Appeal from the District Court of the First Judicial District of the State of Idaho, in and for Bonner County. The Hon. Steven C. Verby, District Judge.
The opinion of the court was delivered by: Eismann, Justice.
The order of the district court is reversed.
This is an appeal from an order suppressing evidence. A law enforcement officer following two vehicles turned on the overhead lights of his patrol car in order to pull over the lead vehicle. Both vehicles pulled over, and the officer parked his car behind the lead vehicle and several car lengths in front of the rear vehicle. When the officer got out of his car, he walked back to the rear vehicle to tell the driver he was only stopping the lead vehicle. The district court held that by walking towards the rear vehicle, the officer seized its occupants without a reasonable, articulable suspicion that they had violated any law. We reverse.
The relevant facts in this matter are uncontradicted. After dark on March 17, 2009, a state trooper was driving his patrol car west on a two-lane state highway when he saw a silver Subaru station wagon approaching from the opposite direction. The Subaru had one headlight that was out, and after it passed him the trooper made a U-turn in order to pursue the Subaru. By the time he had turned around, there was a red Toyota pickup following closely behind the Subaru. Because the highway was a narrow, two-lane road and the Toyota was close behind the Subaru, the trooper was unable to pass the Toyota in order to pull directly behind the Subaru.
As the Subaru was approaching a turnout along the right side of the highway, the trooper activated the overhead lights on his patrol car. The Subaru pulled into the turnout and drove to a point near its far end. The Toyota also pulled into the turnout and stopped at a point near where the turnout began, but the point at which it stopped left enough room for the patrol car to park behind it in the turnout had the trooper wanted to do so.
The trooper drove his car past the Toyota and stopped directly behind the Subaru, in order to create as much space as he could between his patrol car and the Toyota. The distance from the back of the patrol car to the front of the Toyota was about three to five car lengths. About eight seconds passed between the time the trooper passed the Toyota and when he opened his vehicle door to get out. Upon exiting his patrol car, the trooper walked back to the Toyota to tell the driver that he was stopping the Subaru and that the driver of the Toyota was free to go. About sixteen seconds passed between the trooper opening his car door and him saying "Hello" to the driver of the Toyota.*fn1
When the trooper walked up to the Toyota, the driver rolled his window down part way, and the trooper immediately smelled marijuana. He ultimately arrested the passenger, Irvin C. Ray, for felony possession of more than three ounces of marijuana. Ray concedes that if he had not been unlawfully seized when the trooper walked up to the Toyota, then the discovery and seizure of the marijuana were lawful.
Ray was charged with misdemeanor possession of drug paraphernalia with the intent to use and felony possession of more than three ounces of marijuana. The charges were made in two separate cases, which were then consolidated in the district court, although the order of consolidation is not in the record.
On May 22, 2009, Ray moved in both cases to suppress evidence seized from his backpack. The evidentiary hearing on that motion was held on July 21, 2009, and the trooper was the only witness. At the conclusion of the hearing, the district court announced its holding. It held that when the trooper began walking toward the Toyota, he unlawfully seized its occupants. The court orally granted the motion to suppress, and then entered a written order granting the motion on July 27, 2009.
After the court orally announced its ruling, the prosecutor suggested that the cases be dismissed. The defense counsel then made the motion, and the prosecutor stated that he had no objection. The court granted the motion, dismissing both cases. The order dismissing the misdemeanor case was entered on July 21, 2009.
An order granting a motion to suppress evidence is appealable. I.A.R. 11(c)(7). The State filed a notice of appeal on August 5, 2009. The deputy attorney general who filed the notice of appeal was unaware that there were two cases, and he only filed a notice of appeal in the misdemeanor case.
The appeal was first heard by the Idaho Court of Appeals, which affirmed the district court's order suppressing the evidence. We then granted the State's petition for review. When we grant a petition for review, we hear the case anew, directly reviewing the decision of the trial court and not the decision ...