State v. Ferreira
| Citation | 133 Idaho 474,988 P.2d 700 |
| Decision Date | 05 August 1999 |
| Docket Number | No. 24882.,24882. |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Carlo FERREIRA, Defendant-Appellant. |
| Court | Court of Appeals of Idaho |
Nevin, Herzfeld & Benjamin, Boise, for appellant. Dennis A. Benjamin argued.
Hon. Alan G. Lance, Attorney General; Alison A. Stieglitz, Deputy Attorney General, Boise, for respondent. Alison A. Stieglitz argued.
Carlo Ferreira appeals from the district court's decision affirming the magistrate's order suspending Ferreira's driver's license for refusal to submit to a breath test. I.C. § 18-8002(4). For the reasons set forth below, we affirm.
On August 31, 1997, at approximately 1:12 a.m., a Garden City police officer observed a vehicle traveling in excess of the posted 35 mph speed limit. The officer visually estimated the vehicle's speed to be 45 mph, which was subsequently confirmed by a radar unit to be 47 mph. The officer effectuated a traffic stop of the vehicle.
The officer approached the vehicle and asked the driver for his license, registration, and proof of insurance. The driver verbally identified himself as Ferreira and produced his registration and proof of insurance. Ferreira did not have his driver's license with him at the time of the stop. During this exchange, the officer detected an odor of alcohol and asked Ferreira if he had been drinking. Ferreira responded that when dining he had consumed two glasses of wine and a glass of cognac. The officer asked Ferreira to exit and step behind his vehicle so that field sobriety tests could be performed. Ferreira performed the tests. He obtained a maximum of six points on the horizontal gaze nystagmus test. He also swayed and placed his foot onto the ground while performing the one-leg stand test. Finally, during the heel-toe walking test, Ferreira could not remain in the heel-toe position during the instructional phase of the test, missed several heel-toe steps, raised his arms over six inches, took the wrong number of steps, and made an improper turn. Based on these observations, the officer determined that Ferreira was driving under the influence of alcohol and arrested him.
After transporting Ferreira to jail, the officer read Ferreira the I.C. § 18-8002(3) blood alcohol investigation advisory form. Ferreira stated that he did not understand that he had no right to consult with an attorney and requested that he be permitted to do so. The officer informed Ferreira that, under Idaho law, he did not have the right to speak with an attorney before submitting to the breath test. The officer then offered Ferreira a breath test, and Ferreira stated that he wished to have a blood test drawn. After the officer informed Ferreira that he could have an independent blood test drawn at his own expense, following the breath test, Ferreira refused to submit to a breath test, stating that he was "not given ... the right to talk to my lawyer or my due process." As a consequence of Ferreira's refusal of the breath test, the officer seized Ferreira's driver's license as authorized by I.C. § 18-8002(4)(a).
Ferreira requested a hearing pursuant to I.C. § 18-8002(4)(b) to show cause why his driver's license should not have been suspended. At the conclusion of the hearing, the magistrate ruled that Ferreira had failed to satisfy his burden under the statute and ordered his license suspended. Ferreira appealed to the district court, which affirmed. Ferreira again appeals.
On review of a decision of the district court, rendered in its appellate capacity, we examine the record of the trial court independently of, but with due regard for, the district court's intermediate appellate decision. Hentges v. Hentges, 115 Idaho 192, 194, 765 P.2d 1094, 1096 (Ct.App.1988).1
The hearing conducted below was a show cause hearing pursuant to I.C. § 18-8002(4), wherein Ferreira argued that his civil rights were violated by the officer's request that Ferreira perform the field sobriety tests. Therefore, the show cause hearing was a de facto suppression hearing. 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 were 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).
Ferreira does not challenge the factual findings of the magistrate or the propriety of the initial traffic stop by the officer. He does challenge, however, the performance of the field sobriety tests on both state and federal constitutional grounds. The threshold issue raised by Ferreira's appeal is what standard—probable cause or reasonable suspicion—is required before an officer may administer field sobriety tests. Ferreira contends that probable cause should be required under both the United States and Idaho Constitutions. He argues that the question with regard to the federal constitution is unsettled in Idaho and that the question with regard to the state constitution is one of first impression. Additionally, Ferreira asserts that, even if only reasonable suspicion is required, the officer did not possess such suspicion before he administered the field sobriety tests.
Idaho Code Section 18-8004 states, in relevant part:
(1)(a) It is unlawful for any person who is under the influence of alcohol, drugs or any other intoxicating substances, or who has an alcohol concentration of 0.08, ... or more, as shown by analysis of his blood, urine, or breath, to drive or be in actual physical control of a motor vehicle within this state, whether upon a highway, street or bridge, or upon public or private property open to the public.
With this statute in mind, we turn to Ferreira's arguments.
Ferreira contends that the Fourth Amendment requires probable cause to believe a driver is operating his or her vehicle in violation of I.C. § 18-8004 before field sobriety tests can be administered.2 Ferreira's argument essentially states that because his reasonable expectation of privacy was intruded upon by the field sobriety tests, probable cause is required before such tests may be administered. Ferreira contends that field sobriety tests require the driver to perform maneuvers that are not regularly shown in public and expose to police and public view things that are not obvious through passive observation of a person. He asserts, therefore, that the law should require that an officer possess probable cause before field sobriety tests may be administered.
A seizure occurs—and the Fourth Amendment is implicated—when an officer, by means of physical force or show of authority, has in some way restrained a citizen's liberty. State v. Fry, 122 Idaho 100, 103, 831 P.2d 942, 944 (Ct.App.1991). The critical inquiry is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business. Id. at 104, 831 P.2d at 945. When an officer administers field sobriety tests, the driver of the vehicle is not free to ignore the officer's request. Thus, there can be no doubt that the Fourth Amendment to the United States Constitution was implicated by the administration of field sobriety tests in the instant case.
However, Ferreira's contentions are only the beginning of the analysis. In order for the Court to address the quantum of suspicion required before an officer may administer field sobriety tests, it must first give constitutional dimension to such an encounter between police and the citizens of this state. Although there are three categories of encounters between citizens and the police, State v. Knapp, 120 Idaho 343, 346, 815 P.2d 1083, 1086 (Ct.App.1991), for the purposes of this appeal, we are concerned with but two—an arrest and an investigative detention. An arrest is characterized as a full-scale seizure of the person requiring probable cause. State v. Zapp, 108 Idaho 723, 726-27, 701 P.2d 671, 674-75 (Ct.App. 1985). An investigative detention is characterized as a seizure of limited duration which, when supported by a reasonable suspicion of criminal activity, falls within a judicially created exception to the probable cause requirement. Id.
A search without a warrant is per se unreasonable unless it falls within one of the exceptions to the Fourth Amendment requirements. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, (1971); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Simmons, 120 Idaho 672, 676, 818 P.2d 787, 791 (Ct.App.1991). One of the exceptions is when the police validly stop a person to investigate possible criminal behavior, even though there is no probable cause to make an arrest. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Simmons, 120 Idaho at 676, 818 P.2d at 791. Such an investigative stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621, 628 (1981); Knapp, 120 Idaho at 347, 815 P.2d at 1087. Put differently, an investigatory or Terry stop is justified under the Fourth Amendment if there is a reasonable and articulable suspicion that the person has committed or is about to commit a crime. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 617 (1972); Simmons, 120 Idaho at 676, 818 P.2d at 791. In sum, the Idaho Supreme Court has held:
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