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State v. Greub

Court of Appeals of Idaho

August 29, 2017

STATE OF IDAHO, Plaintiff-Respondent,
v.
ROSA L. GREUB, Defendant-Appellant.

         2017 Opinion No. 41

         Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bannock County. Hon. Stephen S. Dunn, District Judge.

         Order denying motion to suppress, reversed; and judgment of conviction, vacated; and case remanded.

          Eric D. Fredericksen, State Appellate Public Defender; Jenny C. Swinford, Deputy Appellate Public Defender, Boise, for appellant.

          Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.

          HUSKEY, JUDGE.

         Rosa L. Greub appeals from the district court's judgment of conviction and claims the district court erred in denying her motion to suppress. Greub argues the district court erred in holding that she did not delimit the scope of her consent to exclude her purse or, alternatively, that she revoked any previously given consent to search her purse. We agree and reverse the district court's order denying the motion to suppress, vacate the judgment of conviction, and remand the case for further proceedings consistent with this opinion.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The district court made the following factual findings:

Defendant Rosa L. Greub ("Defendant") was parked in a parking lot in Pocatello between 3:30 p.m. and 4:00 p.m. on June 10, 2016, when Officer Christ of the Pocatello Police Department drove into the parking lot to complete an accident report. Upon entering, Officer Christ saw Defendant's car in the back corner of the parking lot and saw her stare at him in what he perceived to be a startled manner. Officer Christ parked his patrol car perpendicular to Defendant's car, either 23 feet or 15 yards away, and did not have his interior lights flashing. Officer Christ, in uniform, approached Defendant to ask her what her business was there. Defendant replied that she was on her way to work, but stopped to smoke a cigarette because her employer did not allow its employees to smoke on the premises. Officer Christ did not see a cigarette and saw that Defendant was wearing a uniform.
Officer Christ asked her [to] provide her driver's license, which she could not provide. Instead Defendant provided an identification card and confirmed that the address on it was current. Officer Christ next asked if she had "anything illegal, " such as alcohol, drugs, or prescription medications, to which Defendant responded that she did not. Defendant testified at the hearing that Officer Christ persisted in asking her if she had anything illegal, and asked "If I look in your vehicle, will I find anything?" Officer Christ testified that he asked Defendant if he could search her vehicle and that Defendant said "Sure." Defendant also testified that she agreed to Officer Christ searching her car.
During this questioning, Officer Christ observed that Defendant appeared nervous because she averted her eyes from him. Officer Christ does not recall when he returned Defendant's identification to her.
After Defendant agreed to the search, Officer Christ asked Defendant to step out of the car, and he called a second unit to assist him because he was the only officer there and was not sure whether Defendant had any weapons. Defendant held her purse as she stepped out of the car, but Officer Christ told her to leave her purse in the car for safety purposes, which Defendant did. Before the second officer, Officer Buetts, arrived, Officer Christ directed Defendant to stand in front of his patrol car while he began searching the car. By the center console between the driver's seat and the passenger seat, Officer Christ saw a brown paper bag with the red cap of what he perceived to be a whiskey bottle protruding from the top. He noted that the seal had been broken.
At this time, Officer Christ stopped his search and talked with Defendant about the bottle he found in her car because he wanted backup before proceeding any further. He testified that it [was] standard procedure for a second officer to stay with the person while the other officer conducts the search for safety purposes. Because it was taking Officer Buetts an extended amount of time to arrive, Officer Christ decided to continue his search without Officer Buetts because he did not want to make Defendant late for work. Officer Christ searched behind the passenger area, then searched Defendant's purse in which ...

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