               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 47249

 STATE OF IDAHO,                                 )
                                                 )    Filed: July 7, 2020
        Plaintiff-Respondent,                    )
                                                 )    Melanie Gagnepain, Clerk
 v.                                              )
                                                 )    THIS IS AN UNPUBLISHED
 DOUGLAS BRENT MALAR,                            )    OPINION AND SHALL NOT
                                                 )    BE CITED AS AUTHORITY
        Defendant-Appellant.                     )
                                                 )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. Cynthia K.C. Meyer, District Judge.

       Judgment of conviction for felony driving under the influence, affirmed.

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

       Hon. Lawrence G. Wasden, Attorney General; Kacey L. Jones, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

LORELLO, Judge
       Douglas Brent Malar appeals from his judgment of conviction for felony driving under the
influence (DUI). We affirm.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       An officer observed Malar sitting in the driver’s seat of a vehicle idling in a gas station
parking lot. After idling for about fifteen minutes, Malar drove to another gas station a few blocks
away. Finding this behavior odd, the officer followed. The officer parked his patrol vehicle about
25 feet from Malar, who had already exited his vehicle, and the officer approached Malar on foot.
Malar turned and walked toward the officer as he approached. The officer then asked Malar if he
minded speaking with the officer. During the ensuing conversation, the officer noticed Malar was



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slurring his speech and smelled of alcohol. Suspecting Malar was intoxicated, the officer asked
Malar if he had been drinking. Malar replied that he drank “a little too much” and admitted
consuming three 16-ounce beers that evening--with the last beer being within forty-five minutes
of arriving at the second gas station. Field sobriety testing indicated that Malar was intoxicated,
and he was arrested for DUI.
       The State charged Malar with felony DUI and a persistent violator enhancement. Malar
moved to suppress the evidence gathered at the second gas station, arguing that he was unlawfully
seized. The district court denied Malar’s motion, concluding that the officer speaking with Malar
developed reasonable suspicion to conduct a DUI investigation during a consensual encounter.
Subsequently, Malar entered a conditional guilty plea to felony DUI, I.C. §§ 18-8004 and
18-8005(9), reserving his right to appeal the denial of his motion to suppress. In exchange for his
guilty plea, the State dismissed the persistent violator enhancement. Malar 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
       Mindful of the district court’s factual findings, Malar argues that the district court erred
“by concluding that the encounter was consensual and by concluding that the officer had
reasonable articulable suspicion of criminal conduct.” The State responds that both of the district
court’s conclusions were correct. We agree with the State and hold that the district court did not
err in denying Malar’s motion to suppress because no unlawful seizure occurred.




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        The Fourth Amendment to the United States Constitution guarantees 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. Even when officers have no basis for suspecting a particular
individual, they may generally ask the individual questions and ask to examine identification. Fry,
122 Idaho at 102, 831 P.2d at 944. So long as police do not convey a message that compliance
with their requests is required, the encounter is deemed consensual and no reasonable suspicion is
required. Id.
        The district court concluded that Malar’s initial encounter with the officer at the gas station
was consensual. In support of this conclusion, the district court made factual findings related to
the officer’s actions in initiating the encounter. Specifically, the district court found that the officer
parked his patrol vehicle 25 feet behind Malar’s vehicle, did not activate the patrol vehicle’s
emergency lights, and did not block Malar. The district court further found that the officer exited
his vehicle, approached Malar without obstructing his path, and asked whether Malar minded
having a conversation. Finally, the district court found that although four other officers eventually
arrived at the scene, none of those other officers interacted with Malar. Thus, the district court
concluded that there was no evidence of a display of authority that would have caused a reasonable
person in Malar’s position to believe he was not free to leave. Considered in light of the totality
of the circumstances, the facts found by the district court support its conclusion that Malar’s initial
contact with the officer was consensual and that Malar was not seized for purposes of the Fourth
Amendment.




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       The district court also concluded that, during the consensual encounter, the officer
developed reasonable suspicion that Malar had driven while under the influence of alcohol. To
support this conclusion, the district court found that the officer had watched Malar drive to the
second gas station and that the officer immediately noticed Malar’s speech was slurred and his
breath smelled of alcohol when he spoke. The district court further found that, although Malar
was under no obligation to speak, he admitted to drinking “a little too much.” Under the totality
of the circumstances, the officer’s observations combined with Malar’s admission to drinking
justified a detention and DUI investigation. See State v. Pick, 124 Idaho 601, 605, 861 P.2d 1266,
1270 (Ct. App. 1993). Consequently, Malar has failed to show that the district court erred in
denying his motion to suppress.
                                               IV.
                                        CONCLUSION
       The district court correctly concluded that Malar was not seized during his initial encounter
with law enforcement and that, during the consensual encounter, the officer developed reasonable
suspicion to detain Malar for a DUI investigation. Thus, Malar has failed to show that the district
court erred in denying his motion to suppress. Malar’s judgment of conviction for felony DUI is
affirmed.
       Chief Judge HUSKEY and Judge BRAILSFORD, CONCUR.




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