State v. Clifford

• Decision Date: 16 May 1997
• Docket Number: No. 23046,23046
• Citation: 130 Idaho 259,939 P.2d 578
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Brock CLIFFORD, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 578

939 P.2d 578

130 Idaho 259

STATE of Idaho, Plaintiff-Respondent, v. Brock CLIFFORD, Defendant-Appellant.

No. 23046.

Court of Appeals of Idaho.

May 16, 1997.

Scott E. Axline, Blackfoot, for defendant-appellant.

Alan G. Lance, Attorney General; Myrna A.I. Stahman, Deputy Attorney General, Boise, for plaintiff-respondent.

WALTERS, Chief Judge.

This is an appeal from a judgment of conviction for driving without privileges. The judgment was entered following a bench trial in the magistrate division, and was upheld on an intermediate appeal to the district court. We likewise affirm.

BACKGROUND FACTS AND PROCEDURE

In May 1995, Brock J. Clifford's driving privileges were suspended by a magistrate under I.C. § 18-1502(d) as the result of Clifford's conviction for underage consumption of alcohol. The suspension was for a period of three months. However, the magistrate also granted Clifford a restricted permit to operate a motor vehicle for the duration of the suspension, allowing him to drive "for work and health" only.

At about 6:30 p.m. on Saturday, June 10, 1995, the county sheriff, who was in an unmarked vehicle owned by the county, observed Clifford driving in Challis, Idaho. The sheriff recalled reading a legal notice in the local newspaper about the suspension of Clifford's driving privileges. The sheriff decided to follow Clifford's vehicle. Clifford drove for about a block and then pulled into the parking lot of a bowling alley and stopped, without the sheriff having turned on any emergency lights or signals to alert Clifford that he should stop in response to the sheriff's presence. After the sheriff drove into the lot and parked, Clifford got out of his vehicle and approached the sheriff to ask him what was going on. The sheriff asked Clifford for his driver's license and Clifford produced his restricted permit. When the sheriff inquired about Clifford's place of employment, Clifford said he worked in Boise. The sheriff then asked Clifford where he was going and Clifford said, "Right here to the bowling alley." The sheriff cited Clifford under I.C. § 18-8001 for driving without privileges.

The trial on the charge was held before the same magistrate who had suspended Clifford's privileges and had issued the temporary restricted permit. At trial, Clifford testified that when he saw the sheriff and stopped at the bowling alley, he was actually on his way to Round Valley to look for work although he was employed by a contractor in Boise. Clifford also admitted that he didn't tell the sheriff he was headed for Round Valley. The magistrate found Clifford guilty.

ISSUES

Clifford raises four issues on appeal. First, he contends that the sheriff did not have reasonable suspicion to stop Clifford while Clifford was driving his vehicle and, therefore, any evidence gained as a result of the stop and arrest should have been suppressed and the charges against Clifford dismissed. Second, Clifford submits that the underlying suspension of his driving privileges was improper because the statute authorizing the suspension, I.C. § 18-1502(d), is unconstitutional. Third, he asserts that even if the suspension of his driving privileges was proper, he should have been charged for a violation of I.C. § 49-301 (driving without a valid license), rather than I.C. § 18-8001 (driving without privileges) because he had been issued a limited permit to drive and simply exceeded the limitation. Finally, Clifford contends that the evidence presented by the state was insufficient to support a finding of guilt, and that the magistrate erred by denying Clifford's motion for a directed verdict at the close of the state's evidence at trial.

DISCUSSION

1. Suppression and Dismissal.

Clifford argues that the evidence obtained by the sheriff upon confronting Clifford in the parking lot at the bowling alley should have been suppressed and the case dismissed because the sheriff did not have reasonable suspicion to stop Clifford. This argument fails for the simple reason that the facts presented at the trial clearly showed that the sheriff did not stop or unreasonably detain Clifford.

The undisputed evidence was that, without any signal or urging from the sheriff, Clifford stopped and parked his vehicle of his own volition, exited the vehicle and approached the sheriff's car to speak to the sheriff after the sheriff drove into the parking lot. Not every contact between police and a citizen raises Fourth Amendment concerns. For example, in State v. Jordan, 122 Idaho 771, 839 P.2d 38 (Ct.App.1992), this Court held that a motorist who was already stopped at a stoplight was not seized by police officers who approached to talk to the motorist, until the police told the motorist to pull over to the side of the street. We noted that a seizure does not occur simply because a police officer approaches an individual on the street or other public place, by asking him questions, or by putting questions to him if he is willing to listen. See Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). The dividing line for Fourth Amendment purposes appears to be whether an officer restricts the travel of a moving vehicle or restricts movements of the driver who has already stopped his vehicle by his own volition. State v. Jordan, supra. Neither of these events occurred in the present case.

Even when officers have no basis for suspecting a particular individual, they may generally ask the individual questions and ask to examine identification. Florida v. Rodriguez, 469 U.S. 1, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984); United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). The means of verifying identification may take the form of an operator's license, and a police officer's brief detention of a driver to run a status check on the driver's license after making a valid, lawful contact with the driver, is reasonable for purposes of the Fourth Amendment. State v. Godwin, 121 Idaho 491, 495, 826 P.2d 452, 456 (1992).

The same essentially happened here. Clifford produced his restricted permit for inspection by the sheriff during the officer-citizen encounter. The sheriff, as a result of investigation, concluded that Clifford was not driving his vehicle in compliance with the restricted permit but was driving without privileges.

We conclude that the evidence garnered by the sheriff during his encounter with Clifford was not suppressible as suggested by Clifford, nor was the charge dismissible on the ground that the arrest was unconstitutional as the result of an unreasonable stop by a police officer.

2. Constitutionality of I.C. § 18-1502(d).

Clifford contends that his driving privileges should not have been suspended under I.C. § 18-1502(d) for underage consumption of alcohol because that statute is unconstitutional, and that his subsequent conviction for driving without privileges therefore should be set aside. He argues that the statute violates equal protection and substantive due process requirements.

Clifford raised the constitutionality issue to the magistrate by way of a motion to dismiss filed on the morning of his trial. The prosecutor did not object to the motion on the grounds of untimeliness, see I.C.R. 12(b) and (d), and, after hearing arguments on the motion, the magistrate denied the motion without explanation.

Clifford's challenge to the validity of the prior conviction appears to be a collateral attack; there is nothing in the record to show whether the constitutionality of I.C. § 18-1502(d) was raised during the course of Clifford's prosecution for underage consumption, or what the result of that issue might have been had it been pursued in that case. We note that such a challenge also might be raised by a post-conviction action under I.C. § 19-4901, but again the record does not show whether such an action was pursued or what the result might have been.

On appeal, Clifford continues to assert the same arguments regarding the unconstitutionality of I.C. § 18-1502(d) which were unpersuasive to the magistrate. Clifford relies upon an opinion issued by the Idaho Attorney General's Office in 1984 finding constitutional infirmities in a prior version of the statute to support his claim of unconstitutionality. The prior version addressed by the Attorney General required the department of transportation to suspend for sixty days the driver's license or permit of a person under the age of 21 years who was found guilty of violating the law pertaining to the possession or use of beer, wine or other alcoholic beverage. However, whatever value the Attorney General's opinion might have, it is greatly diminished due to the subsequent amendments to the statute in 1987, twice in 1989, once in 1990, and again in 1994. Those amendments removed the authority to suspend licenses from the transportation department and vested the authority in the courts, together with the additional power to issue restricted driving privileges, as deemed...