denied the motion, finding that the officers had reasonable suspicion justifying extension of the stop to use a drug dog. Danney entered a conditional guilty plea to the charge, preserving his right to appeal the denial of his suppression motion.
We first address Danney's contention that the GPS evidence should not have been admitted at the suppression hearing because no proper foundation was laid. Danney argues there was insufficient evidentiary foundation to establish: (1) the scientific principles and methodology behind the GPS tracking device, (2) that the particular GPS tracking device used in this case was functioning properly, (3) that Detective Taddicken followed the proper policeprotocols when utilizing the GPS tracking device, and (4) that Detective Taddicken received accurate and reliable data from the GPS tracking device.
A trial court's determination whether evidence is supported by a proper foundation is reviewable under an abuse of discretion standard. State v. Wilson, 120 Idaho 643, 646, 818 P.2d 347, 350 (Ct. App. 1991). The foundation required to admit GPS data is a matter of first impression in Idaho. Generally, where evidence derived from new technology or new scientific techniques is proffered, the foundation must include a showing that the device or methodology employed is reliable and yields accurate information or test results. State v. Williamson, 144 Idaho 597, 602, 166 P.3d 387, 392 (Ct. App. 2007) (Lansing, J., concurring) (). See also State v. Perry, 139 Idaho 520, 522-23, 81 P.3d 1230, 1232-33 (2003) (); Swallow v. Emergency Med. of Idaho, P.A., 138 Idaho 589, 59293, 67 P.3d 68, 71-72 (2003) ();State v. Konechny, 134 Idaho 410, 417-18, 3 P.3d 535, 542-43 (Ct. App. 2000) (). The proper use and accuracy of the particular device in question must be established. Williamson, 144 Idaho at 600, 166 P.3d at 390; State v. Kane, 122 Idaho 623, 624-25, 836 P.2d 569, 570-71 (Ct. App. 1992). For example, we have held that where the State seeks to admit a reading from a laser speed detection device, the State must prove that the officer was qualified to operate the device, that the unit was properly maintained, and that it was used correctly. Williamson, 144 Idaho at 600, 166 P.3d at 390.
At the suppression hearing, Detective Taddicken testified that he participated in training provided by the manufacturer of the device. He said that the GPS transmitter device was magnetically attached to the underside of Danney's vehicle and that it was still attached in the same spot when the traffic stop occurred. The detective testified that the device communicates with orbiting satellites and uses the information they transmit "to figure a location." Detective Taddicken testified as to the brand and model of the particular device and said that he had used this model previously in testing. He indicated that his department's testing of this and similar GPS devices produced "successful" and "reliable" results. He explained that before placing the GPS transmitter on Danney's vehicle, he had tested the device by putting it on his own vehicle and comparing his actual location to the location reported by the device as he drove around Boise. In this testing, the GPS's Internet transmissions were monitored either by Detective Taddicken using a laptop computer in his patrol car with wireless Internet access, or by another officer on a computer at a remote location, and the device proved accurate. Detective Taddicken acknowledged that he did not know if there is an error rate for GPS devices and that he did not have knowledge of the engineering "behind the science of a GPS device" other than what he had explained concerning its use of satellite data transmissions.
We conclude that the district court did not abuse its discretion in holding that the State provided the requisite foundation for admission of the GPS evidence. Danney's assertion that the foundation was insufficient because Detective Taddicken admitted that he did not know the "science" behind GPS devices is not a correct application of the standard. It is not the engineering details of GPS technology that are critical but, rather, a demonstration that the device is accurate in the data it purports to provide, was operating properly at the time in question, and was used correctly by the operating officer. Detective Taddicken's testimony about the extensive testing of this GPS device and others like it and his training and experience in utilizing the device was sufficient to meet foundation standards. Further evidence of the device's accuracy is provided by the evidence that its transmissions led officers to the location of Danney's vehicle immediately preceding the traffic stop. The district court did not abuse its discretion in finding that sufficient foundation had been laid for admission of the GPS evidence.
Danney also contends that evidence gained from the GPS tracking device should have been suppressed because the warrantless placement of the device on his vehicle constituted a search prohibited by the Fourth Amendment. We do not reach this issue because it was not preserved for our review on appeal. Generally, issues not raised below may not be considered for the first time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). Danney asserts that his general objection to use of the GPS evidence was sufficient to preserve the constitutional challenge. However, it is clear from the record that Danney objected to consideration of the evidence solely on the ground that the State had not provided sufficient foundation and made no contention that placement of the GPS device on his vehicle was itself a "search" subject to Fourth Amendment strictures. Therefore, the constitutional issue was not preserved for appellate review.
In the alternative, Danney contends that we should examine the constitutional challenge under a fundamental error analysis, which would allow us to address the issue for the first timeon appeal. Idaho decisional law has long allowed appellate courts to consider a claim of error to which no objection was made below if the issue presented rises to the level of fundamental error. See State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007); State v. Knowlton, 123 Idaho 916, 918, 854 P.2d 259, 261 (1993); State v. Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262 (1971)....
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