Opinion No. 58
from the District Court of the Fourth Judicial District,
State of Idaho, Ada County. Hon. Cheri C. Copsey, District
denying motion to suppress and judgment of conviction,
D. Fredericksen, Interim State Appellate Public Defender;
Jason C. Pintler, Deputy Appellate Public Defender, Boise,
for appellant. Jason C. Pintler argued.
Lawrence G. Wasden, Attorney General; Jessica M. Lorello,
Deputy Attorney General, Boise, for respondent. Jessica M.
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.
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. 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
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.
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
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).
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.
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).
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.
The Stop Was Constitutionally Valid
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
Gottardi was not seized when the officer contacted
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 ...