                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 41790

STATE OF IDAHO,                                  ) 2015 Opinion No. 29
                                                 )
       Plaintiff-Respondent,                     ) Filed: May 22, 2015
                                                 )
v.                                               ) Stephen W. Kenyon, Clerk
                                                 )
RUSSELL GLENN DAVIS,                             )
                                                 )
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho,
       Elmore County. Hon. Lynn G. Norton, District Judge.

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

       Sara B. Thomas, State Appellate Public Defender; Reed P. Anderson, Deputy
       Appellate Public Defender, Boise, for appellant. Reed P. Anderson argued.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent. Russell J. Spencer argued.
                 ________________________________________________

MELANSON, Chief Judge
       Russell Glenn Davis appeals from his judgment of conviction for possession of a
controlled substance with intent to deliver. Specifically, Davis argues that the district court erred
in denying his motion to suppress. For the reasons set forth below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       Police officers (officers) and agents from the Air Force Office of Special Investigations
(agents) were executing a search warrant on an apartment. The apartment was part of a complex
consisting of a common area surrounded by four buildings.           Each building contained four
apartments (two on the first floor and two on the second floor) and each was only accessed via
the common area. The apartment being searched was a second floor unit, and Davis was not a

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resident. While officers were conducting the search, a resident of the apartment arrived. The
resident was searched and the officers seized a cell phone. One officer noticed an incoming text
message from a person identified by the phone’s contacts as Russell Davis.           The officer
recognized the name Russell Davis because the officer had previous contact with Davis in an
earlier case involving a controlled buy of marijuana.
        The officer reviewed a number of text messages that had been sent and received via the
phone over a two and one-half-hour period. One message sent to the phone by Davis asked if the
resident still wanted “an O or anyone else . . . because im puttin [sic] in the order now?” Based
upon the officer’s training and experience, he recognized the term “O” as slang for an ounce of
marijuana. The owner of the phone had immediately responded that he wanted “just 1,” and
asked to meet at a supermarket. After many messages back and forth, the phone received a
message from Davis stating, “I got it, he’s gone so whatcha wanna do?” The return message sent
from the phone instructed Davis to “cruise to the apartment.” This message was sent just before
the time the phone was seized by the officer.
        Officers continued to search the apartment while the agents, wearing jackets identifying
each as a “Federal Agent,” waited in the common area of the apartment complex. A vehicle
pulled into a parking lot and the driver exited. The driver walked down a sidewalk which ran
between two of the buildings to the common area. As the driver turned a corner and saw the
agents, he hesitated and kept walking toward the agents. One agent introduced himself, shook
the driver’s hand, and asked his name. The driver identified himself as Russell Davis. The agent
then asked Davis to have a seat on the curb, which Davis did. Another agent then went up to the
apartment to notify the officers that a person had arrived outside. The officer who had reviewed
the text messages looked out the window and saw a vehicle that he recognized as Davis’s, based
upon the previous contact with Davis. The officer then identified Davis as the man sitting on the
curb.
        That officer went down to speak with Davis and asked him where he was going. Davis
said he was going to see “Mike.” No resident of the apartment being searched was named Mike.
The officer told Davis that he had read text messages sent from a phone and that he believed
Davis had come to the apartment to sell narcotics. The officer noticed a bulge in the lower
pocket of Davis’s cargo shorts. He poked the bulge with the antenna of his radio and asked


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Davis what was in his pocket. Davis did not answer. The officer told Davis to stand up for a
pat-down. Davis placed his hands on his head as instructed and the officer patted down the
outside of Davis’s clothing. The officer and another officer both smelled raw marijuana on
Davis when they stepped behind Davis to conduct the frisk. The officer later testified that he
believed the large bulge in the shorts to be an ounce of marijuana and not a weapon. The officer
removed a bag of marijuana from Davis’s pocket. Davis was charged with possession of a
controlled substance with the intent to deliver. I.C. § 37-2732(a)(1)(B).
        Davis filed a motion to suppress, arguing that his initial detention and the subsequent
search violated his Fourth Amendment rights. After a hearing, the district court denied the
motion. Davis then entered a conditional plea of guilty, preserving the right to challenge the
district court’s denial of his motion to suppress. Davis 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
        Davis argues that the district court erred in denying his motion to suppress because he
was illegally detained. He contends that he was illegally detained because he was not in the
immediate vicinity of the premises being searched and there was no nexus between Davis and
the activity giving rise to the search at the time of his detention.
        The Fourth Amendment to the United States Constitution prohibits unreasonable searches
and seizures. Warrantless searches and seizures are presumed to be unreasonable and therefore
violative of the Fourth Amendment.        See State v. Weaver, 127 Idaho 288, 290, 900 P.2d 196,


