State v. Weliever ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 47332
STATE OF IDAHO, )
) Filed: December 14, 2020
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
ROBERT HENRY WELIEVER, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)
Appeal from the District Court of the Fifth Judicial District, State of Idaho,
Minidoka County. Hon. Eric J. Wildman, District Judge.
Judgment of conviction for possession of a controlled substance, affirmed.
Eric D. Fredericksen, State Appellate Public Defender; Kimberly A. Coster, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Andrew V. Wake, Deputy Attorney
General, Boise, for respondent.
________________________________________________
HUSKEY, Chief Judge
Robert Henry Weliever appeals from his judgment of conviction for possession of a
controlled substance. Idaho Code § 37-2732(c)(1). Weliever argues the inventory search of his
car violated his Fourth Amendment rights, therefore the district court erred by denying his motion
to suppress all evidence discovered as a result of the search and his motion to reconsider the denial
of his suppression motion. Because Weliever did not establish that the inventory search violated
his Fourth Amendment rights, the district court did not err in denying either his motion to suppress
or his motion to reconsider. Accordingly, Weliever’s judgment of conviction is affirmed.
I.
FACTUAL AND PROCEDURAL BACKGROUND
While on patrol on July 23, 2018, Detective Murphy observed Weliever driving a gray
Mercury Topaz. Murphy recognized Weliever from his previous contacts with law enforcement
and knew that an outstanding warrant existed for his arrest. Murphy ran the car’s license plates
through a law enforcement database, determined the plates were fictitious, and initiated a traffic
stop. Murphy arrested Weliever pursuant to the outstanding warrant. Because Weliever had two
dogs inside his car at the time of his arrest, Weliever told Murphy that the dogs’ owner, Kathy
Strate, could come to the scene to retrieve the animals. Arrangements were made and Strate arrived
and took the dogs and some of her clothing from the car.
Detective Love arrived on the scene to assist with the stop. Because Murphy arrested
Weliever and the car lacked current insurance and proper license plates, the officers impounded
the car. Pursuant to the Idaho Policing Policy, which was adopted by their sheriff’s office, Murphy
and Love conducted an inventory search of the car and completed the impound inventory form
provided by their office. During the inventory search, Love located a syringe in the pocket of a
jacket located behind the car’s center console. The officers retained the syringe as evidence and,
after completing the search, had the car towed from the scene. A subsequent test of the syringe
showed that it contained methamphetamine.
Approximately two months later, on September 19, 2018, Love and Murphy were on patrol
when they noticed Strate driving a blue Toyota with Weliever in the passenger seat. Love initiated
a traffic stop because Strate failed to properly signal a turn, to arrest Strate on an unrelated matter,
and to arrest Weliever based on the test results disclosing the presence of methamphetamine in the
syringe recovered in July. Strate and Weliever were asked to step out of the car, and as Weliever
complied, the officers observed what appeared to be a methamphetamine pipe tucked into the side
of Weliever’s shoe. Weliever was placed under arrest and while being transported to the jail, he
admitted to officers that he was in possession of a bag of methamphetamine. Love removed the
bag from Weliever’s pocket, and a subsequent test found that it contained methamphetamine.
The State charged Weliever with felony possession of a controlled substance stemming
from the syringe found during the inventory search of Weliever’s car in July, and felony possession
of a controlled substance and misdemeanor possession of drug paraphernalia stemming from the
incident in September.
Weliever filed a motion to suppress and subsequently amended the motion. Weliever
argued, in part, that the officers did not follow the standardized procedures required for inventory
searches, and therefore the July inventory search of his car violated his Fourth Amendment rights.
Because Weliever’s arrest in September was based on probable cause gained from the
unconstitutional search in July, Weliever argued that all evidence obtained as a result of his contact
with the officers in July and September should be suppressed. The district court found the July
inventory search did not violate Weliever’s Fourth Amendment rights and accordingly denied
Weliever’s motion. Weliever filed a motion to reconsider the denial of his motion to suppress,
and the district court denied the motion.
Pursuant to a plea agreement, Weliever entered a conditional guilty plea to one count of
felony possession of a controlled substance based on the methamphetamine discovered during his
September arrest, reserving the right to appeal the district court’s denial of his motion to suppress,
and the State dismissed the other charges The district court entered a judgment of conviction,
sentenced Weliever to seven years, with two years determinate, suspended the sentence, and placed
Weliever on supervised probation for three years. Weliever timely appeals.
