State v. Tower

               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 46807

STATE OF IDAHO,                                )
                                               )    Filed: October 14, 2020
       Plaintiff-Respondent,                   )
                                               )    Melanie Gagnepain, Clerk
v.                                             )
                                               )    THIS IS AN UNPUBLISHED
AARON SHANE TOWER,                             )    OPINION AND SHALL NOT
                                               )    BE CITED AS AUTHORITY
       Defendant-Appellant.                    )
                                               )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Deborah A. Bail, District Judge.

       Judgment of conviction for possession of methamphetamine, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Sally J. Cooley, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

BRAILSFORD, Judge
       Aaron Shane Tower appeals from his judgment of conviction for possession of
methamphetamine, Idaho Code § 37-2732(c), entered on his conditional guilty plea. He asserts
the district court erred when denying his motion to suppress. We affirm.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       At the hearing on Tower’s motion to suppress, Boise Police Officer Dustin testified as
follows:   On July 11, Tower’s mother contacted the Boise Police Department (BPD) and
reported her son, Tower, had threatened to kill her with a firearm; she was out of town; Tower’s
grandmother was taking care of Tower’s mother’s house in her absence; and she did not want
Tower on her property.



                                               1
       The next day, on July 12, Officer Dustin twice encountered Tower near his mother’s
house. Initially, Officer Dustin responded to a neighbor’s complaint that Tower was camping in
the front yard of a vacant house across the street from his mother’s house. Officer Dustin told
Tower he could not camp on the neighbor’s yard and asked him to leave. After what Officer
Dustin described as a “contentious conversation,” Tower agreed to leave.
       Later that same day, the BPD received another complaint that Tower was still across the
street from his mother’s house but had moved to a common area. Officer Dustin was present
when other officers told Tower he could not camp in the neighborhood common area. During
this encounter, Officer Dustin spoke to Tower’s grandmother, who he described as “extremely
fearful” and “scared.”
       The following day, on July 13, Officer Dustin responded to a 911 call from Tower that
“his grandmother was holding a gun to his head.” While en route to the scene, Officer Dustin
was provided information entered on a call log by the 911 dispatcher speaking to Tower, which
read that the calling party “advised he [was] previously not allowed on property. He is now, and
she is not aware.” Officer Dustin testified that this information was “odd” and “confusing”
because, according to his knowledge at that time, “Tower was still unwelcome there. He was
trespassing. He was not supposed to be at the property.”
       When Officer Dustin arrived at Tower’s mother’s house, Tower calmly walked out of the
garage and down the driveway, and Officer Dustin immediately told Tower he was under arrest
for trespassing.    According to Officer Dustin, Tower “immediately resisted” and was
“verbally . . . agitated.” Despite being told he was under arrest, Tower walked away from
Officer Dustin and began taking off his jacket. Eventually, after Officer Dustin pointed his Taser
at Tower, Tower complied, although he struggled while being handcuffed. In a search incident
to Tower’s arrest, a baggie containing methamphetamine was found in his jacket pocket.
Thereafter, Officer Dustin learned from Tower’s grandmother that Tower actually had
permission to be at his mother’s house. Unbeknownst to Officer Dustin, earlier on July 13,
Tower’s mother had called someone at the BPD to inform them Tower was allowed on her
property.
       As a result of the July 13 encounter, the State charged Tower with possession of a
controlled substance and with resisting or obstructing an officer. I.C. §§ 37-2732(c), 18-705.
Tower filed a motion to suppress, arguing that the officers did not have probable cause to arrest

