State v. Gutierrez

• Decision Date: 10 July 2002
• Docket Number: No. 26943, No. 26944.
• Citation: 51 P.3d 461,137 Idaho 647
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Anthony Adolph GUTIERREZ, Defendant-Appellant. State of Idaho, Plaintiff-Respondent, v. Angel Ann Gutierrez, Defendant-Appellant.
• Court: Idaho Court of Appeals

51 P.3d 461

137 Idaho 647

STATE of Idaho, Plaintiff-Respondent, v. Anthony Adolph GUTIERREZ, Defendant-Appellant.

State of Idaho, Plaintiff-Respondent, v. Angel Ann Gutierrez, Defendant-Appellant.

Nos. 26943, 26944.

Court of Appeals of Idaho.

July 10, 2002.

Ronald J. Jarman, Pocatello, for appellants.

Hon. Alan G. Lance, Attorney General; William M. Loomis, Deputy Attorney General, Boise, for respondent. William M. Loomis argued. LANSING, Judge.

This is an appeal from an order denying suppression of evidence found in an automobile after a traffic stop. Because we conclude that the police officer unreasonably extended the detention after the reason for the traffic stop was concluded, we reverse.

I.

FACTUAL AND PROCEDURAL BACKGROUND

During the early evening hours of July 9, 1999, Angel Ann Gutierrez ("Angel") and Anthony Adolph Gutierrez ("Anthony"), sister and brother, were traveling as passengers in an out-of-state automobile that was being driven by Kevin B. Cheek. The vehicle was pulled over by Officer Jon Bunderson of the Soda Springs Police Department for speeding. Bunderson asked Cheek for his driver's license and registration, which Cheek produced. Bunderson thought that Cheek exhibited undue nervousness during this exchange. Bunderson told Cheek to remain in the vehicle with Angel and Anthony while Bunderson ran the necessary license and registration checks in his patrol car. It took Bunderson approximately five minutes to complete these checks, which revealed no problems with the driver's license or automobile registration. Bunderson then went back to Cheek's vehicle to give Cheek a warning for speeding. Before delivering the warning or handing back the license and registration, Bunderson asked Cheek to step out of his vehicle. Once Cheek had exited his vehicle, Bunderson delivered the warning and returned the license and registration to Cheek.

Without turning off the overhead lights on his patrol car, or indicating that Cheek could return to his vehicle, or telling Cheek that he was free to leave, Bunderson asked Cheek three questions: whether Cheek had any alcohol or open alcoholic containers in the vehicle; whether he had any controlled substances in the vehicle; and whether he had any weapons in the vehicle. Bunderson told Cheek that his reason for asking the questions was that he had observed that Anthony, the rear seat passenger, acted very nervous. Cheek responded negatively to each question. The questioning took between sixty to ninety seconds to complete.

While Cheek was answering these questions, Bunderson noticed that Cheek was averting his eyes and making overly dramatic gestures with his arms. Based on those observations, Bunderson believed that Cheek was being deceptive. Bunderson then asked Cheek for permission to search his vehicle. Cheek consented. Immediately thereafter, Bunderson asked Angel and Anthony, who were still sitting inside the vehicle, whether they objected to Cheek's consent to search. Neither Angel nor Anthony objected, and each stepped out in order to allow Bunderson to search. Bunderson's search revealed marijuana and drug paraphernalia in a purse, backpack, and another bag, each of which belonged to Angel or Anthony.

Angel and Anthony were cited by Officer Bunderson for misdemeanor possession of marijuana, Idaho Code § 37-2732(c)(3), and possession of drug paraphernalia, I.C. § 37-2734A(1), and they subsequently moved the magistrate court to suppress the marijuana and drug paraphernalia, contending that Bunderson violated their Fourth Amendment rights when he prolonged the vehicle stop and searched the vehicle after the purpose of the stop had been concluded. The magistrate denied the suppression motion. Angel and Anthony then pleaded guilty to the charged offenses but reserved their right to appeal the suppression ruling. The district court on intermediate appeal affirmed the magistrate's order.

II.

ANALYSIS

Motions to suppress evidence for violation of constitutional rights present questions of fact and law. The facts that are material to the issues raised in this appeal are not in dispute. Therefore, we exercise free review in determining whether constitutional standards have been met in light of the facts presented. State v. Holler, 136 Idaho 287, 291, 32 P.3d 679, 683 (Ct.App.2001); State v. Evans, 134 Idaho 560, 563, 6 P.3d 416, 419 (Ct.App.2000); State v. Jordan, 122 Idaho 771, 772, 839 P.2d 38, 39 (Ct.App.1992).

