State v. Hobson, 523 P.2d 523

State v. Hobson

523 P.2d 523

Idaho

1974

Check Treatment

*1 arresting as investigate ize the conduct of the officer formed intent pursue search, necessarily appellants’ we and brief- in vehicle. hold that the We ly vestigation appellants’ arresting consider the offi- facts. ve night big game cer was on a in a hicle falls well within Gambit patrol big poaching there area which 20 L. game. farms, The area no ranch- Ed.2d 889 contains and the recent decision Idaho, permanent pa- of this Hobson, es or While inhabitants. trol, presence a P.2d 523 (1974). officer noted moving away vehicle distance some Affirmed. no canyon across a there was which place at that logical reason at that DONALDSON, McQUADE, Mc undisputed time. It is officer BAKES, JJ., FADDEN and concur. point investigate. intent to formed the pursued He for some distance vehicle approached the rear of the mov-

ing object see pick-up he was able to appeared large animal to be a dead pick-up.

in the rear of the He sounded pick-up stopped.

siren truck officer in the walked to it and observed P.2d truck elk horns bed a a bull Plaintiff-Appellant, Idaho, STATE of partially with a blanket. covered Appellants argue lacked HOBSON, Defendant-Respondent. Jerry L. probable their cause to and “search” No. 11159. Appellants argue vehicle. also of Idaho. “search” was instituted at moment 12, 1974. time June when the the intent officer formed intercept pursue appellants’ vehicle. July Rehearing 3, 1974. Denied Appellants further 36- contend that I.C. § 2302 is in that it unconstitutional authoriz-

aes search of motor with or with- vehicles

out a search warrant violation of do not reach cause doctrine. We constitutionality

the issue of the

statute since such is not to our

decision herein. only question presented for de validity officer’s

cision is the herein vehi

pursuit appellants’ motor Following

cle. vehicle clearly permissible

officer’s actions were plain-view doctrine. State

under ;

Rowe, (1971) 94 Idaho P.2d 610 Pontier, 707, 518 P.2d 95 Idaho

State v. Thereafter, probable cause the seizure

existed for the arrest and

the elk carcass. reject appellants’ contention

We motor vehi appellants’ the “search” time the officer was initiated at the

cle *2 Park, Boise,

Atty., Atty. Gen., Anthony W. plaintiff-appellant. Matthews, Boise, Ellison M. for defend- ant-respondent.

McFADDEN, Justice.