                                                2
him for trespass. At a hearing on this motion, Officer Dustin and Tower’s mother both testified.
At the conclusion of that hearing, the district court orally denied Tower’s motion. Thereafter,
Tower conditionally pled guilty to possession of methamphetamine and reserved his right to
appeal the court’s denial of his motion to suppress. In exchange, the State dismissed the charge
of resisting or obstructing an officer. Tower timely appeals.
                                                  II.
                                    STANDARD OF REVIEW
        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
suppression 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).
                                                  III.
                                             ANALYSIS
        Tower asserts the district court erred when denying his motion to suppress. Specifically,
Tower argues “he was unlawfully arrested for trespassing absent probable cause.” He contends
that the arresting officers failed to “make themselves aware of the changed status”--namely that
his mother had given him permission to be at her house--and that “a good-faith exception is
unavailable to the officers for their failure to obtain accurate information as to the status of
[Tower’s] invitation to be on the property.” The State responds that the officers had probable
cause to arrest Tower for resisting or obstructing an officer, and thus their search of Tower was a
valid search incident to a lawful arrest. We agree with the State.
        Tower’s argument that Officer Dustin lacked probable cause to arrest him for trespass
ignores the substance of the district court’s ruling. Specifically, the district court ruled that:
        [The officers] had a right to detain [Tower] and investigate more fully based just
        on what they already knew. Then he starts resisting and behaving strangely,
        then--then it justifiably moves up to the next level, which is where they can
        basically hang onto him.



                                                   3
              And at that point, he then resists and obstructs the officers, so then they do
       have grounds to do a search incident to arrest. And then we have the drugs being
       discovered. So there is no basis for a suppression in this case.
Although the court did not refer to “reasonable suspicion” or “probable cause” when
pronouncing its oral ruling, the court essentially ruled that under the totality of the
circumstances, Officer Dustin had reasonable suspicion to detain Tower; in the process of
attempting to detain Tower, probable cause developed to arrest him for resisting or obstructing
an officer; and during a search incident to a lawful arrest, the officers discovered the
methamphetamine. Because Tower does not challenge this ruling, his appeal necessarily fails.
See State v. Zichko, 

129 Idaho 259

, 263, 

923 P.2d 966

, 970 (1996) (ruling that party waives issue
on appeal if either authority or argument is lacking).
       Regardless, both substantial evidence and the applicable legal principles support the
district court’s ruling. Whether an investigative detention is reasonable requires a dual inquiry--
whether the officer’s action was justified at its inception and whether it was reasonably related in
scope to the circumstances which justified the interference in the first place. State v. Roe, 

140 Idaho 176

, 181, 

90 P.3d 926

, 931 (Ct. App. 2004); State v. Parkinson, 

135 Idaho 357

, 361, 

17 P.3d 301

, 305 (Ct. App. 2000). An investigative detention is permissible if it is based upon
specific, articulable facts which justify suspicion that the detained person is, has been, or is about
to be engaged in criminal activity. State v. Sheldon, 

139 Idaho 980

, 983, 

88 P.3d 1220

, 1223 (Ct.
App. 2003).     “The quantity and quality of information necessary to establish reasonable
suspicion is less than that necessary to establish probable cause.” State v. Linenberger, 

151 Idaho 680

, 684-85, 

263 P.3d 145

, 149-50 (Ct. App. 2011). “Whether an officer possessed
reasonable suspicion is evaluated based on the totality of the circumstances known to the officer
at or before the time of the stop.” Id. at 

685, 263 P.3d at 150

.
       Probable cause is the possession of information that would lead a person of ordinary care
and prudence to believe or entertain an honest and strong presumption that a person they have
placed under arrest is guilty of a crime. State v. Julian, 

129 Idaho 133

, 136, 

922 P.2d 1059

, 1062
(1996). Probable cause is not measured by the same level of proof required for conviction.

Id. Rather, probable cause

deals with the factual and practical considerations on which reasonable
and prudent persons act. Brinegar v. United States, 

338 U.S. 160

, 175 (1949); Julian, 129 Idaho
at 

136, 922 P.2d at 1062

. When reviewing an officer’s actions, the court must judge the facts
against an objective standard. Julian, 129 Idaho at 

136, 922 P.2d at 1062

. That is, would the

                                                  4
facts available to the officer, at the moment of the seizure or search, warrant a reasonable person
in holding the belief that the action taken was appropriate.

