State v. Salato, 26710.

• Citation: 137 Idaho 260,47 P.3d 763
• Decision Date: 13 December 2001
• Docket Number: No. 26710.,26710.
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Victor SALATO, Defendant-Appellant.
• Court: Court of Appeals of Idaho

47 P.3d 763

137 Idaho 260

STATE of Idaho, Plaintiff-Respondent, v. Victor SALATO, Defendant-Appellant.

No. 26710.

Court of Appeals of Idaho.

December 13, 2001.

Rehearing Denied February 20, 2002.

Review Denied June 6, 2002.

Alan E. Trimming, Ada County Public Defender; David J. Smethers, Deputy Public Defender, Boise, for appellant. David J. Smethers argued.

Hon. Alan G. Lance, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent. Lori A. Fleming argued.

SCHWARTZMAN, Chief Judge.

Victor Salato appeals the district court's denial of his motion to suppress evidence obtained after a stop initiated on suspicion of robbery. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The evidence presented by the state indicates that shortly before 10 p.m. on December 19, 1999, Rebecca Preece stopped at the M & W market on Warm Springs to buy gasoline. There, she saw a streamlined, late-model, maroon car with three men in it speed through the parking lot, stop abruptly, and then speed away about five seconds later. One of the men had a shaved head or was wearing a hooded light colored jacket. Preece suspected that the men were "scoping out the place," and she tried to take down the license plate number, but only got down "1A" before the car drove off. Preece proceeded on her way home.

At about 10 p.m. that same evening Shannon Skillern was working as a cashier at the same M & W Market when a man walked up to her, pulled out a black semi-automatic handgun, cocked it, and said, "Give me all your money." Skillern gave the man all the cash in her register drawer. The man left and Skillern reported the robbery, describing the perpetrator as thin, somewhat short, with a black mustache and big nose, wearing dark blue sweatpants with silver stripes down the leg, and a light hooded jacket or sweatshirt.

A friend of Preece saw the large police presence at the M & W. Knowing that Preece had gone to the M & W on her way home, the friend called her on her cell phone to make sure that she was all right. Preece told the friend what she has seen earlier and was urged to call the police. Preece reported what she had seen shortly after 10:30 p.m. Preece's report was relayed to officers in the field.

At about the same time as Preece's call to the police, April Tucker, accompanied by her daughter, was working at the Jackson's Food Store on Latah Street when a man walked up to her at the counter and demanded money. The man pulled out a semi-automatic handgun, cocked it, and pointed it at Tucker's daughter. Tucker handed the man some cash and the man fled on foot. When the police arrived, Tucker and her daughter each gave a statement and a description of the perpetrator as a hooded Hispanic-looking male closely matching that of the M & W robber.

At 10:35 p.m., Boise Officer Brent Reiber was dispatched to Jackson's and given a description of the perpetrator of both the M & W and the Jackson's robberies. Reiber was aware of the M & W robbery and the earlier reports describing the robber and a late model, streamlined maroon vehicle occupied by three persons. Because other patrol units arrived at the Jackson's first, Reiber conducted an area search. About one block away from the Jackson's, Reiber saw a late model, streamlined maroon Dodge Intrepid with a passenger who appeared to have a shaved head. Although Reiber did not see any traffic violations, he nevertheless initiated a high-risk traffic stop on suspicion of robbery.

Reiber ordered the two visible occupants out of the car and patted them down. When Reiber asked if anyone else was in the car, he was told that a third person was passed out on the back seat. After all the occupants were removed from the car, the driver was identified as Victor Salato, his front seat passenger as Ivar Havneros, and the back seat passenger as Enes Djuric. Reiber obtained Salato's consent to search the car and the officers found ammunition and money, but no gun.

At about 11 p.m., Boise City Police detective Dave Smith drove Skillern from the M & W to the location where Reiber had stopped Salato. There, Skillern was able to identify Djuric as the M & W robber based upon his big nose, thin mustache, and blue sweatpants with a silver stripe. Preece also arrived at the traffic stop location, where she identified the Intrepid as the same maroon car she had seen at the M & W. She also identified a silver/light colored jacket with a hood as the jacket she had seen on the man in the car outside the M & W.

Salato, Havneros, and Djuric were taken into custody. At the Detective's Division offices, Boise City Police detective Lance Anderson Mirandized¹ Salato. Salato initially waived his Miranda rights, but then invoked his right to counsel. Anderson terminated the interview at that point. Anderson then went about taking victim and witness statements, periodically checking on Salato and informing him that he would soon be taken to the jail and held for the robberies.

