State v. Hobson

• Citation: 95 Idaho 920,523 P.2d 523
• Decision Date: 12 June 1974
• Docket Number: No. 11159,11159
• Parties: The STATE of Idaho Plaintiff-Appellant, v. Jerry L. HOBSON, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 523

523 P.2d 523

95 Idaho 920

The STATE of Idaho Plaintiff-Appellant, v. Jerry L. HOBSON, Defendant-Respondent.

No. 11159.

Supreme Court of Idaho.

June 12, 1974.

Rehearing Denied July 3, 1974.

James E. Risch, Pros. Atty., Ada County, David H. Leroy, Asst. Ada. County Pros. Atty., W. Anthony Park, Atty. Gen., Boise, for plaintiff-appellant.

Ellison M. Matthews, Boise, for defendant-respondent.

McFADDEN, Justice.

Respondent Jerry L. Hobson was arrested for the possession of a derivative of LSD found by the Boise City Police after stopping him in his automobile for investigation. After his arrest the police obtained his consent to search his motel room and found other controlled substances including 46,000 amphetamine pills. The prosecuting attorney filed an information charging the respondent with a felony, illegal possession of amphetamines with the intent to deliver. The respondent moved to suppress the use of the amphetamines as evidence on the grounds that the search of his car and motel room violated his Fourth Amendment right to freedom from unreasonable searches and seizures. The district court granted the respondent's motion to suppress, and the State of Idaho appealed.

Between January 20 and 21, 1971, an anonymous informant called the Boise City Police Department three times and told them that the respondent had in his possession illegal drugs. The informant in his last call described the color, make and location of respondent's vehicle. The police immediately proceeded to this location to investigate. One of the police cars while enroute spotted the respondent alone in his automobile. This police car followed him for a short distance and stopped him with the aid of another patrol car. Three other police cars arrived at the scene and parked to the right of respondent's car.

While a police sergeant examined the respondent's driver's license and automobile registration, another police officer observed three pharmaceutical bottles in the open glove compartment. The police sergeant inquired about the bottles' contents. The respondent replied that they were vitamins and gave one bottle to the sergeant. While the sergeant opened the bottle, the respondent attempted to hide the contents of one of the remaining bottles. But the sergeant saw this and asked him what he was doing. The respondent then voluntarily surrendered a plastic 'baggy' which the sergeant determined to contain a derivative of LSD. This 'baggy' supplied the police with probable cause to arrest the respondent for possession of a controlled substance. After the police took him to the police station, the respondent voluntarily consented to a search of his motel room. The search of the motel room produced the amphetamines which is the basis of the information filed against the respondent.

The threshold issue in this case is whether the policy by stopping the respondent in his automobile for investigation violated his Fourth Amendment right to be secure from unreasonable searches and seizures. The stop presented the police the opportunity to find contraband in respondent's possession which supplied probable cause for respondent's arrest and search of his motel room. In answering this question we must first determine whether the police arrested the defendant when they initially stopped him. If it was an arrest, then we must examine whether there was probable cause for the arrest. If it was not an arrest, we must determine whether the investigative stop of the respondent was a reasonable intrusion on respondent's Fourth Amendment rights.

The district court in a memorandum decision concluded that the police arrested the defendant when they initially stopped him and hence there was no probable cause for respondent's arrest until after the police found the LSD derivative. In summary, the district court concluded that since the arrest was illegal, the arrest invalidated any subsequent search purportedly made as an incident to the arrest, that any evidence seized as a result of the illegal arrest must be suppressed, and that the illegal arrest vitiated respondent's consent to search his motel room.

The State contends that the initial stop was not an arrest but an 'investigative stop.' The State argues on the basis of State v. Loyd, 92 Idaho 20, 435 P.2d 797 (1967), and I.C. §§ 19-601, 602 that there was an absence of any intent on the part of the police to place the respondent in custody, which is a necessary element of an arrest. The State, in summary, justifies this investigative stop on the basis of the 'stop and frisk' doctrine of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The respondent, on the other hand, urges that the police stop of his automobile constitutes an arrest within the terms of State v. Loyd, supra, and I.C. §§ 19-601, 602 and that the police did not have probable cause for an arrest. Respondent argues that the police restrained him and impeded his liberty when they initially surrounded his automobile and that this detention evidences an arrest.

