STATE OF IDAHO, Plaintiff-Respondent, v. CLARENCE EDWARD LANCASTER, Defendant-Appellant.
Docket No. 48633
IN THE SUPREME COURT OF THE STATE OF IDAHO
Opinion filed: November 1, 2022
Boise, June 2022 Term. Melanie Gagnepain, Clerk
Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County. Jason D. Scott, District Judge.
The orders of the district court are affirmed.
Eric Don Fredericksen, State Appellate Public Defender, Boise, for Appellant. Justin Curtis argued.
Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent. Kenneth Jorgensen argued.
Defendant Clarence Lancaster was apprehended by police for questioning concerning several ATM thefts in Boise, Idaho. He was later charged and ultimately entered conditional guilty pleas to two felonies: burglary and grand theft. This appeal arises from the denial of his motion to suppress. Lancaster argues that his confession and other evidence should have been suppressed because the arresting officers violated
I. FACTUAL AND PROCEDURAL BACKGROUND
In the spring of 2019, three ATM machines were stolen from different locations around Boise, Idaho. These crimes took place over the course of a month. Police officers investigating the thefts suspected a single criminal—a serial ATM thief—to be the culprit. During the investigation of the third ATM theft, police obtained security footage of the suspect‘s vehicle: an Enterprise rental car with a Utah license plate rented to Clarence Lancaster. Police also connected Lancaster‘s rental vehicle to a series of vending machine break-ins that occurred at multiple locations across the Boise State University (“BSU“) campus around the same time.
On May 26, 2019, investigating officers relayed descriptions of Lancaster and his rental car to all patrol vehicles in the area. Later that same day, Officer Brek Orton saw a driver in a vehicle matching the descriptions. While the vehicle had no visible license plates that Officer Orton could see, matching Utah plates from the ATM thefts were later found partially obscured in the vehicle‘s back window. Officer Orton followed the vehicle to the parking lot of an Albertson‘s grocery store near BSU.
As the driver exited the vehicle and began walking towards the store‘s entrance, Officer
When Officer Orton asked for identification, Lancaster began to lead him back to his vehicle. Lancaster told Officer Orton he did not own the vehicle but was renting it from Enterprise. At that point, Officer Orton instructed Lancaster to place his hands behind his back. While handcuffing Lancaster, Officer Orton twice asked, “Why are you lying to me about who you are?” Lancaster responded: “Now what are you looking for me for?” To answer, Officer Orton simply told Lancaster, “I think you probably know.”
On reaching the rental vehicle, Officer Orton began to search Lancaster‘s pockets and found a credit card bearing Lancaster‘s name. Lancaster admitted that he gave the officer a false name earlier and said, “If you‘re looking for me, then that means I‘m already in trouble.” Officer Orton replied, “There‘s a reason why I‘m looking for you, and we‘ll explain that all to you when we get you up to the station.” About this time, Officer Lane, a K9 officer, and Sergeant Rogers each arrived on the scene.
Lancaster asked all the police officers questions to “figure out what [was] going on.” They repeatedly told Lancaster he was going to the police station for questioning by detectives, but they never specified why. While the officers retrieved Lancaster‘s medications from his vehicle, Officer Lane took Lancaster to a side area. Lancaster again said, “So what‘s going on?” Officer Lane answered, “Well, there‘s going to be somebody who wants to come talk to you. Okay? Well, and actually we‘re probably going to go somewhere else to talk to this person.”
While apart from Officer Lane and Lancaster, Sergeant Rogers asked Officer Orton about the charges for Lancaster‘s arrest. Officer Orton said, “That burg. Basically for burg.” “Anything else?” asked Officer Rogers. “No,” said Officer Orton. “I mean he tried to ditch me but then he lied to me, so I can . . . .” His answer trailed off on the body camera footage as Officer Rogers radioed other police, but Officer Orton then returned to Officer Lane and Lancaster. Again, Lancaster asked Officer Orton what was going on. Officer Orton‘s response to Lancaster was: “We‘re going to take you up to our police station and there‘s a detective who wants to speak with you. Okay? He‘ll be able to advise you on everything that‘s going on.” A couple of minutes later, while waiting under some shelter in the rain, Lancaster told Officer Lane, “So you can‘t tell me what‘s going on?” Officer Lane responded, “I don‘t know what‘s going on . . . I just run a dog, I‘m a dog guy,” and repeated that a detective wanted to talk to Lancaster.