Respondent Jerry L. Hobson was arrest- possession ed for the of a derivative of City LSD found the Boise after Police stopping him his investi- automobile for gation. After police his arrest ob- tained his consent to search his motel room other found controlled substances in- 46,000 cluding amphetamine pills. The prosecuting attorney filed an information charging respondent a felony, with ille- gal amphetamines intent to respondent deliver. moved suppress amphetamines the use of the the grounds evidence on that the search of car his and motel room violated his Fourth right Amendment to freedom from unrea- sonable searches and seizures. The district granted respondent’s motion suppress, and the appealed. of Idaho January Between City informant called Boise Department Police three times and told respondent them posses- had sion drugs. The informant in his color, last call described the make and lo- respondent’s cation of vehicle. The proceeded immediately to this location to investigate. One of the cars while spotted respondent enroute alone in This automobile. car followed short distance him with the aid patrol of another other car. Three parked cars arrived at the scene and respondent’s right car. police sergeant While a examined the re- spondent’s driver’s license and automobile registration, another ob- pharmaceutical served three bottles in open compartment. glove police ser- geant contents. inquired about bottles’ respondent replied vi- gave sergeant. tamins and bottle to the one Risch, Atty., County, E. Ada bottle, Pros. sergeant opened While James Leroy, David H. County Asst. Pros. respondent Ada. attempted to hide the contents and I.C. 602 that there remaining bottles. But §§ one an absence of intent on the he was asked him what sergeant this and saw place respondent in respondent then voluntari- doing. custody, is a element of “baggy” which the ly plastic surrendered *3 State, summary, justi an arrest. The a derivative sergeant determined contain investigative stop fies on the basis of police this supplied the “baggy” This LSD. “stop the and frisk” doctrine v. respon- probable to arrest the cause Ohio, 1, 88 sub- U.S. possession of a controlled dent for respondent, on the other stance. After the took hand, his urges the voluntarily that station, respondent the the an arrest automobile constitutes within room. his motel consented to a search of supra, Loyd, terms of and I.C. produced State v. the §§ room The search of the motel 19-601, the did not that in- is the basis of the amphetamines which Re have for an arrest. respondent. cause against filed the formation spondent argues restrained this case issue in The threshold impeded they liberty him and his when ini respon- stopping police by the whether the tially that surrounded his automobile and investigation vi- dent his automobile an arrest. this detention evidences right to be olated his Fourth Amendment purpose In this not reviewing case our and sei- secure from unreasonable searches question Inas- exclusionary rule. presented police the zures. The State, respondent, much as the respon- opportunity to find contraband rely Loyd, su- district court all on State supplied probable dent’s which pra, stop of the determining whether respondent’s arrest and search cause for arrest, respondent not an we was or was answering ques- this motel room. In case, especially in that must re-examine first whether tion we must determine Ohio, 1, 88 S.Ct. light of they police arrested the defendant when de- arrest, it itially stopped If was him. in State v. subsequent to the decision cided whether there was then we must examine Loyd, supra. it was arrest. If probable cause arrest, whether not an we must determine supra, offi- Loyd, two In respondent investigative burgla- suspected investigating cers respondent’s on was a reasonable intrusion Lodge The two Eagles in Boise. ry rights. Fourth Amendment out-of-state sedan with officers observed a de- district court a memorandum vicinity plates driving in license police arrested cision concluded investigate lodge. decided The officers initially the defendant when stopped and one The car had vehicle. probable cause hence there was no him and occupants leave officer noticed of its one po- respondent’s arrest until away. The something and throw car after In summa- lice found the derivative. LSD offi- passenger got into the car. back that since ry, the district court concluded leaving, or- stopped the car from cers then invalidat- illegal, the arrest was the arrest checked occupants out and then dered the purportedly made any subsequent ed search weapons. the officers them for One arrest, evi- as an incident to the interior flashlight into shined illegal ar- as a result dence seized partly con- object the floor noticed that the ille- suppressed, and rest must be went seat. He the front cealed beneath respondent’s consent gal arrest vitiated object, car, again observed around his motel search room. Ea- box from found to be cash the court question before Lodge. stop gles the initial contends that The State primarily whether “investigative that case was arrest was not an but suppress refusing to trial court erred argues the basis stop.” The State as evidence. box of the cash P.2d the admission Idaho Loyd, 92 State v. This court held that liams, supra, inasmuch the de- 407 U.S. at 92 S. fendants were under there was a atCt. furthermore, lawful search and Maroney, See Chambers v. viewing trespass of the article without Sibron “[vjiewing unlawful. The court stated York, v. New open what is and blatant is search.” L.Ed.2d 917 92 Idaho at 435 P.2d at 800. It even our conclusion court in though supra, held that Loyd, State v. Loyd State v. could have held that of- there was an arrest before the officers dis ficers had sufficient cause to the vehi- box, ruling inap covered the cash interrogate occupants cle and its reason plicable court. the case now before the of the time night, the fact there was a *4 I.C. defines as follows: 19-601 arrest § suspected crime, and the unusual circum- taking person “An arrest is into cus- a stance of a vehicle foreign license tody a case and in the manner autho-

plates driving neighborhood. in the * * rized *.” law pointed fact the court out effecting arrest The critical act an “Prompt inquiry suspicious into or un- police In- placing person custody. usual street indispensable action is an intent in defin- legislative structive police power orderly government “custody” is the ing an arrest in terms of 23, of urban communities.” 92 Idaho at section, succeeding next I.C. § 435 P.2d at 800. provides: Along line, the same the United States Su- “An arrest is made an actual restraint preme Williams, in Adams v. 407 defendant, by his person or 143, 1921, U.S. 92 S.Ct. custody submission an officer.” to (1972), concept reaffirmed the “in- of an vestigative stop” discussed in v. an arrest Under I.C. 19-601 a § Ohio, supra: detention, taking, custodial seizure or

