Opinion No. 24
from the District Court of the Fifth Judicial District, State
of Idaho, Twin Falls County. Hon. Randy J. Stoker, District
of conviction for possession of stolen property,
D. Fredericksen, State Appellate Public Defender; Ben P.
McGreevy, Deputy Appellate Public Defender, Boise, for
Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen,
Deputy Attorney General, Boise, for respondent.
Cameron Freeland appeals from his judgment of conviction for
grand theft by possession of stolen property. Specifically,
Freeland argues that the district court erred in denying
Freeland's motion to suppress evidence found during a
search for weapons. For the reasons set forth below, we
rented a home on his landlords' property. The landlords
asked Freeland to leave for failure to pay rent and because
the landlords suspected Freeland was engaged in drug
activity. After the landlords believed Freeland had moved
out, the landlords entered the home and found evidence that
Freeland had stolen a pistol from the landlords. The
landlords called the police who took pictures of the
evidence, filed a theft report, and instructed the landlords
to contact the police if Freeland returned. The following
day, Freeland returned. The landlords' daughter contacted
the police and advised that Freeland was outside arguing with
the landlords. The two responding officers were advised of
the theft report.
the police arrived, Freeland moved his hands toward his
waist. One of the officers drew his weapon and ordered
Freeland to put his hands up. When Freeland complied, the
other officer went inside the landlords' house to speak
with them while the first officer stayed with Freeland. The
first officer saw a bulge in Freeland's sweater and asked
him to raise his sweater. Freeland complied and the officer
did not see a weapon at that time. The other officer returned
and asked the first officer whether he frisked Freeland for
weapons. When the first officer said he did not frisk
Freeland, the other officer asked Freeland for consent to
check his pockets and he offered to empty his own pockets. As
Freeland emptied his pockets, the other officer observed what
he believed was a holster on Freeland's hip. The other
officer ordered Freeland to turn around with his hands behand
his back and frisked him for weapons. The frisk revealed the
pistol the landlords suspected Freeland had stolen.
State charged Freeland with unlawful possession of a firearm
(I.C. § 18-3316) and grand theft by possession of stolen
property (I.C. §§ 18-2403(4), 18-2407(1), and
18-2409). Freeland filed a motion to suppress, arguing that
the officers lacked reasonable suspicion to search
Freeland. The district court found
that the search of Freeland's person was justified by the
officers' reasonable fear for their safety and denied the
motion to suppress. Freeland entered a conditional guilty
plea to grand theft, reserving his right to appeal the denial
of his motion to suppress. In exchange, the State dismissed
the unlawful possession of a firearm charge. Freeland
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).
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.
appeal, Freeland argues that the district court erred in
denying Freeland's motion to suppress. Specifically,
Freeland contends that the district court erred in analyzing
the search of Freeland's person as of the time the
officer ordered Freeland to put his hands behind his back and
conducted a frisk for weapons, rather than when the officers
asked to check Freeland's pockets. Freeland admits that
whether requesting a person empty his or her pockets
constitutes a Terry search is an issue of first
impression in Idaho. Freeland cites to cases in other
jurisdictions to support his contention that the
officers' request to search Freeland's pockets
constituted a Terry search. Specifically, Freeland
cites to United States v. Reyes, 349 F.3d 219, 225
(5th Cir. 2003) where an officer requested a defendant lift
his shirt and empty his pockets. However, Reyes does
not establish a bright-line rule that requesting a defendant
empty his or her pockets constitutes a Terry search.
Reyes, 349 F.3d at 225. In fact, Reyes
stands for the proposition that an officer may request a
defendant lift his or her shirt and empty his or her pockets
without violating Terry because such a request is
less intrusive than a frisk for weapons. Reyes, 349
F.3d at 225. Freeland also cites United States v.
DiGiacomo, 579 F.2d 1211, 1215 (10th Cir. 1978). However
DiGiacomo involved a consensual ...