State v. Frank

• Decision Date: 20 July 1999
• Docket Number: No. 24572.,24572.
• Parties: STATE of Idaho, Plaintiff-Respondent, v. David L. FRANK, Defendant-Appellant.
• Court: Idaho Court of Appeals

986 P.2d 1030

133 Idaho 364

STATE of Idaho, Plaintiff-Respondent, v. David L. FRANK, Defendant-Appellant.

No. 24572.

Court of Appeals of Idaho.

July 20, 1999.

John M. Adams, Kootenai County Public Defender; J. Bradford Chapman, Deputy Public Defender, Coeur d'Alene, for appellant. J. Bradford Chapman, argued.

Hon. Alan G. Lance, Attorney General; Rebekah A. Cude, Deputy Attorney General, Boise, for respondent. Rebekah A. Cude, argued.

SCHWARTZMAN, Judge.

Pursuant to an Idaho Criminal Rule 11 plea agreement, David Frank pled guilty to felony possession of a controlled substance, I.C. § 37-2732(c), but reserved his right to appeal the denial of his motion to suppress evidence. Frank now appeals, asserting that the district court erred in holding that certain physical evidence and Frank's statements made at the scene of his arrest were admissible. We affirm in part and reverse in part.

I. FACTS AND PROCEDURE

On July 1, 1997, at approximately 10:10 p.m., the Kootenai County Sheriff's Department received an anonymous complaint from a caller who either heard or saw three men and heard loud noises which the caller felt may have been suspicious at that hour of the evening. The caller identified the men's location as the northwest portion of Dalton Mini Storage. Having been dispatched to investigate the complaint, Officer Miller arrived at the storage facility and parked near the entrance. The lighting at the facility was dim, with a light approximately every one-hundred yards. Miller exited his vehicle and walked to the northwest side of one of three storage buildings to check for "anything suspicious."

Miller observed two open storage units, one with a light on and a truck parked in front of it, the other located approximately fifty yards north of the first. The officer watched as a man, later identified as David Frank, closed the door of the northern-most unit. Frank was kneeling down, but then stood and turned toward Officer Miller. The officer noted that Frank was holding items in his hands and looking at him. Officer Miller then identified himself as being with the Sheriff's Department and requested that Frank "step over here." Frank verbally agreed to do so, but instead,

he stood and he kinda jogged back and forth and he turned away from me and he bent over. And at that point I demanded basically that he turn around and show me his hands.... [H]e started walking. He took about two steps, two very small steps forward uh, said "All right, all right," and he dropped something on the ground. Then he turned back around and he was standing there facing me.

Although the officer could see the general shape of the item dropped by Frank, he could not identify it. Frank was also holding clothing, a vacuum attachment and a miniflashlight, all of which were taken from what Frank claimed was an abandoned storage unit. Miller told Frank to put the items down. Frank complied, and the officer proceeded to place him up against a wall and effectuate a pat-down search of the exterior of his clothing to ensure that he was not armed. Finding no weapons, Officer Miller informed Frank of the suspicious noises and explained that Frank would be "detained" until the area could be secured. As a result, Frank was handcuffed and placed in the back of Miller's patrol car.

Officer Miller and another officer who had arrived for backup searched the facility and secured the area. Officer Miller inspected the item dropped by Frank, later identified as a water balloon, and opened the storage unit door that Frank had been closing when Officer Miller first encountered him. During this search the officers did not find anyone else at the facility. The officer picked up the water balloon and carried it with him as he returned to the patrol car. He asked Frank to exit the vehicle, and Frank complied with the request. At that time, the officer noticed another object, similar to the dropped water balloon, lying in the rear of the patrol car.

While Frank was standing outside of the car, the officer proceeded to question him about his possession of the balloons and the reason for his presence at the storage facility. Realizing that during the initial pat-down search of Frank he had not found the second, rather large water balloon, Officer Miller subjected Frank to a second search for weapons. During this search, he determined that a small, hard object which had been in Frank's right front pocket during the first search was no longer there. Accordingly, the officer had Frank step aside while he searched the rear seat of the patrol car. During this search, the officer discovered a small metal cylinder with a screw-top cap which was similar in size and shape to the object he had previously felt in Frank's pocket. Without removing the handcuffs or reading him his Miranda¹ rights, the officer questioned Frank about the cylindrical object.

