State v. Pick

• Decision Date: 25 October 1993
• Docket Number: No. 20255,20255
• Citation: 861 P.2d 1266,124 Idaho 601
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Bonnie Joan PICK, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 1266

861 P.2d 1266

124 Idaho 601

STATE of Idaho, Plaintiff-Respondent, v. Bonnie Joan PICK, Defendant-Appellant.

No. 20255.

Court of Appeals of Idaho.

Oct. 25, 1993.

Bruce H. Greene, Sandpoint, for defendant-appellant.

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

PERRY, Judge.

This is an appeal from the district court's order affirming Bonnie Pick's judgment of conviction for misdemeanor driving under the influence (DUI). Pick contends, as she did before the district court, that her arrest was invalid and that the results of the field sobriety tests obtained after she was seized by the arresting officer should have been suppressed upon her motion. We affirm.

The facts surrounding the arrest are as follows. On the evening of December 6, 1991, Officer Mike Hutter of the Sandpoint City Police Department observed a pickup truck weaving in its own lane. Suspecting that the driver, later identified as Pick, may be driving while under the influence, Hutter followed the truck to the Bonner Mall parking lot. Knowing that the Bonner Mall was outside his jurisdiction, Officer Hutter contacted Bonner County Deputy Sheriff Richard Bailey. Officer Hutter informed Deputy Bailey of his observations. Deputy Bailey met Hutter at the mall, and Hutter pointed out the vehicle that Pick had been operating. Bailey then observed Pick drive out of the Bonner Mall parking lot and enter Highway 95. Bailey followed. Not far from the mall entrance, Pick pulled over to the side of the road and stopped her vehicle to talk with a friend, who was leaning into the truck through an open passenger door when Deputy Bailey pulled up behind the truck.

Deputy Bailey turned on his vehicle's rear amber flashing lights when he parked behind Pick's truck, then got out of his vehicle and went to speak with Pick. He asked Pick, through the open driver's window, if she was having problems with her truck. When she denied any problems and responded that she had just stopped to talk with a friend, Deputy Bailey detected the smell of alcohol on her breath and observed her physical condition. He inquired whether she had been drinking, and she admitted having a couple of beers. He then asked her to perform field sobriety tests and to produce her driver's license. As a result of the field sobriety tests and Deputy Bailey's observations, Pick was arrested and charged with misdemeanor driving under the influence.

Pick filed a motion requesting the magistrate to suppress the results of the field sobriety tests. The motion was denied after an evidentiary hearing. The magistrate entered specific findings and conclusions designating the point when Pick was seized for purposes of the Fourth Amendment. The relevant findings and conclusions were as follows:

3. No seizure of the Defendant's person occurred when Deputy Bailey pulled his patrol vehicle behind her on the side of the roadway due to the fact that the Defendant's vehicle was already stopped.

4. No seizure of the Defendant occurred when the officer turned on his rear amber deck light prior to bringing his vehicle to a stop due to the fact that these are not the type of lights that a motorist is required to yield to.

Furthermore, the Defendant's vehicle was already stopped at the time the rear amber deck lights were turned on by the officer.

5. No seizure of the Defendant occurred until the officer requested her to perform field sobriety tests.

6. At the point in time that the field sobriety tests were requested, the officer had a reasonable, articulable suspicion that the Defendant was in physical control of a motor vehicle while under the influence of alcohol.

Pick filed a motion to reconsider her motion to suppress, which was also denied. Pick then entered a conditional plea of guilty to the charge of misdemeanor DUI, reserving her right to appeal from the denial of the suppression motion. On Pick's appeal from the denial of the motion to suppress and of the motion to reconsider, the district court affirmed the magistrate's decision.

Pick now appeals, contending the magistrate erred in denying her motion to suppress the results of the field sobriety tests following her arrest. She asserts that a seizure occurred when her truck was approached from behind by the sheriff's vehicle with flashing lights, irrespective of the color of those flashing lights. At that time, she asserts, Deputy Bailey did not have a reasonable, articulable suspicion to make a stop, and therefore the seizure was "unconstitutional." ¹ She contends that because the seizure was unlawful, any evidence derived therefrom must be suppressed.

