State v. Cardenas

• Decision Date: 02 November 2006
• Docket Number: No. 31758.,31758.
• Parties: STATE of Idaho, Plaintiff-Appellant, v. Adrian Albor CARDENAS, Defendant-Respondent.
• Court: Idaho Court of Appeals

155 P.3d 704

143 Idaho 903

STATE of Idaho, Plaintiff-Appellant, v. Adrian Albor CARDENAS, Defendant-Respondent.

No. 31758.

Court of Appeals of Idaho.

November 2, 2006.

Rehearing Denied December 18, 2006.

Review Dismissed January 3, 2007.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

Molly J. Huskey, State Appellate Public Defender; Elizabeth A. Allred, Deputy Appellate Public Defender, Boise, for appellant. Elizabeth A. Allred argued.

WALTERS, Judge Pro Tem.

The state appeals from the district court's order granting Adrian Albor Cardenas' motion to suppress evidence. We affirm in part, reverse in part and remand to the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

Two uniformed Sheriff's deputies went to a Nampa residence to look for a juvenile runaway named Sarah. The deputies saw Cardenas in a Nissan Sentra parked in the driveway. The deputies parked their patrol vehicles across the street. As the deputies began walking to the Sentra, Cardenas got out and started toward the house. A deputy told Cardenas "he needed to come speak to me," and Cardenas turned and came back. The deputy asked Cardenas if he knew Sarah. Cardenas replied that he did not. The deputy then asked Cardenas who owned the Sentra, and Cardenas said it belonged to a friend, but he did not know the friend's name. On the officer's request, Cardenas consented to a search of the vehicle's glove box for ownership papers. The search produced four checkbooks, each with a different name, none of which was Cardenas. Dispatch confirmed that the checks were stolen.

A deputy handcuffed Cardenas, pat-searched him, and obtained a bullet from Cardenas' pants pocket. A deputy also noticed a marijuana cigarette under the vehicle. On being questioned, Cardenas denied any knowledge of the cigarette, but after one deputy insisted that he tell the truth, Cardenas admitted it belonged to him. Cardenas was arrested for possession of a controlled substance, marijuana, I.C. § 37-2732(c)(3). Another search, incident to Cardenas' arrest, produced Joker rolling papers from his pocket. Cardenas was transported to the Canyon County jail.

A detective located the owner of the vehicle, who refused to consent to a further search of the vehicle. The owner said she authorized Cardenas to pick up the car and take it to the Nampa residence. The officers obtained a warrant to search the vehicle. The resulting search produced a loaded handgun as well as marijuana and amphetamine. The detective contacted Cardenas at the Canyon County jail and advised him of his rights, pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The detective then asked Cardenas where he got the marijuana cigarette. Cardenas stated that he found the marijuana in the car, rolled a marijuana cigarette, and then put the marijuana in a shopping bag, and that after finding the gun between the seats he decided to move it under the passenger seat.

Cardenas was charged with concealing a dangerous weapon and possession of marijuana, amphetamine, and drug paraphernalia. At the suppression hearing, the district court decided that the continued detention of Cardenas was unlawful after Cardenas said he did not know the runaway, Sarah, and all the evidence was suppressed. The state now appeals.

II. STANDARD OF REVIEW

The standard of review of a suppression motion is bifurcated. Our standard distinguishes Fourth Amendment questions of law from questions of fact. State v. Schmidt, 137 Idaho 301, 303, 47 P.3d 1271, 1273 (Ct.App. 2002); State v. Silva, 134 Idaho 848, 852, 11 P.3d 44, 48 (Ct.App.2000); State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct. App.1996); State v. McAfee, 116 Idaho 1007, 1008, 783 P.2d 874, 875 (Ct.App.1989). 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). 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. Atkinson, 128 Idaho at 561, 916 P.2d at 1286.

III. DISCUSSION

A. Cardenas' Encounter with the Police was Not Consensual

The state asserts that the encounter between Cardenas and the police was consensual, and therefore lawful, until Cardenas was handcuffed. The district court held that the encounter became unlawful when the police continued to detain Cardenas after he said he did not know the runaway, before he was handcuffed. Cardenas argues that the encounter became unlawful even earlier. He submits that his contact with the police began with an order which constituted an illegal seizure at the outset.

