State v. Still, 082819 IDCCR, 45792

Docket Nº:45792
Opinion Judge:GRATTON, Chief Judge.
Party Name:STATE OF IDAHO, Plaintiff-Respondent, v. JESSE RAY STILL, Defendant-Appellant.
Attorney:Eric D. Fredericksen, State Appellate Public Defender; Kimberly A. Coster, Deputy Appellate Public Defender, Boise, for appellant. Kimberly A. Coster argued. Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney General, Boise, for respondent. Ted S. Tollefson argued.
Judge Panel:Judge LORELLO and Judge BRAILSFORD CONCUR.
Case Date:August 28, 2019
Court:Court of Appeals of Idaho
 
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STATE OF IDAHO, Plaintiff-Respondent,

v.

JESSE RAY STILL, Defendant-Appellant.

No. 45792

Court of Appeals of Idaho

August 28, 2019

Appeal from the District Court of the First Judicial District, State of Idaho, Bonner County. Hon. Barbara A. Buchanan, District Judge.

Order denying motion to suppress, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Kimberly A. Coster, Deputy Appellate Public Defender, Boise, for appellant. Kimberly A. Coster argued.

Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney General, Boise, for respondent. Ted S. Tollefson argued.

GRATTON, Chief Judge.

Jesse Ray Still appeals from his judgment of conviction and sentence for unlawful possession of a firearm by a felon. Still argues that the district court erred in denying his motion to suppress. For the reasons set forth below, we affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Still was charged with unlawful possession of a firearm by a felon and unlawful possession of methamphetamine. The charges arose after two police officers, Officer Clark and Officer Kingery, stopped Still's vehicle for a traffic violation. Officer Clark was the driver of the patrol car and Officer Kingery was the passenger. Officer Clark approached the driver's side of the vehicle and made contact with Still. Officer Clark informed Still that he was stopped for speeding and an expired license. Officer Clark asked Still for his driver's license, registration, and proof of insurance. Still handed Officer Clark his driver's license and began searching through his vehicle to retrieve the remaining items. As Still was searching for the items, Officer Clark called a drug-dog officer (Officer Inman) using his on-body radio. Officer Clark stated: "SP39, you and your partner want to head my way, if you are available?" Thereafter, Still provided Officer Clark with the remaining documents. Officer Clark questioned Still about the vehicle's registration and asked Still if there were any weapons or drugs in the vehicle. Still denied possessing either.

Next, Officer Clark and Officer Kingery returned to the patrol vehicle to run Still's license and registration. After reaching the patrol vehicle, Officer Clark sat down in the driver's seat, picked up the in-car radio, and called Officer Inman for a second time. Officer Clark stated, "SP 39?, [this is] SP 30," "Are you and your partner available?" The district court found that "When [Officer] Clark began making the second call, [Officer] Kingery was entering the passenger's side door. By the time the call had concluded, [Officer] Kingery was seated, and the passenger's side door was closed." The second call to Officer Inman took approximately ten seconds. Thereafter, Officer Clark placed Still's driver's license on the in-car computer and began processing and obtaining information. Officer Clark completed a citation for speeding and began filling out a warning for Still's expired registration. At that time, Officer Inman arrived at the scene and deployed his drug dog. The dog alerted on the vehicle and a subsequent search revealed the presence of a firearm and methamphetamine. Consequently, the State charged Still with unlawful possession of a firearm by a felon and unlawful possession of methamphetamine.

Still filed a motion to suppress the evidence found in his vehicle. The district court held a hearing on the motion to suppress. At the hearing and in his brief in support of the motion, Still argued that pursuant to Rodriguez v. United States, U.S., 135 S.Ct. 1609 (2015) and State v. Linze, 161 Idaho 605, 389 P.3d 150 (2016), the traffic stop was unlawfully prolonged when Officer Clark radioed to Officer Inman a second time. In response, the State argued that the Idaho Supreme Court did not intend for Linze to apply to the facts of this case and Officer Clark did not abandon or deviate from the purpose of his stop.

The only evidence presented at the motion to suppress hearing was testimony from Officer Clark and a video of Officer Clark's body camera. During his testimony, Officer Clark stated that he made the second call to Officer Inman because the officers were having issues with their on-body radios. He stated, We had been having radio issues, and we still are, to where essentially we'll try to radio one party and they'll reply, but we won't get the reply.

So I remember now when I had requested it the first time, I didn't hear anything back. So that's why the second request was--and our in-car radios, they're a different brand--so our in-car radios, they actually don't miss transmissions ever, where our portables are the ones that we have been having issues with.

In addition, Officer Clark acknowledged that the first thing he did when he...

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