Officer Wilson then arrived on the scene to escort Lancaster to the police station for questioning. After putting Lancaster in the back of her police vehicle, Officer Wilson asked Officer Orton and Officer Lane where she was supposed to take Lancaster and whether they had warrants for his arrest. They both responded that Lancaster was “the ATM thief,” and told Officer Wilson to take Lancaster to the station to meet with investigating detectives for questioning. Lancaster was in the vehicle and not privy to the conversation. However, en route to the station, Lancaster said to Officer Wilson, “You don‘t know why I was stopped either.” Officer Wilson responded that she “had an idea” but did not want “to talk out of turn” when it was not her case.
When the interviewing detectives met with Lancaster at the police station, he claimed he still did not know why he was being held. The two officers then read Lancaster his Miranda rights and began to question him on both the Boise ATM thefts and the vending machine break-ins on the BSU campus. While Lancaster initially denied knowledge of any crimes, he eventually admitted to being the person depicted in the security camera footage and confessed to stealing the three ATMs. Lancaster also told police where he hid the stolen machines in a field of tall grass.
Per Lancaster‘s directions, police recovered all three broken ATMs in the field, along with additional evidence hidden near some railroad tracks. However, Lancaster
Following Lancaster‘s confessions, police transported him to the Ada County Jail on three charges of burglary—one for each ATM theft. The State later added four more burglary charges for the additional vending machine break-ins that had occurred on the BSU campus between May 22 and 25, 2019. Lancaster moved to suppress his confession and other evidence resulting from his arrest, arguing police violated
Lancaster filed a motion for reconsideration, which the district court denied. Following that decision, Lancaster entered a conditional plea agreement. He pleaded guilty to one count of burglary and one count of grand theft, in exchange for binding concurrent sentences of ten years determinate, with 1.5 years fixed, while preserving his right to appeal the denied suppression motion. The court entered Lancaster‘s guilty pleas at a hearing and subsequently ordered a presentence investigation report (“PSI“).
Following the PSI‘s preparation and prior to his sentencing hearing, Lancaster filed a new motion with the district court to correct various alleged errors in the prepared PSI. The PSI included two prior PSIs as attachments: one prepared in connection with a 2009 Utah case and another from a 2015 federal case. He claimed the Idaho PSI contained several prejudicial statements and various inaccuracies regarding his criminal history. The district court reviewed each of the alleged errors at the sentencing hearing, accepting some and rejecting others, while also finding there were some discrepancies between the Utah and Federal PSIs in regards to
criminal history. The district court also determined that it would use the Federal PSI as the authoritative source for Lancaster‘s criminal history and not consider the inconsistencies in the Utah PSI. Following the sentencing hearing, the Idaho Department of Correction issued a corrected copy of Lancaster‘s PSI pursuant to the district court‘s orders.
Pursuant to the sentencing hearing, on February 5, 2021, the district court entered Lancaster‘s judgment of conviction for felony burglary and felony grand theft, sentencing him to concurrent unified sentences of 10 years, with the first 1.5 years fixed. The district court also ordered Lancaster to pay $15,119.84 in restitution to the victims. Lancaster timely appealed to this Court regarding both his denied motion to suppress and the district court‘s determinations regarding his PSI.
II. STANDARD OF REVIEW
Where this Court reviews a denial of a motion to suppress evidence, we apply a bifurcated standard of review. State v. Clarke, 165 Idaho 393, 396, 446 P.3d 451, 454 (2019). This Court “gives deference to the trial court‘s findings of fact, which will be upheld so long as they are not clearly erroneous.” State v. Bishop, 146 Idaho 804, 810, 203 P.3d 1203, 1209 (2009). “Findings of fact are not clearly erroneous if they are supported by substantial and competent evidence.” Id. Likewise, “[d]ecisions regarding the credibility of witnesses, weight to be given to conflicting evidence, and factual inferences to be drawn are . . . within the discretion of the trial court.” Id. Nevertheless, “this Court freely reviews the trial court‘s application of constitutional principles in light of the facts found.” Clarke, 165 Idaho at 396, 446 P.3d at 454. Additional standards of review will be reviewed in turn.
