State v. Bishop, Docket No. 32805 (Idaho App. 12/4/2007)
| Decision Date | 04 December 2007 |
| Docket Number | Docket No. 32805. |
| Parties | STATE OF IDAHO, Plaintiff-Respondent, v. MARVIN SHANE BISHOP, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Gooding County. Hon. R. Barry Wood, District Judge.
Judgment of conviction for possession of a controlled substance and resisting and obstructing an officer, vacated and case remanded.
Molly J. Huskey, State Appellate Public Defender; Shannon N. Romero, Deputy Appellate Public Defender, Boise, for appellant. Shannon N. Romero argued.
Hon. Lawrence G. Wasden, Attorney General; Thomas Tharp, Deputy Attorney General, Boise, for respondent. Thomas Tharp argued.
Marvin Shane Bishop appeals from his judgment of conviction for possession of a controlled substance and resisting and obstructing an officer. Specifically, Bishop challenges the denial of his motion to suppress. Because we conclude that Bishop's motion to suppress should have been granted, we vacate Bishop's judgment of conviction and remand.
On May 25, 2005, two carnival workers contacted Casey Kelly, the Hagerman City Superintendent, and reported that a man, later identified as Bishop, had just offered to sell them methamphetamine. The carnival workers were in Hagerman for the Fossil Days celebration which was taking place that weekend. The two men asked Kelly to contact the police for them, which he did. Kelly called Chief Loren Miller of the Hagerman police department, who was on duty that evening. Kelly reported the direction Bishop was heading, what street he was on, and gave a description of him. While Chief Miller was en route to talk to Bishop, Kelly again called him and reported that he had followed Bishop until Bishop entered a market. Chief Miller was still on the phone with Kelly when he arrived at the market and observed Bishop exiting the store. Kelly identified Bishop as the man he had called Chief Miller about earlier. Chief Miller then followed Bishop into an alley behind the store, identified himself as a police officer, and told Bishop he needed to speak with him. Bishop said, "Hello" to Chief Miller but did not stop walking. Chief Miller got out of his marked police car and again stated that he needed to speak with him. Bishop asked what Chief Miller needed to speak with him about, and Chief Miller responded that it was about methamphetamine. At this point Bishop stopped walking and told Chief Miller that "he was a Christian and that Jesus loved [Chief Miller] too." Bishop's eyes were blood-shot and he was nervous and fidgety. According to Chief Miller he had a "wild look" in his eyes. Bishop was clutching a plastic grocery bag to his chest with both hands. Chief Miller could tell that Bishop did not want to be there speaking with him. Chief Miller informed Bishop that he was going to conduct a pat-down search for weapons, for the safety of both of them. Bishop refused to submit to the search, repeatedly telling Chief Miller, "No." Chief Miller told Bishop to follow his instructions or he would be placed under arrest. Bishop said, "Okay" and put his hands on the trunk of the police car. Shortly after Chief Miller began the pat-down search, Bishop turned around to face him and again said, "No." A struggle ensued while Chief Miller attempted to handcuff Bishop. Chief Miller placed Bishop on the ground, and Bishop tucked his hands and knees in to his chest in the fetal position to avoid being handcuffed. Another officer arrived on the scene and assisted Chief Miller in handcuffing Bishop.
A cursory pat-down search was conducted after Bishop was arrested, revealing a baggie of methamphetamine in his pocket. Bishop was transported to the carnival area where the two carnival workers identified him as the man who offered to sell them methamphetamine. Bishop was initially charged with two counts of possession of a controlled substance for methamphetamine and marijuana, possession of drug paraphernalia, and resisting an officer. After his motion to suppress was denied, Bishop entered a conditional guilty plea to possession of a controlled substance, methamphetamine, I.C. § 37-2732(c)(1), and resisting and obstructing an officer, I.C. § 18-705. The other two charges were dismissed. This appeal followed.
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 which 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).