In reviewing this case our purpose is not to question the exclusionary rule. Inasmuch as the State, the respondent, and the district court all rely on State v. Loyd, supra, in determining whether the stop of the respondent was or was not an arrest, we must re-examine that case, especially in light of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which was decided subsequent to the decision in State v. Loyd, supra.

In State v. Loyd, supra, two police officers were investigating a suspected burglary of the Eagles Lodge in Boise. The two officers observed a sedan with out-of-state license plates driving in the vicinity of the lodge. The officers decided to investigate the vehicle. The car had stopped and one officer noticed one of its occupants leave the car and throw something away. The passenger got back into the car. The officers then stopped the car from leaving, ordered the occupants out and then checked them for weapons. One of the officers shined his flashlight into the interior and noticed an object on the floor partly concealed beneath the front seat. He went around the car, again observed the object, and found it to be a cash box from the Eagles Lodge. The question before the court in that case was primarily whether the trial court erred in refusing to suppress the admission of the cash box as evidence. This court held that inasmuch as the defendants were under arrest, there was a lawful search and furthermore, that the viewing of the article without trespass was not unlawful. The court stated '(v)iewing what is open and blatant is not a search.' 92 Idaho at 23, 435 P.2d at 800.

In light of Terry v. Ohio, the court in State v. Loyd could have held that the officers had sufficient cause to stop the vehicle and interrogate its occupants by reason of the time of night, the fact there was a suspected crime, and the unusual circumstance of a vehicle with foreign license plates driving in the neighborhood. In fact the court pointed out

'Prompt inquiry into suspicious or unusual street action is an indispensable police power in the orderly government of urban communities.' 92 Idaho at 23, 435 P.2d at 800.

Along the same line, the United States Supreme Court in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), reaffirmed the concept of an 'investigative stop' discussed in Terry v. Ohio, supra:

'The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. * * * A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.' Adams v. Williams, supra, 407 U.S. at 145-146, 92 S.Ct. at 1923.

See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

It is our conclusion that even though State v. Loyd, supra, held that there was an arrest before the officers discovered the cash box, that ruling is inapplicable in the case now before the court.

I.C. § 19-601 defines arrest as follows:

'An arrest is taking a person into custody in a case and in the manner authorized by law * * *.'

The critical act in effecting an arrest is placing the person in police custody. Instructive of the legislative intent in defining an arrest in terms of 'custody' is the next succeeding section, I.C. § 19-602, which provides:

'An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of an officer.'

Under I.C. § 19-601 an arrest is a custodial taking, seizure or detention, and we believe that there must be some action or intent evidencing police custody before an arrest occurs. In the instant case the police sergeant who first approached the respondent asked for this driver's license which was a legitimate request under I.C. § 49-319. This request did not evidence any intent to place the respondent in police custody at that time, even though a number of other officers were present. On the basis of the facts presented in this case we conclude that the district court erred in deciding that the police arrested the defendant. ¹ See I.C. § 19-603. See also, United States v. Hensley, 374 F.2d 341 (6th Cir.1967); Shorey v. Warden, 101 F.2d 474 (4th Cir.1968); Coates v. United States, 134 U.S.App.D.C. 97, 413 F.2d 371 (1969); State ex rel. Flournoy v. Wren, 108 Ariz. 356, 498 P.2d 444 (Ariz.1972); State v. Goudy, 479 P.2d 800 (Haw.1971); Battles v. State, 459 P.2d 623 (Okla.Cr.1969); State v. Lewis, 80 N.M. 190, 454 P.2d 360 (1969). See also, Escobedo v. Illinois, 378 U.S....