III. ANALYSIS
The primary argument on appeal is whether a violation of
A. The failure to comply with Idaho Code section 19-608‘s notice requirements does not violate Article I, Section 17 of the Idaho Constitution.
Lancaster relies on State v. Clarke, 165 Idaho 393, 446 P.3d 451 (2019), to argue that “the Framers of the Idaho Constitution would have considered the failure to comply with the requirements of
Under Idaho law, an arrest is defined as “taking a person into custody in a case and in the manner authorized by law.”
of the intention to arrest him, of the cause of the arrest, and the authority to make it, . . . .” The statute only excuses these requirements “when the person to be arrested is actually engaged in the commission of, or an attempt to commit, an offense, or is pursued immediately after its commission, or after an escape.”
Typically, one of the best resources for interpreting the Idaho Constitution is the compilation of the Proceedings and Debates of the Constitutional Convention of Idaho 1889 (I.W. Hart ed., 1912). Clarke, 165 Idaho at 397, 446 P.3d at 455.
Recently, this Court addressed whether the failure to satisfy a related notice requirement in
methamphetamine. Id. at 561, 484 P.3d at 842. On appeal, this Court determined that the restaurant employee failed to “inform Sutterfield of his intention to arrest Sutterfield or the cause of the arrest.” Id. at 564, 484 P.3d at 845. While the officer ultimately informed Sutterfield of his intention to make the arrest and of the cause of the arrest, the officer did not inform Sutterfield “of his authority to make the citizen‘s arrest.” Id. at 564, 484 P.3d at 845. Thus, “the restaurant employee and his agent, Officer Barghoorn, did not satisfy the third prong of
This Court concluded that the resulting statutory violation did not rise to the level of an unconstitutional action and, thus, did not warrant suppression as a remedy for the methamphetamine found on Sutterfield. We explained:
We are mindful that the statute in question here—
Idaho Code section 19-608 —was enacted prior to the adoption of the Idaho Constitution. See Revised Statutes of Idaho Territory, Title III, Chapter V, § 7545 (1887). As we recently clarified, however, “preexisting statutes and the common law may be used to help inform our interpretation of the Idaho Constitution, but they are not the embodiment of, nor are they incorporated within, the Constitution.” Clarke, 165 Idaho at 397, 446 P.3d at 455. Sutterfield has provided no argument or authority to support the proposition that a failure to satisfy the third prong ofIdaho Code section 19-608 violates the provisions ofArticle I, Section 17 of the Idaho Constitution , and we decline to make such a ruling today. See Bach v. Bagley, 148 Idaho 784, 790, 229 P.3d 1146, 1152 (2010) (stating that this Court will not consider an issue that is not supported by argument and authority). In fact, Sutterfield expressly concedes that a failure to comply with the notice requirements inIdaho Code section 19-608 , without more, does not constitute grounds for the suppression of evidence.. . . Similar to the facts in Green, where the failure to fully comply with a statutory requirement did not rise to level of a constitutional violation, the failure to fully comply with the statutory notice requirements
here does not rise to the level of a constitutional violation, either. To be clear, Officer Barghoorn was required to notify Sutterfield of his authority to make the citizen‘s arrest under Idaho Code section 19-608 . His failure to do so, however, does not constitute a constitutional violation. Consequently, the suppression of evidence is not the appropriate remedy for the reasons articulated by this Court in Green.
Applying Sutterfield to Lancaster‘s arguments renders them unavailing. Although he contends that a constitutional violation occurred, Sutterfield‘s analysis suggests otherwise. While we previously addressed
summarized the three statutory prongs as “notice requirements” because arresting officers are generally required to provide each of those pieces of information to the person being arrested. See id. at 564, 484 P.3d at 845. Thus, the failure to notify an arrestee of the authority to make the arrest, as the officer in Sutterfield failed to do, is equivalent to the failure to notify an arrestee of the cause of his arrest, as Lancaster‘s arresting officers failed to do. In Sutterfield, we considered the issue in light of the statute‘s longstanding history, traced back to territorial days, and still concluded that the statutory violations, while transgressions of Idaho law, were not violations of constitutional guarantees.
