               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 37119

STATE OF IDAHO,                                   )     2011 Unpublished Opinion No. 325
                                                  )
       Plaintiff-Respondent,                      )     Filed: January 18, 2011
                                                  )
v.                                                )     Stephen W. Kenyon, Clerk
                                                  )
JESUS HERNANDEZ-FLORES,                           )     THIS IS AN UNPUBLISHED
                                                  )     OPINION AND SHALL NOT
       Defendant-Appellant.                       )     BE CITED AS AUTHORITY
                                                  )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Thomas F. Neville, District Judge.

       Judgment of conviction for trafficking in cocaine, affirmed.

       Molly J. Huskey, State Appellate Public Defender; Heather M. Carlson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jennifer E. Birken, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GUTIERREZ, Judge
       Jesus Hernandez-Flores appeals from his judgment of conviction entered upon his
conditional guilty plea for trafficking in cocaine. Specifically, Hernandez-Flores challenges the
district court’s denial of his motion to suppress. For the reasons set forth below, we affirm.
                                                 I.
                                        BACKGROUND
       On December 2, 2008, a detective received a tip from a known informant that Jesus
Hernandez-Flores would be flying into Boise from Salt Lake City and that he had previously
transported cocaine on his person during such flights. The detective confirmed that Hernandez-
Flores was flying into Boise, and connected a phone number given to him by the informant as the
number Hernandez-Flores used to book the flight. After the plane arrived in Boise, an officer ran
his drug dog around the luggage that was identified as belonging to Hernandez-Flores, and the
dog alerted on one of the items. It was arranged that Hernandez-Flores’ items would be the last


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to come off of the baggage carousel while two officers waited in the baggage claim area in
plainclothes. When Hernandez-Flores picked up his luggage, the officers asked him if they
could speak with him in another area. Hernandez-Flores agreed and he was escorted upstairs to a
room used by the Boise Police Department in a secure area that required a badge to get into.
After they entered the room, Hernandez-Flores was patted down and his luggage was searched
while he was questioned. Neither the pat down nor the search uncovered anything. However,
after the search the officers noticed an unnatural looking bulge in the crotch area of Hernandez-
Flores’ pants. The officers asked Hernandez-Flores if he was carrying any drugs on his person
and informed him of what they had seen. After the officers asked if they could search his person,
Hernandez-Flores gave no verbal response, but stood up and started to reach down his pants.
One of the officers advised Hernandez-Flores to stop, and asked him to hold his waistband out.
When Hernandez-Flores complied, the officer then retrieved a clear plastic container from the
crotch area of Hernandez-Flores’ pants. The container contained a white powdery substance that
was later determined to be cocaine.
       Subsequently, the officers advised Hernandez-Flores of his Miranda 1 rights. Hernandez-
Flores agreed to continue speaking with them and explained that the container contained cocaine
and that he was supposed to deliver it to friends in Boise. Hernandez-Flores was arrested and
charged with trafficking in cocaine. Hernandez-Flores filed a motion to suppress arguing that
the officers violated his Fourth, Fifth, and Sixth Amendment rights against unlawful searches
and seizures and his right against self-incrimination when the officers detained him and failed to
advise him of his Miranda rights after detaining him. The district court denied Hernandez-
Flores’ motion to suppress finding that the contact between the officers and Hernandez-Flores
was consensual, that Hernandez-Flores consented to going with the officers to the room and to
having his luggage searched, and that Hernandez-Flores consented to having his person searched
through his actions after the officers noticed the bulge in his pants. The district court further
found that Hernandez-Flores was not in custody for purposes of Miranda until after the cocaine
was found, and that the statements Hernandez-Flores made were voluntary and were not the
product of police coercion. Alternatively, the district court found that even if this was not a
consensual encounter, the officers had reasonable suspicion to detain Hernandez-Flores.



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       Miranda v. Arizona, 384 U.S. 436 (1966).

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       Hernandez-Flores entered a conditional guilty plea to trafficking in cocaine while
reserving his right to challenge the denial of his motion to suppress on appeal. Hernandez-Flores
now 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 which 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.
                                         DISCUSSION
       Hernandez-Flores asserts that the district court erred in denying his motion to suppress
the statements he made to police and the cocaine found on his person because his consent was
not voluntary, but rather was the product of police coercion. The Fourth Amendment to the
United States Constitution, and its counterpart, Article I, Section 17 of the Idaho Constitution,
guarantee the right of every citizen to be free from unreasonable searches and seizures.
However, not all encounters between the police and citizens involve the seizure of a person.
Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968); State v. Jordan, 122 Idaho 771, 772, 839 P.2d 38, 39
(Ct. App. 1992). Only when an officer, by means of physical force or show of authority,
restrains the liberty of a citizen may a court conclude that a seizure has occurred. State v. Fry,
122 Idaho 100, 102, 831 P.2d 942, 944 (Ct. App. 1991). A seizure does not occur simply
because a police officer approaches an individual on the street or other public place, by asking if
the individual is willing to answer some questions, or by putting forth questions if the individual
is willing to listen. Florida v. Bostick, 501 U.S. 429, 434 (1991); Florida v. Royer, 460 U.S.
491, 497 (1983). Unless and until there is a detention, there is no seizure within the meaning of
the Fourth Amendment and no constitutional rights have been infringed. Royer, 460 U.S. at 498.
The proper inquiry in determining whether a seizure occurred is “whether, under all the


