State v. Dreier

• Decision Date: 29 May 2003
• Docket Number: No. 27717.,27717.
• Citation: 139 Idaho 246,76 P.3d 990
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Arnold Albert DREIER, Jr., Defendant-Appellant.
• Court: Idaho Court of Appeals

76 P.3d 990

139 Idaho 246

STATE of Idaho, Plaintiff-Respondent, v. Arnold Albert DREIER, Jr., Defendant-Appellant.

No. 27717.

Court of Appeals of Idaho.

May 29, 2003.

Review Denied September 22, 2003.

Molly J. Huskey, State Appellate Public Defender; Justin M. Curtis, Deputy Appellate Public Defender, Boise, for appellant. Justin M. Curtis argued.

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

PERRY, Judge.

Arnold Albert Dreier, Jr., appeals from his judgments of conviction and sentences for unlawful possession of a firearm, possession of methamphetamine, and misdemeanor possession of marijuana. Dreier also appeals from the denial of his I.C.R. 35 motion for reduction of his sentences. We affirm in part, but remand for the entry of amended judgments of conviction. We also affirm the denial of Dreier's Rule 35 motion.

I. FACTS AND PROCEDURE

On the afternoon of October 12, 2000, law enforcement officers arrived at a home in Bonner County for the purpose of conducting a warrantless search. The officers had been given consent to search the home by one of the home's occupants as a condition of his pre-trial release from jail on a pending charge of attempted manufacturing of methamphetamine. When the officers arrived, they encountered a woman standing on the front porch who told the officers that the residents of the home were not there. The woman informed the officers that a man, identified as Dreier, was asleep inside. The woman was instructed to awaken Dreier and bring him outside.

When Dreier emerged, he informed one of the officers that he was a visitor to the home and that he had arrived earlier that morning. Dreier also indicated to the officer that he was aware that the home was subject to a search provision. The officer asked Dreier if there were any drugs inside the home. Dreier responded that there were drugs located in his "stuff." The officer asked Dreier if there was marijuana or other controlled substances in the home, and Dreier replied that there might be marijuana in his stuff. Dreier then sought the officer's permission to go to the side of the home to urinate. The officer asked Dreier whether he had any weapons and Dreier motioned to his side. The officer observed a leather case attached to Dreier's belt. Dreier indicated that it was a Leatherman tool. The officer took the Leatherman from Dreier's belt and asked Dreier if he had any other weapons. Dreier stated that he did not think he did. The officer patted Dreier down and noticed two bulges in Dreier's left front pants pocket. Dreier stated that the bulges were lighters. As the officer began manipulating one of the bulges to determine whether it was a weapon, a bag of marijuana fell out.

Dreier was then advised of his Miranda¹ rights. The officer asked Dreier whether he had any other controlled substances in the home, and Dreier indicated that he had a blue gym bag inside the home that possibly contained another bag of marijuana. Dreier offered to retrieve the gym bag and give it to the officer but the officer declined. The officer asked Dreier whether there were any other controlled substances in the bag, such as methamphetamine, and Dreier stated that he was unsure. The officer inquired whether Dreier's uncertainty was based on the possibility that there could be methamphetamine in the gym bag and Dreier could not recall or whether it was because Dreier had carried methamphetamine in the bag in the past. Dreier responded that he hoped there was no methamphetamine in the gym bag and admitted that he had transported methamphetamine in the bag in the past. During the encounter, Dreier informed the officer that he had used methamphetamine on the previous day.

Thereafter, the officer searched the residence and found Dreier's partially open gym bag. Through the opening, the officer observed a plastic bag containing a green material that the officer believed to be marijuana. The officer opened the gym bag and immediately noticed another plastic bag containing a white powdery substance, which the officer believed to be methamphetamine, and a loaded firearm.

Dreier was charged with unlawful possession of a firearm, I.C. § 18-3316; possession of methamphetamine, I.C. § 37-2732(c)(1); and misdemeanor possession of marijuana, I.C. 37-2732(c)(3). Dreier filed a pre-trial motion to suppress all evidence and statements obtained as a result of the pat-down search conducted by the officer and the search of Dreier's gym bag. Dreier's motion was denied.