In looking to Sutterfield and Idaho‘s history, we cannot agree with Lancaster‘s contention that a violation of
Lancaster is correct that Idaho law has consistently required a person making an arrest to give certain notice to the arrestee. Cr. Prac. 1864, § 134; Revised Statutes of Idaho Territory, Title III, Chapter V, § 7545 (1887);
they are not the embodiment of, nor are they incorporated within, the Constitution.” 165 Idaho at 397, 446 P.3d at 455. In sum, taken altogether, nothing in Idaho case law or common law history suggests the Framers’ intent to incorporate such notice requirements into
Lancaster also urges this Court to reconsider Sutterfield in light of State v. Rauch, 99 Idaho 586, 593 (1978), which held that noncompliance with Idaho‘s statutory knock-and-announce requirements also violates the state constitution. In short, he contends that the common
In conclusion, we agree with the district court that the officers here failed to comply with the notice requirements set forth under
B. The district court did not abuse its discretion in failing to strike an attachment to the PSI.
Among the attachments to the PSI provided by the Idaho Department of Correction was a 2009 PSI from the State of Utah. The district court recognized that it contained conflicting and incomplete information regarding Lancaster‘s prior criminal record but refused to strike it. Instead, the court opted to rely on the more recent criminal record provided in a PSI from a 2015 federal case. Lancaster argues that the district court abused its discretion at sentencing by not striking the Utah PSI. The State contends that there was no error because the district court did not find the Utah PSI to be inaccurate or to contain unreliable information that should be stricken pursuant to Idaho Criminal Rules. Rather, there was conflicting evidence of Lancaster‘s criminal history, with the court concluding the federal PSI more reliable than the Utah PSI. We agree with the State that there was no abuse of discretion here.
“The decision whether to strike information from a PSI is reviewed for an abuse of discretion.” State v. Hanchey, 169 Idaho 635, 638, 500 P.3d 1159, 1162 (Ct. App. 2021). This Court applies a four-part test when determining whether the lower court abused its discretion. State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018). The Court reviews “whether the trial court: (1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the legal standards applicable to the specific choices available to it; and (4) reached its decision by the exercise of reason.” Id. (quoting Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018)). On this issue, Lancaster argues that the district court failed to apply the correct legal standards.
“The rules of evidence do not apply to a PSI or in probation revocation proceedings.” Hanchey, 169 Idaho at 639, 500 P.3d at 1163.
The presentence report may include information of a hearsay nature where the presentence investigator believes that the information is reliable, and the court may consider that information. The judge may consider material contained in the presentence report that would have been inadmissible under the rules of evidence applicable at a trial. While not all information in a presentence report need be in the form of sworn testimony and be admissible in trial, conjecture and speculation should not be included in the presentence report.
Discretion lies with the trial courts “to consider information in a PSI believed to be reliable that would otherwise be inadmissible at trial so long as the defendant receives an opportunity to present favorable evidence and explain or rebut the adverse information.” Hanchey, 169 Idaho at 640, 500 P.3d at 1164. However, two obligations limit this discretion: first, a trial court must “reject inaccurate, unfounded, or unreliable information contained in a PSI,” and redline such information
from the document. Id. Second, the trial court “must then forward a copy of the redlined PSI to the Idaho Department of Correction.” Id. “This procedure ensures a clear record for review and protects the defendant against future misuse of the unreliable information.” Id. “A court, however, is not required to strike or disregard information in the PSI simply because the defendant disputes the information.” State v. Golden, 167 Idaho 509, 511, 473 P.3d 377, 379 (Ct. App. 2020). Where “disputed portions of the PSI are not facially unreliable, the defendant must supply a sufficient basis for the trial court to make an independent determination on the reliability of the disputed information.” Hanchey, 169 Idaho at 640, 500 P.3d at 1164.
Idaho courts require “unreliable information” to be stricken from a PSI to prevent future prejudice to defendants. State v. Molen, 148 Idaho 950, 961–62, 231 P.3d 1047, 1058–59 (Ct. App. 2010); State v. Rodriguez, 132 Idaho 261, 262 n.1, 971 P.2d 327, 328 n.1 (Ct. App. 1998). For “[t]he use of a PSI does not end with the defendant‘s sentencing“—it “follows a defendant indefinitely, and information inappropriately included therein may prejudice the defendant even if the initial sentencing court disregarded such information.” Rodriguez, 132 Idaho at 262 n.1, 971 P.2d at 328 n.1. However, just as no statute gives the courts authority to demand the return of a PSI from Idaho‘s Department of Correction, State v. Moore, 150 Idaho 17, 19–20, 244 P.3d 161, 163–64 (2010), there is no authority permitting Idaho courts to alter another jurisdiction‘s PSI.