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. However, not all encounters between the police and citizens amount to seizure. Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889, 905 n. 16 (1968); State v. Page, 140 Idaho 841, 843, 103 P.3d 454, 456 (2004); State v. Jordan, 122 Idaho 771, 772, 839 P.2d 38, 39 (Ct.App.1992); State v. Knapp, 120 Idaho 343, 346, 815 P.2d 1083, 1086 (Ct.App.1991); State v. Zapp, 108 Idaho 723, 726-27, 701 P.2d 671, 674-75 (Ct. App.1985). Only when an officer, by means of physical force or show of authority, in some way restrains the liberty of a citizen may a court conclude that a seizure has occurred. Page, 140 Idaho at 843, 103 P.3d at 456; State v. Nickel, 134 Idaho 610, 612-13, 7 P.3d 219, 221-22 (2000); State v. Fry, 122 Idaho 100, 102, 831 P.2d 942, 944 (Ct. App.1991); see, e.g., State v. Rawlings, 121 Idaho 930, 932, 829 P.2d 520, 522 (1992) ("An individual who is accosted by a police officer and has his freedom to walk away restrained has been seized."). The United States Supreme Court, in United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497, 509 (1980), stated:

Examples of circumstances that might indicate seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.

(emphasis added). See State v. Gutierrez, 137 Idaho 647, 651, 51 P.3d 461, 465 (Ct.App. 2002) ("the officer's comments that followed after the speeding warning were not a sociable exchange. . . ."); State v. Gomez, 136 Idaho 480, 482, 36 P.3d 832, 834 (Ct.App.2001) (defendant was seized, the state conceded, when the detective ordered him to "hang up the phone . . . [because] I need to talk to you about a warrant."); State v. Zubizareta, 122 Idaho 823, 827, 839 P.2d 1237, 1241 (Ct.App. 1992) (discussing seizure which occurred in McAfee, 116 Idaho at 1008, 783 P.2d at 875, when officers, after awaking McAfee, directed him to step out of his van); Fry, 122 Idaho at 103, 831 P.2d at 945 ("[the officer] asked Fry what he was doing . . . . Unlike other cases in which the police request the subject's cooperation in answering questions, the inquiry here as to what Fry was doing did not give Fry the option of answering or not."); accord WAYNE R. LAFAVE, SEARCH AND SEIZURE § 9.4(a) at 433-34 (4th Ed.).

A seizure does not occur simply because a police officer approaches an individual on the street by asking if the individual is willing to answer some questions or by putting forth questions if the individual is willing to listen. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389, 398 (1991); Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323-24, 75 L.Ed.2d 229, 235-36 (1983). See Page, 140 Idaho at 843, 103 P.3d at 456 ("Officer Marshall asked Page if he could talk to him for a moment. . . ."); Zubizareta, 122 Idaho at 828, 839 P.2d at 1242 ("[T]here is no doubt that the officer requested Zubizareta to turn off the motor, as opposed to ordering him to do so. There was no sign of force or authority beyond the officer's uniform to require Zubizareta to submit or to limit his ability to refuse. A parallel situation occurred when the officer asked Zubizareta to roll down the window. The request was not a seizure, although an order may have been. . . . Only when [the officer] told Zubizareta to remain seated did the fourth amendment apply."); accord LAFAVE, SEARCH AND SEIZURE § 9.4(a) at 433. While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response. State v. Nelson, 134 Idaho 675, 679, 8 P.3d 670, 674 (Ct.App.2000). Even when officers have no basis for suspecting a particular individual, they may generally ask the individual questions and ask to examine identification, but they may not make a demand. Fry, 122 Idaho at 102, 831 P.2d at 944. As long as police do not convey a message that compliance with a request is required, the encounter is deemed consensual and no reasonable suspicion is necessary. Fry, 122 Idaho at 102, 831 P.2d at 944. Unless and until there is a detention, there is no seizure within the meaning of the Fourth Amendment and no constitutional rights are infringed. Royer, 460 U.S. at 498, 103 S.Ct. at 1324, 75 L.Ed.2d at 236-37.

The burden of proving that a seizure occurred is on the defendant seeking to suppress evidence allegedly obtained as a result of an illegal seizure. Page, 140 Idaho at 843, 103 P.3d at 456; State v. Reese, 132...