State v. Cook, 13876

CourtCourt of Appeals of Idaho
Citation677 P.2d 522,106 Idaho 209
Docket NumberNo. 13876,13876
PartiesSTATE of Idaho, Plaintiff-Respondent, v. Lee COOK, Defendant-Appellant.
Decision Date08 February 1984

Klaus Wiebe, Ada County Public Defender, Boise, for defendant-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Mark J. Shuster, Deputy Atty. Gen., Boise, for plaintiff-respondent.


Minutes after the robbery of a Circle K store in Boise, Lee Cook and a companion were apprehended by several Boise police officers. The officers searched Cook and found a wad of money in his pocket. They also found a loaded .22 caliber revolver in his car. Cook was convicted of the robbery and sentenced to an indeterminate twenty-year prison term. He has appealed from the judgment of conviction. We affirm.

Three issues are raised on appeal: (1) whether the district court erred in refusing to suppress the wad of money seized from Cook; (2) whether the court erred in admitting evidence that the gun found in Cook's car had been stolen; and (3) whether the conviction must be reversed because the state made indirect references to Cook's prior felony conviction after the court had ruled that such evidence was not admissible.

On the evening of August 31, 1979, Detective Charles French was parked in an unmarked vehicle near a NuWay Foods store in Boise when he observed a man walking from the direction of that store. The man passed within a few feet of the officer. He was wearing a stocking cap and a leather jacket with a fleece-type lining. This person, later identified as Lee Cook, got into the passenger side of a yellow Toyota sedan. That car was not parked in the store lot, but on the street about three-quarters of a block from the store. These observations piqued the officer's interest, partly because the cap and jacket worn by the man appeared inappropriate for such warm weather.

French decided to pursue the car. He followed it for some time, but, not wanting to alert the occupants, he broke off contact. After driving a block or so, he turned around and sought to re-establish contact with the car. Unable to find it, he returned to the area near the grocery store where he found two uniformed officers, Schuler and Marcum. He told them what he had seen.

Schuler, in an attempt to locate the car, drove toward the area where it had last been seen. While en route, he heard a radio transmission stating that a robbery had just occurred at a Circle K store only two blocks from where French had lost sight of Cook's car. None of the officers who testified at trial were able to recall exactly what was said in that transmission. Apparently the only information relayed initially was that a robbery had occurred. No description of the robber or his car was given because no officer had yet talked with the witnesses at the scene.

After hearing of the robbery, Schuler and Marcum transmitted the information they had received from French. Soon afterwards Officer Virgil Brown observed a yellow Toyota sedan and began to follow it. Officers Likes and Ellsworth, in another police car parked nearby, also noticed the suspects' car. Ellsworth saw the car stop at a corner to pick up a young female hitchhiker. Ellsworth and Likes, together with another officer, then joined Brown in pursuit. The officers in all three police cars activated their overhead lights in an attempt to stop the Toyota. When it did not stop, Brown turned on his siren. The Toyota proceeded several hundred yards further, then turned a corner before stopping. At no time did it speed or attempt to escape the pursuing police cars.

When the Toyota finally stopped, Cook emerged from the passenger side and began to walk away slowly. He was not wearing either his coat or stocking cap at this time. Several officers, with drawn weapons, warned Cook to stop. Ellsworth ordered him to put his hands on his head and walk back towards his car. When Cook complied, Ellsworth noticed a green ski mask hanging out of his left rear pants pocket. He seized the mask and reached into Cook's right front pants pocket, extracting a wad of crumpled paper money. Cook was then handcuffed and placed in a police car.

Just before arriving at the Circle K, Officer Schuler heard a transmission from Officer Brown that he and others had stopped the car described by French. After talking for several minutes with the witnesses to the robbery, Schuler transmitted a description of the robber to the officers who had stopped the car. The robber had worn a ski mask and a coat with a fleece-type lining, and was missing some fingers. Cook was missing fingers on his right hand. This last transmission occurred after Cook had been arrested.

