State v. Amber Rae Round ( 2012 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 38963
STATE OF IDAHO, ) 2012 Unpublished Opinion No. 755
)
Plaintiff-Respondent, ) Filed: December 5, 2012
)
v. ) Stephen W. Kenyon, Clerk
)
AMBER RAE ROUND, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Timothy Hansen, District Judge.
Judgment of conviction for possession of a controlled substance, affirmed.
Sara B. Thomas, State Appellate Public Defender; Jason C. Pintler, Deputy
Appellate Public Defender, Boise, for appellant. Sally J. Cooley argued.
Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
Attorney General, Boise, for respondent. Russell J. Spencer argued.
________________________________________________
SCHWARTZMAN, Judge Pro Tem
Amber Rae Round appeals from her judgment of conviction for possession of a
controlled substance. For the reasons set forth below, we affirm.
I.
FACTS AND PROCEDURE
On the evening of August 10, 2009, officers arrested an individual for possession of ten
ounces of methamphetamine. One of the vehicles involved was a white Ford Explorer, which
was parked in a lot by a theatre. A drug detection dog alerted on the white vehicle, and a search
of the vehicle revealed a baggie of methamphetamine together with a gun and clip. The white
vehicle was left in the parking lot overnight. Early the next morning, two officers returned to the
location of the white vehicle in separate, unmarked cars and observed that a black vehicle was
parked about ten to fifteen feet away from the white vehicle. The officers also observed an
individual related to the events of the previous evening reaching into the passenger side of the
white vehicle. As the officers pulled into the parking lot, the black vehicle drove away down an
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alley. One officer approached the individual who was reaching inside the white vehicle while
the other officer drove after the black vehicle.
The first officer called for the assistance of uniformed officers and a drug detection dog,
while the other officer initiated a traffic stop of the black vehicle to determine the involvement of
the driver with the white vehicle and the individual reaching inside the white vehicle. The
officer recognized the driver of the black vehicle as Round, with whom he had previous contact
when Round was frequenting a place where methamphetamine was being used and the officer
had learned she was involved in using methamphetamine and, perhaps, providing it to others.
The officer approached the black vehicle and noted that Round appeared agitated and nervous.
The officer explained his concerns regarding the white vehicle and Round’s proximity to it.
Round responded that she was just dropping off the individual that was seen reaching inside the
white vehicle. However, given Round’s demeanor and the officer’s previous contact with her,
the officer believed she had drugs in her vehicle. The officer asked Round for consent to search
her vehicle and she initially declined. The officer then explained to Round his reasons for asking
permission to search. At that point, Round informed the officer that she wanted to call her
attorney and the officer told her she could do so. Round moved a short distance away from her
vehicle and used her cell phone to call the attorney. Round spoke with her attorney for
somewhere between five to ten minutes and then handed the phone to the officer. The officer
spoke with the attorney for two to three minutes. While Round was on the phone with her
attorney, another officer arrived with a drug detection dog and went around the vehicle. After
the dog detected on Round’s vehicle, a search revealed methamphetamine. The officer estimated
that the entire time of his contact with Round lasted between fifteen to twenty minutes from the
stop of her vehicle to her eventual arrest.
Round was charged with possession of a controlled substance. I.C. § 37-2732(c). She
filed a motion to suppress, asserting that evidence found in her vehicle was obtained in violation
of her rights under the Fourth Amendment to the United States Constitution and Article I,
Section 17 of the Idaho Constitution. After a hearing, the district court denied Round’s motion.
Round was found guilty by a jury of possession of a controlled substance. The district court
sentenced Round to a unified term of seven years, with a minimum period of confinement of two
years, but retained jurisdiction. Following the period of retained jurisdiction, the district court
entered an order suspending Round’s sentence and placing her on probation for seven years.
Round appeals.
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II.
ANALYSIS
Round argues that the district court erred by denying her motion to suppress.
