               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 38802

STATE OF IDAHO,                                  )      2013 Unpublished Opinion No. 412
                                                 )
       Plaintiff-Respondent,                     )      Filed: March 20, 2013
                                                 )
v.                                               )      Stephen W. Kenyon, Clerk
                                                 )
LANDON BLAKE WEST,                               )      THIS IS AN UNPUBLISHED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. Richard D. Greenwood, District Judge.

       Judgment of conviction for possession of a controlled substance with intent to
       deliver and possession of drug paraphernalia, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
MELANSON, Judge
       Landon Blake West appeals from his judgment of conviction for possession of a
controlled substance with intent to deliver and possession of drug paraphernalia. For the reasons
set forth below, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       On July 22, 2010, an officer observed West’s vehicle back out of the driveway of a
known drug house. While following the vehicle, the officer observed West fail to properly
signal during a turn. The officer conducted a traffic stop. Upon making contact with West, the
officer observed that West was holding a freshly lit cigarette, appeared extremely nervous, and
was wearing a necklace with a glass medallion embossed with “4:20.” The officer asked West
for his driver’s license, registration, and proof of insurance and discovered that West’s insurance
was not valid. While standing at the driver’s side window, the officer radioed dispatch and

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requested that a drug dog be sent to the stop. While waiting for the drug dog to arrive, the officer
returned to his patrol car and ran West and his passenger’s information through dispatch for
driver’s license status as well as any active warrants. The officer also began completing a traffic
citation. The drug dog and his handler arrived while the officer was still completing the citation.
The officer discussed the situation with the handler and returned to West’s vehicle to ask West
and his passenger to exit. The drug dog sniffed the outside of West’s vehicle and alerted to the
smell of a controlled substance. Marijuana and drug paraphernalia were discovered in West’s
vehicle.
       West was initially charged with possession of marijuana in an amount exceeding three
ounces and possession of drug paraphernalia. West filed a motion to suppress evidence, which
the district court denied. Pursuant to an I.C.R. 11 plea agreement, West entered conditional
guilty pleas to possession of a controlled substance with intent to deliver, I.C. § 37-2732, 1 and
possession of drug paraphernalia, I.C. § 37-2734A(1), and reserved the right to appeal the denial
of his motion to suppress. The district court imposed a unified term of five years, with a
minimum period of confinement of two years, for possession with intent to deliver and retained
jurisdiction for a period of one year. 2 The district court also imposed a concurrent ninety-day
sentence for the drug paraphernalia charge. West appeals.
                                                II.
                                           ANALYSIS
       West argues that the district court erred when it denied his motion to suppress evidence.
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,


1
       This charge was amended from possession of marijuana in an amount exceeding three
ounces.
2
       Following completion of West’s rider, the district court suspended the balance of West’s
sentence and placed him on probation for five years.


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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). Because West does not challenge the district court’s factual findings,
but contests only the court’s legal conclusions, the issue presented is one of law, which we
independently review. State v. Brumfield, 136 Idaho 913, 916, 42 P.3d 706, 709 (Ct. App. 2001).
        West argues that the officer impermissibly extended the duration of the traffic stop to
await the arrival of the drug dog. An investigative detention must be temporary and last no
longer than necessary to effectuate the purpose of the stop. State v. Roe, 140 Idaho 176, 181, 90
P.3d 926, 931 (Ct. App. 2004); State v. Gutierrez, 137 Idaho 647, 651, 51 P.3d 461, 465 (Ct.
App. 2002). There is no rigid time-limit for determining when a detention has lasted longer than
necessary. State v. Ramirez, 145 Idaho 886, 889, 187 P.3d 1261, 1264 (Ct. App. 2008).
        The district court found that the officer did not intentionally delay the length of the traffic
stop to await the arrival of the drug dog. Specifically, based upon testimony adduced at the
hearing on West’s motion to suppress, the district court found that approximately ten minutes
elapsed from the beginning of the traffic stop until the drug dog sniff. The district court also
found that, during that time, the officer approached West’s vehicle; made contact with West;
requested West’s driver’s license, registration, and proof of insurance; went to his patrol car and
went back to West’s vehicle once he determined the insurance information was not valid;
returned to his patrol car to run West and his passenger’s information through dispatch for
driver’s license status as well as any active warrants; and began writing a citation. The officer
testified that the drug dog and his handler arrived while the officer was still completing the
citation.   We conclude that the time used by the officer was necessary to complete his
investigation into West’s traffic violation. Therefore, based on the circumstances of this case,
there was no impermissible extension of the duration of the traffic stop to await the arrival of the
drug dog.
        Even if the duration of the traffic stop was lengthened to await the arrival of the drug dog,
it is not an unlawful lengthening of a legal detention to hold a suspect until a drug dog arrives
when reasonable suspicion of a drug crime is present. Brumfield, 136 Idaho at 917, 42 P.3d at
710. West argues that the officer lacked such reasonable suspicion.
        A traffic stop by an officer constitutes a seizure of the vehicle’s occupants and implicates
the Fourth Amendment’s prohibition against unreasonable searches and seizures. Delaware v.
Prouse, 440 U.S. 648, 653 (1979); Atkinson, 128 Idaho at 561, 916 P.2d at 1286.                    An


