*1 P.2d 520 Idaho, Plaintiff-Respondent, STATE RAWLINGS,
Steven Lewis
Defendant-Appellant.
No. 19539. Idaho,
Supreme Court of
Boise, December Term.
March 1992.
Rehearing May Denied County Public Trimming, Ada
Alan E. Deputy Whipple, Deborah A. Defender and Boise, Defender, County Public Ada *2 defendant-appellant. Whipple Deborah A. identification the defendant had examine; argued. officer could the individual stated person. that he had no identification on his Gen., Larry EchoHawk, Atty. J. Michael inquired de- police officer then if the Henderson, Gen., Boise, Deputy Atty. A. wallet; the fendant had a individual stated plaintiff-respondent. Michael A. Gray- Thereupon, that he did not. Officer argued. Henderson defendant to bill directed the turn around could so that the officer him down McDEVITT, Justice. moment, the see if he had a wallet. At this 21,1989, On December 4:30 a.m. between object defendant threw a small in the di- a.m., police and in 5:00 officers acted re- rection of the funeral home. The sponse report process of a in burglary object parking officer the in heard land the Shop at Dick’s Stereo Avenue Fairview made pinging lot where it a “hollow Boise, in Idaho. At the of the al- scene sound.” offense, leged police officers discovered a events, Immediately preceding after the gain window had been broken in order appeared park- another officer building. the entry the the offi- Several of ing Graybill lot as Officer forced the defen- positioned cers the themselves to secure ground perimeter awaiting dant to the and the two officers building, the the manager custody. of the took the defendant into business to facilitate their Officer entry into the he Graybill business. At one of then examined the area least where sidearm, the officers had drawn con- heard his had seen and the defendant throw templating possibility suspect the object, green still a small and found Excedrin being premises. on the bottle contained a which white substance material, leafy green subsequent- and some a.m., approximately At 5:00 Officer ly methamphetamine mar- identified as and Graybill, the scene of reported the bur- ijuana. No other materials were found glary, drawn, with his sidearm had called parking this area of the lot. officer, attention another a man walking parking across a lot in block charged possession Defendant was with immediately to the west of the site of the substances and controlled was bound reported burglary. Graybill When Officer preliminary over court at a to the district individual, observed this he had turned charges possession hearing on of meth- walking park- north and was through amphetamine, felony, possession and lot, approximately 150 from the feet marijuana, misdemeanor. police officer. No persons other were visi- pleas guilty Defendant entered of not in the area at ble that time. jury and set for the matter was trial. Pri- street, Officer crossed the run- trial, or to counsel filed a defense motion ning, to overtake the As individual. seeking suppression of “all evidence approached, officer arrest____” individual seized at Counsel for both the walking northerly disap- continued State and the defendant relied on the testi- peared along the west funeral side of the hearing mony presented preliminary at the home blocked the officer’s view. arguing suppress motion to turning Upon the corner of funeral alleged defendant trial court. The building, home Officer found the against defendant was seized lot, stopped in facing individual a warrantless search or result of sei- the funeral home. zure, per se which is unreasonable under the Fourth Amendment to the United Graybill inquired what
Officer as to I, (who and article section 17 States Constitution is the in this individual defendant Constitution, and case) doing of the Idaho in that The de- location. police officer in looking action of the the instant replied that he for his
fendant any recognized case did not fall within ex- cigarettes and asked the he principle. replied ception The trial court had seen them. Officer to this inquired suppress. Defense negative as to denied the motion whether urged suppression counsel renewed Amendment Fourth to the United States Constitution, I, jury- motion at the and/or commencement article section 17 trial, following testimony trial the Idaho Constitution. occasion, Graybill. On each
trial court denied
motion.
this
I. LEGALITY
THE STOP
OF
closing arguments,
At the conclusion of
by
An individual who is accosted
counsel
defense
moved for a mistrial based
police officer and has his freedom to walk
a
upon prosecutorial
in closing
misconduct
away restrained has
seized.
v.