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circumstances surrounding the encounter, a reasonable person would have felt free to leave or
otherwise decline the officer’s requests and terminate the encounter.” State v. Reese, 132 Idaho
652, 653, 978 P.2d 212, 213 (1999).
       Although a warrantless search is generally illegal and violative of the Fourth
Amendment, such a search may be rendered reasonable by an individual’s consent. State v.
Johnson, 110 Idaho 516, 522, 716 P.2d 1288, 1294 (1986); State v. Abeyta, 131 Idaho 704, 707,
963 P.2d 387, 390 (Ct. App. 1998). In such instances, the state has the burden of demonstrating
consent by a preponderance of the evidence. State v. Kilby, 130 Idaho 747, 749, 947 P.2d 420,
422 (Ct. App. 1997). The state must show that consent was not the result of duress or coercion,
either direct or implied. Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973); State v. Whiteley,
124 Idaho 261, 264, 858 P.2d 800, 803 (Ct. App. 1993). The voluntariness of an individual’s
consent is evaluated in light of all the circumstances. Whiteley, 124 Idaho at 264, 858 P.2d at
803. Consent to search may be in the form of words, gestures, or conduct. State v. Knapp, 120
Idaho 343, 348, 815 P.2d 1083, 1088 (Ct. App. 1991). Whether consent was granted voluntarily,
or was a product of coercion, is a question of fact to be determined by all the surrounding
circumstances. State v. Hansen, 138 Idaho 791, 796, 69 P.3d 1052, 1057 (2003).
       The district court determined that the state met its burden in proving that Hernandez-
Flores voluntarily made statements to the officers and consented to the search of his person.
Specifically, the district court found that the contact between the officers and Hernandez-Flores
was a consensual encounter, and there was nothing coercive about it.             Hernandez-Flores
voluntarily accompanied the officers to the secured office, and voluntarily answered questions
once in the office. Further, Hernandez-Flores voluntarily consented to the search of his luggage,
and then later to a search of his person through his actions when the officers asked about the
bulge in his pants and for consent to search him by standing up, lifting up his arms, and then
starting to reach into his pants as though to retrieve something. The district court also found that
up to this point, Hernandez-Flores had been told at least twice that he was not under arrest. After
the cocaine was found in his pants, Hernandez-Flores was placed under arrest and read his
Miranda rights, which he waived, meaning any incriminating statements and confessions after
that point were voluntary. The district court determined, under the totality of the circumstances,
that Hernandez-Flores’ will was not overborne by the officers and there was no evidence of
police domination. The officers were all dressed in plainclothes, no weapons were visible, and


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Hernandez-Flores never objected to the search of his person or his belongings and he never tried
to evade the search. Alternatively, the district court found that even if this was not a consensual
encounter, there was reasonable suspicion to justify detaining Hernandez-Flores for further
questioning.
       In light of all the circumstances, we conclude that the district court’s determination was
correct. Although Hernandez-Flores was taken to a room that was in a secure part of the airport
and required a badge to get into, there is no evidence that suggests that the police were coercive
or threatening in any way. Hernandez-Flores did not ask to leave the room at any point, he had
been informed that he was not under arrest, and all of the evidence suggests that his actions were
voluntary and that this was a consensual encounter. Moreover, there is no evidence to suggest
that Hernandez-Flores did not waive his Miranda rights voluntarily, or that the statements
Hernandez-Flores made after he was arrested were not given voluntarily.
       Even assuming this were not a consensual encounter, the officers had reasonable
suspicion to detain Hernandez-Flores. A police officer may, without violating an individual’s
constitutional rights, make an investigatory stop if that officer has a reasonable suspicion that
criminal activity is underway. Terry, 392 U.S. at 22. Whether the police officer had the
requisite reasonable suspicion to conduct the stop is determined on the basis of the totality of the
circumstances.   State v. Rawlings, 121 Idaho 930, 932, 829 P.2d 520, 522 (1992).              The
information from the informant was corroborated by confirming that at least one of the phone
numbers that was given to the police belonged to Hernandez-Flores, that Hernandez-Flores had
booked a flight from Salt Lake City to Boise, and that Hernandez-Flores used one of the phone
numbers to book that flight. Based on this information, the officers held back Hernandez-Flores’
luggage and a drug dog detected the presence of narcotics on his luggage. The officers then
waited until Hernandez-Flores claimed the same luggage that the dog alerted on before
approaching him. Under the totality of the circumstances, there was reasonable suspicion to
detain Hernandez-Flores.
                                                IV.
                                         CONCLUSION
       The district court did not err in denying Hernandez-Flores’ motion to suppress. There
was reasonable suspicion for the officers to detain Hernandez-Flores, and Hernandez-Flores




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voluntarily made statements to the officers and consented to the search of his person.
Accordingly, Hernandez-Flores’ judgment of conviction for trafficking in cocaine is affirmed.
       Judge LANSING and Judge MELANSON CONCUR.




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