Bishop raises two theories as to why the evidence seized from him should have been suppressed. First, he claims Chief Miller lacked reasonable suspicion to stop him based on the uncorroborated tip received through Kelly. Second, Bishop asserts that Chief Miller could not justify a pat-down frisk with specific and articulable facts that Bishop was armed and dangerous, and thus he was unlawfully searched during the course of an already unlawful seizure. The state counters that Kelly was a known citizen informant and therefore inherently reliable, giving rise to reasonable suspicion to stop Bishop. The state further argues that, even if the initial frisk was unlawful, the drugs were discovered pursuant to a search after Bishop was arrested for resisting and obstructing Chief Miller; therefore they were admissible because Bishop's resistance terminated the frisk and led to a lawful arrest.1
The Fourth Amendment to the United States Constitution, and its counterpart, Article I, section 17 of the Idaho Constitution, guarantee the right of every citizen to be free from unreasonable searches and seizures. A warrantless search or seizure is presumptively unreasonable unless it falls within certain special and well-delineated exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971); State v. Zapata-Reyes, Docket No. 32908 (Ct. App. Sept. 26, 2007); State v. Ferreira, 133 Idaho 474, 479, 988 P.2d 700, 705 (Ct. App. 1999). In Terry v. Ohio, 392 U.S. 1 (1968), the United States Supreme Court created a stop-and-frisk exception to the Fourth Amendment warrant requirement. The stop and the frisk constitute two independent actions, each requiring a distinct and separate justification. State v. Holler, 136 Idaho 287, 291, 32 P.3d 679, 683 (Ct. App. 2001). The stop is justified if it is based upon specific articulable facts which justify suspicion that the detained person is, has been, or is about to be engaged in criminal activity. State v. Sheldon, 139 Idaho 980, 983, 88 P.3d 1220, 1223 (Ct. App. 2003); Holler, 136 Idaho at 291, 32 P.3d at 683. The lawfulness of a frisk is to be determined by the court, based upon an objective assessment of the circumstances that confronted the officer at the time of the frisk as to whether the individual may be armed and dangerous. Holler, 136 Idaho at 291, 32 P.3d at 683; State v. Babb, 133 Idaho 890, 892, 994 P.2d 633, 635 (Ct. App. 2000).
Although not all encounters between the police and citizens involve the seizure of a person, Terry, 392 U.S. at 19 n.16; State v. Jordan, 122 Idaho 771, 772, 839 P.2d 38, 39 (Ct. App. 1992), a person who is detained by an officer for investigatory purposes has been seized, Terry, 392 U.S. at 22, State v. Rawlings, 121 Idaho 930, 932, 829 P.2d 520, 522 (1992). Whether an officer had the requisite reasonable suspicion to conduct an investigatory seizure is determined on the basis of the totality of the circumstances. Rawlings, 121 Idaho at 932, 829 P.2d at 522. "Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability." Alabama v. White, 496 U.S. 325, 330 (1990).
Bishop contends that Chief Miller could not have formed a reasonable suspicion that Bishop had engaged in criminal activity because two unnamed carnival workers told Kelly that a man tried to sell them methamphetamine. Kelly in turn relayed that information to Chief Miller who did not interview the carnival workers or conduct any independent investigation prior to stopping Bishop. It is well established that a police officer can form a reasonable suspicion to conduct a Terry stop for investigative purposes based on information provided to him by other individuals. See Illinois v. Gates, 462 U.S. 213 (1983); White, 496 U.S. 325; United States v. Merritt, 695 F.2d 1263 (10th Cir. 1982); State v. Hankey, 134 Idaho 844, 11 P.3d 40 (2000); State v. Larson, 135 Idaho 99, 15 P.3d 334 (Ct. App. 2000). Whether information from a tip is sufficient to create reasonable suspicion depends upon the content and reliability of the information presented by the source, including whether the informant reveals his identity and the basis of his knowledge. State v. Alexander, 138 Idaho 18, 23, 56 P.3d 780, 785 (Ct. App. 2002); Larson, 135 Idaho at 101, 15 P.3d at 336. An anonymous tip, standing alone, is generally not sufficient to justify a stop because an anonymous tip seldom demonstrates the informant's basis of knowledge or veracity. Larson, 135 Idaho at 101, 15 P.3d at 336. However, when the information from an anonymous tip bears sufficient indicia of reliability or is corroborated by independent police observations, it may provide justification for a stop. Id. Where the information comes from a known citizen informant rather than an anonymous tipster,...
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