been
arguments,
subsequently memo-
which was
Ohio,
1,
1868,
88
20 L.Ed.2d
392 U.S.
motion,
in a
of which
rialized
written
each
(1968).
person
all
the
889
Not
seizures of
by
jury
The
were denied
the trial court.
justified by
to ar
probable
need be
cause
guilty
a
returned
verdict on each count of
crime;
in
police
may,
rest for a
a
possession of a controlled substance.
appro
in
appropriate
and
circumstances
appealed
sup-
Defendant
the denial of his
manner,
pur
priate
person
detain a
pression motions and motion for mistrial.
poses
investigating possible
of
criminal be
appeal
assigned
That
to the Court of
though
probable
no
havior even
there is
which,
Appeals
hearing,
after
vacated the
Terry,
to make an
392 U.S.
cause
arrest.
conviction,
judgment
holding
of
that “the
22,
at
is
at
88 S.Ct.
1880. Such a seizure
dispositive issue
is whether
in this case
justified under the Fourth Amendment
scope
a
includes
Terry-stop-and-frisk
a
suspicion
is an articulable
that
there
down search for identification.” person has
to commit
committed or
about
Appeals
it
The Court of
then held that
does
491,
v.
460 U.S.
Royer,
a crime. Florida
not, and reversed the trial court.
(1983);
1319, 75
229
103 S.Ct.
L.Ed.2d
Williams,
143, 92 S.Ct.
v.
407 U.S.
Adams
review,
petitioned
The State
1921,
(1972).
granted
petition
this Court. We
opinion
Appeals
vacate the
of the Court
dispute
There is no
that the defen
the trial
and affirm
decision of
court.
meaning of
“seized”
dant was
within
he submitted
the Fourth Amendment when
ISSUES
APPEAL
ON
at
Graybill’s authority. Terry, 392 U.S.
presented
appeal
are:
The issues
on
16,
1879;
S.Ct. at
see
88
California
—
1547,
U.S.-,
Hodari,
113
denying
1. Did the trial court err
(1991), (suspect had not sub-
L.Ed.2d 690
suppress?
defendant’s motion to
thus no sei-
police authority
mitted
denying
2. Did the trial court err
occurred).
main-
The defendant
zure had
upon
defendant’s motion for mistrial based
however,
tains,
was invalid
that the seizure
prosecutorial misconduct?
legal
the officer lacked a sufficient
because
had
stop.
an officer
for the
Whether
basis
MOTION
SUPPRESS
TO
suspicion to con-
requisite
reasonable
urges
the evidence of
The defendant
that
investigatory stop is determined
duct
substances ob-
possession of controlled
circum-
totality of the
the basis
Excedrin bottle
from the discarded
tained
Cortez, 449 U.S.
States v.
stances. United
result, and
direct
was obtained
a
(1981);
690,
411,
66 L.Ed.2d
101 S.Ct.
of,
police action and
independent
illegal
873,
P.2d
Johns, 112
Idaho
regard, defen-
be excluded.
In this
must
Illinois, 422 U.S.
relies on
dant
Brown
case, police officers
instant
2254,
(1975);
In the
L.Ed.2d 416
95 S.Ct.
burglary in the
report
States,
responded
Wong
v. United
Sun
The
hours December
predawn
Our
9 L.Ed.2d
83 S.Ct.
situ
property
at a business
on an
arrived
review,
therefore,
depend
must
thoroughfare, with
dispos-
upon a business
ated
analysis of
the defendant’s
whether
having been
entry
signs of forced
by un-
precipitated
visible
the evidence was
al of
building.
police officers
conduct,
of the made
in violation
lawful
perpetrator
testimony
undisputed
po-
could
be
believed
still
weapon
premises.
lice officer had drawn his
out of
on the
personal safety
for his
site
concern
only
The defendant was the
reported
activity;
criminal
the police
area other than
officers. The
approxi-
officer witnessed the defendant
walking
lo-
away
defendant was
from the
mately
away
150 feet
under circumstances
reported
burglary.
cale of
defen-
place
a time
in a
were
departed
walkway
pro-
dant
from a
suspicion
for the
reasonable basis
lot,
ceeded to cross the
which defendant had
with the re-
been involved
course
travel would take him out of
ported crime;
necessary
po-
it was
for the
vision of the
officers. There was
lice officer to run
order
overtake
*4
motel in the
direction which the defen-
circumstances,
defendant.
