State v. Couch

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 47892
STATE OF IDAHO, )
) Filed: October 22, 2021
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
)
MILDRED EILEEN COUCH, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon
County. Hon. Gene A. Petty and Hon. Darla S. Williamson, District Judges.
Judgment of conviction for possession of a controlled substance, vacated.
Eric D. Fredericksen, State Appellate Public Defender; Justin M. Curtis, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Justin R. Porter, Deputy Attorney
General, Boise, for respondent.
________________________________________________
LORELLO, Judge
Mildred Eileen Couch appeals from her judgment of conviction for possession of a
controlled substance. We reverse the order denying Couch’s motion to suppress and vacate
Couch’s judgment of conviction.
I.
FACTUAL AND PROCEDURAL BACKGROUND
An officer drove to a parking lot in response to a report that people in two vehicles were
“smoking something off of tin foil” while parked there. The cars were described in the call report
as a beige “Chev Cavalier” and a “gry toy pc” with 1A plates; the officer interpreted the latter to
mean a gray Toyota passenger car with Ada County license plates. The call report also indicated
there were “2 subjects” in both vehicles. When the officer arrived at the parking lot, he saw the
Chevy Cavalier but noted the other vehicle was a silver Honda Civic with Ada County license
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plates, not a Toyota passenger car. In addition, the Honda did not have two occupants as reported.
Instead, the officer observed only one person, later identified as Couch, seated in the driver’s seat.
The officer approached Couch, informed her that he was there to investigate the report of drug use,
and questioned her. Couch refused the officer’s request to search her vehicle. When the officer
asked her for identification, however, Couch produced her driver’s license.
The officer then went to the other vehicle, obtained identification from two of the
occupants, and gave the documents (including Couch’s driver’s license) to another officer to run
through dispatch. Before dispatch reported back, a canine unit arrived at the scene and a drug dog
alerted to the presence of drugs in Couch’s vehicle. After the officer ordered Couch out of her
vehicle, she admitted that she might have a methamphetamine pipe on her. Searches of her vehicle
and person yielded two syringes, one of which contained methamphetamine residue, and a glass
pipe. The State subsequently charged Couch with possession of a controlled substance and
possession of drug paraphernalia.
Couch filed a motion to suppress, arguing that she was seized when the officer retained
Couch’s driver’s license and that the officer lacked reasonable suspicion to justify this seizure.
The district court denied her motion. The district court agreed that Couch was seized when the
officer retained Couch’s driver’s license, but concluded the seizure was reasonable because the
officer had a “legitimate reason to contact” Couch and, as such, the officer could “run her driver’s
license through dispatch to verify her identity and check the status of her driver’s license.”1 Couch
moved for reconsideration, which the district court denied. Couch subsequently entered a
conditional guilty plea to possession of a controlled substance, I.C. § 37-2732(c)(1), and retained
the right to appeal the denial of her motion to suppress. In exchange for Couch’s guilty plea, the
State dismissed the remaining count. Couch 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
1
District Judge Gene A. Petty denied the motion to suppress. District Judge Darla S.
Williamson entered Couch’s judgment of conviction and imposed the sentence.
2
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
Couch argues that the district court erred in applying the “legitimate reason” standard to
conclude her seizure was reasonable because the Fourth Amendment requires a minimum of
reasonable suspicion to support a detention. Couch further argues that, because the officer lacked
reasonable suspicion, the district court erred in denying Couch’s motion to suppress. The State
responds that the district court correctly concluded that the seizure was reasonable under the
legitimate reason standard articulated in the Idaho Supreme Court’s opinion in State v. Godwin,
121 Idaho 491, 826 P.2d 452 (1992). The State also responds that the officer had reasonable
suspicion of criminal activity that justified the seizure. We hold that Couch was seized when the
officer discontinued contact with Couch and took her driver’s license with him. We further hold
that the officer did not have reasonable suspicion to support the detention.
Because Couch’s claim involves an alleged unlawful seizure, the preliminary question is
when the seizure occurred. The district court’s written decision includes two different statements
regarding the point of seizure. The first statement is that a seizure occurred when the officer
“retained” Couch’s driver’s license because her “liberty was restrained” at that point. The district
court’s second statement is that Couch “was seized when [the officer] requested [Couch’s] driver’s
license.” On appeal, Couch essentially adopts the district court’s first statement and argues that
she was seized when the officer “took [Couch’s] driver’s license and then ran the license through
police dispatch.”
