State v. Greub

• Decision Date: 29 August 2017
• Docket Number: Docket No. 44747
• Citation: 162 Idaho 581,401 P.3d 581
• Court: Idaho Court of Appeals
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Rosa L. GREUB, Defendant-Appellant.

162 Idaho 581

401 P.3d 581

STATE of Idaho, Plaintiff-Respondent,

v.Rosa L. GREUB, Defendant-Appellant.

Docket No. 44747

Court of Appeals of Idaho.

Filed: August 29, 2017

Eric D. Fredericksen, State Appellate Public Defender; Jenny C. Swinford, Deputy Appellate Public Defender, Boise, for appellant.

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

HUSKEY, Judge

Rosa L. Greub appeals from the district court's judgment of conviction and claims the district court erred in denying her motion to suppress. Greub argues the district court erred in holding that she did not delimit the scope of her consent to exclude her purse or, alternatively, that she revoked any previously given consent to search her purse. We agree and reverse the district court's order denying the motion to suppress, vacate the judgment of conviction, and remand the case for further proceedings consistent with this opinion.

I.FACTUAL AND PROCEDURAL BACKGROUND

The district court made the following factual findings:

Defendant Rosa L. Greub ("Defendant") was parked in a parking lot in Pocatello between 3:30 p.m. and 4:00 p.m. on June 10, 2016, when Officer Christ of the Pocatello Police Department drove into the parking lot to complete an accident report. Upon entering, Officer Christ saw Defendant's car in the back corner of the parking lot and saw her stare at him in what he perceived to be a startled manner. Officer Christ parked his patrol car perpendicular to Defendant's car, either 23 feet or 15 yards away, and did not have his interior lights flashing. Officer Christ, in uniform, approached Defendant to ask her what her business was there. Defendant replied that she was on her way to work, but stopped to smoke a cigarette because her employer did not allow its employees to smoke on the premises. Officer Christ did not see a cigarette and saw that Defendant was wearing a uniform.

Officer Christ asked her [to] provide her driver's license, which she could not provide. Instead Defendant provided an identification card and confirmed that the address on it was current. Officer Christ next asked if she had "anything illegal," such as alcohol, drugs, or prescription medications, to which Defendant responded that she did not. Defendant testified at the hearing that Officer Christ persisted in asking her if she had anything illegal, and asked "If I look in your vehicle, will I find anything?" Officer Christ testified that he asked Defendant if he could search her vehicle and that Defendant said "Sure." Defendant also testified that she agreed to Officer Christ searching her car.

During this questioning, Officer Christ observed that Defendant appeared nervous because she averted her eyes from him. Officer Christ does not recall when he returned Defendant's identification to her.

After Defendant agreed to the search, Officer Christ asked Defendant to step out of the car, and he called a second unit to assist him because he was the only officer there and was not sure whether Defendant had any weapons. Defendant held her purse as she stepped out of the car, but Officer Christ told her to leave her purse in the car for safety purposes, which Defendant did. Before the second officer, Officer Buetts, arrived, Officer Christ directed Defendant to stand in front of his patrol car while he began searching the car. By the center console between the driver's seat and the passenger seat, Officer Christ saw a brown paper bag with the red cap of what he perceived to be a whiskey bottle protruding from the top. He noted that the seal had been broken.

At this time, Officer Christ stopped his search and talked with Defendant about the bottle he found in her car because he wanted backup before proceeding any further. He testified that it [was] standard procedure for a second officer to stay with the person while the other officer conducts the search for safety purposes. Because it was taking Officer Buetts an extended amount of time to arrive, Officer Christ decided to continue his search without Officer Buetts because he did not want to make Defendant late for work. Officer Christ searched behind the passenger area, then searched Defendant's purse in which he found methamphetamine. After arresting Defendant, Officer Buetts arrived and Officer Christ searched Defendant's purse a second time and found a pipe.

Thereafter, Greub was arrested for possession of a controlled substance, in violation of Idaho Code § 37-2732(c)(1). Greub filed a motion to suppress alleging her detention was unlawful, and the search of her purse violated her state and federal constitutional rights to be free from an unreasonable search and seizure. In her motion, Greub argued that when the officer retained her identification card, she was seized and that the seizure was unlawful because there was no basis for the officer to suspect Greub was engaged in misconduct. Although Greub gave consent to search her car, her consent was involuntary because it was given during an illegal detention. Greub further argued that even if she had given consent, the officer had no basis to look in Greub's purse because the officer did not demonstrate he was concerned for his safety. Finally, Greub argued that even if she had voluntarily consented to a search of the car, when she got out of the car holding her purse, she revoked any consent related to the purse. And, the officer's order to leave the purse in the car so that it could subsequently be searched, violated the Idaho Supreme Court's holding in State v. Newsom , 132 Idaho 698, 979 P.2d 100 (1998). As a result, Greub requested any evidence derived from the search be suppressed.

The State responded to the motion to suppress. Therein, the State argued the detention was a consensual contact between Greub and the officer, Greub's consent to search the car constituted a valid exception to the warrant requirement, and that Greub needed to do something more than attempt to take her purse with her as she got out of the car in order to revoke her previously given consent. The State noted:

[Greub] did not verbally state she was revoking consent or impliedly revoke her consent by both verbal and physical resistance by staying in her car; instead she told Officer Christ he could search her vehicle and after making that statement then exited the vehicle to allow him to conduct his search.

The State also argued that based on officer safety, the officer was justified in requiring Greub to leave the purse in the car, thereby subjecting it to a search.

The district court denied the motion to suppress, finding the initial encounter was consensual and that the original contact did not constitute a seizure. The district court further found that Greub voluntarily consented to the search of her purse because when the officer asked to search Greub's car for illegal drugs, it was reasonable for the officer to conclude that Greub consented to the search of her purse because a purse may contain drugs.

In analyzing whether Greub revoked her consent to search her purse, the district court noted no Idaho case law interprets whether a person's conduct (as opposed to statements) constitutes a revocation of consent. After reviewing cases from other jurisdictions, the district court held that Greub:

did not tell Officer Christ of any limitations to his search of her car. Furthermore, holding onto her purse and then replacing [it] in her car was not clearly inconsistent with her consent to the search of her car, nor was it a clear [and] unequivocal act to prevent Officer Christ from searching her purse.

The district court concluded: "Therefore, under the circumstances in this case, a reasonable person would have understood that Defendant gave general consent to Officer Christ to search her car and any containers inside of it which might contain alcohol or drugs, and that Defendant did not revoke her consent."

Greub thereafter entered a conditional plea of guilty, reserving her right to appeal the district court's denial of her motion to suppress. The district court withheld judgment and placed Greub on probation for four years. Greub timely appealed following her conviction.

II.STANDARD OF REVIEW

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 that are 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). 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).

III.ANALYSIS

On appeal, Greub argues the district court erred in finding she did not delimit or revoke her consent to search her car and the containers within the car when she got out of the car with her purse. The State asserts that Greub's conduct of grabbing her purse after granting consent to search and after being instructed to step out of the car was not a clear and unequivocal revocation of her previously given consent but instead was, at best, ambiguous.

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. Warrantless searches are presumed to be unreasonable and therefore, violative of the Fourth Amendment. State v. Weaver , 127 Idaho 288, 290, 900 P.2d 196, 198 (1995). The State may overcome this presumption by demonstrating that a warrantless search either fell within a well-recognized exception to the warrant requirement or was otherwise reasonable under the circumstances. Id.

A warrantless search may be rendered reasonable by an individual's consent. State v. Johnson , 110 Idaho 516, 522, 716 P.2d 1288, 1294 (198...