STATE of Idaho, Plaintiff-Respondent, v. Eric Michael ROSS, Defendant-Appellant.
Docket No. 42968
Court of Appeals of Idaho.
Filed: July 6, 2016
378 P.3d 1056
III.
CONCLUSION
Neyhart has not shown that there was insufficient evidence to support his convictions because there was substantial evidence upon which the jury could find Neyhart guilty beyond a reasonable doubt. Furthermore, Neyhart has not shown that his constitutional right to silence was implicated by the prosecutor‘s questioning and cоmments at trial. As to the 2010 interview with police, the prosecutor properly used Neyhart‘s failure to come forward with information pertaining to the offense as impeachment. As to the 2013 interview, Neyhart never invoked his right to silence. Finally, to the extent that the pharmacy record may have been improperly admitted or used, any error was harmless in light of its immateriality and in light of the cumulative evidence the jury considered. Accordingly, Neyhart‘s judgment of conviction for three counts of lewd conduct with a minor under sixteen is affirmed.
Chief Judge MELANSON and Judge HUSKEY concur.
Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy Attornеy General, Boise, for respondent. Russell J. Spencer argued.
MELANSON, Chief Judge
Eric Michael Ross appeals from his judgment of conviction for unlawful possession of a firearm and trafficking in methamphetamine. Specifically, Ross challenges the district court‘s denial of his motion to suppress. For the reasons set forth below, we reverse the order denying the motion to suppress, vacatе the judgment of conviction, and remand.
Officers stopped Ross‘s vehicle for failing to signal for five seconds. When asked for his driver‘s license and vehicle registration, Ross explained that the car was a rental and that he had no driver‘s license. Dispatch informed the officers that the rental car company confirmed that the car was rented to another individual and that Ross was not a driver authorized by the rental car company. After approximately twenty-five minutes, the officer issued Ross a citation for driving without privileges. The officer then called the rental сar company, which requested the officer arrange for the car to be towed to the local rental office. The officer informed Ross that the vehicle was being towed.
At that time, Ross asked to retrieve his luggage from the vehicle. There were three backpacks and one duffle bag in the trunk and an additional backpack in the back seat of the vehicle. The duffle bag and two of the backpacks in the trunk belonged to Ross (collectively referred herein as Ross‘s “luggage” herein), while one backpack in the trunk and the backpack in the baсk seat of the vehicle belonged to Ross‘s passenger. The officer told Ross he would retrieve the luggage for Ross, but that the officer needed to check the luggage to ensure it did not сontain guns or other weapons before giving Ross possession of the luggage. Ross became agitated and refused to consent to the search of his luggage. The officer asked Ross, “If thеre‘s no weapons or anything inside the bag or contraband of any kind that you‘re worried about, what‘s the holdup of us taking it to make sure there‘s nothing in there and giving it to you?” Ross responded, “Just tow the vehicle please.” The officer then told Ross that the rental car company would allow Ross to retrieve his luggage from the office to which the vehicle was being towed. Ross‘s passengеr was also told it was necessary for the officer to search the passenger‘s bags prior to the officer allowing the passenger to take the bags from the vehicle. The passеnger consented to a search of his bags and Ross was informed that the passenger consented. The passenger was given his bags after they were searched. The officer told Ross that thеre were three bags remaining in the trunk and asked if they belonged to Ross. Ross stated that the two backpacks were his
The officer told Ross that he and the passenger were free to leave the scene. Again, Ross repeated that the two backpacks belonged to him and that the duffle bag belonged to the lessee. Having been told he was free to leаve, Ross elected to walk toward the nearest town. As Ross was leaving the scene, he was told that, despite his refusal to provide consent, his luggage would be searched and inventoried in рreparation for the vehicle‘s towing. At that time, Ross repeated that the duffle bag belonged to the lessee and not Ross.1 Ross and the passenger walked away from the scene and thе officers searched Ross‘s luggage. The officers found a stolen handgun and methamphetamine.2
Ross was charged with driving without privileges,
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 suрpression 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).
Ross appеals the district court‘s denial of his motion to suppress, alleging that his luggage was illegally seized and searched. The
The state argues that Ross does not have standing to challenge the seizure or search of the duffle bag because it was voluntarily abandoned when he disclaimed ownership. Generally, one who challenges the legality of a search must establish that he or she had a legitimate expectation of privacy in the thing searched. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633, 641 (1980). One who voluntarily abandons property prior to the search cannot be said to possess the requisite privacy interest. Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668, 687-88 (1960). Abandonment, in the
Ross‘s abandonment of the duffle bag followed the officers’ refusal to allow him to take the duffle bag and officers notifying Ross that the duffle bag would be searched and inventoriеd. As conceded by the state, the seizure of Ross‘s duffle bag was illegal. It is clear from the video of the stop that Ross became agitated when the officer refused to allow him to take his luggаge. Ross became further agitated when the officers similarly refused to give the passenger his bags and the passenger consented to a search of his bags. Based upon the state‘s cоncessions that the officers’ conduct with regard to Ross‘s luggage was illegal, we hold that Ross‘s abandonment was the result of illegal police activity. Thus, we hold that Ross‘s abandonment was not voluntаry and, therefore, did not divest him of standing to challenge the search of the duffle bag.
Ross has shown that he had standing to challenge the search of his duffle bag because his abandonment was not voluntary. In addition, as the state concedes, the seizure of Ross‘s duffle bag was illegal. Accordingly, the district court erred in denying Ross‘s motion to suppress. Therefore, we reverse the order denying Rоss‘s motion to suppress, vacate his judgment of conviction, and remand.
Judge GRATTON and Judge HUSKEY concur.