State v. Jordan

• Decision Date: 28 September 1992
• Docket Number: No. 19625,19625
• Citation: 122 Idaho 771,839 P.2d 38
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Brently Scott JORDAN, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 38

839 P.2d 38

122 Idaho 771

STATE of Idaho, Plaintiff-Respondent, v. Brently Scott JORDAN, Defendant-Appellant.

No. 19625.

Court of Appeals of Idaho.

Sept. 28, 1992.

Alan Trimming, Ada County Public Defender and Mark F. Stewart, Deputy Public Defender, argued, Boise, for appellant.

Larry EchoHawk, Atty. Gen. and Douglas A. Werth, Deputy Atty. Gen., argued, Boise, for respondent.

WALTERS, Chief Judge.

Brently Scott Jordan pled guilty to driving while under the influence, a misdemeanor. I.C. § 18-8004. Jordan's plea was conditioned on his ability to appeal to the district court the magistrate's denial of his motion to suppress the results of his blood-alcohol and field sobriety tests. Jordan argued that the results should have been suppressed because he had done nothing to arouse the police officers' suspicions when they walked up to his car as he was stopped at a red light and asked if he had been drinking. He claimed that the encounter violated his fourth amendment rights to be free from unreasonable searches and seizures. The district court affirmed the denial of the motion. We also affirm.

The facts may be stated briefly. On July 28, 1990, at about 11:30 p.m., Jordan and a friend were driving through downtown Boise. They stopped at a red light at the intersection of Main and Capitol streets. At the same time, two officers working the "downtown cruise" on foot patrol had stopped a car and its driver in an adjacent traffic lane because the car had an inoperable headlight. A passenger in the car told the officers that if they wanted to catch a drunk driver, they should inquire at the blue Malibu in the next lane. The officers did not know the person providing the information and told the people in the car to move along.

The officers walked over to the blue Malibu, Jordan's car. ¹ The driver's window was down and one of the officers asked Jordan, who was driving, if he had been drinking. Jordan replied that he had "one to one-and-a-half beers." Sometime during the brief conversation, the officers detected the odor of alcohol coming from within the car. The record is unclear as to the exact sequence of these events. However, it is clear that after the short discussion and smelling of alcohol, the officers told Jordan to pull over to the curb.

Jordan was asked to perform several field sobriety tests, which in the officers' opinions he failed. He was arrested and given breath tests, which revealed blood-alcohol concentrations of .14 and .13. Jordan was then cited for driving while under the influence of alcohol.

Jordan moved to suppress all test evidence. The magistrate denied the motion, which was affirmed by the district court on appeal. On appeal to this Court, Jordan argues that the police did not have an articulable suspicion that he was involved in criminal activity, and therefore they could not justify their decision to stop and investigate him. He also argues that the police could not rely on the statement of the person who tipped them about Jordan's condition because they had no basis for trusting that person's information.

First, we note our standard of review. A trial court's decision on a motion to suppress presents mixed questions of law and fact. State v. McAfee, 116 Idaho 1007, 1008, 783 P.2d 874, 875 (Ct.App.1989); State v. Jones, 115 Idaho 1029, 772 P.2d 236 (Ct.App.1989). On appeal we defer to the trial court's findings of facts if they are supported by substantial evidence. Id. However, we freely review the trial court's determinations as to whether constitutional requirements have been satisfied in light of the facts found. Id. When reviewing a district court rendered in its appellate capacity, we examine the record before the magistrate independently of, but with due regard for, the district court's determination. Id.

The fourth amendment to the U.S. Constitution guarantees the right of every citizen to be free from unreasonable searches and seizures. ² However, this guarantee is not so broad that every police-citizen encounter violates the person's constitutional rights. In other words, not every encounter constitutes a seizure. Articulating this concept, this Court has recently stated:

A seizure does not occur simply because a police officer approaches an individual on the street or other public place, by asking him questions, or by putting questions to him if he is willing to listen. Florida v. Bostick, U.S. , 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Unless and until there is a detention, there is no seizure within the meaning of the fourth amendment and no constitutional rights have been infringed. Royer, 460 U.S. at 498, 103 S.Ct. at 1324. Even when officers have no basis for suspecting a particular individual, they may generally ask the individual questions and ask to examine identification. Florida v. Rodriguez, 469 U.S. 1, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984); INS v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984); United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Thus, where an officer merely approaches a person who is standing on the street, or seated in a non-moving vehicle located in a public place, and poses a few questions, no seizure has occurred. See United States v. Castellanos, 731 F.2d 979 (D.C.Cir.1984); United States v. Woods, 720 F.2d 1022 (9th Cir.1983). ... [T]he 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." Bostick, U.S. at [----], 111 S.Ct. at 2387, quoting Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975, 1977, 100 L.Ed.2d 565 (1988).