Specifically, Round asserts that the officer who initiated the stop of her vehicle impermissibly
expanded the scope of her detention beyond its initial purpose and improperly extended the
duration of such detention. Thus, Round concludes that the officer violated her Fourth
Amendment right to be free from unreasonable seizure. 1
The standard of review of a suppression motion is bifurcated. When a decision on a
motion to suppress is challenged, we accept the trial court’s findings of fact that are supported by
substantial evidence, but we freely review the application of constitutional principles to the facts
as found. State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct. App. 1996). At a
suppression hearing, the power to assess the credibility of witnesses, resolve factual conflicts,
weigh evidence, and draw factual inferences is vested in the trial court. State v. Valdez-Molina,
127 Idaho 102, 106, 897 P.2d 993, 997 (1995); State v. Schevers, 132 Idaho 786, 789, 979 P.2d
659, 662 (Ct. App. 1999).
The determination of whether an investigative detention is reasonable requires a dual
inquiry--whether the officer’s action was justified at its inception and whether it was reasonably
related in scope to the circumstances which justified the interference in the first place. State v.
Roe, 140 Idaho 176, 181, 90 P.3d 926, 931 (Ct. App. 2004); State v. Parkinson, 135 Idaho 357,
361, 17 P.3d 301, 305 (Ct. App. 2000). An investigative detention is permissible if it is based
upon specific articulable facts which justify suspicion that the detained person is, has been, or is
about to be engaged in criminal activity. State v. Sheldon, 139 Idaho 980, 983, 88 P.3d 1220,
1223 (Ct. App. 2003). Round concedes that her initial detention by the officer was justified at its
inception. Therefore, we address only whether the officer impermissibly expanded the scope of
Round’s detention beyond its initial purpose and improperly extended the duration of such
detention.
A. Scope of Detention
Round asserts that, once she informed the officer that she was only in the area of the
white vehicle to drop off the individual seen reaching inside the vehicle, the officer had no
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Round does not assert that the Idaho Constitution provides any greater protection than the
United States Constitution and relies upon Fourth Amendment jurisprudence on appeal.
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reason to suspect that she was involved with illegal activities associated with the white vehicle.
Round further asserts that her previous contact with the officer and nervous and agitated state did
nothing to add to any such suspicion. Therefore, Round concludes that the officer lacked
justification for his request to search her vehicle and her continued detention violated her Fourth
Amendment right to be free from unreasonable seizure.
Where a person is detained, the scope of detention must be carefully tailored to its
underlying justification. Roe, 140 Idaho at 181, 90 P.3d at 931; Parkinson, 135 Idaho at 361, 17
P.3d at 305. The scope of the intrusion permitted will vary to some extent with the particular
facts and circumstances of each case. Roe, 140 Idaho at 181, 90 P.3d at 931; Parkinson, 135
Idaho at 361, 17 P.3d at 305.
In the order denying Round’s motion to suppress, the district court determined that the
stop of Round’s vehicle was drug-related from its inception. Accordingly, the district court
determined that the officer’s questioning of Round about her possible possession of drugs was
related to the basis for the stop. Thus, the district court concluded that the officer’s request to
search Round’s vehicle was within the scope of the initial detention.
Substantial evidence supports the district court’s determination that the stop of Round’s
vehicle was drug-related from its inception. Specifically, before the officer effectuated the stop
of Round’s vehicle, he observed circumstances that contributed toward development of
reasonable suspicion of drug activity. At the hearing on Round’s motion to suppress, the officer
testified that, when he arrived at the lot where the white vehicle was parked, he observed a black
vehicle parked within ten to fifteen feet of the white vehicle, and then the black vehicle drove
away. The officer also testified that he was aware the white vehicle had been part of drug-related
activity involving methamphetamine the previous evening and wanted to determine the
involvement of the driver of the black vehicle with the white vehicle and the individual seen
reaching inside the white vehicle. The officer further testified that, once he approached the black
vehicle, he recognized the driver as Round, with whom he had previous contact related to her use
and possible distribution of methamphetamine, and observed that she appeared agitated and
nervous.
Round argues that, once she informed the officer she was only in the area of the white
vehicle to drop off the individual seen reaching inside the vehicle, the officer had no reason to
suspect that she was involved with illegal activities associated with the white vehicle. However,
the officer was not obligated to believe Round. While Round also asserts that her previous
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contact with the officer and nervous and agitated state were irrelevant, an officer’s previous
knowledge of the defendant may be relevant to the determination of whether there is reasonable
suspicion that a detained person is engaged in criminal activity. See State v. Gibson, 141 Idaho
277, 284, 108 P.3d 424, 431 (Ct. App. 2005); Sheldon, 139 Idaho at 985, 88 P.3d at 1225; .