The Fourth Amendment safeguard against unreasonable searches and seizures applies to the seizures of persons through arrests or detentions falling short of arrest. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607, 614 (1975); Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889, 902 (1968). The stop of a vehicle is a seizure of its occupants and is therefore subject to Fourth Amendment standards. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621, 628 (1981); Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 1395-96, 59 L.Ed.2d 660, 667-68 (1979); State v. Haworth, 106 Idaho 405, 406, 679 P.2d 1123, 1124 (1984). When the purpose of the detention is to investigate a possible traffic offense or other crime, it must be based upon reasonable, articulable suspicion of criminal activity. Brignoni-Ponce, 422 U.S. at 884, 95 S.Ct. at 2581, 45 L.Ed.2d at 618; Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229, 236 (1983); State v. Schumacher, 136 Idaho 509, 37 P.3d 6 (Ct.App.2001). Because the stop of a vehicle and detention of its driver is generally a detention of any passengers as well, passengers have standing to contest the reasonableness of the detention. Haworth, 106 Idaho at 406, 679 P.2d at 1124; State v. Luna, 126 Idaho 235, 237, 880 P.2d 265, 267 (Ct.App. 1994).

In this case, the lawfulness of the initial traffic stop for speeding is not contested. Rather, Angel and Anthony assert that Officer Bunderson unlawfully prolonged the detention after the traffic control purpose for the stop had been satisfied. They contend that after issuing the warning and returning Cheek's license and registration, Bunderson impermissibly continued the detention by questioning Cheek about alcohol, drugs and weapons—matters unrelated to the purpose of the stop—without reasonable suspicion. The defendants point out that Cheek was not told by Officer Bunderson that he could leave when his documents were handed back but, instead, Bunderson immediately proceeded with questioning about the contents of Cheek's car.

The State responds that once Cheek received his license and registration, he was free to leave and any detention ended. The continuing conversation between Bunderson and Cheek, the State argues, was consensual and therefore did not implicate the Fourth Amendment. The State also argues in the alternative that even if the questioning was not a consensual interaction, it was reasonable as a brief extension of the traffic stop.

A. The Questioning Was Not Consensual

Not all contacts between policemen and citizens constitute seizures of the individuals. A seizure occurs only when the officer, through physical force or show of authority, restrains an individual's liberty. Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247, 254 (1984); Terry, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16, 20 L.Ed.2d at 905 n. 16; State v. Nickel, 134 Idaho 610, 612, 7 P.3d 219, 221 (2000). The test to determine whether someone is restrained is whether, considering all of the circumstances surrounding the encounter, the police conduct would communicate to a reasonable person that he or she is not at liberty to ignore the police presence and go about his or her business. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389, 398 (1991); State v. Zavala, 134 Idaho 532, 536, 5 P.3d 993, 997 (Ct.App.2000); State v. Fry, 122 Idaho 100, 103, 831 P.2d 942, 945 (Ct.App.1991). Thus, a traffic stop may evolve into a consensual encounter if the officer returns the driver's license, registration and insurance documents and engages in any subsequent questioning without further show of authority which would convey a message that the individual is not free to leave. State v. Martinez, 136 Idaho 436, 441, 34 P.3d 1119, 1124 (Ct.App.2001). We conclude, based on the totality of the circumstances, that no such evolution from detention to consensual encounter occurred here. First, after learning from dispatch that there were no problems with Cheek's driver's license or registration, and after deciding to issue only a warning for speeding, Bunderson required Cheek to get out of his vehicle before Bunderson handed back the documents or gave the warning. Bunderson never thereafter indicated to Cheek that he could return to his vehicle. Although the practice of requesting a driver to step out of the vehicle during the execution of a traffic stop is lawful, Pennsylvania v. Mimms, 434 U.S. 106, 111 n. 6, 98 S.Ct. 330, 333 n. 6, 54 L.Ed.2d 331, 337 n. 6 (1977); State v. Parkinson, 135 Idaho 357, 363, 17 P.3d 301, 307 (Ct.App.2000), it is also likely that a person who has been directed by an officer to exit a vehicle would not believe that the traffic stop was over until he or she was permitted to return. Without telling Cheek that he was free to leave, Bunderson asked Cheek about alcohol, controlled substances, and weapons. We recognize that the United States Supreme Court has declined to adopt a bright-line rule that would require officers to first say that the motorist is free to leave before a post-traffic stop consent to search could be deemed voluntary. Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996). However, whether the officer said that the motorist was free to leave remains one of the myriad circumstances that courts should examine in determining whether the consent was freely...