State v. Armstrong

• Citation: 158 Idaho 364,347 P.3d 1025
• Decision Date: 12 February 2015
• Docket Number: No. 41458.,41458.
• Court: Court of Appeals of Idaho
• Parties: STATE of Idaho, Plaintiff–Respondent, v. Dustin Thomas ARMSTRONG, Defendant–Appellant.

158 Idaho 364

347 P.3d 1025

STATE of Idaho, Plaintiff–Respondent,

v.Dustin Thomas ARMSTRONG, Defendant–Appellant.

No. 41458.

Court of Appeals of Idaho.

Feb. 12, 2015.

Review Denied May 21, 2015.

Sara B. Thomas, State Appellate Public Defender, Boise, for appellant. Maya P. Waldron, Deputy Public Defender, argued.

Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent. John C. McKinney argued.

SCHROEDER, Judge Pro Tem.

Dustin Thomas Armstrong appeals from his judgment of conviction for grand theft. He argues that the district court erred in denying his motion to suppress evidence obtained from a warrantless search of his vehicle executed by police officers at the request and direction of Armstrong's parole officer. For the reasons set forth below, we affirm.

I.FACTS AND PROCEDURE

Armstrong was released on parole in 2012 following a period of incarceration resulting from his conviction for possession of a controlled substance and issuing a check without funds. As a condition of parole, Armstrong agreed that he would "submit to a search of person or property, to include residence and vehicle, at any time and place by any agent of Field and Community Services and s/he does waive constitutional right to be free from such searches."¹

Armstrong's mother called police to report that Armstrong was in her home, possibly under the influence, and acting in a way that made her fear for her safety. An officer was dispatched to respond to the call. While en route, the officer called the Bureau of Probation and Parole hotline and was informed by the on-call parole officer that Armstrong was on parole. As the officer neared the mother's home, the officer observed Armstrong leaving the area in his vehicle. The officer briefly lost sight of Armstrong's vehicle, but later located it in a credit union parking lot. Other officers went into the credit union and asked to speak with Armstrong outside. Meanwhile, the responding officer again spoke with the on-call parole officer, who stated that, as a condition of parole, Armstrong had signed a Fourth Amendment waiver allowing search of his person and property, including his home and vehicle. Pursuant to that waiver, the parole officer requested that the police officer search Armstrong's vehicle. A drug dog was called in and performed an exterior sniff of the vehicle, with no alerts. The dog then searched the interior of the vehicle and alerted on a safe located behind the driver's seat. Although no controlled substances were found, it was subsequently determined that the safe belonged to Armstrong's mother and contained several personal and financial documents, including her checkbook.

Armstrong was charged with grand theft, I.C. §§ 18–2403(1) and 18–2407(1)(b). He filed a motion to suppress evidence obtained from the warrantless search of his vehicle. The district court initially granted the motion, agreeing with Armstrong's argument that the Fourth Amendment waiver pertained to searches by Probation and Parole agents, which the local police were not. As a result, the district court determined that the scope of the search exceeded what was permitted by the waiver. The state filed a motion to reconsider, contending that, under the plain language of the waiver and under the dictionary definition of "agent," any police officer acting under the direction of a parole officer was acting as an agent of Probation and Parole. The district court agreed, granted the motion for reconsideration, and denied Armstrong's motion to suppress the evidence obtained during the search of his vehicle.

Armstrong pled guilty to grand theft, reserving his right to appeal the denial of his motion to suppress. The district court sentenced Armstrong to a unified term of three years, with a minimum period of confinement of one year. Armstrong appeals.

II.STANDARD OF REVIEW

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

Armstrong asserts that the district court erred in denying his motion to suppress based on its conclusion that the local police officers were agents of the Board of Correction. Specifically, he claims that the Board's constitutional duty to control, direct, and manage parole and parolees pursuant to Article X, Section 5 of the Idaho Constitution may not be delegated to any entity. That duty includes searches of parolees pursuant to Fourth Amendment waivers. He contends that a parole officer may not delegate the performance of such a search to any other entity, including local police. As a result, local police cannot be considered agents of the Board for purposes of performance of a search pursuant to a Fourth Amendment waiver. According to Armstrong, because the parole officer delegated the Board's duty to perform such a search to the local police, the search exceeded the scope of Armstrong's Fourth Amendment waiver, making the search unreasonable and a violation of the Fourth Amendment.