II.
STANDARD OF REVIEW
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).
III.
ANALYSIS
On appeal, Weliever argues the officers did not comply with the Idaho Policing Policy
governing inventory searches because the inventory form filled out by the officers was not a
detailed inventory of the contents of the car; therefore, the search violated the Fourth Amendment.1
Because of this unconstitutional search, Weliever asserts he is entitled to suppression of all
evidence gathered as a result of the July and September incidents. In response, the State alleges
the district court properly denied Weliever’s motion to suppress because, in accordance with the
1
On appeal, Weliever does not challenge the impoundment of his car.
policy, the officers listed the items of value found during the inventory search of the car. Because
the inventory search complied with the parameters of the governing policy, the State argues the
search conformed to the requirements of the Fourth Amendment. Regarding the motion to
reconsider, the State contends Weliever did not preserve his right to appeal the district court’s
denial of the motion and did not provide sufficient argument to support the claim on appeal.
However, if the claim was preserved, the State argues that the district court did not abuse its
discretion.
A. Weliever Did Not Establish That the District Court Erred in Its Denial of His Motion
to Suppress
Weliever argues the inventory search did not comply with the governing police policy
because it was not a thorough search, did not list all items of value contained in the car, and
erroneously included items that were not in the car. Further, Weliever alleges the district court
erred in both finding that the governing policy only required the officers to list the valuable items
during an inventory search and that the officers complied by listing the items they believed to be
of value. Finally, Weliever contends the district court erred in finding that Weliever was required
to show that the police acted in bad faith to establish the inventory search violated the Fourth
Amendment.
A warrantless search is presumptively unreasonable unless it falls within certain special
and well-delineated exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S.
443, 454-55 (1971); State v. Ferreira, 133 Idaho 474, 479, 988 P.2d 700, 705 (Ct. App. 1999).
Inventory searches, like those of impounded cars, are one such well-established exception to the
warrant requirement. State v. Stewart, 152 Idaho 868, 870, 276 P.3d 740, 742 (Ct. App. 2012).
Once an officer lawfully takes possession of a car, inventory searches are permissible because they
serve the legitimate, caretaking functions of law enforcement by protecting: (1) the owner’s
property while it remains in police custody; (2) the police against false claims of lost or stolen
property; and (3) the police from potential danger. South Dakota v. Opperman, 428 U.S. 364, 369-
71 (1976). Because inventory searches are routine, noncriminal procedures, they are distinctly
different from criminal investigations. Colorado v. Bertine, 479 U.S. 367, 371 (1987). As such,
the probable cause requirements necessary for a search warrant are inapplicable. Id. Instead, the
constitutional inquiry is grounded in reasonableness; “reasonable police regulations relating to
inventory procedures administered in good faith satisfy the Fourth Amendment.” Id. at 374.
Courts recognize the protections guaranteed by the Fourth Amendment would be undercut
if officers could conduct warrantless searches and subsequently justify the investigative actions by
labeling them as inventory searches. Florida v. Wells, 495 U.S. 1, 4 (1990); see also United States
v. Lopez, 547 F.3d 364, 370 (2d Cir. 2008). This would conflict with the rationale supporting the
inventory search exception; inventory searches should be designed to produce an inventory, not as
a “ruse for a general rummaging in order to discover incriminating evidence.” Wells, 495 U.S. at
4. Thus, the first requirement for a valid inventory search is that it be regulated by reasonable,
standardized criteria or established routine. Id.; see also State v. Owen, 143 Idaho 274, 277, 141
P.3d 1143, 1146 (Ct. App. 2006). Without such criteria, the inventory search will violate the
Fourth Amendment because the lack of a governing policy allows the individual officer “so much
latitude that inventory searches are turned into a purposeful and general means of discovering
evidence of crime.” Wells, 495 U.S. at 4; see also Bertine, 479 U.S. at 376 (Justice Blackmun,
Powell, and O’Connor concurring) (writing separately “to underscore the importance of having
such inventories conducted only pursuant to standardized police procedures”); Stewart, 152 Idaho
at 872 n.1, 276 P.3d at 744 n.1 (“It has only been the complete absence of standard criteria guiding
the execution of inventory searches that has been categorically found to be violative of the Fourth
Amendment.”).