A seizure occurs for purposes of the Fourth Amendment when an officer, by means of
physical force or show of authority, restrains the liberty of a citizen. State v. Fry, 122 Idaho 100,
102, 831 P.2d 942, 944 (Ct. App. 1991). A seizure does not occur simply because a police officer
approaches an individual on the street or other public place, by asking if the individual is willing
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to answer some questions, or by putting forth questions if the individual is willing to listen. Florida
v. Bostick, 501 U.S. 429, 434 (1991); Florida v. Royer, 460 U.S. 491, 497 (1983). Thus, an officer
may generally ask an individual questions and ask to examine identification, and doing so does
not constitute a seizure so long as the officer is not on a “suspicionless fishing expedition,” Utah
v. Strieff, 579 U.S. 232, ___ (2016), and does not convey a message that compliance with the
request is required, Fry, 122 Idaho at 102, 831 P.2d at 944.
The district court found that when the officer arrived in the parking lot where Couch was
parked, the officer did not activate his overhead lights or impede Couch’s vehicle from leaving the
parking lot. The district court further found that Couch admitted her initial contact with the officer
was not a seizure, recognizing the officer “could lawfully approach her and ask her questions, and
she was free not to answer his questions.” The officer could also ask to see Couch’s identification
or driver’s license, and doing so did not constitute a seizure. See Fry, 122 Idaho at 102, 831 P.3d
at 944. A limited seizure occurs, however, when law enforcement “retains” a valid driver’s license
“or other paperwork of value.” State v. Page, 140 Idaho 841, 844, 103 P.3d 454, 457 (2004); see
also State v. Nickel, 134 Idaho 610, 613, 7 P.3d 219, 222 (2000); State v. Howell, 159 Idaho 245,
248, 358 P.3d 806, 809 (Ct. App. 2015).2 Couch’s license was retained, and she was therefore
seized, when the officer discontinued his contact with Couch and took her license with him.
Although the district court correctly characterized the retention of Couch’s license as a
seizure, it concluded the seizure was reasonable, citing the “valid” or “legitimate” reason rationale
derived from the Idaho Supreme Court’s decision in State v. Godwin, 121 Idaho 491, 826 P.2d 452(1992) (plurality opinion), and this Court’s subsequent decision in State v. Landreth, 139 Idaho
986, 88 P.3d 1226 (Ct. App. 2004). The State advances this same rationale in responding to
Couch’s argument that a legitimate reason is insufficient for a Fourth Amendment seizure and that
2
In State v. Osborne, 121 Idaho 520, 524, 826 P.2d 481, 485 (Ct. App. 1991), this Court
also concluded that the defendant was seized when the officer “took” the defendant’s license. In
addition, the Court in Osborne held “as a matter of law that Osborne could not reasonably have
believed he was at liberty to ignore the police presence and go about his business” when the officer
asked to see Osborne’s driver’s license because I.C. § 49-316 required him to comply with the
request since he was in the driver’s seat of a vehicle with the engine running. Osborne, 121 Idaho
at 524, 826 P.2d at 485. To the extent Osborne conflicts with the Idaho Supreme Court’s opinion
in Nickel, 134 Idaho 610, 7 P.3d 219, it has been implicitly overruled.
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such seizure must be supported by reasonable suspicion. We agree with Couch that Fourth
Amendment seizures require (at a minimum) reasonable, articulable suspicion to believe that the
person detained is, has been, or is about to be engaged in criminal activity. See Howell, 159 Idaho
at 248, 358 P.3d at 809 (explaining reasonable suspicion standard for investigatory detention).
The Fourth Amendment applies to all seizures of a person and requires such seizures to be
reasonable. Minnesota v. Dickerson, 508 U.S. 366, 372 (1993); United States v. Brignoni-Ponce,
422 U.S. 873, 878 (1975). The United States Supreme Court has stated that the reasonableness of
a seizure “depends on a balance between the public interest and the individual’s right to personal
security free from arbitrary interference by law [enforcement].” Brignoni-Ponce, 422 U.S. at 878.