Under
possible
dant
It
traveling.
is
that
police
conduct of the
officer was reason-
could have been
an
defendant
on
innocent
stop
unduly
of
able and not
coercive. The
mission,
facts, together
but
these
with
made
the defendant was
basis
reported crime, provided objectively reason- police
suspicion of
officer’s reasonable
grounds
adequate
sup-
able
were
activity,
criminal
and was thus valid.
port
police
suspicion
a
officer’s
of criminal
II. LEGALITY OF THE SEARCH
facts,
activity.
totality,
pro-
These
their
vide a
for the trial
basis
court’s conclusion
Terry stop,
It is
that in a
an
clear
police
that
stop
authority
officer’s
of the defen- officer has the
to conduct a limit
self-protective pat
for
dant was a valid detention
a
for
ed
down search
of
pur
weapons
conducting
inquiry
while
purpose
investigating
of
possible crimi-
stop.
Illinois,
v.
444
activity, although
suant
Ybarra
proba-
nal
there was no
343,
85, 93-94,
338,
U.S.
S.Ct.
ble cause to make an
Terry,
arrest.
(1979);
L.Ed.2d 238
United States v.
22,
U.S. at
at
Davis,
893,
(9th Cir.1973).
482 F.2d
permit
a
Such search is allowed to
a
further
Defendant
asserts that the
fear
inquiry
officer to conduct the
without
running
him
a
officer
toward
with
being
upon
offi
violence
inflicted
weapon
“outrageous
totally
drawn
Williams,
person.
cer’s
Adams v.
407 U.S.
unreasonable under
the circumstances”
1921, 1923, 32
92 S.Ct.
L.Ed.2d
any permissible
investigative
exceeded
(1972).
stop.
investigative
An
stop is not convert
ed
into
arrest with a
officer tak
instance, however,
In
is
this
precaution
drawing
reasonable
although weapons pat
that
a
clear
down
weapons
safety.
for their own
See United
permissible
have
under
would
been
all
White,
(D.C.Cir.),
States
which, unlawful, be would unconstitu- uncontroverted, remark that evidence tionally coercive. unrebutted, or evidence is does not neces- *5 give it is authority proposition sarily We find no for the rise to the inference that by that the failure to the declaration a comment on defendant’s “pat to him turned testify. that he desired down” permissible Terry stop into a “search” points up Hodges versus that State that Of- identification. The record reflects on equal simply a comment inference did or ficer not touch defendant evidence, weight weight of the quoted than any take action other been, may evidence that have the other statement before the defendant abandoned weight of the evidence that was or property. offered in this case. by the only issue remark made Prosecu- opinion not deal with the
This does was unrebut- legality identification tor was that point I stop. objected. of the At that pursuant Because ted. Counsel reach, in general issue not be conclusion we that need the Prosecutor cautioned argue here. him to on addressed terms and advised on con- than evidence offered rather that trial court We therefore hold changed clusions. Prosecutor to motion properly denied the defendant’s off into other areas. tact and went suppress. versus I think the case is within State that Hodges. get To a conclusion III. MISCONDUCT PROSECUTORIAL a comment on remark was Prosecutor’s closing urges that Appellant testify of the defendant the failure attorney consists statement mind, infer- inference on requires, my on defendant’s impermissible comment inference, inference, on Maybe ence. testify the Fifth in violation of failure to go I have I think inference. don’t United Amendments and Fourth far. I, art. 3 of the States Constitution § p. 151-52. upon T. The statement Idaho Constitution. argu for this appellant relies trial agree which the the decision with We ment is: all of the circumstances that under court clos- for defendant’s trial counsel facts that are before not erase the Does state- prosecutor’s ing statement testimony that you testimony. The was, No, I exactly it but see what didn't point threw A drew back and A he—he At funeral lot. something right hand towards the it in the in his heard hit home. something you Q what able to see Were all at that time? ment nity search, was a comment on the evidence and negating to conduct the thus impermissible Rawlings’ disposal not an inference that reference to the de- testify. prompted by fendant’s failure to the bottle was the threat of Hodg- State v. es, that, the search. The state avers 105 Idaho with- P.2d allegedly out a nexus to the Robinson, unlawful United See States v. conduct, discarded evidence was 108 S.Ct. ‘abandoned.’