[I] just asked him, I said uh, you know, `Why are you dropping things in my car?' and he said, `I didn't.' He denied any knowledge of it at first. And then I advised him that I check my patrol unit before and after every shift um, after everybody gets in and out of my car that the back seat is checked thoroughly. Um, and uh, due to the fact that he dropped the first object in my car I was just, you know—I asked him, I said, `Well, you know, did you drop this, too' and he said, `Yeah.' And I said, `Well, uh, if I open this,' I said, `is it gonna explode, is it gonna hurt me in any way?' And he said, `No.' ... He advised me, he shook his head and he said, `It's just that crystal stuff.' And I said, `Crystal what?' and he said, `That crystal meth stuff.'

Miller then opened the cylinder and found what he believed to be methamphetamine.

Frank was charged with felony possession of a controlled substance, I.C. § 37-2732(c). He pled not guilty and filed a motion to suppress all evidence "obtained after his illegal detention and search." Following a hearing, the district court held that the Terry² stop did not become an illegal arrest. The court further found that the cylinder had been abandoned and was not discovered as the result of a search of Frank. Finally, the court held that, "[i]t may be that there was an in-custody situation of sort, but I don't find there was any interrogation." Accordingly, the district court denied Frank's motion to suppress.

Frank entered a conditional guilty plea pursuant to an Idaho Criminal Rule 11 plea agreement, and reserved his right to appeal the district court's denial of his motion to suppress. The court sentenced Frank to a suspended three-year sentence and placed him on probation. Frank now appeals the district court's denial of his motion to suppress.

II. STANDARD OF REVIEW

When reviewing an order denying a motion to suppress, this Court defers to the findings of fact of the trial court unless they are clearly erroneous. State v. DuValt, 131 Idaho 550, 552-53, 961 P.2d 641, 643-44 (1998), citing State v. Medley, 127 Idaho 182, 185, 898 P.2d 1093, 1096 (1995)

. We also exercise free review over whether, in light of the facts found, constitutional requirements have been satisfied. Id. Finally, we give due deference to any implicit findings of the trial court supported by substantial evidence. Id., citing State v. Kirkwood, 111 Idaho 623, 625, 726 P.2d 735, 737 (1986).

III. ANALYSIS

A. Frank Conceded The Legality Of The Initial Stop And Frisk

In his brief on appeal, Frank asserts that the original stop was unreasonable and, therefore, violative of his rights under the Fourth Amendment and Article I, § 17 of the Idaho Constitution. He further claims that because the initial stop and frisk were unconstitutional, all evidence obtained as a result of this stop should be suppressed. However, during the suppression hearing, defense counsel stated that, "for purposes of this argument I'll concede there was the right to pat him, no weapons were found." At oral argument, defense counsel further conceded that the officer had sufficient knowledge to justify both the initial Terry stop and the subsequent pat down search of Frank. Accordingly, we decline to address these issues as argued in the briefs.

B. Frank Was Not Subjected To A De Facto Arrest For Fourth Amendment Purposes

Frank asserts that he was subjected to a de facto arrest, which was illegal in the absence of probable cause. This de facto arrest was purportedly the result of the officer's use of an unreasonable level of detention during the investigatory stop. Specifically, Frank asserts that the officer's actions of handcuffing him and placing him in the back of a patrol car exceeded the reasonable bounds of a Terry stop.

"[T]here is no bright line rule to determine when an investigatory detention has become an arrest. Instead, `common sense and ordinary human experience must govern over rigid criteria.'" State v. Buti, 131 Idaho 793, 796, 964 P.2d 660, 663 (1998),citing State v. Pannell, infra. As such, this Court must consider all of the surrounding circumstances and determine whether the investigative methods employed were the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time. Id., citing Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229, 238 (1983)

.

[B]ased upon the specific facts of the situation and the reasonable inferences drawn from those facts, officers are entitled to use handcuffs in limited investigatory stops to maintain their safety. [State v. Johns, 112 Idaho 873, 877-78, 736 P.2d 1327, 1331-32 (1987)]. If the use of the handcuffs is a reasonable precaution to ensure the officers' safety, the use of the handcuffs is warranted during the limited stop. If the investigative detention becomes unreasonable, the detention is transformed into an arrest. State v. Pannell, 127 Idaho 420, 423, 901 P.2d 1321, 1324 (1995). In determining if the detention becomes unreasonable, the court is to consider: (1) the duration of the

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