This balancing test is the rationale underlying the United States Supreme Court’s adoption of the
now familiar standard in Fourth Amendment jurisprudence permitting an investigative detention
based on reasonable suspicion. See id. (weighing governmental interest in illegal immigration to
allow border patrol to briefly detain individuals “when an officer’s observations lead him
reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country”).
We do not read Godwin or Landreth to eliminate this well-established constitutional standard, nor
could we because the United States Supreme Court has sole authority to set the minimum standards
for rights guaranteed by the United States Constitution. See Missouri v. Frye, 566 U.S. 134, 150
(2012) (noting that the United States Supreme Court has “established the minimum requirements
of the Sixth Amendment . . . and States have the discretion to add procedural protections under
state law if they choose”); California v. Greenwood, 486 U.S. 35, 43 (1988) (explaining that, while
“[i]ndividual States may surely construe their own constitutions as imposing more stringent
constraints on police conduct than does the Federal Constitution,” it does not alter the Fourth
Amendment); see also Cooper v. California, 386 U.S. 58, 62 (1967) (recognizing that the holding
does not affect a state’s power to impose higher standards on searches and seizures than required
by the federal Constitution).
In Godwin, the defendant stopped his vehicle in response to an officer initiating a traffic
stop on a vehicle the defendant (Godwin) was following. Godwin, 121 Idaho at 491, 826 P.2d at
452. Another officer driving by the traffic stop noted the second vehicle and pulled behind
Godwin’s vehicle for a “motorist assist.” Id. at 452-53, 826 P.2d at 491-92. After learning that
the person subject to the traffic stop believed her driver’s license was in Godwin’s vehicle, the
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officer approached and contacted Godwin. Id. at 492, 826 P.2d at 453. During that contact, the
officer requested and received Godwin’s driver’s license, which the officer took to his patrol
vehicle to conduct a license check after instructing Godwin to remain in his vehicle. Id. The
license check revealed Godwin’s driver’s license was suspended, and Godwin was arrested as a
result. Godwin unsuccessfully moved to suppress evidence found following his arrest, which
motion was based on his assertion that the request for his driver’s license and subsequent license
check violated the Fourth Amendment. Id. at 492, 826 P.2d at 453.
On appeal, Godwin challenged the denial of his motion and two justices affirmed. Those
two justices wrote the lead opinion and concluded that a “limited seizure” occurred when the
officer “took Godwin’s license and told him to remain in his car.” Id. at 493, 826 P.2d at 454. The
two-justice lead opinion did not address whether there was reasonable suspicion for the seizure
but, instead, analyzed whether the officer’s conduct was reasonable, ultimately concluding it was.
In reaching this conclusion, the lead opinion relied heavily on the reasoning from State v.
Ellenbecker, 464 N.W.2d 427 (Wis. Ct. App. 1990), which detailed, among other considerations,
reasons officers performing a motorist assist should be permitted to ask for a driver’s license and
run a status check on the license. Importantly, the “motorist assist” aspect of Ellenbecker was
central to the Wisconsin Court of Appeals’ decision in that case as evidenced by its statement: “A
community caretaker action is not an investigative Terry[3] stop and thus does not have to be based
on a reasonable suspicion of criminal activity.” Ellenbecker, 464 N.W.2d at 429. We read the
lead opinion in Godwin with this context in mind. Thus, the lead opinion in Godwin only reflects
a conclusion that an officer may run a license check during a motorist assist, that is otherwise
appropriate, so as long as the intrusion is minimal. Godwin, 121 Idaho at 495, 826 P.2d at 456(“conclud[ing], as did the Ellenbecker court, that a police officer’s brief detention of a driver to
run a status check on the driver’s license, after making a valid, lawful contact with the driver, is
reasonable for purposes of the [F]ourth [A]mendment”). Because the officer in this case did not
contact Couch for purposes of a “motorist assist,” Godwin is inapposite.4
3
See Terry v. Ohio, 392 U.S. 1 (1968).
