Opinion No. 56
from the District Court of the Fourth Judicial District,
State of Idaho, Ada County. Hon. Steven J. Hippler, District
of conviction for trafficking in marijuana,
D. Fredericksen, Interim State Appellate Public Defender;
Andrea W. Reynolds, Deputy Appellate Public Defender, Boise,
for appellant. Andrea W. Reynolds argued.
Lawrence G. Wasden, Attorney General; Jessica M. Lorello,
Deputy Attorney General, Boise, for respondent. Jessica M.
MELANSON, Chief Judge
Newell Breese appeals from his judgment of conviction entered
upon his conditional guilty plea to trafficking in marijuana.
Specifically, Breese argues that the district court erred in
denying his motion to suppress evidence found in Breese's
backpack. For the reasons set forth below, we affirm.
was traveling aboard a common carrier bus from Portland,
Oregon, to Salt Lake City, Utah, when the bus made a
scheduled stop in Boise. An employee of the bus company began
rearranging passenger luggage in the bus's luggage
compartment and detected a strong odor of marijuana emanating
from a backpack. The employee locked the backpack in the
compartment and contacted law enforcement. Upon an
officer's arrival, the employee explained his suspicion
that the backpack contained an illegal substance. The
employee indicated that he had a right to search the backpack
under his company's published policy and wanted the
officer to witness the search. Standing outside the
compartment, the officer leaned forward in an effort to
detect the odor of marijuana but indicated that he could not
smell the odor. However, the employee confirmed that he could
still detect the odor, removed the backpack from the luggage
compartment, and searched it. The employee extracted three
bags of a substance believed to be marijuana from the
backpack. The officer directed that the three bags be
returned to the backpack. The backpack had a tag on it
identifying Breese as its owner. Breese was called to the
area and he confirmed that the backpack was his. During the
ensuing discussion about the contents of the backpack, Breese
acknowledged that the substance was marijuana.
was charged with one count of trafficking in marijuana. I.C.
§ 37-2732B(a)(1). Breese filed a motion to suppress the
marijuana, arguing that the search of the backpack was
unlawful under the Fourth Amendment. Following a hearing, the
district court denied Breese's motion, finding that at no
time did the officer instruct the employee, touch the
backpack, or physically enter the bus's luggage
compartment. The district court also found that the employee
had a legitimate independent motivation for conducting the
search of Breese's backpack. Consequently, the district
court concluded that the Fourth Amendment was not implicated
because the employee was not an agent of the government at
the time of the search, and thus the marijuana was not
suppressible under the exclusionary rule. Alternatively, the
district court also held that, even if the search was
governmental, the search fell within the automobile exception
to the warrant requirement and was supported by probable
cause. Breese entered a conditional guilty plea. The district
court sentenced Breese to a determinate term of one year of
confinement. Breese appeals.
argues that the search of the backpack was an illegal search
and that the evidence found during the search should have
been suppressed. 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).
Fourth Amendment to the United States Constitution prohibits
unreasonable searches and seizures. It is well established
that evidence obtained through a private search, even if
wrongfully conducted, is not excludable under the Fourth
Amendment unless government officials instigated the search
or otherwise participated in a wrongful search. United
States v. Jacobsen,466 U.S. 109, 113-14 (1984);
State v. Pontier,103 Idaho 91, 94, 645 P.2d 325,
328 (1982); State v. Kopsa,126 Idaho 512, 517, 887
P.2d 57, 62 (Ct. App. 1994). However, where a private party
acts as an agent of the State in effecting a search, Fourth
Amendment protections are implicated. United States v.
Walther,652 F.2d 788, 791 (9th Cir. 1981);
Kopsa, 126 Idaho at ...