When Anderson thereafter told Salato that he would be taken to the jail just as soon as the other suspects finished writing up their confessions, Salato said that he too wanted to confess, if his friends had done so. Salato was told that it was unusual for a suspect to talk to the police after invoking the right to counsel and that, if he wanted to discuss his involvement in the robberies, he needed to go on the record and explain that he, not the police, had reinitiated the discussion. After Salato explained his desire to speak to Anderson and after listening to the tape of Djuric's confession, Salato explained that he owned the gun—a black Russian-made .380-caliber semi-automatic pistol—and that he drove Havneros and Djuric to the M & W so that Djuric could rob it. Salato said that he parked behind the M & W and waited for Djuric to get back to the car. Salato said that Havneros divided the money among the three of them. After they left, Havneros and Djuric discussed robbing another store, and Salato drove them to the Jackson's. After Djuric robbed the Jackson's, Havneros again split the money among the three of them. Salato then drove home and stowed his gun and part of his share of the cash and was driving Havneros home when they were pulled over by the police.

Salato was charged with two counts of robbery, I.C. §§ 18-6501, 18-6502, each count enhanced for use of a firearm during the commission of a crime, I.C. § 19-2520. Following the preliminary hearing, counsel for Salato filed a motion to suppress the evidence gathered from the stop and subsequent interviews. At the hearing on Salato's motion to suppress, counsel for Salato asked the court to take judicial notice of the preliminary hearing transcript, which contained Tucker's testimony. Thereafter, the officers, Preece and Skillern testified as set forth above. After considering the evidence adduced at the suppression hearing, the district court denied Salato's motion, concluding that Reiber had the requisite reasonable suspicion to stop the maroon car and its occupants, that the car was searched with Salato's consent, and that Salato's confession to Anderson was voluntary. Salato was found guilty following a jury trial and sentenced to a prison term of twenty-five years, with seven years fixed. He appeals his conviction, arguing that the district court erred in denying his motion to suppress.

II. STANDARD OF REVIEW

In evaluating a ruling on a motion to suppress, we defer to factual findings of the trial court unless they are clearly erroneous, but we freely review the trial court's determination as to whether constitutional standards have been satisfied in light of the facts found. State v. Morris, 131 Idaho 562, 565, 961 P.2d 653, 656 (Ct.App.1998); State v. Pick, 124 Idaho 601, 603, 861 P.2d 1266, 1268 (Ct.App.1993); State v. Heinen, 114 Idaho 656, 658, 759 P.2d 947, 949 (Ct.App.1988). The reasonableness of a given search or seizure is a question of law requiring our independent review. Morris, 131 Idaho at 565, 961 P.2d at 656; State v. McIntee, 124 Idaho 803, 804, 864 P.2d 641, 642 (Ct.App.1993); Heinen, 114 Idaho at 658, 759 P.2d at 949. Accordingly, we exercise free review. See State v. Reese, 132 Idaho 652, 653, 978 P.2d 212, 213 (1999).

III. BASIS FOR THE INITIAL STOP

A. Applicable Constitutional Standards

The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures. When a defendant challenges the validity of a vehicle stop, the burden is on the state to prove that the stop was justified. Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229, 236-37 (1983); State v. Sevy, 129 Idaho 613, 614-15, 930 P.2d 1358, 1359-60 (Ct.App.1997). To pass constitutional muster, an investigative detention must be based upon reasonable suspicion, derived from specific articulable facts that the person stopped has committed or is about to commit a crime. Royer, 460 U.S. at 498,103 S.Ct. at 1324,75 L.Ed.2d at 236-37; Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889, 905-06 (1968); Sevy, 129 Idaho at 615,930 P.2d at 1360. Reasonable suspicion may arise from a citizen's report of criminal activity. Whether information from such a source is sufficient to create reasonable suspicion depends upon the content and reliability of the information presented by the source, including whether the informant reveals his/her identity and the basis of his/her knowledge. See Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301, 308-09 (1990); Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Adams v. Williams, 407 U.S. 143, 146-47, 92 S.Ct. 1921, 1923-24, 32 L.Ed.2d 612, 617-18 (1972). See also Wilson v. Idaho Transp. Dep't, 136 Idaho 270, 274-75, 32 P.3d 164, 168-69 (Ct.App.2001); State v. Larson, 135 Idaho 99, 101, 15 P.3d 334, 336 (Ct.App.2000) (both regarding the presumed reliability of identified citizen reports). Reasonable suspicion is a...