Additionally, although it is common for people to exhibit signs of nervousness when confronted
with law enforcement and, thus, a person’s nervous demeanor during an investigative detention
is of limited significance in establishing reasonable suspicion of criminal activity, consideration
of nervousness is not completely irrelevant to the analysis of reasonable suspicion. See Gibson,
141 Idaho at 285, 108 P.3d at 432. We agree with the district court’s determination that the
officer’s questioning of Round regarding her possible possession of drugs was related to the
basis for the stop of her vehicle and that the officer’s request to search her vehicle was within the
scope of the initial detention. Thus, the officer who initiated the stop did not impermissibly
expand the scope of Round’s detention by requesting permission to search her vehicle.
B. Duration of Detention
Round also asserts that her continued detention for the purpose of allowing a drug
detection dog to sniff the exterior of her vehicle violated her Fourth Amendment right to be free
from unreasonable seizure. An investigative detention must be temporary and last no longer than
necessary to effectuate the purpose of the stop. Roe, 140 Idaho at 181, 90 P.3d at 931; State v.
Gutierrez, 137 Idaho 647, 651, 51 P.3d 461, 465 (Ct. App. 2002). Similarly, the investigative
methods employed should be the least intrusive means reasonably available to verify or dispel
the officer’s suspicion in a short period of time. Florida v. Royer, 460 U.S. 491, 500 (1983).
There is no rigid time limit for determining when a detention has lasted longer than necessary.
State v. Ramirez, 145 Idaho 886, 889, 187 P.3d 1261, 1264 (Ct. App. 2008). A drug dog sniff is
not considered a search and may be done during an investigative stop, but the use of the drug dog
may not lengthen the duration of the stop after its purpose has been fulfilled. Illinois v. Caballes,
543 U.S. 405, 409-10 (2005); State v. Bordeaux, 148 Idaho 1, 8, 217 P.3d 1, 8 (Ct. App. 2009).
As determined above, substantial evidence supports the district court’s determination that
the stop of Round’s vehicle was drug-related from its inception. Both before and after the officer
stopped Round’s vehicle, he observed circumstances that contributed toward development of
reasonable suspicion of drug activity. Taken together, these observations gave rise to the
reasonable suspicion necessary to detain Round to verify or dispel that reasonable suspicion.
The parties do not dispute the following facts found by the district court in its order denying
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Round’s motion to suppress: (1) the lapsed time of the officer’s contact with Round was fifteen
to twenty minutes from the stop of her vehicle to her arrest; (2) a majority of that time involved a
cell phone conversation between Round and her attorney initiated by Round and a conversation
between the officer and the attorney initiated by the attorney; (3) before Round’s conversation
with her attorney was concluded, the drug detection dog arrived and began the pass around her
vehicle that resulted in detection of methamphetamine for which she was arrested. Although
Round contends that the officer impermissibly continued to detain her for the purpose of
allowing the drug detection dog to arrive, the district court found that the officer had no
motivation to allow Round to contact her attorney as a delay tactic. Further, even if Round had
not called her attorney, given the circumstances of this case, the officer acted reasonably in
detaining Round for a few extra minutes in order for the drug detection dog to arrive to verify or
dispel his reasonable suspicion of drug activity. See State v. Brumfield, 136 Idaho 913, 917, 42
P.3d 706, 710 (Ct. App. 2001) (detention of forty-nine minutes, including thirty-minute delay
awaiting arrival of drug dog, upheld based upon reasonable suspicion of drug activity). Thus, we
agree with the district court’s conclusion that the time used by the officer was necessary to
complete his investigation into Round’s connection with the white vehicle which formed the
basis for the stop. Therefore, use of the drug detection dog during the stop of Round’s vehicle
did not constitute an unlawful extension of that stop.
III.
CONCLUSION
The officer who initiated the stop of Round’s vehicle did not impermissibly expand the
scope of her detention beyond its initial purpose and did not improperly extend the duration of
such detention. Accordingly, the officer did not violate Round’s Fourth Amendment right to be
free from unreasonable seizure. Therefore, Round’s judgment of conviction for possession of a
controlled substance is affirmed.
Judge LANSING and Judge GUTIERREZ, CONCUR.
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