“The Fourth Amendment does not re- we there must be some action believe quire policeman a precise evidencing police custody who lacks the or intent before proba- level an arrest occurs. In the instant case the ble shrug cause to arrest simply police sergeant approached to first who shoulders and respondent allow a crime to occur or asked for his driver’s license a escape. contrary, criminal legitimate request On the a which was under I.C. recognizes may be the es- request 49-319. This did not evidence § good adopt sence respondent place work to intent to * * * response. time, custody though intermediate A brief at that even a number individual, suspicious present. of a in order of other officers were the ba On identity presented determine his or to maintain sis of the facts in this case we quo momentarily the status obtain- while that the district conclude court erred de information, ing rea- may ciding more be most arrested also, sonable in of the facts known defendant.1 See I.C. 19-603. See § v. Hensley, officer at the time.” Adams Wil- United States 374 341 v. F.2d U.S.App. States, likely justify 1. In Fuller v. United 132 to set forth in order * * * Judge 264, 1199, F.2d D.C. 407 1207 simultaneous search Even where Leventhal stated: the officer denies that he intended to make purpose may sufficiently “Detention of witness an arrest his actions mani- * * necessarily asking question fest arrest *. Where enough. goes point asking least if the detention is brief to ac- may however, company stopping, a mere consti- Even to a station or similar purpose place, may stitute an arrest if the officer’s fact alone be sufficient ” $* custody the individual connec- assert over may crime, purpose be more tion with 924 affirmation, cause, Warden, supported by Oath or F. Shorey 401

(6th Cir.1967); v. describing place Cir.1968); particularly Coates v. United (4th 2d 474 searched, persons things States, 97, or U.S.App.D.C. 413 F.2d 371 134 Wren, supplied.) (Emphasis Flournoy v. be seized.” ex (1969); State rel. 356, (Ariz.1972); 444 Ariz. P.2d 498 108 people, “protects The Fourth Amendment (Haw.1971); Goudy, 479 P.2d State v. States, places.” United Katz v. State, (Okla.Cr. 459 P.2d Battles v. 507, 511, 347, 351, 88 S.Ct. Lewis, 80 N.M. 1969); State “not all searches (1967), and it forbids also, Il Escobedo v. P.2d 360 See seizures, searches but unreasonable linois, 1758, 12 L. 84 S.Ct. 378 U.S. States, Elkins United and seizures.” Arizona, Miranda v. (1964); Ed.2d 977 4 L. 80 S.Ct. Ed.2d (1966); Orozco v. A.L.R.3d arises, question then did the Texas, 22 L. respondent within unreasonably detain Hall, States Ed.2d 311 in the meaning of term seize Cir.1969). (2d F.2d they stopped him Amendment when Fourth Having in his automobile. concluded in-, respondent Ohio, supra, “not all when wrote that did not arrest *5 policemen him, personal stopped intercourse between itially there still remains for persons.” of citizens involves ‘seizures’ and resolution whether that was an unrea 1879, 16, 19, 1868, 20 392 U.S. n. 88 S.Ct. sonable invasion of his Fourth Amendment stated The Court also argues stops 889. rights. that such L.Ed.2d The State accosts an indi- officer are reasonable because the United “whenever States freedom to walk and restrains his 392 vidual Court in U.S. v. person.” 392 U.S. 1, 1868, ap away, seized that he has 889 (1968), 88 S.Ct. of lib- 16, the restraint 88 1877. And proved stops persons for in S.Ct. the use of of of an the “seizure” erty necessary to find vestigation upon less than is cause show “physical force or requires for an individual arrest.2 16, 19, n. 88 S.Ct. authority.” 392 U.S. starting place to determine only police not the In this case 1879.3 whether the or not is was reasonable his sur- respondent in car but stopped the language of Amend the exact the Fourth in believe it as well. We rounded him ment: and Adams v. Ohio the basis of v. in fact this case people to secure in in right “The the be the Williams respondent within houses, ef- persons, papers, and “seize” or detain the their did in Fourth the fects, meaning searches and of “seizure” against unreasonable violated, See, Har- seizures, no States v. shall not be Amendment. issue, 1970). upon probable flinger, (8 F.2d Cir. Warrants shall but 928 436 competing investigative approved frisk in- 2. An excellent discussion Williams, recently citizen, v. Adams between the individual nonmotorists terests 1921, stops ap- 143, public police, 32 L.Ed.2d 612 in nonarrest U.S. 92 S.Ct. 407 Stops: see, pears Burton’s concur Un- Justice in “Nonarrest Automobile But Brinegar Person,” S., v. 338 U.S. Seizures of 25 rence U. constitutional (1949), 1302, Traynor, (1973). Compare, Justice 93 L.Ed. 1879 69 S.Ct. 865 Stan.L.Rev. dissent, joined Fifty States,” “Mapp Large War Justice Chief v. Clark’s Ohio at Henry, “Report 319, 98 v. 361 U.S. ren in United States 1962 Duke L.J. (1959) ; 106, 168, L.Ed.2d 134 S.Ct. and Criminal at on Penal Law Committee Warden, Whitely Ass’n,” Bar Black’s dissent the New York Justice Procedure of L.Ed. February 25, at U.S. 560 dissent Blackmun’s 2d 306 Justice suggest justices all present has at 401 U.S. 575. These To the time upon may stops investigative a reasonable expressly a car not sanctioned activity. suspicion criminal motorists. Besides or We now must whether the acts of harrassment unwarranted consider investigative stop was an unreasonable force.4 S.Ct. First, respondent’s person. seizure case informant this underlying initiation in- specific through supplied several calls investigative stop specificity possess must name, including respondent’s formation reliability. and some indicia of In this re location, car, its color and make gard judged must officer’s conduct substances. controlled against an see, Texas, Aguilar But “Objective Spin- facts standard: would the 12 L.Ed.2d 723 S., available to the officer at the moment of elli v. U.