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198 (1995). The state may overcome this presumption by demonstrating that a warrantless
search or seizure either fell within a well-recognized exception to the warrant requirement or was
otherwise reasonable under the circumstances. Id.
       When law enforcement officers are executing a search warrant on a premises, officers are
allowed to briefly detain the occupants of the premises described in the warrant. Michigan v.
Summers, 452 U.S. 692, 705 (1981).        The authority to detain occupants arises from three
important interests identified by the United States Supreme Court: (1) preventing the flight of
the occupants, (2) minimizing the potential for harm to law enforcement, and (3) facilitating the
completion of the search. Id. at 702-03. Detentions incident to the execution of a search warrant
are constrained to the immediate vicinity of the premises to be searched. Bailey v. United States,
___ U.S. ___, ___, 133 S. Ct. 1031, 1042 (2013). In Bailey, the Court listed the factors to
consider when delineating the immediate vicinity of a particular property: “the lawful limits of
the premises, whether the occupant was within the line of sight of his dwelling, the ease of
reentry from the occupant’s location, and other relevant factors.” Id.
       The United States Supreme Court cases cited above specifically address the detention of
occupants or residents of the property being searched. Idaho courts have relied on Summers and
allowed detentions of people who are “found on the premises to be searched who are not readily
ascertainable as residents or occupants.” State v. Pierce, 137 Idaho 296, 298, 47 P.3d 1266,
1268 (Ct. App. 2002). In that case, this Court held that a defendant, who was standing in the
driveway of a home when police arrived to search the premises, could be detained to determine
his identity and relationship to the premises. Id. at 301, 137 P.3d at 1271. Similarly, this Court
has held that a person who walked through the front yard of a premises being searched could be
detained for the limited purpose of determining the person’s identity and connection to the
premises. State v. Kester, 137 Idaho 643, 647, 51 P.3d 457, 461 (Ct. App. 2002).
       The cases upon which the district court relied differ from the instant case in one
important respect--Pierce, Kester, and Summers all dealt with a person being seized in the
immediate vicinity of private houses rather than a multi-unit, multi-building apartment complex.
Davis argues that the line of cases cited above should not be extended to allow detention of
individuals who arrive in the vicinity of an apartment being searched. Davis contends that
interpreting the case law to include apartments would “legitimize detentions of any other


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occupants or visitors to the entire building.”       Davis continues that, “taken to its logical
conclusion, this rule would allow large-scale detentions of anyone who tried to walk past a
50-story apartment building in a large city while a search was occurring in one of the
apartments.” While it is true that extending Summers to apartments may permit detention of
some other occupants or visitors who arrive in the immediate vicinity of the apartment being
searched, we are not persuaded by Davis’s argument. In context of the important interests
outlined by the Supreme Court in Summers, officers would not be justified in detaining an
individual who walks past a 50-story apartment building while a search occurs in one of the
apartments because the individual usually would not be within the immediate vicinity of the
premises being searched.
       The primary question here is whether the same important interests outlined in Summers to
justify the detention of persons potentially connected to a searched house also justify the
detention of persons potentially connected to a searched apartment. The first important interest,
preventing the flight of occupants, is equally applicable to apartments and houses. When a
person arrives at his or her residence and discovers that it is being searched, the person is equally
likely to flee, whether the residence is an apartment or house. The second important interest,
minimizing the potential harm to law enforcement, is arguably stronger in the context of an
apartment as compared to a house. In an apartment complex, there are generally more people
within the vicinity of the residence being searched. Where there are more people, the potential
risk to officers necessarily increases, justifying taking precautions to protect the officers. The
third important interest, facilitating the completion of the search, is equally applicable to
apartments and houses. Whether a residence is a house or apartment, does not affect whether
detention will facilitate the completion of the search. Weighing the three factors together, the
important interests delineated in Summers weigh at least as heavily in favor of permitting brief
detentions pursuant to the search of an apartment as they do pursuant to the search of a house.
Thus, a person may be detained in the immediate vicinity of an apartment being searched just as
that person may be detained in the immediate vicinity of a house being searched.
       When determining whether a person is in the immediate vicinity of a searched premises,
the trial court should consider the layout of the property--including the location of entrances to
the searched unit--and the detained individual’s proximity to the apartment’s entrance. Here,


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Davis arrived at a small apartment complex, walked down the sidewalk, and turned toward the
common entrance shared by four apartments. Davis argues that officers were not permitted to
detain him because he was not within the immediate vicinity of the apartment being searched.
Davis also argues that none of the agents who detained Davis in the common area of the complex
had any reason to believe Davis was an occupant of, or even a visitor to, the apartment being
searched. In addition, an agent admitted that he did not know if Davis was going to the
apartment.   Therefore, according to Davis, the agent did not have an articulable basis for
suspecting any criminal activity at the moment he detained Davis.
       We agree that the agent, who did not know about the text messages from Davis, did not
have reasonable, articulable suspicion to suspect Davis was involved in criminal activity. The
general rule is that 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. Sheldon, 139 Idaho at 983, 88 P.3d at 1223. However, this general rule does
not set the standard for a detention when a person arrives at a premises being searched pursuant
to a search warrant. When a person arrives at a premises while a search warrant is being
executed, officers are allowed to detain the person for the limited purpose of determining the
person’s identity and connection to the premises being searched. See Kester, 137 Idaho at 647,
51 P.3d at 461.
       Davis was detained on a communal sidewalk that led to the common entry area of only
four apartments. While Davis was not inside the apartment or immediately outside the door to
the apartment, he was walking toward the stairs--the only entrance to the second-floor apartment.
As found by the district court, when Davis was stopped, he was very close to the stairs leading to
the apartment being searched. It appears from the record that Davis was perhaps 8 to 10 feet, at
the most, from the bottom of the stairs. Accordingly, we hold that Davis was in the immediate
vicinity of the apartment being searched and that the agent was justified in stopping Davis for the
limited purpose of ascertaining his identity and relationship to the apartment. Further, the five
minutes that Davis was detained was not unreasonable given the circumstances. It took several
minutes for the agents to ascertain Davis’s identity, go up the stairs to where the officers were
conducting the search, and communicate that a person named Russell Davis had arrived in order




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to determine whether he had a relationship to the premises.          Thus, Davis’s detention was
reasonable under the circumstances.
                                                IV.
                                         CONCLUSION
       Davis’s brief detention was proper under the specific circumstances of this case because
he was in the immediate vicinity of the premises being searched. Therefore, the district court did
not err in denying Davis’s motion to suppress. Accordingly, Davis’s judgment of conviction for
possession of a controlled substance with intent to deliver is affirmed.
       Judge LANSING and Judge GUTIERREZ, CONCUR.




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