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State v. Gottardi

Court of Appeals of Idaho

September 1, 2016

STATE OF IDAHO, Plaintiff-Respondent,
EVERETT C. GOTTARDI, Defendant-Appellant.

         2016 Opinion No. 58

         Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Cheri C. Copsey, District Judge.

         Order denying motion to suppress and judgment of conviction, affirmed.

          Eric D. Fredericksen, Interim State Appellate Public Defender; Jason C. Pintler, Deputy Appellate Public Defender, Boise, for appellant. Jason C. Pintler argued.

          Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent. Jessica M. Lorello argued.

          HUSKEY, Judge.

         Everett C. Gottardi appeals from his judgment of conviction for possession of a controlled substance, methamphetamine. Specifically, Gottardi alleges the district court erred in denying his motion to suppress. For the reasons set forth below, we affirm the order denying the motion to suppress.



         Boise police officers received a request from the United States Marshals Service office to assist in locating one of the top-ten most wanted felons from Nevada who was wanted on delivery of controlled substance charges. The officers received information about the location of the felon and began surveilling her apartment in Boise. At dusk, officers observed Gottardi leave the apartment, drink a beer outside, and take items from a pickup truck belonging to the felon. Officers also observed Gottardi walk in and out of the apartment without knocking. A short time later, Gottardi left the apartment, looked up and down the street, and walked to a nearby convenience store. While Gottardi was gone, the officer testified he saw the felon "come outside really quick and then go back [inside]." Gottardi returned by car approximately ten minutes later and was dropped off on the street instead of at the felon's apartment. Gottardi walked to the apartment and as he knocked on the apartment door, the officer immediately approached him. The plainclothes officer identified himself and told Gottardi he was looking for the felon. Gottardi blankly stared at the officer and did not respond. The officer knocked on the apartment door and told Gottardi to move back.[1] The officer testified:

I asked him to move back and he moved back a little bit, but I didn't say stand right there. I didn't particularly tell him where to stand. I asked him to--motioned with my arm to move back and he takes a very small step back and stood there.

         The felon answered the door, and the officer testified "things kind of escalated very quickly." Other officers came to get the felon out of the apartment and calm her because she became "very emotional, very dramatic." While officers attempted to calm the felon and verify her identity, one officer asked Gottardi if he had any weapons. Gottardi told the officer he had a knife and the officer conducted a frisk of Gottardi. The officer testified Gottardi appeared nervous, but was cooperative. The officer discovered a partially opened pocket knife tucked into Gottardi's belt. The officer continued the frisk and felt a hard object in Gottardi's pocket. The officer asked, "Hey, what's that? Is that a pipe?" Gottardi admitted the object was a pipe and told the officer he had a "little baggy." The officer asked, "Is that shake or what is it?" Gottardi told the officer it was methamphetamine. As soon as Gottardi admitted he had a pipe and methamphetamine, the officer placed Gottardi under arrest. The search incident to arrest revealed the pipe and methamphetamine that Gottardi admitted were in his possession. The State charged Gottardi with felony possession of a controlled substance, methamphetamine, and misdemeanor possession of drug paraphernalia.

         Gottardi filed a motion to suppress evidence, arguing the evidence was the fruit of an unlawful detention and frisk. Following a hearing, the district court denied the motion, finding the detention and the frisk were constitutionally reasonable. Pursuant to a plea agreement, Gottardi conditionally pleaded guilty to possession of a controlled substance, methamphetamine, reserving his right to appeal the district court's denial of his motion to suppress. The second charge was dismissed. The district court imposed a unified seven-year sentence, with three years determinate. Gottardi timely appeals.



         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).



         Gottardi alleges he was illegally stopped and frisked by the officer and therefore, the district court erred in denying his motion to suppress the pipe and methamphetamine. The Fourth Amendment to the United States Constitution guarantees the right of every citizen to be free from unreasonable searches and seizures. Although Gottardi raised in his motion to suppress that both the state and federal constitutions were violated, on appeal he recognizes the issue was not addressed under the state constitutional analysis and agrees only the judicial interpretation of the Fourth Amendment is applicable to his claims.

         Generally, evidence obtained as a result of an unreasonable search or seizure must be suppressed. Wong Sun v. United States, 371 U.S. 471, 485 (1963). A warrantless search is presumptively unreasonable unless it falls within certain special and well-delineated exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971); State v. Ferreira, 133 Idaho 474, 479, 988 P.2d 700, 705 (Ct. App. 1999). In Terry v. Ohio, 392 U.S. 1 (1968), the United States Supreme Court created a stop-and-frisk exception to the Fourth Amendment warrant requirement. The stop and the frisk constitute two independent actions, each requiring a distinct and separate justification. State v. Babb, 133 Idaho 890, 892, 994 P.2d 633, 635 (Ct. App. 2000); State v. Fleenor, 133 Idaho 552, 556, 989 P.2d 784, 788 (Ct. App. 1999).

         The stop is justified if there is a reasonable and articulable suspicion that the individual has committed or is about to commit a crime. Florida v. Royer, 460 U.S. 491 (1983); Terry, 392 U.S. at 30; State v. DuValt, 131 Idaho 550, 553, 961 P.2d 641, 644 (1998); Ferreira, 133 Idaho at 479, 988 P.2d at 705. However, merely because there are reasonable grounds to justify a lawful investigatory stop, such grounds do not automatically justify a frisk for weapons. Babb, 133 Idaho at 892, 994 P.2d at 635. An officer may frisk an individual if the officer can point to specific and articulable facts that would lead a reasonably prudent person to believe that the individual with whom the officer is dealing may be armed and presently dangerous and nothing in the initial stages of the encounter serves to dispel this belief. Terry, 392 U.S. at 27; Babb, 133 Idaho at 892, 994 P.2d at 635; Fleenor, 133 Idaho at 555, 989 P.2d at 787. In our analysis of a frisk, we look to the facts known to the officer on the scene and the inferences of risk of danger reasonably drawn from the totality of those specific circumstances. Babb, 133 Idaho at 892, 994 P.2d at 635; Fleenor, 133 Idaho at 555, 989 P.2d at 787.

         A. The Stop Was Constitutionally Valid

         We must first determine when, if at all, Gottardi was seized. Then, if a seizure did occur, whether that seizure was based on reasonable and articulable suspicion of criminal activity. Gottardi argues he was illegally seized when the officer approached him at the apartment door and told Gottardi to move back because the officer did not have reasonable, articulable suspicion of criminal activity. The State argues Gottardi was not seized until the officer frisked Gottardi because it was not until the frisk that Gottardi was not free to leave. Alternatively, the State maintains if Gottardi was seized when told to move back, under the totality of the circumstances, the officer had a reasonable suspicion based on specific, articulable facts to seize Gottardi. The district court determined there was no seizure when the officer told Gottardi to move back. The district court found, "this is at most an investigative detention and I'm not even sure I would even call it a seizure because it was very short and I didn't hear anything on the tape that said--that indicated that Mr. Gottardi was required to stay."

         1. Gottardi was not seized when the officer contacted him

         There is substantial evidence to support the district court's finding that when the officer approached Gottardi at the front door of the apartment and told him to move back, the encounter was consensual. A seizure does not occur simply because a police officer approaches an individual on the street or other public place and asks if the individual is willing to answer some questions or puts forth questions if the individual is willing to listen. Florida v. Bostick, 501 U.S. 429, 434 (1991); Royer, 460 U.S. at 497. Only when an officer, by means of physical force or show of authority, restrains the liberty of a citizen may a court conclude that a seizure has occurred. Bostick, 501 U.S. at 434. The critical inquiry is whether, taking into account all of the ...

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