Appeal from the District Court of the First Judicial District, State of Idaho, Bonner County. Hon. Steven C. Verby, District Judge.
The opinion of the court was delivered by: Melanson, Judge
Order of the district court granting suppression of evidence, affirmed.
The state appeals from the district court‟s order suppressing evidence arising from an allegedly unlawful detention of a vehicle in which Irvin C. Ray was a passenger. For the reasons set forth below, we affirm.
On March 17, 2009, a state police officer was traveling west on a two-lane highway when he passed a silver Subaru wagon with only one headlight*fn1 traveling toward him in the eastbound lane. The Subaru was immediately followed by a pickup, in which Ray was a passenger. To effectuate a traffic stop of the Subaru, the officer made a U-turn and began pursuit. The officer followed the cars a short distance before activating his overhead lights just before a turnout. At this point the officer was directly behind Ray‟s pickup. Both vehicles pulled over into the turnout and the officer maneuvered his car between them--that is, directly behind the lead vehicle and approximately three to five car lengths in front of Ray‟s pickup. While passing Ray‟s pickup, the officer radioed dispatch and called out the license plate number of only the Subaru as his intent was to stop just that vehicle. Within seconds of passing Ray‟s pickup, the officer stepped from the patrol vehicle, which still had its lights on, and proceeded toward the pickup. The officer testified that he walked back to the pickup because, even though the officer had pulled in behind the lead vehicle, the pickup remained parked behind the officer‟s car. Therefore, for safety purposes, the officer felt the need to convey his intent to stop only the lead car and to ask the pickup‟s driver to continue on. It took the officer approximately sixteen seconds to walk back to the pickup, from the time he unlatched his patrol car door until the time he said "Hello" to Ray.
Upon reaching the pickup, however, the officer smelled a strong odor of unburnt marijuana coming from the open driver‟s side window and noticed that neither the driver nor Ray was wearing a seatbelt. The officer greeted the occupants, told them that he had only intended to stop the Subaru, began questioning them about the seatbelt violations, and examined their identifications. Ultimately, based on the smell of marijuana, the officer searched the occupants and the pickup. The officer found a marijuana pipe, rolling papers, and a small baggie of marijuana in Ray‟s pockets and 8.2 ounces of marijuana in a backpack in the pickup. Ray was charged in two separate cases with misdemeanor possession of drug paraphernalia, I.C. § 37-2734A(1), and felony possession of marijuana, I.C. § 37-2732(e).
Ray moved to suppress the evidence against him in both cases, arguing that it was the fruit of an unlawful detention. After an evidentiary hearing, the district court granted Ray‟s suppression motion. The court held that, by activating his overhead lights, the officer had commanded Ray, pursuant to I.C. §§ 49-625 and 49-1404, to pull over and therefore detained Ray.*fn2 Thereafter, although the officer passed Ray, the act of walking back to the pickup continued the seizure because a reasonable person would not feel free to leave at that point. Because the officer had no probable cause to stop Ray, the court reasoned, the officer‟s actions constituted an unlawful detention mandating the suppression of the resulting collection of evidence.
The state appeals the district court‟s suppression order in the misdemeanor case.*fn3 The state argues that a driver, who yields to a police vehicle with activated overhead lights and chooses not to continue on after the police vehicle has passed, is not seized for purposes of the Fourth Amendment. Further, the state argues that the driver is not seized when, after choosing not to continue on, he is approached by the officer who had originally passed him. Alternatively, the state argues that, even if Ray was seized, suppression was not required because the detention was reasonable. Ray argues that he was seized, suppression is required, and he should be awarded attorney fees on appeal.
The state argues the district court erred in granting Ray‟s suppression motion because there was no seizure or, alternatively, because any seizure was reasonable. The standard of review of a suppression motion is bifurcated. State v. Willoughby, 147 Idaho 482, 485, 211 P.3d 91, 94 (2009). When a decision on a motion to suppress is challenged, we accept the trial court‟s findings of fact which are supported by substantial evidence, but we freely review the application of constitutional principles to the facts as found. Willoughby, 147 Idaho at 485-86, 211 P.3d at 94-95; 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).
A. Fourth Amendment Seizure
The state argues that Ray was not seized when the driver of the pickup, in which he was a passenger, did not continue on after the officer had passed the pickup and parked behind another vehicle, nor when the officer approached the pickup to ask its occupants to move on because any restriction on Ray‟s freedom of movement was ...