Regarding the 2009 Utah PSI at issue, the sentencing transcript records the following exchange between the district court and Lancaster‘s counsel:
MR. STEWART [Defense Counsel]: Our basis was primarily that the 2015 federal PSI should be relied upon and not the 2009 Utah PSI.
THE COURT: Insofar as it addresses the defendant‘s criminal history, or in some other way?
MR. STEWART: I believe there were some other objections that were made by Mr. Lancaster in that 2009 Utah report. I tried to get more information as to that, for that. Mr. Lancaster has said that it went up on appeal, came back down to be corrected, but I could not find any of those records, but subsequent to that is the 2015, and yes, I guess primarily it is the criminal history.
THE COURT: Well, I‘m going to deny the request to strike this particular paragraph from the pre-sentence report or the [2009] Utah pre-sentence report as the defendant requests in item 35. There may be discrepancies in the criminal history as recited there compared to the federal pre-sentence report. I‘ll just indicate that I‘m treating the federal pre-sentence report as authoritative when it comes to the defendant‘s criminal history, and to the extent the Utah pre-sentence report
conflicts with it, the discrepancies in the Utah report won‘t be considered; in other words, the federal report is the one I‘ll consider as authoritative.
Lancaster also specifically objected to the Utah PSI‘s record of a 22-month sentence that had been vacated by court order, and a paragraph describing an investigation
Upon reviewing Lancaster‘s objections, the district court did not find the Utah PSI to be inaccurate, unfounded, or unreliable. Rather, the court determined that in the face of conflicting evidence of Lancaster‘s criminal history, it would rely on the more recent federal PSI as the authoritative source. The district court also carefully examined every error alleged by Lancaster. It accepted several changes—redlining them for the Department of Correction—and rejected others. Importantly, every amendment made to the PSI by the district court benefitted Lancaster. The correct legal standards were followed precisely. While Lancaster had the opportunity to supply a basis for the Utah PSI‘s unreliability, the district court was within its discretion to conclude that the more recent federal PSI would be the foundation for Lancaster‘s criminal history. It determined that the Utah PSI was reliable save for the conflicting information in the criminal history. The district court made it clear that the conflicts presented by the older Utah PSI were not accepted.
We conclude there was no abuse of discretion. The district court made a thorough examination of any potential errors. It generated a highly detailed addendum to the PSI cataloging all of the corrections and revisions, and went to great lengths in fulfilling its duty to correct Lancaster‘s PSI. In so doing, the district court provided “a clear record for review and protect[ed] the defendant against future misuse of [any] unreliable information” in the PSI by the Idaho Department of Correction as they consider his status in the future. Hanchey, 169 Idaho at 640, 500 P.3d at 1164. Therefore, we affirm the district court and deny Lancaster‘s request to remand for a new sentencing hearing.
IV. CONCLUSION
For the reasons set forth above, we affirm the orders of the district court.
Chief Justice BEVAN, Justices BRODY and ZAHN CONCUR.
STEGNER, J., concurring in part and dissenting in part.
I fully concur with the portion of the majority‘s opinion finding that the district court was within its discretion to allow a 2009 presentence investigation report (PSI) from the State of Utah to remain as an attachment to the PSI provided by the Idaho Department of Correction. However,
I respectfully dissent from the majority‘s conclusion that a violation of
Suppressing the unlawfully obtained evidence in this case comports with the policy behind the exclusionary rule. State v. Guzman, 122 Idaho 981, 994, 842 P.2d 660, 673 (1992) (explaining that the exclusionary rule of
unreasonable searches and seizures including to deter illegal police conduct). Permitting officers to act unlawfully with impunity voids this intent.
