DAVID B. MYERS, Petitioner-Appellant,
STATE OF IDAHO, Respondent.
2014 Unpublished Opinion No. 318
Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Susan E.Wiebe, District Judge.
Judgment denying post-conviction relief, affirmed.
David B. Myers, Boise, pro se appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.
David B. Myers appeals from the district court's judgment denying post-conviction relief after an evidentiary hearing. Myers argues that the post-conviction court erred in two respects. First, it failed to adequately consider certain evidence. Second, it erred by finding that Myers' counsel was not ineffective for failing to file a timely suppression motion because that motion would not have been granted by the trial court. We affirm.
On January 21, 2012, Officer Brockback was attempting to execute a felony arrest warrant. He located the target's car illegally parked next to a property on which a home and a camper trailer were situated. While surveilling the target's vehicle, Officer Brockback observed another vehicle drive up to the property and then drive away. As part of this investigation, Officer Brockback stopped that vehicle and asked the driver if she knew if the wanted person was in the trailer. A second officer, Sergeant Hoadley, arrived at the scene of the traffic stop to assist Officer Brockback. The stopped driver did not know the wanted person, but explained that she had dropped off two men at "Dave's residence, " the trailer. Officers were also informed that the two men had traveled from Payette to the trailer in Caldwell in order to exchange stolen property for narcotics. Believing that either the two men from Payette or the target of the warrant might be in the trailer, officers approached the trailer and knocked on the door.
Myers answered the door. Officer Brockback informed Myers that there had been reports of suspicious activity taking place at the trailer and asked if he could come into the trailer to speak with Myers. Myers made a gesture indicating that the officer could come in and stepped back to allow the officer in. The officer entered and observed that the trailer was small and cramped with boxes stacked in such a way that the rear of the camper trailer was not visible from the officer's position. Officer Brockback was concerned for his safety because he believed that the obscured areas of the trailer were large enough for a person to hide and because of his suspicion that people engaged in criminal conduct were inside the trailer. Accordingly, Officer Brockback asked Myers if he could search the trailer. Myers refused and asserted his constitutional right to be free from searches in his home. Myers did not ask the officers to leave his home or otherwise indicate any desire to terminate the encounter. Officer Brockback honored Myers' refusal but asked Myers if he had any identification; Myers offered Officer Brockback his identification card and Officer Brockback stepped out of the trailer to run a records check.
When Officer Brockback stepped out of the trailer, Sergeant Hoadley stepped into the trailer and spoke with Myers. Sergeant Hoadley acknowledged that Myers refused a search of the premises, but asked if he could perform a quick sweep. Sergeant Hoadley explained why he wished to perform a sweep and explained what the sweep would entail. Myers said, "Don't scare my cat, " and moved partially out of the officer's way. Sergeant Hoadley explained that there was not room to move by him and Myers moved further out of the way. Once Sergeant Hoadley moved to the rear of the trailer, he observed a shotgun shell and a small caliber handgun. Sergeant Hoadley confirmed that Myers had a prior felony conviction and was not permitted to possess a firearm. On this basis, he directed Officer Brockback to arrest Myers.
We summarized the remaining background of this case in the direct appeal, State v. Myers, Docket No. 38161 (Ct. ...