However, Graybill’s testimony, con- cerning stop, demonstrates CONCLUSION only threw the bottle after We affirm the decision of the trial court. Graybill directed him to submit Although Graybill identification search.2 BAKES, C.J., BOYLE, J., concur. search, did not conduct the his demand upon Rawlings clearly constituted a suf- BISTLINE, Justice, concurring part, search, ficient initiation or threat of a dissenting part. which, unlawful, would be deemed un- I concur with Parts I and III of the constitutionally coercive. See United however, majority opinion, I am unable to Newman, States v. 490 F.2d agree with their resolution of Part II deal- (5th Cir.1974); Fletcher v. Wainwright, legality with the of the search. (5th Cir.1968). F.2d See also majority correctly frames the issue RINGLE, SEIZURE, SEARCHES & in Part II as “whether the defendant’s dis- 8.4(a), Thus, at 8-38.4. we must deter- § posal of the precipitated by evidence was mine whether was constitution- conduct, unlawful in violation of the ally authorized conduct such a search. *6 fourth amendment to the United States ‘provides pro- The fourth amendment Constitution, I, and/or article section 17 of every tection to the owner of container the Idaho Constitution.” This Court’s reso- plain that conceals its contents from issue, however, lution of the blatantly is Ross, view.’ United v. 456 States U.S. incorrect. The majority reasons that be- 798, 822-23 S.Ct. 72 [102 cause did not touch Rawl- (1982). L.Ed.2d A search of a wal- 572] ings, simply requested but Rawlings let, purse bag like that of a or other turn around so he pat Rawlings could down person, undoubtedly carried on the ‘is a wallet, for a impermissible no search for subjective expec- severe violation of the occurred, identification Rawlings and was privacy.’ tations of Jersey New by not coerced activity unlawful to T.L.O., 325, 733, 469 338 U.S. S.Ct. [105 property. analysis abandon his A better 741, (1985). 83 L.Ed.2d Warrantless 720] by has been Ap- fashioned the Court of per searches are se unreasonable under peals, appropriate quote and it is por- amendment, subject only the fourth opinion: tion of that specifically few established will de- Rawlings contends that the search was exceptions. lineated Katz v. United illegal warrantless search not States, 347, 507, within 357 389 U.S. S.Ct. [88 any judicially recognized exception. 514, (1967); State v. Bot- 92, state submits telson, 90, 1093, that we need not reach this 102 Idaho 625 P.2d aspirin issue because threw the 1095 The burden rests with the opportu- bottle before the officer had an state to demonstrate that a warrantless transcript preliminary hearing you 2. The from the did do? COUNSEL: And then what following: contains the And I believe I asked OFFICER GRAYBILL: so that I him him to turn around could COUNSEL: What continued in the conversa- down for a wallet. tion? you do then? COUNSEL: And what did OFFICER GRAYBILL: I told him that he’d no, point actually, At that he—he have to come with OFFICER GRAYBILL: me—or something drew back and threw in his hand asked him for some identification. produce any? right business [a COUNSEL: Did he towards the funeral home adjacent OFFICER GRAYBILL: No he didn’t. lot]. 936 apprehension pursuant was to one officer harbor reasonable
search
carried out
exigencies.
investigative
those
Arkansas v.
danger
justify
Sand-
order to
ers,
753,
2586,
442 U.S.
S.Ct.
detentions,
not
[99
did
eliminate
‘Adams
(1979); Bottelson,
2591,
rendered
its progeny,
presented
Flynn
a frisk under
maintains that
state
Rawl-
search for
to a search
initiated the
is not restricted
Rawlings
disagree.
providing
ings’
We
wallet without
weapons.
to otherwise
opportunity
any reasonable
decision discon-
Although
Adams
of
void
The record is
identify himself.
