State v. Slater, 26090.

• Court: Court of Appeals of Idaho
• Citation: 32 P.3d 685,136 Idaho 293
• Docket Number: No. 26090.,26090.
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Victor A. SLATER, Defendant-Appellant.
• Decision Date: 03 August 2001

32 P.3d 685
136 Idaho 293

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

No. 26090.

Court of Appeals of Idaho.

August 3, 2001.

Review Denied September 28, 2001.

32 P.3d 688

Ronaldo A. Coulter, State Appellate Public Defender; Paul S. Sonenberg, Deputy Appellate Public Defender, Boise, for appellant

Hon. Alan G. Lance, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.

32 P.3d 686

SCHWARTZMAN, Chief Judge

Slater appeals from the denial of his motion to suppress, and from the judgment of conviction entered upon the jury's verdicts of guilty to felony charges of manufacturing methamphetamine and delivery of methamphetamine, and two misdemeanors. He also appeals his sentences and the denial of his I.C.R. 35 motion for reduction of sentence. We affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

The state's evidence indicates that on April 1, 1999, at about 6:47 p.m., Kellogg Police Officer Dewey Burns observed the two right side tires of Slater's vehicle cross the fog line on the side of the highway on-ramp as that vehicle entered the highway. Officer Burns believed that Slater was involved in the manufacture

32 P.3d 689

and distribution of drugs and was aware that he was out of custody pending appeal for a drug related offense. Burns followed Slater's vehicle for several miles, observing the vehicle being driven at varying speeds between 40 and 65 miles per hour in a 75 mile per hour zone, before initiating a traffic stop. Slater's vehicle did not immediately pull over when Officer Burns activated his car's overhead lights and siren, but proceeded down the highway more than a mile before turning off the highway and into a service station

Upon approaching Slater's vehicle, Officer Burns smelled a chemical odor he associated with the manufacture of methamphetamine. The vehicle's passenger, Holly Bragg, told Officer Burns that Slater had swallowed something and had thrown a white object out of a hole by the gearshift lever during the pursuit.¹ Another officer located a white coffee filter containing a strong smelling powdery substance, with an odor identical to that emanating from Slater's vehicle, at the location Bragg had indicated. Slater was arrested on the charge of conspiracy to manufacture a controlled substance—methamphetamine, I.C. § 37-2732(f) and possession of a controlled substance, I.C. § 37-2732(c)(1).

Believing that the chemical odor was an indication that Slater was involved in the manufacture of methamphetamine, officers went to a residence at 402 Cameron in Kellogg, a place where Slater's vehicle had recently been seen several times. The resident, Eugene Rice, allowed the officers to enter the house and signed a consent to search form. The officers immediately noted a strong chemical odor and located chemicals, glassware, filters, and other apparatus commonly used to manufacture methamphetamine. Due to the unknown nature of the chemicals, the officers left the residence, obtained a search warrant, and called in Fire and Medical units. Rice told police that Slater had access to the residence and had been there several times that day. The subsequent search revealed methamphetamine, chemical precursors and items associated with manufacturing methamphetamine.

After a preliminary hearing, Slater was bound over to the district court for trial. Slater filed a motion to suppress, asserting that Officer Burns had no lawful authority to conduct the traffic stop. Following a hearing, at which Burns testified as set forth above, the district court denied Slater's motion to suppress, explaining that a vehicle driving over the fog line by four inches and varying in speed by between 10 and 35 miles per hour under the speed limit provided the basis for reasonable suspicion that the driver of the vehicle was impaired. Alternatively, the court concluded that there was no connection established between the seizure of evidence stemming from the traffic stop and the evidence obtained from Rice's residence.

Following a jury trial, Slater was found guilty of manufacturing a controlled substance and delivery of a controlled substance, both felonies, as well as misdemeanor fleeing or attempting to elude a peace officer and possession of drug paraphernalia. At sentencing, the district court imposed two concurrent terms of twenty-five years, with eight years fixed, for the felony convictions. Slater filed a timely motion for reduction of sentence pursuant to I.C.R. 35, which the district court denied. Slater appeals.

II.