Following Cook's arrest, Ellsworth approached the Toyota from the passenger side. The front door was open and Ellsworth noticed a brown leather coat hanging over the gear shift. On the floorboard directly behind the passenger seat, he observed a .22 caliber revolver. Ellsworth picked up the gun, examined it and returned it to the floor of the car. The officers impounded the car and later obtained a warrant to search it. The gun, coat, money and ski mask, as well as other items, were introduced into evidence against Cook at his trial. Cook moved to suppress all of this evidence. The district court denied the motion. On appeal, Cook contends only that the money was illegally seized and admitted into evidence.

I *

The first issue is whether the district court erred by refusing to suppress the wad of money seized from Cook's pocket immediately following his apprehension by the officers. At trial, to account for the money found in his pocket, Cook testified that he had been paid several days before his arrest. He said that he never bothered with checking accounts and always kept his money in cash. Cook's present wife, Clista, testified that before he went out that evening she cautioned him not to blow all his money. 1 He responded by pulling a wad of money out of his pocket and counting out nearly $300. When Cook was searched later that night, however, the officers found only $86 in his pocket. The manager of the Circle K testified that $79 had been taken in the robbery.

The fourth amendment of the United States Constitution and article I, § 17 of the Idaho Constitution protect people from unreasonable searches and seizures by the agents of the government. At the time of this search, the officers did not have a warrant to search either Cook or his car. Warrantless searches are deemed to be "per se unreasonable" and the burden is upon the state to demonstrate that the search was carried out pursuant to one of the exceptions to the warrant requirement. State v. Bottelson, 102 Idaho 90, 625 P.2d 1093 (1981).

Cook concedes, and it is clear from the facts of the case, that the officers had the right to stop his car without a warrant and question him and his companion concerning their possible involvement in the robbery. Such an investigative stop is an "intermediate response" that allows an officer, who lacks probable cause to make an arrest, to actively investigate possible criminal behavior. As the Supreme Court stated in Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972):

A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be ... reasonable [under the fourth amendment] in light of the facts known to the officer at the time.

Moreover, if an officer who makes such an investigatory stop "has reason to believe that the suspect is armed and presently dangerous, the officer is entitled to 'conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.' " State v. Post, 98 Idaho 834, 838, 573 P.2d 153, 157 (1978) (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968). "The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence...." Adams v. Williams, 407 U.S. at 146, 92 S.Ct. at 1923. No evidence was presented here that the searching officer believed the wad of money in Cook's pants pocket felt like a weapon. No such contention has been made. Therefore, when the officers stopped Cook and removed the money from his pocket, they conducted a search which went beyond the permitted scope of a frisk for weapons.

Another of the established exceptions to the warrant requirement is the search incident to a lawful arrest. State v. Post, 98 Idaho 834, 573 P.2d 153 (1978); State v. Harwood, 94 Idaho 615, 495 P.2d 160 (1972); State v. Loyd, 92 Idaho 20, 435 P.2d 797 (1967). The state contends that the search of Cook and the seizure of the money were permissible as a search and seizure incident to a lawful arrest. Cook, on the other hand, argues that at the moment the officers searched him and seized the money they lacked probable cause to arrest him. Thus, he argues, the search cannot be considered a search incident to a lawful arrest and its fruit must be suppressed as the product of an illegal, warrantless intrusion.

Idaho Code § 19-603 provides that a police officer may arrest a person without a warrant "[w]hen a felony has in fact been committed and he has reasonable cause for believing the person arrested to have committed it." The Idaho Supreme Court has defined reasonable or probable cause in the context of I.C. § 19-603 "as information that 'would lead a man of ordinary care and prudence to believe or entertain an honest and strong suspicion' " that the subject of arrest is guilty. State v. Alger, 100 Idaho 675, 677, 603 P.2d 1009, 1011 (1979). Similarly, whether a warrantless arrest is constitutionally permissible depends upon whether

at the moment the arrest was made, the officers had probable cause to make it--whether at that moment the facts and circumstances within their...

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