The determination of whether reasonable, standardized criteria govern inventory searches
is a broad inquiry; it asks whether reasonable, standardized procedures, such as a uniform police
department policy, conveyed general authority for an officer to conduct the inventory search. See
Owen, 143 Idaho at 277, 141 P.3d at 1146 (“To satisfy the Fourth Amendment, reasonable,
standardized criteria or established routine must regulate inventory searches generally.”). The
established procedures must limit an officer’s discretion as to whether to search the car (i.e.
mandating inventory searches when an officer impounds a car) and the scope of the search itself
(i.e. specifying officers should open closed containers when conducting the search). See United
States v. Mundy, 621 F.3d 283, 288 (3d Cir. 2010). In this way, the initial inquiry is focused on
the existence of criteria itself, not the officer’s administrative errors when acting under the lawful
umbrella of the criteria’s prescribed authority. See Bertine, 479 U.S. at 369-72 (holding although
officer conducted inventory search in slipshod manner, he nonetheless followed standardized
procedures that permitted search).
Secondly, for an inventory search to satisfy the Fourth Amendment, the standardized
search procedures must be “administered in good faith.” Bertine, 479 U.S. at 374. That is, an
inventory search conducted pursuant to standardized procedures is valid so long as the officer does
not act in bad faith or for the sole purpose of investigation when performing the search. Id. at 372.
As such, this Court has held “[n]oncompliance with department policies does not necessarily
translate into a search that is unreasonable per se.” Stewart, 152 Idaho at 872 n.1, 276 P.3d at 744
n.1.
While bad faith may be established when an inventory search materially deviated from the
standardized criteria, “minor noncompliance with department policies does not invalidate an
otherwise lawful inventory search.” United States v. Magdirila, 962 F.3d 1152, 1157 (9th Cir.
2020); see also United States v. Garay, 938 F.3d 1108, 1112 (9th Cir. 2019) (upholding inventory
search despite presence of administrative errors); United States v. Hockenberry, 730 F.3d 645, 659
(6th Cir. 2013) (holding there is no reason to insist inventory searches be conducted in mechanical
“all or nothing” fashion); United States v. Mundy, 621 F.3d 283, 293 (3d Cir. 2010) (holding failure
of investigating officers to complete towing report as required under governing policy did not
demonstrate pretext or bad faith); United States v. Trullo, 790 F.2d 205, 206 (1st Cir. 1986)
(holding officer’s technical failure to follow inventory form procedures for valuables did not mean
it was not an inventory search). Ultimately “it is a long leap from the proposition that following
regular procedures is some evidence of lack of pretext to the proposition that failure to follow
regular procedures proves (or is an operational substitute for) pretext.” Whren v. United States,
517 U.S. 806, 816 (1996). Thus, to succeed on a motion to suppress, the defendant must establish
something beyond the deviation from procedures, and show “something to suggest the police
raised the inventory-search banner in an after-the-fact attempt to justify a simple investigatory
search for incriminating evidence.” United States v. Rowland, 341 F.3d 774, 780 (8th Cir. 2003)
(internal quotations removed); see also Garay, 938 F.3d at 1112.
In light of these principles, federal appellate courts have held inventory searches do not
violate the Fourth Amendment simply because officers do not create a comprehensive inventory
of the car’s contents. See Magdirila, 962 F.3d at 1158 (upholding inventory search despite officers
not including all property on required form); Hockenberry, 730 F.3d at 659 (holding when
considering comprehensiveness of inventory list, officer’s use of discretion does not necessarily
violate Fourth Amendment); United States v. Lopez, 547 F.3d 364, 371 (2d Cir. 2008) (holding
officer’s omission of small value items and use of catch-all descriptions did not cast doubt on
officer’s claim that purpose of search was to make an inventory). In fact, the United States
Supreme Court has held an officer’s failure to inventory valuable items during an inventory search
did not establish bad faith, or even establish a deviation from the governing standardized criteria,
on the part of the officer who conducted the search. Bertine, 479 U.S. at 369-372.