4
The lead opinion in Godwin was only joined by two justices. As such, any holding derived
from the plurality opinion is limited by the single justice who concurred in the result and concurred
specially to state, in part: “A ‘motorist assist’ stop by a police officer, with no other factual
6
As noted, the district court also relied on this Court’s prior opinion in Landreth. In
Landreth, an employee of a store reported that a truck was “moving from parking space to parking
space in the . . . parking lot.” Landreth, 139 Idaho at 987, 88 P.3d at 1227. An officer arrived and
observed a truck in the parking lot that matched the description given by the employee. As the
officer approached, he saw an extension cord running between the truck and the store. After being
questioned by the officer, the driver of the truck, identified as Landreth, stated that the people in
the store “knew him and knew what he was doing.” Id. at 991, 88 P.3d at 1231. The officer
requested and received Landreth’s identification and provided dispatch with the information
necessary to run a license check. In response, dispatch advised the officer that Landreth had an
outstanding arrest warrant. As a result, Landreth was arrested and the officer discovered a
controlled substance during a search incident to arrest. As in Godwin, Landreth filed an
unsuccessful motion to suppress, contending that the officer’s license check was an unlawful
detention in violation of the Fourth Amendment. Considering this claim on appeal, this Court
concluded that Landreth “failed to demonstrate any pertinent distinction between Godwin and the
facts of [Landreth’s] case.” Landreth, 139 Idaho at 990, 88 P.3d at 1230. We reasoned that the
initial contact with Landreth was consensual and that the “brief detention” to run a status check on
the driver’s license was reasonable under the Fourth Amendment. Id. at 991, 88 P.3d at 1231.
Importantly, however, there was no indication in Landreth that the officer retained Landreth’s
driver’s license thereby preventing him from leaving. While the license check was characterized
as a “brief detention,” the facts as described in the opinion do not indicate Landreth was detained
as that term is generally defined for purposes of the Fourth Amendment. See Bostick, 501 U.S. at
434 (reiterating rule that an individual is not detained if a reasonable person would feel free to
disregard police and “go about his business”). Rather, the officer in Landreth ran the license check
during the consensual encounter. Landreth, 139 Idaho at 987, 991, 88 P.3d at 1227, 1231. To the
extent Landreth can be read as authorizing a detention without reasonable suspicion, we disavow
such a reading, particularly in light of subsequent decisions, including State v. Cohagan, 162 Idaho
717, 404 P.3d 659 (2017).
predicate for inquiry, would not, in this writer’s opinion, justify a demand for identification of the
driver or occupants of the vehicle involved.” Godwin, 121 Idaho at 496, 826 P.2d at 457(McDevitt, J., concurring).
7
In Cohagan, an officer approached Cohagan in a grocery store because the officer
originally believed Cohagan was someone the officer knew and who had an outstanding warrant.
However, by the time the officer made contact with Cohagan, the officer’s belief that he knew him
was dispelled. Nevertheless, the officer asked Cohagan for identification. After Cohagan provided
his driver’s license, the officer conducted a warrants check through dispatch. Although the officer
did not leave Cohagan’s presence, the Court concluded that the retention of Cohagan’s license
“resulted in an unlawful detention,” reasoning that there was no bona fide investigation at that
point and the officer was on a “suspicionless fishing expedition.” Id. at 723-24, 404 P.3d at 665-66
(quoting Strieff, 579 U.S. at ___).
Read together, United States Supreme Court jurisprudence and Idaho precedent indicate
that law enforcement may, consistent with the Fourth Amendment and without reasonable
suspicion, contact an individual, request identification, and check the identifying information
through dispatch so long as that encounter is not initiated for the sole purpose of checking
identification. However, reasonable suspicion is required once law enforcement prevents someone
from leaving by retaining that person’s identification. Based on the report of drug activity in this
case, the officer could approach Couch and ask for identification during the course of that
interaction and doing so did not run afoul of the Fourth Amendment. However, once the officer
retained Couch’s driver’s license by taking it, leaving Couch’s presence, and giving it to another
officer to run a license check, Couch was detained because a reasonable person in her position
would not feel free to leave. Because there was a detention at that point, reasonable suspicion was
required.
Reasonable suspicion must be 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). An officer may draw reasonable
inferences from the facts in the officer’s possession to support reasonable suspicion, and those
inferences may be drawn from the officer’s experience and law enforcement training. State v.
Montague, 114 Idaho 319, 321, 756 P.2d 1083, 1085 (Ct. App. 1988). The reasonableness of the
suspicion must be evaluated based on the totality of the circumstances at the time of the seizure.
State v. Ferreira, 133 Idaho 474, 483, 988 P.2d 700, 709 (Ct. App. 1999).
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Tips from informants about suspected criminal activity can support reasonable suspicion.
