                   IN THE SUPREME COURT OF THE STATE OF IDAHO

                                         Docket No. 46098

STATE OF IDAHO,                                      )
                                                     )
     Plaintiff-Appellant,                            )        Boise, April 2019 Term
                                                     )
v.                                                   )        Opinion filed: June 5, 2019
ISAAC LYLE SALDIVAR,
                                                     )
                                                     )        Karel A. Lehrman, Clerk
     Defendant-Respondent.                           )

         Appeal from the District Court of the Fourth Judicial District of the State of
         Idaho, Ada County, Melissa Moody, District Judge.

         The order of the district court granting defendant’s motion to suppress is reversed
         and remanded.

         Lawrence G. Wasden, Idaho Attorney General, Boise, for Appellant. Kenneth K.
         Jorgensen argued.

         Eric Don Fredericksen, State Appellate Public Defender, Boise, for Respondent.
         Ben P. McGreevy argued.

               _______________________________________________

MOELLER, Justice.
                                I.      NATURE OF THE CASE
         The State appeals from an Ada County district court order granting Isaac Lyle Saldivar’s
motion to suppress evidence that he unlawfully possessed a firearm. During a pat-search, police
discovered a Smith & Wesson semi-automatic pistol in the left front pocket of Saldivar’s pants.
The police later learned that Saldivar was a parolee who was wanted on an active warrant. The
district court determined that the officers lacked reasonable suspicion to conduct the pat-search.
The district court further held that the inevitable discovery exception was inapplicable to the
facts of this case and granted the motion to suppress. The State argues that the search was
reasonable under the circumstances, and that even if it was not, the inevitable discovery
exception applies to this case. It also argues that because of his parole status, Saldivar did not
retain a reasonable expectation of privacy regarding the pat-search. For the reasons stated below,
we reverse.


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                    II.      FACTUAL AND PROCEDURAL BACKGROUND
        On December 4, 2017, at approximately 5:30 a.m., Officers Trent Schneider and Joe
Martinez were dispatched to an apartment in Boise to investigate a recent shooting. Dispatch
advised the officers that one person had been shot at the apartment, other people in the apartment
were intoxicated, and the gun used in the shooting was still inside the apartment. 1 It was dark
outside when the officers approached the building from the front. As they approached the front
door to the apartment, Saldivar came around from the back of the building carrying a tote.
Because the gun was believed to still be at the premises and the shooter had not yet been
identified, the officers ordered Saldivar to show them his hands, turn around, and get on the
ground. Saldivar complied with these demands without conflict. At that point, Officer Schneider
placed him in handcuffs and conducted a pat-search of Saldivar for weapons.
        The search revealed a gun in the front left pocket of Saldivar’s pants. Unbeknownst to the
officers at that time, Saldivar was on parole and had waived his rights concerning searches under
the Fourth Amendment and the Idaho Constitution. After the pat-search, Officer Schneider
conducted a warrant check on Saldivar and discovered that he had an outstanding arrest warrant.
As a result, Saldivar was taken into custody and subsequently charged with illegally possessing a
firearm as a convicted felon in violation of Idaho Code section 18-3316. 2
        On February 16, 2018, Saldivar filed a motion to suppress on the basis that the officers
lacked a reasonable, articulable suspicion that he was armed and dangerous, and thus the search
was unreasonable. The State argued that Saldivar did not have standing to challenge the search
because he waived his right to do so as a condition of his parole, the search was reasonable in
light of the circumstances, and, even if the search was not reasonable, the attenuation and
inevitable discovery exceptions applied. During a hearing on the motion to suppress, Officer
Schneider testified that it is “standard operating procedure” to pat-search anyone who is
handcuffed and that such searches are for “officer safety reasons only.” He also testified that his
concerns in this case were due to the shooting he was investigating, the fact that it was dark
outside, and he could not see clearly. 3 Neither officer testified that they had reason to believe that

1
  Although not pertinent to this appeal, further investigation revealed that the gun-shot wound was self-inflicted.
2
  He was also charged with grand theft because the gun was found to be stolen; however, that charge was later
dismissed because the State failed to establish probable cause that Saldivar stole it.
3
  The trial judge correctly noted that these statements were elicited through a leading question asked by the
prosecutor during the officer’s direct examination at the suppression hearing; however, Saldivar’s attorney made no
objection. Inasmuch as the statements were not stricken, they remain a part of the record.


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Saldivar was dangerous, aside from the fact that he was near the residence where the shooting
occurred.
         After the hearing on the motion to suppress, the district court granted the motion on the
bases that the search was not reasonable under the circumstances, the officers could not
retroactively justify the search based on a waiver they had no knowledge of before the search,
and the attenuation and inevitable discovery doctrines did not apply. The State timely appealed.