the seizure or search ‘warrant a ofman reasonable belief’ caution is our facts of this case it Under the taken appropriate? action [Cita- this conclusion that within tions less Anything would omitted.] of a reasonable of a ambit detention upon constitutionally vite intrusions sanctioned Amendment. Fourth guaranteed rights nothing based more See, Williams, Adams substantial than inarticulate hunches (1973).5 ** *. And [Citations omitted.] suppressing The order of trial court simple ‘good faith on respon- evidence obtained the search of * * * enough’ dent’s motel room is reversed * * subjective good *. If faith alone proceedings. cause remanded further test, were the protections evaporate, Fourth Amendment would SHEPARD, J., DONALDSON, C. people would ‘secure in their J., concur. persons, houses, effects,’ papers only police.” Terry the discretion of the *6 McQUADE, (dissenting). Ohio, supra, 392 Justice U.S. at 1880. stopping The trial court held that the Compare Harlan, and (concurring opinion), questioning of Hobson was an arrest J. York, 77-78, possess and that Sibron v. New the did not suffi- cient information But about Hobson’s “ see, Lafave, stop drug the activities at the to ‘Street Encounters’ and time the Sibron, Terry, Peters, the probable Constitution: and meet constitutional re- cause Beyond,” Next, quirement Mich.L.Rev. arrest. trial court only not grounds stop granted suppress the the to the for the but Hobson’s motion stop conduct of the amphetamines also be reason- use the evidence must Thus, investigative stops ground they able. must the the of an fruit concurring opinion property frequently Harlan in in Justice Ms their and which are at- Terry by robbery, murder, at 392 criti- tended violence such as pro- failing clarify rape larceny. manslaughter, LaFave, cized Court to and “ priety stop rather than the frisk. The ‘Street Encounters’ and Constitution: Supreme Terry, Sibron, Beyond,” failure of the to itself Court address Peters specifically investigative Judge Friendly Mich.L.Rev. at 65-67. (now judge) dangers for the to one standards act is chief articulated the principal shortcomings Terry investigative stops possessory of herent subsequent opinion dissenting cases. See Sibron v. New crimes in his in Adams York, Williams, (2d 1970). 20 L.Ed. 436 F.2d Cir. hesitancy begin, gravest 2d n. 20 “To I have the extending Terry like the crimes * * suggested attempting It has been of narcotics *. There is too much grounds investigative danger that, stop being define the for an instead of the possessory object projective ex- crimes like narcotics be frisk an incident example, investigative stops thereto, cluded. For the reverse true.” will be permissible against persons would be crimes alternately majority pace reverses these men thing; where unlawful arrest. route, stop- to stare along pausing an identical basis that the trial court on the roughly not an but the same store window ping of Hobson times; completion of this investigatory re- where each constitutional immediately a con- less than cause. route followed quires something ference between the two men on cor- majority bases its conclusion ner; they joined in one of on the recent Su- where are was constitutional by a third man who preme Terry cases of v. Ohio1 and these conferences Court swiftly; men decisions of the and where two Adams v. leaves Williams.2 finally rejoin third him Supreme in the areas of criminal follow the couple away.” procedure protection of constitutional blocks only the minimum stand- rights establish the officer After the above observations free protection, ards the states are individuals, him- identified confronted protection.3 adopt higher standards Upon names. self and asked them their reading A and Adams v. v. Ohio safety he becoming for his own fearful set forth reveals that do not Williams suspects one of the and discovered grabbed any reasonably guide test to articulable weapon pat-down search. a concealed By adopting in street encounters. cases, majority Court’s constitutionality with the mainly concerned opinion guidelines set does not forth stop. The Court of the search for the to follow in street encoun- held, large ters which will result in number merely today po- where a hold “We appeals on