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investigative stop must be justified by a reasonable suspicion, derived from specific articulable
facts, that the detained person has committed or is about to commit a crime. Florida v. Royer,
460 U.S. 491, 498 (1983); State v. Fry, 122 Idaho 100, 103, 831 P.2d 942, 945 (Ct. App. 1991).
The determination of 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. Roe, 140 Idaho at
181, 90 P.3d at 931; 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 scope
of an investigatory detention may be expanded if objective and specific articulable facts exist to
justify the suspicion that a detained person is engaged in criminal activity. State v. Grantham,
146 Idaho 490, 496, 198 P.3d 128, 134 (Ct. App. 2008). West concedes that his initial detention
by the officer was justified at its inception. Therefore, we only address whether the officer
impermissibly expanded the scope of West’s detention.
       The officer testified at the hearing on West’s motion to suppress that, upon making
contact with West, the officer observed West was holding a freshly lit cigarette, appeared
extremely nervous, and was wearing a necklace with a glass medallion embossed with “4:20.”
The officer testified that, based upon his training and experience, he knew cigarettes could be
used to mask other odors from drugs, West’s extreme nervousness was not typical of a traffic
stop, and the number “4:20” embossed on West’s necklace was associated with marijuana use.
This Court has previously recognized the significance of suspects using masking odors, such as
cigar smoke, in attempting to cover drug odors. See Brumfield, 136 Idaho at 916-17, 42 P.3d at
709-10. In addition, while a suspect’s nervousness may be of “limited significance,” State v.
Gibson, 141 Idaho 277, 285-86, 108 P.3d 424, 432-33 (Ct. App. 2005), a suspect’s excessive
nervousness may contribute to a finding of reasonable suspicion. See State v. Johnson, 137
Idaho 656, 660, 51 P.3d 1112, 1116 (Ct. App. 2002). The officer also testified that, prior to
making the traffic stop, the officer observed West’s vehicle back out of the driveway of a known
drug house. We conclude that, taken together, these objective and specific articulable facts
justified the suspicion that West was engaged in criminal activity associated with marijuana use.




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Thus, the officer did not impermissibly expand the scope of West’s detention by calling for the
drug dog to confirm or dispel that suspicion.
                                                III.
                                        CONCLUSION
       The officer did not impermissibly extend the duration of the traffic stop of West’s vehicle
to await the arrival of the drug dog. Even if the length of the traffic stop was extended to await
the arrival of the drug dog, it was not an unlawful extension because objective and specific
articulable facts justified the suspicion that West was engaged in criminal activity associated
with marijuana use. Therefore, the district court did not err by denying West’s motion to
suppress evidence. Accordingly, West’s judgment of conviction for possession of a controlled
substance with intent to deliver and possession of drug paraphernalia is affirmed.
       Chief Judge GUTIERREZ and Judge GRATTON, CONCUR.




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