                                III.    STANDARD OF REVIEW
         The Court conducts a bifurcated review when it considers a motion to suppress. State v.
Watts, 142 Idaho 230, 232, 127 P.3d 133, 135 (2005). This means that when a ruling on a
suppression motion is challenged on appeal, “the Court accepts the trial court’s findings of fact
that are supported by substantial evidence, but freely reviews the application of constitutional
principles to the facts as found.” State v. Page, 140 Idaho 841, 843, 103 P.3d 454, 456 (2004).
                                        IV.     ANALYSIS
         The State argues that the district court erred in concluding that the search was not
reasonable under the circumstances and that the inevitable discovery doctrine does not apply to
the facts of this case. It further argues that the district court erred in determining that Saldivar, a
parolee, retained a reasonable expectation of privacy despite waiving his rights concerning
searches of his person.
         “Like the Fourth Amendment, the purpose of Art. I, § 17 is to protect Idaho citizens’
reasonable expectation of privacy against arbitrary governmental intrusion. To this end,
warrantless searches are presumed to be unreasonable unless the search can be justified under
one of the exceptions to the warrant requirement.” State v. Christensen, 131 Idaho 143, 146, 953
P.2d 583, 586 (1998) (internal citation omitted). With this understanding, we address the State’s
arguments in turn.
         A. The pat-search was reasonable under the totality of the circumstances.
         The State argues that the search was reasonable under the totality of the circumstances
because the officers reasonably concluded that Saldivar may have been armed and dangerous
given the nature of the potential crime they were investigating and his respective location to the
scene.
         Search and seizure questions require a delicate balance between the need for
         police to effectively investigate crime and citizens’ rights to be secure in their
         homes from unreasonable government intrusion. The weighing of facts needed to


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        reach this balance precludes the use of simple rules, but instead requires a case by
        case determination.
Christensen, 131 Idaho at 148, 953 P.2d at 588. “This Court maintains free review . . . over
whether the facts surrounding the search and seizure satisfy constitutional requirements.” State v.
Downing, 163 Idaho 26, 29, 407 P.3d 1285, 1288 (2017). Officers may conduct a pat-search of a
detainee who is reasonably believed to be armed and dangerous. State v. Henage, 143 Idaho 655,
660, 152 P.3d 16, 21 (2007). “A pat-search allows a law enforcement officer to investigate
‘without fear of violence being inflicted upon the officer’s person.’ ” Downing, 163 Idaho at 30,
407 P.3d at 1289 (quoting State v. Rawlings, 121 Idaho 930, 933, 829 P.2d 520, 523 (1992)). The
test for reasonableness is objective and depends on whether the facts would warrant a reasonable
person to believe “that the action taken was appropriate.” Henage, 143 Idaho at 660, 152 P.3d at
21 (quoting Terry v. Ohio, 392 U.S. 1, 22 (1968)).
        The district court acknowledged that the test for reasonableness of a search is an
objective one:
                Case law requires that the officer believe -- well, let me be careful about
        that because it’s not a subjective belief. It’s that a reasonable person would
        believe, given all of the facts and circumstances known to that reasonable person,
        that the pat-down subject is armed and dangerous. And there needs to be
        articulable reasons why the subject is armed and dangerous.
                 That’s an objective test, not subjective belief.
After noting that it “d[id] not doubt that Officer Schneider had officer safety concerns,” the
district court focused on the fact that “Officer Schneider never testified that he had safety
concerns about Mr. Saldivar specifically.” However, it apparently disregarded the officer’s
testimony that he was concerned about officer safety generally because “[t]here was a gun
involved. And any other times someone is detained, we have officers walking around to make
sure there are no guns pulled on ourselves or others.” Additionally, the officer agreed that
darkness at the scene caused further officer safety concerns. Thus, by focusing on a single
statement by the officer that Saldivar did not appear to be dangerous, it appears that the district
court improperly relied on a subjective test in determining whether the pat-search was
reasonable, rather than objectively considering the totality of the circumstances known to the
officer at the time.
        Further, the district court’s decision appears, at least in part, to be based on its concerns
with the officer’s testimony that “it is standard operating procedure . . . to frisk anyone in