State v. Osborne, 121 Idaho 520, 523-24, 826 P.2d 481, 484-85 (Ct.App.1991). See also State v. Godwin, 121 Idaho 491, 826 P.2d 452 (1992); State v. Hobson, 95 Idaho 920, 523 P.2d 523 (1974); State v. Fry, 122 Idaho 100, 831 P.2d 942 (Ct.App.1992).

The vast majority of jurisdictions have held that "the mere approach and questioning of [persons in parked vehicles] does not constitute a seizure." W. LAFAVE, SEARCH AND SEIZURE § 9.2(h), at 415-16 and 408-09 n. 230 (2nd ed. 1987). The dividing line for fourth amendment purposes appears to be whether an officer unreasonably restricts the travel of a moving vehicle or restricts movements of the driver who has already stopped his vehicle, on his own volition. This view is supported by case law from other jurisdictions. For instance, in Isam v. State, 582 S.W.2d 441 (Tex.Crim.App.1979), the Texas appellate court affirmed the denial of a motion to suppress evidence in a case where two officers had seen Isam drive by while smoking what appeared to be a marijuana cigarette; the officers' act of following of Isam and then approaching his car on foot when it was stopped at a red light was not violative of the fourth amendment. The court held that Isam was not seized by any overt act of the officers until the officer told Isam to pull over after approaching the car and smelling the odor of marijuana. Before that instruction, the only limitation on Isam's movement was that imposed by the traffic light. Similar conclusions have been reached elsewhere. See State v. Harlan, 301 N.W.2d 717 (Iowa 1981) (no seizure where officer approached vehicle stopped with motor running to pick up passenger, and viewed driver who then appeared to be intoxicated); State v. Foley, 218 N.J.Super. 210, 527 A.2d 482 (1987) (no seizure occurred where officer merely spoke to occupants of vehicle already stopped at toll booth); Carson v. Commonwealth of Virginia, 12 Va.App. 497, 404 S.E.2d 919 (1991) (no seizure in violation of fourth amendment when officer observed car at toll booth and asked occupants questions; officer did not impede traffic or passage of the already stopped car).

Nevertheless, Jordan argues that he was seized the moment the police walked to his car and started asking him questions. We disagree. Substantial evidence is presented in the record that when the officers approached the car, it was already stopped on a public street. They asked Jordan several questions through his open window. There was no sign of authority or force to restrict Jordan's movement beyond the uniforms the officers wore and the fact that they wanted to talk to Jordan. Analytically, this case is no different than Florida v Bostick and INS v. Delgado, where the United States Supreme Court held that the restrictions on the subject's freedom of movement were imposed "by a factor independent of police conduct." Bostick, 501 U.S. at ----, 111 S.Ct. at 2387. In Bostick, the restriction was imposed by virtue of the means of travel selected by Bostick--he was the passenger on a bus stopped by its driver at a scheduled terminal. In Delgado, the restriction occurred as a result of the duties of employment and the factory where the subjects worked. Here, the restriction was caused by Jordan's location at a traffic control signal.

Jordan argues, however, that the questions asked by the officers gave him an impression that he was not free to go about his business; thus, he was seized. The record is imprecise on the exact questions asked, but it is clear they consisted of a variation of "Have you been drinking?" or "How many beers have you had?" He claims that the specificity of these questions communicated to him that he was under suspicion and could not ignore the officers. We are not persuaded by Jordan's argument. The test for whether a reasonable person would feel free to ignore the police presence and go about his business, as articulated in Bostick and Osborne, "presupposes an innocent person." Id., citing Florida v. Royer, 460 U.S. at 519 n. 4, 103 S.Ct. at 1335 n. 4. This "innocent person" standard ensures that the scope of fourth amendment protection does not vary with the state of...