THE DISTRICT COURT'S DENIAL OF SLATER'S MOTION TO SUPPRESS THE COFFEE FILTER CONTAINING METHAMPHETAMINE

A. Introduction

Slater argues that the district court erred in denying his motion to suppress because Officer Burns lacked reasonable suspicion of criminal activity. Slater contends that the officer did not act until four miles after observing Slater's vehicle's right tires cross the fog line by 4 to 6 inches one time while on the highway on-ramp. Slater maintains that

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Officer Burns illegally stopped his vehicle on a pretext to search for drugs. We disagree.

B. 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).

C. Reasonable Suspicion To Stop Slater's Vehicle

The Fourth Amendment's prohibition against unreasonable searches and seizures is implicated where an officer conducts a traffic stop. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1395-96, 59 L.Ed.2d 660, 667 (1979); State v. Anderson, 134 Idaho 552, 554, 6 P.3d 408, 410 (Ct.App.2000); State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct.App.1996). The Fourth Amendment permits a limited investigative detention of an individual if the police officer who seized the individual has reasonable suspicion that the person has committed or is about to commit a criminal act. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889, 911 (1968); State v. DuValt, 131 Idaho 550, 552-53, 961 P.2d 641, 643-44 (1998). The police officer's suspicion must be premised upon specific articulable facts and the rational inferences drawn from those facts. Terry, 392 U.S. at 21, 88 S.Ct. 1868 at 1879-80, 20 L.Ed.2d 889 at 905-06; State v. Gallegos, 120 Idaho 894, 896-97, 821 P.2d 949, 951-52 (1991). The reasonableness of the suspicion is to be evaluated upon the totality of the circumstances at the time of the stop. The "whole picture" must yield a particularized and objective basis for suspecting that the individual being stopped is or has been engaged in wrongdoing. United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621, 628-29 (1981); State v. McAfee, 116 Idaho 1007, 1009, 783 P.2d 874, 876 (Ct.App.1989).

Idaho Code § 49-630(1) requires that a vehicle be driven on the right half of the roadway, except in certain circumstances that are not applicable in this case. The "roadway" means that portion of a highway that is "improved, designed or ordinarily used for vehicular travel." I.C. § 49-119(18). It does not include "sidewalks, shoulders, berms [or] rights-of-way." Id. Accordingly, when Officer Burns observed Slater's tires cross the fog line, albeit fleetingly, Burns now possessed the requisite reasonable suspicion that Slater had violated I.C. § 49-630 by driving on the shoulder of the highway, rather than on the "roadway." See State v. Dewbre, 133 Idaho 663, 665-67, 991 P.2d 388, 390-92 (Ct.App.1999). Furthermore, Officer Burns observed Slater proceed down the highway at varying speeds between 10 and 35 miles per hour under the 75 mile per hour speed limit. Based upon Slater's erratic speed and crossing of the fog line, Officer Burns had reasonable suspicion that Slater might also be driving under the influence of alcohol and or drugs, I.C. § 18-8004, or was otherwise impaired.² Consequently, Slater's motion to suppress based upon alleged unlawfulness of the traffic stop was correctly denied.

III.

THE DISTRICT COURT'S DENIAL OF SLATER'S MOTION TO EXCLUDE THE HEARSAY STATEMENTS OF HOLLY BRAGG AS NOT ADMISSIBLE UNDER I.R.E. 803(24)

A. Standard Of Review

A trial court has broad discretion in deciding whether to allow hearsay evidence under Rule 803(24). This Court will not overturn the exercise of the trial court's discretion absent a clear showing of abuse. State v. Zimmerman, 121 Idaho 971, 974, 829

32 P.3d 691

P.2d 861, 864 (1992). See also State Dep't of Health & Welfare v. Altman, 122 Idaho 1004, 1007, 842 P.2d 683, 686 (1992). When a trial court's discretionary decision is reviewed on appeal, the appellate court conducts a multitiered inquiry to determine: (1) whether the lower court correctly perceived the issue as one of discretion; (2) whether the lower court acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it; and (3) whether the court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).

B. The Admissibility Of Bragg's Statements

Prior to trial, counsel for Slater argued that Bragg's statements were inadmissible hearsay and self-serving statements. The state argued that Bragg's statement about Slater swallowing objects just prior to the traffic stop was offered to show why Slater was taken to the hospital after being taken into custody. The state further asserted that the statement about Slater discarding an object down a hole in the shift boot of his vehicle was supported by circumstantial guarantees of...