State v. Bishop, 146 Idaho 804, 811, 203 P.3d 1203, 1210 (2009). To justify an investigative
detention, however, the tip must bear sufficient indicia of reliability in light of the totality of the
circumstances. Id. Factors indicative of reliability include whether: the informant reveals his or
her identity and the basis of his or her knowledge; the location of the informant is known; the
information was based on firsthand observations of events as they were occurring; the information
the informant provided was subject to immediate confirmation or corroboration by police; the
informant has previously provided reliable information; the informant provides predictive
information; and the informant could be held criminally liable if the report were discovered to be
false. Id. at 812, 203 P.3d at 1211.
Anonymous tips that merely describe suspects and implicate them in a crime generally do
not, by themselves, support reasonable suspicion. See id. For example, an anonymous tip that
described the race, shirt, and location of an individual and claimed that the individual possessed a
gun was not sufficient to provide reasonable suspicion because the informant failed to explain
“how he knew about the gun” and did not provide a “basis for believing he had inside information
about” the individual. Florida v. J.L., 529 U.S. 266, 268, 271 (2000). Moreover, there was no
evidence indicating how quickly law enforcement responded to the tip. In contrast, an anonymous
tip giving the direction of travel, location, license plate number, color, and make and model of a
vehicle that the informant claimed had run her off the road about five minutes prior to the call had
“adequate indicia of reliability for the officer to credit the [informant’s] account.” Navarette v.
California, 572 U.S. 393, 395, 398-401 (2014). This information was sufficiently reliable under
the circumstances because: (1) the informant’s report of being run off the road “necessarily”
implied that the informant had “eyewitness knowledge of the alleged dangerous driving”; (2) the
“timeline of events suggest[ed] that the [informant] reported the incident soon after she was run
off the road” and police confirmed the location of the vehicle about eighteen minutes after the call;
and (3) the informant made a call to a 911 emergency system, which generally has “features that
allow for identifying and tracing callers” that “provide some safeguards against making false
reports with immunity.” Id. at 400. Those features include recording a caller’s voice, potentially
allowing identification and prosecution of the informant for giving false information; identifying
the caller’s geographic location; and obtaining the phone number of the caller even if the caller
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attempts to “block call recipients from obtaining their identifying information.” Id. at 400-01.
However, the United States Supreme Court cautioned that “none of this is to suggest that tips in
911 calls are per se reliable” and noted that the facts in Navarette presented a “close case.” Id. at
401, 404.
In Couch’s case, the district court found that the officer relied on “information provided by
an anonymous tip.” The State contends the tip “bore sufficient indicia of reliability and was
sufficiently corroborated by the officer’s independent observations to justify Couch’s seizure.”
First, the State argues that “the source of the tip was readily ascertainable” because the informant’s
“callback number was recorded in the dispatch notes.” In support, the State cites State v. Larson,
135 Idaho 99, 102, 15 P.3d 334, 337 (Ct. App. 2000), where we held that an informant whose
name was not given “was not an anonymous caller” because the informant “gave her address and
thereby made her identity readily ascertainable” and “was plainly not attempting to conceal her
identity from police.” However, there is no similar indication or finding that the informant in
Couch’s case was willing to be held accountable for the information provided in the tip. Although
the informant’s phone number was automatically recorded, there is no evidence that the informant
voluntarily provided the phone number or knew the phone number would be recorded. The phone
number provides a potential avenue to identify the informant but, standing alone, does not suffice
to make the informant’s identity “readily ascertainable.” See United States v. Freeman, 735 F.3d
92, 98 (2d Cir. 2013) (holding that having phone number of informant failed to provide indicia of
reliability because informant was not “tracked down, so there is no way . . . to determine that the
number actually would trace back to the individual who made the phone call” and there was
“nothing offered to suggest . . . that the phone was not a prepaid phone, which would be as
anonymous as a call placed from a public pay phone”). But see United States v. Gomez, 623 F.3d
265, 269 (5th Cir. 2010) (noting that automatic caller identification increases reliability of tips by
allowing police to identify informant).