In Bertine, an officer inventoried the defendant’s van after an arrest for driving under the
influence. Id. at 368-69. Local police procedures required a detailed inspection and inventory of
impounded vehicles. Id. at 369. During the search, the officer opened Bertine’s backpack and
other containers and discovered various controlled substances. Id. Bertine was charged with
offenses for the controlled substances and he moved to suppress the evidence found during the
inventory search, arguing that the search of his backpack and closed containers exceeded the
permissible scope of such a search under the Fourth Amendment. Id. The trial court found that
the officer performed the inventory of the van in a “somewhat slipshod” manner, which included
the officer’s failure to list $150 cash found in Bertine’s wallet; various credit cards; $210 found in
a sealed envelope marked “rent”; and a converter, a hydraulic jack, and a set of tire chains worth
a total of $125 on the relevant section of the property form. Id. at 369, 383. However, despite
these omissions and the requirement of a detailed inventory, the Court held “there was no showing
that the police, who were following standardized procedures, acted in bad faith or for the sole
purpose of investigation.” Id. at 372.
Here, Weliever does not dispute that reasonable, standardized criteria governed the search
of his car. During the suppression hearing, the Idaho Policing Policy governing inventory searches
was admitted as evidence. The policy, in its relevant parts, stated:
Vehicle inventory searches
Whenever you impound a vehicle, you should conduct a vehicle inventory search
in accordance with this policy. The purpose of this type of search is to protect the
owner’s property from damage or loss while the vehicle is in law enforcement
custody, to protect you and our agency against claims of lost, damaged or stolen
property, and to protect our agency from potential dangers of property stored in the
vehicle.
....
NOTE: If you are conducting this search solely for the purpose of discovering
evidence, or if the search exceeds the scope of this policy, you should obtain a
search warrant prior to conducting the vehicle search. If you find evidence, do not
terminate the search. Failure to complete the inventory search may render the
search invalid.
Special Procedures: Fill out a vehicle search inventory log that includes the date
and time of the search and a detailed inventory of the vehicle’s contents. You
should search any location in the vehicle where you could reasonably expect to
discover valuables or other items for safekeeping. This includes the passenger
compartment, glove box, vehicle top storage containers, tool boxes, and the trunk.
You should open and search all unlocked and locked containers if the contents
cannot be determined without opening them.
Pursuant to this policy, Murphy and Love completed the standardized inventory form given to
them by their office. On the form, the officers listed the interior contents of the car as: “FISHING
POLES, DOGS, MISC. TRASH, LEATHERMAN, IDS, SOCIAL SECURITY CARD,
3 PHONES, MULTIPLE CELL PHONES, MISC. TOOLS” and marked the syringe as the only
item retained during the search.
The inventory compiled by Murphy and Love was not entirely consistent with the purposes
of the Idaho Policing Policy. Although the officers testified, pursuant to the overarching goals of
the inventory search policy, they only listed valuable items on the inventory list, this testimony is
undermined by the inclusion of “MISC. TRASH” on the inventory form. Moreover, the list is both
under- and over-inclusive; it omits items that were undisputedly in the car, like the jacket in which
the syringe was found, yet includes “DOGS,” despite Strate retrieving the animals from the car
prior to the search.
Additionally, the inventory does not include identifying information such that either party
could identify what items were in the car prior to impoundment. For example, although the
inventory lists “FISHING POLES” AND “MISC. TOOLS,” it does not include the number of each
or information sufficient to assess value. Without some identifying information, the inventory
form could not be relied upon to show what was in the car upon impoundment.
However, administrative errors during an inventory search do not mandate the suppression
of evidence. Even assuming, without deciding, that these failures constituted a deviation from the
Idaho Policing Policy, Weliever provides no argument or authority that this deviation constituted
a major deviation that would provide evidence that Murphy and Love acted in bad faith or for a
solely investigative purpose when they conducted the inventory search. Instead, Weliever argues
he needed only to show either the search was not consistent with established procedures or it was
pretext for an exploratory search. As previously articulated, when reasonable, standardized criteria
exist to govern inventory searches, Weliever must point to evidence in the record to establish that
the officers acted in bad faith or for the sole purpose of investigation. A deviation from established
procedures is generally insufficient evidence in this regard. A party waives an issue on appeal if
either authority or argument is lacking. State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970
(1996). Because Weliever does not argue the officers acted in bad faith or for the sole purpose of
investigation and points to no evidence that would support such a finding, he fails to establish that
the district court erred in denying his motion to suppress.
B. Weliever Did Not Establish the District Court Abused Its Discretion by Denying His
Motion to Reconsider
Weliever argues the district court erred in denying his motion to reconsider the denial of
his suppression motion because, contrary to the court’s findings, the officers did not conduct the
inventory search in compliance with the established police procedures. In response, the State
asserts that Weliever did not preserve the right to appeal the district court’s denial of his motion to
reconsider. Alternatively, if Weliever preserved the issue, the State argues that he did not provide
any argument or authority supporting that the district court erred and, further, the district court did
not abuse its discretion.