After a jury trial, Dreier was found guilty of all charges. For unlawful possession of a firearm, Dreier was sentenced to a determinate five-year term. For possession of methamphetamine, the district court sentenced Dreier to a consecutive unified term of seven years, with a minimum period of confinement of one year. For misdemeanor possession of marijuana, Dreier was sentenced to a determinate one-year term to be served concurrent with his sentence for unlawful possession of a firearm. Dreier filed a Rule 35 motion, which was denied.

Dreier appeals, asserting that: (1) the district court erred by denying his motion to suppress; (2) the district court erroneously admitted prior bad acts testimony at trial; (3) his written judgments of conviction vary from the district court's oral pronouncement of his sentences; (4) his sentences are excessive; and (5) the district court abused its discretion by denying his Rule 35 motion.

II. ANALYSIS

A. Motion to Suppress

Dreier first claims that the district court erred by denying his motion to suppress because the pat-down search of him and the warrantless search of his gym bag were constitutionally unreasonable. The facts pertinent to Dreier's motion to suppress are not disputed. The district court's application of constitutional principles to the undisputed facts is a question of law over which we exercise free review. State v. Delacerda, 135 Idaho 903, 904, 26 P.3d 1240, 1241 (Ct.App. 2001). 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).

1. Pat-down search

Dreier contends that the pat-down search conducted by the officer violated his rights under the Fourth Amendment of the United States Constitution and Article I, Section 17 of the Idaho Constitution.² Dreier does not challenge the validity of his initial detention. Rather, Dreier argues that the pat-down search was unconstitutional because it was unreasonable for the officer to believe that he might be armed and dangerous.

A warrantless search 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, 91 S.Ct. 2022, 2031-32, 29 L.Ed.2d 564, 575-76 (1971); State v. Ferreira, 133 Idaho 474, 479, 988 P.2d 700, 705 (Ct.App.1999). In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (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. Babb, 133 Idaho 890, 892, 994 P.2d 633, 635 (Ct.App. 2000); State v. Fleenor, 133 Idaho 552, 556, 989 P.2d 784, 788 (Ct.App.1999). Grounds to justify a lawful investigatory stop do not automatically justify a frisk for weapons. Babb, 133 Idaho at 892, 994 P.2d at 635. An officer may frisk an individual if the officer can point to specific and articulable facts that would lead a reasonably prudent person to believe that the individual with whom the officer is dealing may be armed and presently dangerous and nothing in the initial stages of the encounter serves to dispel this belief. Terry, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909; Babb, 133 Idaho at 892, 994 P.2d at 635; Fleenor, 133 Idaho at 555, 989 P.2d at 787. In our analysis of a frisk, we look to the facts known to the officer on the scene and the inferences of risk of danger reasonably drawn from the totality of those specific circumstances. Babb, 133 Idaho at 892, 994 P.2d at 635; Fleenor, 133 Idaho at 555, 989 P.2d at 787. See also State v. Muir, 116 Idaho 565, 567-68, 777 P.2d 1238, 1240-41 (Ct.App.1989)

.

In the instant case, we agree with the district court's conclusion that there were specific and articulable facts known to the officer that justified the pat-down search of Dreier. The officer's encounter with Dreier occurred at a home subject to search for suspected drug manufacturing activity. The danger posed to the safety of an officer conducting a search of premises suspected of housing an illegal drug operation is increased by the presence of a person found on the premises, who may be involved in the criminal activities therein. See State v. Pierce, 137 Idaho 296, 299-300, 47 P.3d 1266, 1269-70 (Ct.App.2002)

(The threat of violence to officers conducting a search of home suspected of housing an illegal drug operation is greater because of the recognized propensity of persons engaged in selling narcotics to carry firearms.). See also United States v. Patterson, 885 F.2d 483, 485 (8th Cir.1989) ("The possible danger presented by an individual approaching and entering a structure housing a drug operation is obvious. In fact, it would have been foolhardy for an objectively reasonable officer not to conduct a security frisk under the circumstances.").

Additionally, the officer who conducted the pat-down search of Dreier had been present when a search warrant was previously executed at the same home. During the previous search, officers recovered approximately sixteen weapons from the home and some of the weapons were...