Second, the State asserts the record implies the informant had “first-hand observations of
the events as they were occurring.” The dispatch notes of the call indicate that, after describing
two vehicles containing two people each who were using tin foil to smoke drugs, the informant
was “no longer on scene.” The State contends that the words “no longer on scene” indicate that
the informant was present during part of the call and that this, combined with the level of detail of
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the informant’s report, shows the informant personally witnessed the events reported. While the
words “no longer on scene” indicate that the informant was present at the scene at some point,
being present does not necessarily imply that the informant had personal knowledge. Much like
the anonymous tipster in J.L., the informant failed to explain how he or she came to know the
information reported. In addition, unlike the informant’s report in Navarette of being run off the
road, nothing in the informant’s tip in Couch’s case necessarily implies that he or she had personal
knowledge. As for the level of detail, the facts reported by the informant are only slightly more
detailed than the description of the suspect in J.L.
Third, the State contends that the officer “immediately confirmed significant details
provided by the tipster.” On this point, Couch asserts that the informant’s tip was not entirely
accurate as evidenced by the discrepancies between the tip and the officer’s observations. For
instance, the officer did not find a gray Toyota with two people in it, as the informant claimed, but
instead found a silver Honda with one person. However, the difference in color and vehicle make
is not significant. At the suppression hearing, the officer testified that, in his training and
experience, it is common for reporting parties to get small details incorrect, such as the make of a
vehicle. As for the discrepancy in the number of individuals in the vehicle, the officer testified
that Couch informed him that she had grandchildren (or a single grandchild) 5 with her in the
Honda, but had transferred the grandchildren to the other vehicle before the officer arrived.
Although this could explain the informant’s report of two people in the Toyota, the officer’s
testimony does not indicate whether he learned about the grandchildren before or after detaining
Couch. In short, the officer corroborated some details of the informant’s report, providing some
indicia of reliability. What is lacking, however, is confirmation of the details regarding the alleged
criminal activity.
Overall, we conclude that Couch’s case is closer to J.L. than Navarette. Unlike the
unknown response time in J.L., the officer in Couch’s case responded quickly and corroborated
some details of the tip. In addition, although there was no evidence presented at the suppression
hearing that the informant called a 911 emergency service line (the officer merely testified that he
received a call from “dispatch”), or that the call was recorded, the dispatch notes contain the
5
The officer was not entirely sure about the number of grandchildren involved.
11
informant’s callback number. Thus, some of the features of a 911 emergency system noted in
Navarette that increase the reliability of a tip were present. However, similar to J.L., the informant
gave the location and description of the vehicle Couch was in and alleged the individuals were
engaged in drug activity but did not explain how the informant had personal knowledge of the
alleged criminal activity and the facts of the tip did not necessarily imply such personal knowledge.
The officer’s quick corroboration of some details, combined with a phone number, does not make
this case significantly different than J.L. Consequently, the anonymous tip, standing alone, was
not sufficiently reliable to support reasonable suspicion.
The remaining question is whether any facts observed by the officer prior to detaining
Couch, combined with the information from the anonymous tip, established reasonable suspicion.
Aside from observations corroborating some details of the tip, the only other fact supporting
reasonable suspicion of criminal activity was Couch’s demeanor. At the suppression hearing, the
officer testified that Couch avoided eye contact and appeared nervous, agitated, and angry during
the initial consensual encounter which, in the officer’s training and experience, indicated that
Couch was lying or “trying to hide something.” Although Couch’s demeanor is one factor that
supports reasonable suspicion, it is insufficient when considered by itself. See Illinois v. Wardlow,
528 U.S. 119, 124 (2000) (noting that “nervous, evasive behavior is a pertinent factor in
determining reasonable suspicion”); State v. Gibson, 141 Idaho 277, 285-86, 108 P.3d 424, 432-33
(Ct. App. 2005) (holding that “a person’s nervous demeanor during . . . an encounter is of limited
significance in establishing the presence of reasonable suspicion”). Even when combined with the
other information available to the officer, Couch’s demeanor was insufficient to support reasonable
suspicion to detain her. Consequently, Couch’s motion to suppress should have been granted.
IV.
CONCLUSION
Because Couch could not be detained based on a legal standard requiring less than
reasonable suspicion, and because the officer lacked reasonable suspicion to detain Couch,
Couch’s motion to suppress should have been granted. Consequently, we reverse the order
denying Couch’s motion to suppress and vacate Couch’s judgment of conviction for possession of
a controlled substance.
Chief Judge HUSKEY and Judge GRATTON, CONCUR.
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