On appeal from an order of the district court reviewing a determination made by a magistrate, we examine the record of the trial court independently, but with due regard for, the district court's intermediate appellate decision. State v. Kenner, 121 Idaho 594, 826 P.2d 1306 (1992); State v. Schmidt, 121 Idaho 381, 825 P.2d 104 (Ct.App.1992). In reviewing the denial of a motion to suppress, we defer to the lower court's findings of fact unless they are clearly erroneous. State v. Weber, 116 Idaho 449, 776 P.2d 458 (1989), citing State v. Heinen, 114 Idaho 656, 759 P.2d 947 (Ct.App.1988). However, we exercise free review over the lower court's determination as to whether constitutional requirements have been satisfied in light of the facts found. Id.

Pick argues that the magistrate erred in finding that she was not seized until the deputy asked her to perform field sobriety tests and to surrender to him her driver's license. She disputes the magistrate's conclusion that the amber flashing lights on the rear deck of the sheriff's vehicle were not the type of lights that a motorist is required to yield to, and she asserts that the officer's use of flashing lights, irrespective of their color or configuration, effected a seizure. This same argument is the one suggested by Justice Bistline in his dissent to State v. Godwin, 121 Idaho 491, 497, n. 3, 826 P.2d 452, 458, n. 3 (1992) ², although Godwin never raised the question to the Court.

"Because neither party disputes the facts, we exercise free review in determining whether the police encounter was one permitted under the Fourth Amendment of the Constitution. State v. Shepherd, 118 Idaho 121, 795 P.2d 15 (Ct.App.1990)." State v. Osborne, 121 Idaho 520, 523, 826 P.2d 481, 485 (Ct.App.1991). The critical inquiry in determining whether an individual is seized within the meaning of the Fourth Amendment 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." Id. at 524, 826 P.2d at 485.

There is no question but that the officer was authorized to approach Pick's truck and ask questions, even if no obvious criminal activity was afoot. See State v. Zubizareta, 122 Idaho 823, 839 P.2d 1237 (Ct.App.1992), citing State v. McAfee, 116 Idaho 1007, 783 P.2d 874 (Ct.App.1989). Deputy Bailey testified that he was watching Pick as a possible DUI offender on a tip from a fellow officer. However, 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. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). When Deputy Bailey asked Pick if she was having car problems and why she was stopped on the highway, Pick was under no obligation to answer his questions. The officer showed no sign of authority or force restricting Pick's freedom of movement other than his uniform and the fact that he wanted to talk with her. No seizure occurs until an officer actually restrains the person's liberty by physical force or show of authority. Zubizareta, supra. In other words, no seizure occurs until the person submits to the authority exhibited by the officer. State v. Rawlings, 121 Idaho 930, 932, 829 P.2d 520, 522 (1992). We disagree with Pick's assertion that, had she not responded to the officer's questions, she risked being cited with a violation of I.C. §§ 49-1419 and 18-705. ³ Deputy Bailey had not given Pick "any lawful order or direction" for which she had willfully failed or refused to comply. Pick had not willfully resisted, delayed or obstructed the officer or given a false report to him.

To ensure that the scope of the Fourth Amendment protection does not vary with the state of mind of the individual being approached, we apply the objective "innocent person test" to determine whether a reasonable person would feel free to ignore the police presence and go about his business. State v. Jordan, 122 Idaho 771, 774, 839 P.2d 38, 41 (Ct.App.1992), citing Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). As suggested in Jordan, we look to whether the restrictions on the subject's freedom of movement were imposed "by a factor independent of police conduct." Jordan at 774, 839 P.2d at 41. In Jordan, the restriction was caused by Jordan's location at a red traffic light when the officer came to talk to him. In Pick's case, the restriction was a result of Pick's mistaken belief that she had no choice but to comply with the deputy's requests once he had approached her truck, as well as her personal situation in stopping her truck and visiting through the passenger side of her truck with a pedestrian. We hold that Pick's movement was not restricted for Fourth Amendment purposes by the...