State v. Agundis

• Decision Date: 04 October 1995
• Docket Number: No. 20827,20827
• Citation: 903 P.2d 752,127 Idaho 587
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Juan C.S. AGUNDIS, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 752

903 P.2d 752

127 Idaho 587

STATE of Idaho, Plaintiff-Respondent, v. Juan C.S. AGUNDIS, Defendant-Appellant.

No. 20827.

Court of Appeals of Idaho.

Oct. 4, 1995.

[127 Idaho 588] Jonathan B. Hull, Kootenai County Public Defender, Coeur D'Alene, for appellant.

Alan G. Lance, Attorney General; Michael A. Henderson, Deputy Attorney General, Boise, for respondent. Michael A. Henderson argued.

LANSING, Judge.

Juan C.S. Agundis appeals from his convictions for one count of trafficking in marijuana, I.C. § 37-2732B(a)(1), one count of trafficking in cocaine, I.C. § 37-2732B(a)(2), and two counts of possession of controlled substances without a drug tax stamp, I.C. §§ 63-4204 through 63-4207. Agundis asserts as error the district court's denial of his motion to suppress evidence and the admission of alleged hearsay at trial relating to the identification of Agundis as the perpetrator of the criminal acts. ¹

The following facts are drawn from evidence presented on Agundis's motion to suppress evidence. In December 1992, Dan Thornton, a senior special agent with the Idaho Bureau of Narcotics, was at Gittel's Market, a grocery store in Coeur d'Alene. He was not in uniform. As Thornton was walking to his unmarked vehicle, he passed by two men standing at the open hatchback of an automobile located in the parking space adjacent to Thornton's own vehicle. As Thornton passed, one of the men stuffed a white plastic grocery bag underneath his sweater and turned away from Thornton. The men appeared surprised and nervous. Thornton got into his car, drove a short distance away, stopped, and continued to observe the men through his rear-view mirror. The men were handling a number of items including the white plastic bag, a large brown paper grocery bag and a black rectangular object which Thornton thought to be a portable stereo. One of the men picked up the black object and sat down in the passenger seat of the car. When he emerged, the black object was no longer in sight. While these activities were taking place, the men kept glancing at Thornton's vehicle, aware that it had not left the area. Eventually, one of the men closed the hatchback and again concealed the white bag underneath his coat. The other man took the brown bag out of the rear of the car and picked up a shovel that had been leaning against the car. The men then began to walk away down an alley.

Thornton decided to investigate. He drove up to the men, showed his badge and said, "I'm a police officer. I'd like to talk to you. Would you wait right there." One of the men responded, "No," and they continued to walk away, though at a faster pace. Thornton then said, "I'm a police officer. Stop right where you are." The men then began to run. Thornton followed in his car and radioed the local police department for assistance. At a street intersection, the men split up and ran in opposite directions. Thornton left his vehicle at the intersection, pursued one of the men on foot and, after a short chase, tackled and detained that suspect. This man was later identified as David Lopez.

As he conducted a "pat down" of Lopez, Thornton noticed that Lopez no longer possessed the white bag that he had concealed under his coat. Thornton returned to his car with Lopez in tow, handcuffed Lopez, and placed him in the car. Thornton gave a description of the second man to an officer of the Coeur d'Alene police department who had arrived on the scene. Thornton then searched the immediate area and recovered the white plastic bag, the brown paper bag, and the shovel, all of which had been abandoned in the chase. Thornton observed that both of the grocery bags contained what appeared to be marijuana.

Thornton then received a radio message that someone fitting the description of the second fleeing man was being detained in the parking lot of a nearby Albertson's supermarket. Thornton drove to that location with Lopez still in his car. The person there detained was Juan Agundis, the appellant herein. Agundis was arrested shortly thereafter.

The next day, a private citizen found a black bag buried in the snow next to his driveway in the area where the chase had occurred. The citizen looked in the bag and observed that it contained a quantity of a "white powder substance." The citizen called the police. Laboratory analysis identified the substance in the black bag to be cocaine; the substances in the white bag and brown bag were found to be marijuana.