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handcuffs.” The district court was justifiably troubled over the constitutional implications of
officers replacing the requisite “armed and dangerous” analysis with a “standard operating
procedure” of frisking everyone they detain. We have similar concerns with such a notion but
conclude that, under an objective analysis, the officers in this case had reasonable, articulable
suspicion that Saldivar was armed and dangerous based on the facts of this case.
       In State v. Bishop, we enumerated several factors to consider in determining whether it
was reasonable for officers to believe that an individual was armed and dangerous for purposes
of a pat-search. 146 Idaho 804, 819, 203 P.3d 1203, 1218 (2009). The factors include, but are not
limited to:
       [W]hether there were any bulges in the suspect’s clothing that resembled a
       weapon; whether the encounter took place late at night or in a high crime area;
       and whether the individual made threatening or furtive movements, indicated that
       he or she possessed a weapon, appeared nervous or agitated, appeared to be under
       the influence of alcohol or illegal drugs, was unwilling to cooperate, or had a
       reputation for being dangerous.
Id. We further stated that, “[w]hether any of these considerations, taken together or by
themselves, are enough to justify a Terry frisk depends on an analysis of the totality of the
circumstances.” Id.
       The trial court properly found, based upon the officer’s testimony, that the officer did not
notice any bulges in Saldivar’s clothing, that the incident did not occur in a high crime area, that
Saldivar did not make furtive movements, did not attempt to flee, complied with the officer’s
commands, and that he did not know who Saldivar was before the pat-search. Thus, aside from
being in the early morning hours when it was still dark out, none of the factors listed in Bishop
were present here. However, while the district court also recognized that “[p]roximity to the
scene of a dangerous crime does factor into the reasonableness inquiry,” it determined that
proximity alone cannot justify a frisk. We note that our decision in Bishop, as well as other
persuasive authority, supports a contrary conclusion. As noted, in Bishop, we acknowledged that
any single factor could be sufficient under a totality of the circumstances standard. 146 Idaho at
819, 203 P.3d at 1218. See also Henage, 143 Idaho at 663, 152 P.3d at 24 (Schroeder, J.,
specially concurring) (“The right to frisk can arise simply from the nature of the possible crime
the officer is investigating.”); In re Doe, 145 Idaho 980, 983, 188 P.3d 922, 925 (Ct. App. 2008)
(“[I]t is not unlikely that someone engaged in stealing another person[’]s property would arm
himself.”); State v. Burgess, 104 Idaho 559, 561, 661 P.2d 344, 346 (Ct. App. 1983) (“[T]he


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police had reason to suspect that Burgess may have been engaged in a burglary. It is not
unreasonable to believe that burglars can be armed and dangerous.”).
       Further, the district court failed to give sufficient weight to the other relevant
circumstances in the record that justified the pat-search. For instance, the officers’ knowledge as
they arrived at the scene—i.e., that someone had sustained a gunshot wound in the apartment,
other people at the apartment were intoxicated, and the gun was still there—when coupled with
Saldivar’s sudden appearance from behind the building in close proximity to the scene, provided
a compelling and constitutional reason for conducting a pat-search. These factors, when
considered objectively, support a reasonable belief by the officers that Saldivar may have been
armed and dangerous. Accordingly, we hold that under the totality of the circumstances, the pat-
search of Saldivar was reasonable.
       B. We need not address whether the district court erred in holding that the inevitable
          discovery doctrine does not apply in this case.
       The State also argues that the district court erred in determining that the inevitable
discovery exception does not apply in this case because, even if the officers had not found the
gun during the allegedly unlawful pat-search, they still would have detained Saldivar, checked
for outstanding warrants, and arrested him upon discovering his outstanding warrant. It further
argues that, upon arresting Saldivar, the officers would have conducted a constitutionally
permitted search incident to arrest that would have led to their discovery of the illegal firearm.
Saldivar argues that absent the allegedly unlawful pat-search, the officers would not have
continued their inquiry and thus would not have discovered the gun. The district court agreed,
averring that the State’s argument—that routine questioning by the officers would have led to
discovery of the warrant in this case, and thus discovery of the gun—was based on “speculative
chronology,” which is not sufficient to invoke the inevitable discovery exception. Accordingly,
the district court determined that the inevitable discovery exception did not apply.
       In light of our conclusion that the pat-search of Saldivar was reasonable, we decline to
address this issue here.
       C. We need not address whether Saldivar retained a reasonable expectation of privacy
          concerning searches of his person in light of his parole waiver.
       The State argues that because Saldivar was a parolee, who had previously waived his
right to object to searches as a condition of probation, he did not have an expectation of privacy




                                                 6
that society would recognize as reasonable. Therefore, the State asserts that it does not matter
whether the officers knew of Saldivar’s status as a parolee before they searched him.
       While this Court would typically address the question of whether there was a reasonable
expectation of privacy as the first step in its Fourth Amendment analysis, there is no need to do
so here. While we generally agree that “parolees . . . have severely diminished expectations of
privacy by virtue of their status alone,” Samson v. California, 547 U.S. 843, 852 (2006), the
State’s argument is essentially a post hoc justification for the conduct of the police, based on
information the police did not know at the time. However, the information the police reasonably
relied on at the time of the initial detention and subsequent pat-search provided a valid
constitutional basis for denying the motion to suppress. Therefore, there is no need to address
this issue and we decline the State’s invitation to further delineate the extent of Saldivar’s Fourth
Amendment rights as a parolee.
                                     V.      CONCLUSION
       We reverse the district court’s decision granting Saldivar’s motion to suppress and
remand the case for further proceedings consistent with this opinion.

       Chief Justice BURDICK, and Justices BRODY, BEVAN and STEGNER CONCUR.




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