this This Court should issue. conduct unusual officer observes lice guide attempt clear test to establish a reasonably conclude which leads in street encounters rather than that criminal experience of his adopting Court’s decisions per- activity may afoot and that a wholesale basis. may is dealing sons with whom adopts Although majority where presently dangerous, armed and Williams, fails to and Adams v. Ohio this behavior investigating the course in this them action. The conduct follow policeman himself as a he identifies meet the minimum failed to even inquiries, and where reasonable makes Supreme Court standards set forth en- nothing stages the initial therefore, be af- the trial must dispel his reasonable serves counter *7 firmed. is safety, he others’ for or fear his own protection of himself Ohio, entitled for In Terry v. Court carefully conduct a in the area to constitution- others ruled the first time on the clothing of search of the outer ality limited investigatory stops of and frisks. attempt discover in an persons a such The case involved officer with to assault might be used weapons which years experience thirty-nine of who ob- the following: served him.”5 particularly is not Although the case corner men hover about a street “[T]wo test for drafted, appears it time, artfully period at the for an extended of the conduct is that apparent a constitutional end of which becomes man a reasonable suspects would lead anyone any- they waiting not or are Crim.L.Rptr. York 1868, the New 1, 14 1089 where L.Ed.2d 889 1. S.Ct. 20 392 U.S. 88 y not held that it would (1968). Criminal Court Count dealing cases recent follow the 1921, 143, L.Ed.2d 2. 92 407 U.S. 32 arrest. a traffic incident with searches (1972). U., at 1881. 88 S.Ct. 392 U.S. at Cooper California, 58, 87 S.Ct. 386 U.S. S.Ct., supra, 30, Ohio, Kelly, at 1884. (1966) ; People activity to conclude that criminal possessed afoot. cers sufficient information that applying the reasonable man test lead would a reasonable man to conclude warned, activity may that “criminal be afoot.” only police possessed information that the “The scheme the Fourth Amendment concerning through Hobson an anon- only meaningful becomes when it as- ymous phone call in which Hobson was point sured that at some the conduct of named, color, make and location of his enforcing the charged those laws described, automobile was he was ac- detached, subjected can to the more cused of possessing drugs. On the scrutiny who must judge neutral alone, basis this information without particu- evaluate the of a reasonableness investigation further apparent or need for par- lar or of the search seizure parol an immediate lo- five cars making ticular circumstances. And part cated Hobson in a different of Boise imperative it is assessment than stated tip, pulled in the him over judged against objective facts questioning. Contrary this is Terry, available to standard: would facts case in which the sus- became the officer at the moment of the seizure picious person by observing about or the search ‘warrant man of reason- only conduct because the able the action caution the belief’ that had tipster was from taken was appropriate? Carroll v. Cf. only part of that information that States, 45 S.Ct. activity volved criminal was the alle- bald Ohio, 69 L.Ed. Beck v. possession gation of illegal drugs. Also 89, 96-97, contrary Terry, there nothing in the Anything invite less would to indicate record immediate action upon constitutionally intrusions guaran- police. On the basis rights nothing teed based on more sub- majority opinion anyone can call the hunches, stantial than inarticulate a re- police, describe automobile and its own- sult consistently this Court has refused er allege illegal drugs See, g., sanction. e. su- Beck with the result the described pra ; States, Rios v. United over, pulled required identify will be 4 L.Ed.2d 1688 (1960); himself, interrogated about criminal behav- Henry States, v. United ior, subjected a vis- automobile L.Ed.2d 134 And majority up ual search. The sets an excel- simple “good faith on the lent Because of the means harassment. arresting enough.” lack upon basis which a detached . If subjective good alone faith reasonable could that Hob- man conclude test, were the protections activity, son was involved in criminal Fourth Amendment evaporate, would support case v. Ohio does not people would “secure in their result majority. reached persons, houses, papers, effects,” only in the discretion the police.’ The second relied Court case *8 Ohio, supra, Beck v. at 85 S.Ct. 223.” the majority is Adams v. Williams.7 There was also need for immediate action In that tip case a and frisk based on a case, in the Terry because the officer be- was held constitutional. The facts lieved that he was witnessing begin- case were that officer was on ning of an armed robbery weapons patrol high-crime Bridgeport, in a area suspects. found person A offi- Connecticut. known to the The question for this cer Court this ac- informed him that an seated individual adopts tion if it nearby in a carrying Court’s nar- automobile was and frisk rule is whether offi- gun cotics and at had The of- waist. Id., Supra, at note appears involved in ille- that Hobson was and ordered over to car went ficer Instead, occupant gal drugs. Had the conducted occupant get out. to anony- investigation to corroborate and the officer the window rolled down Hobson, likely it tip seizing is The ar- mous before gun. and removed reached not be before this gun upheld. this action would was rest authority given the Court. The must be considering the reasonableness In investigate activity, but there in- criminal relationship to the actions officer’s stated, scope of the are constitutional limits on the possessed, the Court formation conducting this investigative power. known to him “The informant was [the action, beyond the this Court must look provided had personally and officer] rul- impact facts this of its case past. This is information with general public. ing on the In this case in the case case than obtains stronger anonymous tip led to a involved in- telephone tip. anonymous drugs, many times but how will personally forward here came formant interrogated stopped nocent citizens be immediately that was information give This about criminal involvement? Indeed, under at the scene. verifiable only sees the in which criminal com- cases law, might the informant Connecticut plaints are filed and does not see the cases arrest subject to immediate have been questioned where citizens were complaint Sgt. had a false making generally harassed and no evidence of tip proved investigation Connolly’s criminal conduct It must discovered. Thus, deci- while Court’s incorrect. adopted by remembered that this rules informant’s un- this sions indicate applied guilty Court will be both the been insufficient tip may have verified the innocent. warrant, arrest or search narcotics By States, guaranteeing freedom from unrea- see, Spinelli v. United g., e. seizures, sonable Idaho United recognize States Constitutions the citizen’s Texas, Aguilar v. right arbitrary governmen- to be free from (1964), the tal Stopping questioning interference. carried'enough of re- indicia patrol with on an citizen five cars based justify forcible liability to the officer’s telephone tip anonymous uncorroborated (Emphasis added).8 stop of Williams.” arbitrary and unreasonable interference Clearly action not controlled this alone, right be let Hobson’s this action involves case because Williams therefore unconstitutional. telephone tip im- by the as a pliedly rejected BAKES, (dissenting). Justice for a and frisk. basis the action of the trial I would affirm The Fourth Amendment of appears This case one in court. and art. States Constitution § society enforce its rights which the guarantee right Idaho Constitution violators, rights punish laws and to and the people against secure unreasona- aof citizen to be free from unreasonable majority acknowledges ble seizures. appear searches and seizures to be in near a seizure stopping of Hobson was Therefore, equipoise. presumption analysis and based on the Court’s prevail, the trial should correct adopted by it an unrea- majority, be resolved fa- conflict should sonable seizure. rights upholding vor of the constitutional of the citizen to be free from unreasonable It the evidence unfortunate that suppressed searches and seizures. this action must be because *9 S.Ct., U.S., 146-147, 92 at 1923.