Police deterrence is not the only purpose of Idaho‘s exclusionary rule. See Lee, 162 Idaho at 647 n.2, 402 P.3d at 1100 n.2 (internal citations omitted). The rule also provides a remedy to those impacted by the illegal behavior. This Court has historically been expansive in its application of the exclusionary rule to those who have been subjected to an unreasonable search or seizure. See, e.g., Guzman, 122 Idaho at 993, 842 P.2d at 672 (“[W]e disagree with the basic premise of the [good-faith exception to warrant requirement]—that the decision whether to apply the exclusionary rule should be made by determining whether the goal of police deterrence would be furthered in the case at bar—because it totally fails to take into account the other purposes of our independent state exclusionary rule.“). See also State v. Rauch, 99 Idaho 586, 592–93, 586 P.2d 671, 677–78 (1978) (holding that, absent exigent circumstances, a violation of Idaho‘s knock-and-announce rule amounted to an unlawful search, prohibited by
We are duly mindful of the reliance that society must place for achieving law and order upon the enforcing agencies of the criminal law. But insistence on observance by law officers of traditional fair procedural requirements is, from the long point of view, best calculated to contribute to that end. However much in a particular case insistence upon such rules may appear as a technicality that inures to the benefit of a guilty person, the history of the criminal law proves that tolerance of shortcut methods in law enforcement impairs its enduring effectiveness.
Id. at 593, 586 P.2d at 578 (quoting Miller v. United States, 357 U.S. 301, 313 (1958)). Therefore, I would hold that a violation of
Our decision in Sprague also supports this conclusion. There, Sprague filed several claims against the city and some of its police officers for what he argued, in relevant part, was the use of an unreasonable amount of force in his arrest. Sprague v. City of Burley, 109 Idaho 656, 658, 71 P.2d 566, 568 (1985). After officers stopped Sprague for a suspected DUI, they effectuated an arrest. Id. at 658–59, 71 P.2d at 568–69. Sprague argued that the arrest violated
the commission of an offense.” Id. (internal quotation marks and citations omitted). According to the district court, Sprague was engaged in the commission of an offense because he was behind the wheel of the stopped car, and therefore “in the actual physical control of a motor vehicle” at the time of the arrest. Id. In reversing the district court, this Court rejected this narrow reading because Sprague was compliant and made no attempt to avoid or
[t]he clear intent of the statute was to uphold an otherwise lawful arrest when, under the circumstances, it would not be practical for an officer to inform the arrestee of the facts of the arrest, the officer‘s authority to make the arrest, and the cause for the arrest[.] . . . Simply stated, there was no reason for them not to advise him of the fact of his arrest[.]
Id. (Italics in original.)
Though the Sprague decision was made in the context of a civil action, this Court was quite clear in its interpretation of the same statute at issue today. The situation was such that the officers easily could have complied with the requirement of the statute, but since they did not, they were not entitled to rely on the statute‘s exception. However, under today‘s holding, police officers may make an unlawful arrest without fear of either discipline or adverse consequences, and citizens subject to that unlawful arrest lose the protections they rightfully expected under the statute and constitution. Creating a distinction between an admitted violation of law and a conclusion that the law may be flouted without violating the constitution is a distinction I do not understand. In order to arrive at this result, this Court must conclude that it is reasonable under the circumstances for the police to act illegally. Otherwise, our constitution would prevent such a conclusion. Suppression is the only recourse available to Lancaster and others similarly situated. See State v. Green, 158 Idaho 884, 892–94, 354 P.3d 446, 454–56 (2015) (W. Jones, J., specially concurring), abrogated on other grounds by State v. Clarke, 165 Idaho 393, 446 P.3d 451 (2018). Today‘s holding leaves Lancaster without the remedy afforded by our constitution and without any other ability to vindicate his rights. State v. Arregui, 44 Idaho 43, 254 P. 788 (1927) (“[W]here else and by what procedure, other than in the immediate case being prosecuted, can the objection of a defendant be heard, or where can he apply for its suppression, or avail himself of his constitutional rights, or assert their violation?“).
The majority specifically notes that the circumstances surrounding Lancaster‘s arrest were such that the officers could have followed
In sum, if an arrest “does not strictly comport with Idaho law, it is not a lawful arrest.” Sutterfield, 168 Idaho at 570, 484 P.3d at 851 (Stegner, J., dissenting). I would hold that an unlawful seizure violates