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State v. Perez

Supreme Court of Idaho

February 8, 2019

STATE OF IDAHO, Plaintiff-Respondent,
AUGUSTINE GARNICA PEREZ, JR., Defendant-Appellant.

          Appeal from the District Court of the Seventh Judicial District of the State of Idaho, Bingham County, Hon. Darren B. Simpson, District Judge.

         The judgment of the district court is affirmed.

          Eric Don Fredericksen, State Appellate Public Defender, Boise, for Appellant. Kim A. Coster argued.

          Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent. Kenneth K. Jorgensen argued.

          HORTON, JUSTICE.

         Augustine Garnica Perez Jr. appeals from his judgment of conviction for felony DUI. He challenges the district court's decision denying his motion to suppress evidence gathered as a result of an investigatory stop. Specifically, he argues that the district court erred in concluding that information provided by a citizen during a call to dispatch was sufficient to create the reasonable, articulable suspicion necessary to justify the stop. We affirm.


         This case arises from the district court's denial of Perez's motion to suppress evidence gathered during an investigatory stop that led to his conviction for felony DUI. The basis for the stop was a call made to dispatch by an identified citizen. During the day that the dispatch call was made, an Indian Highway Safety Officer, Officer Henry, had driven through a neighborhood in the Old Fort Hall housing complex and noticed a white, two-door Mercedes parked on a street named Wardance Circle.[1] He noted the vehicle because Mercedes vehicles were rare in that area and he had never seen a white Mercedes in that neighborhood in his three years as a highway safety officer.

         Later, around 10:30 that evening, a woman who lived on Wardance Circle called dispatch and described a white Mercedes with a driver who seemingly "didn't know how to drive it, 'cause it kept trying to go in drive, and then it couldn't, but like it's a standard or something." She said that once the driver was able to get the car moving, it pulled into a driveway and almost hit the back of a parked car. The driver then drove out of Wardance circle, "turned east, and went toward the bingo hall." When asked how long ago the driver had left, the caller said "[n]ot even five minutes ago." She also stated that the driver had been slamming on the car's brakes earlier in the day and "roaring around," and that the car was recently "roaring its motor, like it wanted to race."

         The caller noted that she had seen an officer earlier in the day and told him that "a native guy" was driving the car, that he was "driving really recklessly," and that she was concerned that he might drive up on the sidewalk and hit neighborhood children.

         Officer Henry was dispatched to investigate the call. Officer Henry testified that he first went to Wardance Circle where he had seen the white Mercedes earlier in the day and that it was no longer there. He then drove to the nearby casino, gas station, trading post, and then to the two main roads looking for the vehicle. As he was driving on one of the main roads, he came upon a white, two-door Mercedes traveling in the opposite direction. He estimated that it took him three to four minutes after receiving the call from dispatch to arrive at Wardance Circle and that from there he drove for "five, ten minutes" before he came upon the white Mercedes driving on the main road. In total, approximately ten to fifteen minutes passed between the time of the call to dispatch and the time that Officer Henry stopped the Mercedes.

         Officer Henry stated that he did not observe any violations of the law or erratic driving while following the vehicle; however, he only followed it for less than a minute before he initiated the stop. When he contacted the driver-Perez-he immediately noticed the smell of alcohol and called an Idaho State Police officer to investigate for DUI. The ISP officer administered field sobriety tests and then arrested Perez. Perez was subsequently charged with felony DUI, driving without a license, and failing to carry insurance, with a persistent-violator enhancement to the felony charge.

         Perez moved to suppress the evidence resulting from the stop, arguing that the stop violated his constitutional rights because Officer Henry did not have reasonable, articulable suspicion that he had violated any traffic laws. The district court denied Perez's motion to suppress in a ruling from the bench. The district court held that the conduct reported by the caller created reasonable suspicion that the crime of reckless driving had been committed and the caller's description of the vehicle provided reasonable suspicion for Officer Henry to stop the white Mercedes that Perez was driving.

         Perez then entered a conditional plea, reserving the right to appeal the denial of his motion to ...

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