Agundis was charged with trafficking in marijuana, I.C. § 37-2732B(a)(1), trafficking in cocaine, I.C. § 37-2732B(a)(2), and two counts of possession of controlled substances without a drug tax stamp, I.C. §§ 63-4204 [127 Idaho 590] through 63-4207. Agundis filed a pretrial motion to suppress evidence of the marijuana and cocaine on the ground that this evidence was obtained through an unlawful seizure of Agundis. This motion was denied upon the district court's conclusion that Agundis had not been seized by police before he abandoned the drugs. Agundis proceeded to trial and was found guilty of all four of the charged offenses. Agundis now appeals, contending the district court erroneously denied his motion to suppress and erroneously overruled his objections to hearsay evidence presented by the State at Agundis's trial. Agundis also asserts that prosecutorial misconduct occurred which necessitates a new trial.

I. MOTION TO SUPPRESS

Agundis maintains that evidence of the cocaine and marijuana should have been suppressed because this evidence was obtained through a seizure of his person ² that violated the federal and state constitutions. Agundis contends that agent Thornton's statement, "I'm a police officer. Stop right where you are," constituted a seizure within the meaning of the Fourth Amendment to the United States Constitution and Art. I, § 17 of the Idaho Constitution because a reasonable person in Agundis's position would have felt restrained and not free to leave. Agundis further argues that the officer did not have a reasonable articulable suspicion that criminal activity was afoot, as is required for such a detention, and the seizure was therefore illegal. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). According to Agundis, the drugs which were abandoned during the flight from Thornton, were fruit of this alleged illegal police action and consequently must be excluded. See State v. Rawlings, 121 Idaho 930, 932, 829 P.2d 520, 522 (1992).

We are thus called upon to determine whether Agundis was "seized" in violation of the Fourth Amendment to the United States Constitution or Art. I, § 17 of the Idaho Constitution when the officer directed him to stop.

The salient facts in this case are not in dispute; only their legal significance is at issue. Therefore, we exercise free review of the trial court's legal conclusion that a seizure did not occur. State v. Weber, 116 Idaho 449, 451-52, 776 P.2d 458, 460-61 (1989); State v. Pick, 124 Idaho 601, 604, 861 P.2d 1266, 1269 (Ct.App.1993).

A. Fourth Amendment

The Fourth Amendment to the United States Constitution guarantees freedom from "unreasonable searches and seizures." Its application in this case is governed by the United States Supreme Court decision in California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). In that case, the defendant fled on foot at the sight of a unmarked police car, and the police undertook pursuit. During the ensuing chase, and before being tackled by a police officer, the defendant discarded crack cocaine. The defendant asserted that the officer's pursuit constituted an illegal seizure and that the defendant's abandonment of the cocaine was excludable as the fruit of that seizure. The United States Supreme Court rejected this contention. The Court accepted the defendant's proposition that a seizure occurs "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen," and assumed, for purposes of its analysis, that the officer's pursuit of Hodari qualified as a "show of authority" that called upon Hodari to stop. Id. at 625, 111 S.Ct. at 1550. The Court held, however, that a mere show of authority, where the subject does not submit, will not constitute a seizure within the meaning of the Fourth Amendment. The Court concluded that a seizure implicating Fourth Amendment protections, like a common law arrest, requires application of physical force by an officer or, in the absence of force, submission by the suspect to an officer's assertion of authority. Id. at 626, 111 S.Ct. at 1550-51.

Hodari D. is factually distinguishable from the instant case only in that Hodari ran before the police officers uttered a word, whereas Agundis was ordered to stop. This distinction is of no legal significance, however, under the Supreme Court's analysis. Indeed, in Hodari D. the Court stated:

The word "seizure" readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful. ("She seized the purse-snatcher, but he broke out of her grasp.") It does not remotely apply, however, to the prospect of a policeman yelling "Stop, in the name of the law!" at a fleeing form that continues to flee. That is no seizure.

Id. at 626, 111 S.Ct. at 1550.

There is no contention that Agent Thornton touched Agundis before the drugs were discarded or that Agundis submitted to the officer's show of authority when Thornton ordered him to stop. Instead, Agundis continued to walk--and then to run--away from the officer. It is thus an inescapable conclusion that, under the governing authority of Hodari D., no Fourth Amendment seizure of Agundis occurred prior to the abandonment of the marijuana and cocaine that were later found by the police. The district court therefore did not err in denying Agundis's motion to suppress the drugs on a theory that this evidence was the fruit of a seizure...