State v. Zubizareta

• Decision Date: 14 September 1992
• Docket Number: No. 19429,19429
• Citation: 122 Idaho 823,839 P.2d 1237
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Frank Phillip ZUBIZARETA, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 1237

839 P.2d 1237

122 Idaho 823

STATE of Idaho, Plaintiff-Respondent, v. Frank Phillip ZUBIZARETA, Defendant-Appellant.

No. 19429.

Court of Appeals of Idaho.

Sept. 14, 1992.

Alan E. Trimming, Ada County Public Defender, Timothy L. Hansen, Deputy Public Defender, Boise, for appellant. Timothy L. Hansen argued.

Larry EchoHawk, Atty. Gen., Thomas P. Watkins, Deputy Atty. Gen., Boise, for respondent. Thomas P. Watkins argued.

WALTERS, Chief Judge.

Frank Phillip Zubizareta was charged with felony driving under the influence (D.U.I.). I.C. §§ 18-8004, -8005(3). He moved to dismiss the case and to suppress evidence on the grounds that the arresting officers had no reason to approach him when he was sitting in his legally parked car, and that his arrest violated his fourth amendment rights to be free from unreasonable searches and seizures. The district court denied the motions. Zubizareta then entered a conditional plea of guilty, reserving his right to appeal from the district court's orders. We affirm.

The pertinent facts are as follows. Shortly before midnight on December 15, 1990, Officers Walker and Root of the Boise City police department were called to a home in Boise upon a complaint that "a drunk was refusing to leave." Apparently, a babysitter had called 911 with the information that a drunk person was at her front door and would not go away. Although unknown to the officers at the time, the intoxicated person was Zubizareta, who supplied further information in his version of the incident and which we recount here for context: the home was that of Zubizareta's girlfriend, with whom he had been drinking and arguing earlier in the evening. After having "too many beers," Zubizareta left his girlfriend and drove to her house, apparently to wait for her so they could talk. Before he arrived, however, the girlfriend had called to tell the babysitter not to let Zubizareta have the baby, their baby, as he might take it to his house. The babysitter refused to answer the front door when Zubizareta rang and rang some more. Realizing that he would not be invited in, Zubizareta retreated to his car to keep warm.

When they arrived on the scene, Officers Walker and Root noticed a car legally parked on the street directly in front of the home which was the source of the complaint. Officer Walker walked to the front door of the house to get more information. He talked to the babysitter who appeared very frightened and who attempted to explain the situation. Officer Root walked to the parked car, which had its motor running and Zubizareta sitting inside. The officer wanted to see if the person in the car was involved in the dispute and to make sure the person did not pose a threat to the officers.

When Officer Root approached the car he knocked on the driver's closed window. Zubizareta, sitting in the driver's seat, voluntarily rolled down the window. Officer Root told Zubizareta why he was there, obtained Zubizareta's name, and engaged him in brief conversation. During the exchange, Officer Root detected a very strong odor of an alcoholic beverage coming from Zubizareta's mouth. There is a dispute in the record as to the sequence of these events. Officer Root testified at the suppression hearing that he approached Zubizareta, told him why he was there, "and requested that he turn off his engine which he complied and did so." Later in the hearing, he testified that at that point he "had not arrested [Zubizareta] or done anything. I hadn't had him get out of the car or anything. I just asked him to sit there--turn off his engine and sit there, which he complied." The state interprets this testimony to mean that the request to turn off the motor was made after the conversation and after the officer smelled alcohol on Zubizareta's breath. It is clear, however, that during the conversation Officer Root smelled alcohol before walking from the car to talk to other officers who had just arrived, and before asking Zubizareta to remain seated, which he did. While the encounter was taking place, Boise Police Officers Sherfick and Jackson arrived as backup. Officer Root then noticed that Officer Walker, still at the front door of the house talking to the babysitter, was pointing to indicate that Zubizareta was the subject of the complaint.

The four officers then discussed that the babysitter did not want to file a complaint but wanted Zubizareta to go away. Officer Root observed that Zubizareta appeared intoxicated and should not be allowed to drive. Officers Jackson and Sherfick then asked Zubizareta to get out of the car, which he did. Officer Sherfick smelled a very strong odor of alcohol coming from Zubizareta, who also slurred his speech, walked in a staggering, stumbling manner--to the point that he almost fell down and had to lean against the car for support--and he appeared to have urinated in his pants. After exiting the car, he became very agitated and belligerent to the officers. In Officer Sherfick's opinion as one trained and experienced in detecting drunk drivers, Zubizareta was "definitely under the influence of alcohol." He was asked to perform several field sobriety tests. He refused. He was then arrested for D.U.I. and taken to jail, where he refused to take a breath test. Later, he was charged with felony D.U.I.

Before the preliminary hearing, Zubizareta moved to dismiss the charge based on the state's inability to produce the babysitter who allegedly told Officer Walker that Zubizareta was the subject of the complaint. Evidently, the babysitter had moved out of state and was unavailable at the time of the hearing. Zubizareta argued that the babysitter's testimony was necessary for the state to establish probable cause for Officer Root's initial approach to the car. The magistrate denied the motion and bound Zubizareta over to the district court for trial.

In the district court, Zubizareta filed motions to dismiss and to suppress evidence, renewing his assertion that the evidence presented at the preliminary hearing failed to establish articulable suspicion or probable cause to believe that he had committed the crime of driving under the influence. The district court denied the motions. Thereafter, Zubizareta entered a conditional guilty plea and brought this appeal.

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, 783 P.2d 874, (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. Because the district court here did not make explicit findings of facts, this Court will examine the record to determine the implicit findings that underlie the lower court's determination, and uphold those findings if they are supported by substantial evidence. State v. Kirkwood, 111 Idaho 623, 726 P.2d 735 (1986). We take a similar approach to review the trial court's denial of the motion to dismiss.

The fourth amendment to the U.S. Constitution guarantees the right of every citizen to be free from unreasonable searches and seizures. However, this guarantee is not so broad that every police-citizen encounter violates the person's constitutional rights. As the United States Supreme Court has stated, not all personal intercourse between policemen and citizens involves the seizure of a person. Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1878 n. 16, 20 L.Ed.2d 889 (1968). Only when an officer, by means of physical force or show of authority, restrains the liberty of a citizen may a court conclude that a seizure has occurred. Id. Following this rule, this Court has stated that:

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, 501 U.S. 429, 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, 501 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, 484-84 (Ct.App.1991). See also State v. Godwin, 121 Idaho 491, 826 P.2d 452 (1992); State v. Fry, 122 Idaho 100, 831 P.2d 942 (Ct.App.1992). The two questions we must answer in this case are: (a) when was Zubizareta seized; and (b) was the seizure reasonable?

A majority of jurisdictions have held that "the mere approach and questioning of [persons in parked vehicles] does not...