The state argues that Armstrong did not raise the constitutional argument in the district court and, therefore, failed to preserve it for appeal. The state also argues that the district court correctly determined that local law enforcement could act as agents of Probation and Parole in assisting with a parole-instigated search consistent with the terms of Armstrong's Fourth Amendment waiver. Alternatively, the state contends that the search was supported by reasonable grounds to believe that Armstrong had violated the terms of his parole.

A. Preservation of Issue for Appeal

The threshold issue is whether Armstrong preserved for appeal the argument that the parole officer could not delegate the Board's duty to supervise parole and parolees, under Article X, Section 5 of the Idaho Constitution, to local law enforcement.

Appellate court review is limited to the evidence, theories, and arguments that were presented below. State v. Johnson, 148 Idaho 664, 670, 227 P.3d 918, 924 (2010).² Issues not raised below generally may not be considered for the first time on appeal. See State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). For an objection to be preserved for appellate review, either the specific ground for the objection must be clearly stated or the basis of the objection must be apparent from the context. I.R.E. 103(a)(1) ; State v. Sheahan, 139 Idaho 267, 277, 77 P.3d 956, 966 (2003).

Although Armstrong preserved for appeal the general objection to the search and argument that the search exceeded the scope of his Fourth Amendment waiver, he cannot argue more grounds for that challenge than were argued before the district court. See State v. Frederick, 149 Idaho 509, 513, 236 P.3d 1269, 1273 (2010) (stating that the defendant failed to preserve an argument for suppression of evidence under the state constitution because it was not raised below); State v. Wheaton, 121 Idaho 404, 406–07, 825 P.2d 501, 503–04 (1992) (declining to consider whether the state constitution afforded the defendant greater protection from a warrantless search than the federal constitution because, though he mentioned it in his motion, defendant failed to further clarify his state constitutional argument to the district court). An objection on one ground will not preserve for appeal a separate and different basis for objection not raised before the trial court. State v. Higgins, 122 Idaho 590, 597, 836 P.2d 536, 543 (1992) ; State v. Vondenkamp, 141 Idaho 878, 885, 119 P.3d 653, 660 (Ct.App.2005) ; see also Frederick, 149 Idaho at 513, 236 P.3d at 1273 ; Wheaton, 121 Idaho at 406–07, 825 P.2d at 503–04. Even when a defendant mentions the general basis for a motion to suppress, his or her arguments on appeal are limited by what was argued to the trial court. See State v. Anderson, 154 Idaho 703, 705–06, 302 P.3d 328, 330–31 (2012) (declining to address the issue of a drug dog's reliability raised for the first time on appeal when only the probable cause to search one area of the vehicle after the drug dog had previously alerted to another area was challenged below); State v. Headley, 130 Idaho 339, 340, 941 P.2d 311, 312 (1997) (declining to address a defendant's argument on appeal challenging the validity of an arrest based on whether a statute allowed for arrest instead of citation and release because the defendant had argued below only that the arrest and subsequent search were invalid for lack of probable cause); State v. Babb, 125 Idaho 934, 940, 877 P.2d 905, 911 (1994) (noting that denial of a motion in limine preserves for appeal an objection to evidence raised in the motion, but declining to address an argument on appeal that was not covered in the defendant's motion); State v. Contreras–Gonzales, 146 Idaho 41, 47, 190 P.3d 197, 203 (Ct.App.2008) (declining to address the defendant's "much broader alleged foundational deficiency ... asserted on appeal" than was asserted below). This ensures that the trial court has an opportunity to consider and resolve disputes at a time when the error can be prevented, mitigated, or cured. See State v. Branigh, 155 Idaho 404, 416, 313 P.3d 732, 744 (Ct.App.2013) ; State v. Adams, 147 Idaho 857, 861, 216 P.3d 146, 150 (Ct.App.2009).

Armstrong's state constitutional argument on appeal was not raised before the district court, thereby depriving the district court of an opportunity to address the...