Pursuant to a plea agreement, Weliever entered a guilty plea. On the guilty plea advisory
form, Weliever indicated that he understood the terms of the plea agreement to include that he
reserved his right to appeal the decision of the “[s]uppression proceedings.” However, at the
change of plea hearing, Weliever’s counsel told the district court that Weliever “reserves a right
to appeal the motion to suppress.” Assuming without deciding that Weliever’s use of the plural
“proceedings” included both the right to appeal from the denial of his motion to suppress and
motion to reconsider, Weliever does not include any relevant argument or authority related to the
motion to reconsider in his briefing to this Court.
In his reply brief, Weliever argues that “because the same legal standards apply to both of
the district court’s decisions, Mr. Weliever’s appellate argument that ‘the district court erred in
failing to suppress the evidence gathered in Violation of his Fourth Amendment rights,’ presents
an adequate challenge[] to both decisions.” Weliever is incorrect.
The decision to grant or deny a request for reconsideration generally rests in the sound
discretion of the trial court. Campbell v. Reagan, 144 Idaho 254, 258, 159 P.3d 891, 895 (2007);
Carnell v. Barker Mgmt., Inc., 137 Idaho 322, 329, 48 P.3d 651, 658 (2002); see also State v.
Montague, 114 Idaho 319, 320, 756 P.2d 1083, 1084 (Ct. App. 1998) (holding the standard for
reviewing trial court’s decision to reconsider is whether there has been an abuse of discretion).
When a trial court’s discretionary decision is reviewed on appeal, the appellate court conducts a
multi-tiered inquiry to determine whether the lower court: (1) correctly perceived the issue as one
of discretion; (2) acted within the boundaries of such discretion; (3) acted consistently with any
legal standards applicable to the specific choices before it; and (4) reached its decision by an
exercise of reason. State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018).
An appellant’s brief must articulate the appropriate standard of review because an appellant
must address the matters this Court considers when evaluating a claim put forth by an appellant
on appeal. Cummings v. Stephens, 160 Idaho 847, 853, 380 P.3d 168, 174 (2016). If an appellant
fails to articulate or provide analysis relating to the relevant standard of review, the appellant’s
argument is conclusory which is fatally deficient to the party’s case. State v. Kralovec, 161 Idaho
569, 575 n.2, 388 P.3d 583, 589 n.2 (2017) (appellant’s failure to address abuse of discretion
standard of review was conclusory and fatally deficient); see Cummings, 160 Idaho at 853, 380
P.3d at 174 (holding defendant’s conclusory argument was fatally deficient because defendant did
“not identify the applicable standard of review, much less attempt to apply it”); but see State v.
Jeske, 164 Idaho 862, 870, 436 P.3d 683, 691 (2019) (holding that although Jeske did not recite
proper standard of review, he sufficiently addressed standard of review in his analysis). A party
waives an issue on appeal if either authority or argument is lacking. Zichko, 129 Idaho at 263, 923
P.2d at 970.
Here, Weliever does not make any argument that the district court abused its discretion by
denying Weliever’s motion to reconsider or mention the motion to reconsider beyond the statement
of the case section in his opening brief. Instead, in his reply brief, Weliever rests his argument
related to the motion to reconsider upon that of his motion to suppress. However, a motion to
suppress is not subject to the same standard of review as a motion to reconsider. Without
articulating or providing analysis related to the standard of review for a motion to reconsider, this
Court is without the argument or authority necessary to consider the claim. Accordingly, Weliever
waived consideration of the issue. Because we hold that Weliever did not establish that the district
court erred in denying his motion to suppress or abuse its discretion in denying his motion to
reconsider, we need not address Weliever’s argument that he is entitled to suppression of all direct
and indirect evidence as a result of the July stop.
IV.
CONCLUSION
Weliever did not establish that the inventory search of his car violated the Fourth
Amendment or that the district court abused its discretion in denying his motion to reconsider.
Accordingly, the district court did not err by denying Weliever’s motion to suppress or abuse its
discretion by denying his motion to reconsider. The judgment of conviction is affirmed.
Judge GRATTON and Judge BRAILSFORD CONCUR.