Terry requirement
tinued
circumstances,
any
evidence that
even asked
Under these
the state’s
Rawlings
that,
his name. We note
had
theory
rejected.
of abandonment must be
name,
Rawlings’
obtained
birth
Newman,
See United
490 F.2d
States
date,
address,
he could have run a
(5th Cir.1974);
Fletcher v.
radio check for
and other
warrants
back-
(5th
Wainwright,
Cir.1968);
ty sought by the officer did not authorize
the officer to conduct the search. JOHNSON, Justice, concurring and questions suspect The state whether a dissenting. purpose can defeat the investigato- of an ry stop by refusing provide, part or claim- I I (Legality concur with of the have, ing that he (Prosecutorial does not identifica- Stop) part III Miscon- By framing way, tion. duct) issue opinion. respectfully of the Court’s however, distinguish the state fails to part (Legality dissent from II suspect coop- between who refuses to Search) opinion. of the Court’s identify erate and himself or herself to court, Following appeal from the trial police and the one produce who does not initially assigned this case was to our Court documentary proof identity [footnote Appeals. On June Court Where an individual is not omitted]. Appeals reversing its issued decision carrying proof, such an identification ruling denying trial court’s the motion to search, broad, no matter how will not suppress. The essence of the Court purpose further the obtaining identifi- Appeals’ is contained in its conclu- decision happens cation. The fact that a citizen sion: identifying to be without papers does not We hold that a frisk for identification provide a reasonable basis for a purview falls outside of the probable the absence of cause constitutionally permitted during conduct *8 [footnote omitted]. investigatory stop. The conclusion is CONCLUSION inescapable that the officer’s command Rawlings submit to such a search We hold that a frisk for identification precipitated Rawlings’ attempt to divest purview falls outside of the and the ulti- himself of contraband constitutionally permitted during conduct by police. mate seizure evidence investigatory stop. conclusion circumstances, these the state’s Under inescapable that the officer’s command rejected. theory of abandonment must be to such a submit Rawlings’ Because the state’s evidence was ob- precipitated attempt to divest consequence conduct himself of the contraband and the ulti- tained as amendment, by police. mate seizure of the of the fourth it violative Although argument appeal, police on this 3. fact of record in this tions at oral evidently Rawlings possess car, Rawlings’ parked did not identifica- in his later found wallet tion or a stopped. According wallet at the time he was away. several blocks representa- to his counsel’s should have excluded from been evi-
dence. Rawlings, Opinion No. CA-93
State (June 6, 1991) (citations omitted).
at 12 agree analysis. with this
STATE of Idaho and Idaho State
University, Plaintiffs-
Respondents, COMPANY,
CONTINENTAL CASUALTY Party endant-Third
Def Plaintiff-Appellant, COMPANY,
COMPASS INSURANCE Party
Third Defendant-
Respondent.
No. 18944. Idaho,
Supreme Court of
Boise, January 1991 Term.
March 1992. Rehearing May Denied Boise, Blanton, Hall, Farley, & Oberrecht 111., Ross, Chicago,
and Peterson & party plaintiff-appellant. defendant-third argued. P. Tone Michael Welsh, Cosho, & Humphrey, Greener Boise, Howard plaintiffs-respondents. Humphrey argued.
BOYLE, Justice. dispute the coverage
In this insurance against brought this action of Idaho *9 seeking de- Casualty Company Continental money judgment for and a claratory relief Board of terms of a coverage under the (BEL) policy insurance liability Education (ISU) for University Idaho State issued action, In its the State year 1981. of Idaho Idaho, and on behalf for itself (ISU) recovery for University seeks of Risk Bureau made payments