Id. A search incident

to a valid arrest is an exception to and does not violate the Fourth
Amendment proscription against unreasonable searches. Chimel v. California, 

395 U.S. 752

,
762-63 (1969); State v. Moore, 

129 Idaho 776

, 781, 

932 P.2d 899

, 904 (Ct. App. 1996).
Pursuant to this exception, the police may search an arrestee incident to a lawful custodial arrest.
United States v. Robinson, 

414 U.S. 218

, 235 (1973); Moore, 129 Idaho at 

781, 932 P.2d at 904

.
The permissible scope and purposes of a search incident to an arrest is not limited to the removal
of weapons but includes the discovery and seizure of evidence of crime. Moore, 129 Idaho at

781, 932 P.2d at 904

.
       Applying these legal principles, Officer Dustin had reasonable suspicion to detain Tower
under the totality of circumstances. These circumstances included that Officer Dustin was aware
Tower had previously threatened his mother with gun violence; Tower’s mother did not want
him at her house; the officers had a day earlier asked Tower twice to leave the vicinity near his
mother’s house; his grandmother who was at the house was afraid of Tower; and Tower had just
reported his grandmother was holding him at gunpoint.
       Based on these facts, Officer Dustin had reasonable suspicion to detain Tower to
investigate the situation further when Officer Dustin located Tower on his mother’s property.
That Officer Dustin was not yet aware that Tower’s mother had actually given him permission to
be at her house earlier in the day does not eliminate Officer Dustin’s reasonable suspicion, which
is evaluated based on the facts known to him at the time he detained Tower.               See, e.g.,
Linenberger, 151 Idaho at 

685, 263 P.3d at 150

(“Whether an officer possessed reasonable
suspicion is evaluated based on the totality of the circumstances known to the officer at or before
the time of the stop.”).
       Further, that Officer Dustin informed Tower he was under arrest for trespass does not
undermine Officer Dustin’s reasonable suspicion. As Officer Dustin testified at the suppression
hearing, based on the totality of the circumstances, he intended to restrain Tower to investigate
the situation regardless of his alleged crime:
       Q.      So why didn’t you stop at that point [before handcuffing Tower] and
               investigate further?
       A.      Well, I had to--based on the totality of the weapon involved, his
               demeanor, everything, my thinking was I’m going to put him in handcuffs

                                                 5
               for everybody’s safety and make sure there is not a weapon involved.
                       And then we would have plenty of time to talk about, you know,
               what he was saying.
       Q.      So, effectively, you told him he was under arrest and your intent, though,
               was to--regardless, your intent was to restrain him?
       A.      Yes.
       Q.      But you intended to conduct additional investigation?
       A.      Of course, I did. Yes.
       Once Tower resisted Officer Dustin’s efforts to detain Tower to investigate, probable
cause arose to arrest him for resisting and obstructing an officer. See I.C. § 18-705 (defining
resisting or obstructing as willfully resisting, delaying, or obstructing any public officer in the
discharge or attempt to discharge his official duty). Based on Officer Dustin’s description of
Tower’s conduct after Officer Dustin informed Tower he was under arrest, a reasonable person
would have honestly believed Tower was resisting arrest. See Julian, 129 Idaho at 

136, 922 P.2d at 1062

(defining “probable cause” as possessing information leading a person of ordinary care
and prudence to honestly believe individual is guilty of crime).
       In sum, Officer Dustin had reasonable suspicion to detain Tower to investigate,
particularly based on the report that a firearm may be involved. When Officer Dustin attempted
to detain Tower, he resisted by walking away and struggling. At that point, Officer Dustin had
probable cause to arrest Tower for resisting or obstructing an officer. Thereafter, the officers
discovered methamphetamine on Tower’s person in a search incident to a lawful arrest. See
Moore, 129 Idaho at 

781, 932 P.2d at 904

(ruling permissible scope and purpose of search
incident to an arrest includes seizure of evidence of crime). Accordingly, we hold that the
district court correctly denied Tower’s motion to suppress.
                                               IV.
                                        CONCLUSION
       Tower’s appeal fails because he did not challenge the district court’s ruling that Officer
Dustin had reasonable suspicion to detain Tower and probable cause to arrest him for resisting or
obstructing an officer.   Moreover, the applicable legal principles and substantial evidence
support the district court’s denial of Tower’s motion to suppress. Accordingly, we affirm
Tower’s judgment of conviction.
       Judge GRATTON and Judge LORELLO CONCUR.




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