               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 45606

STATE OF IDAHO,                                  )
                                                 )    Filed: January 22, 2019
       Plaintiff-Respondent,                     )
                                                 )    Karel A. Lehrman, Clerk
v.                                               )
                                                 )    THIS IS AN UNPUBLISHED
JOHN LEROY PENA,                                 )    OPINION AND SHALL NOT
                                                 )    BE CITED AS AUTHORITY
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Nancy A. Baskin, District Judge.

       Judgment of conviction for possession of a controlled substance, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Lara E. Anderson, Deputy
       Appellate Public Defender, Boise, for appellant. Lara E. Anderson argued.

       Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney
       General, Boise, for respondent. Ted S. Tollefson argued.
                 ________________________________________________

LORELLO, Judge
       John Leroy Pena appeals from his judgment of conviction for possession of a controlled
substance. Pena challenges the district court’s order denying his motion to suppress. For the
reasons set forth below, we affirm.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       An officer encountered Pena at 3:15 a.m. while Pena was in a dark area of a hotel parking
lot, sitting in a parked car with the engine running and the lights off. The officer parked seven to
ten feet behind Pena’s car, but did not activate the patrol car’s overhead lights. As the officer
exited his patrol car, Pena exited his vehicle and engaged in conversation with the officer.
During the course of the encounter, the officer learned Pena was on parole and saw that Pena had
a glass object with white residue that resembled a methamphetamine pipe. The officer requested



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an assist officer and subsequently arrested Pena. While Pena’s hands were being placed behind
his back, Pena threw the glass object on the ground. The officer retrieved the glass object, which
was a pipe that contained a substance that tested positive for methamphetamine. During a search
incident to arrest, the officer also found a bag of methamphetamine in Pena’s pocket.
       The State charged Pena with possession of a controlled substance, I.C. § 37-2732(c), and
possession of drug paraphernalia, I.C. § 37-2734A. Pena filed a motion to suppress, alleging he
was detained without reasonable suspicion; even if the detention was lawful, it was prolonged
beyond what was necessary to effectuate the purpose of the detention; and the consent to search
provision in Pena’s parole supervision agreement did not justify the detention and subsequent
search because the officers were unaware of the provision at the time of the detention and
unaware of the scope of the provision at the time of the search. Following the suppression
hearing, the district court issued a written decision denying Pena’s motion, concluding the initial
encounter between Pena and the officer was consensual and that Pena was not detained until the
officer had reasonable suspicion that Pena possessed paraphernalia. Pena thereafter entered a
conditional guilty plea to possession of a controlled substance, reserving his right to challenge
the denial of his motion to suppress. In exchange for his guilty plea, the drug paraphernalia
charge was dismissed. The district court sentenced Pena to a unified term of two years, with a
minimum period of confinement of one year, to run concurrently with an unrelated sentence.
The district court suspended Pena’s sentence and placed him on probation. Pena 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.


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                                          ANALYSIS
       Pena contends that the district court erred in denying his motion to suppress because the
evidence showed that his encounter with the officer was not consensual and that Pena was
detained without reasonable suspicion. Pena further contends that, even if his detention was
lawful, it was unlawfully prolonged and his parole status did not justify a warrantless seizure or
search. The State responds that the district court correctly concluded that the encounter was
consensual and that, even if the encounter was not consensual, the officer had reasonable,
articulable suspicion to detain Pena. Pena has failed to show any error in the district court’s
conclusion that the encounter was consensual.
       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. 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. 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.
Id. Importantly, the critical inquiry is whether, taking into account all of the circumstances
surrounding the encounter, the police conduct would have communicated to a reasonable person




                                                3
that he or she was not at liberty to ignore the police presence and go about his or her business.
Bostick, 501 U.S. at 436.
       The United States Supreme Court, in United States v. Mendenhall, 446 U.S. 544, 554
(1980), stated:
       Examples of circumstances that might indicate seizure, even where the person did
       not attempt to leave, would be the threatening presence of several officers, the
       display of a weapon by an officer, some physical touching of the person of the
       citizen, or the use of language or tone of voice indicating that compliance with the
       officer’s request might be compelled.
Other circumstances that may indicate a seizure include whether an officer used overhead
emergency lights or took action to block a vehicle’s exit route. State v. Willoughby, 147 Idaho
482, 487-88, 211 P.3d 91, 96-97 (2009); State v. Schmidt, 137 Idaho 301, 302-03, 47 P.3d 1271,
1272-73 (Ct. App. 2002); Fry, 122 Idaho at 103, 831 P.2d at 945.
       The following facts were found by the district court. At approximately 3:15 a.m., an
officer was on routine patrol when he noticed a car parked in a dark area of a hotel parking lot,
far from any guest entrances. The car was running and its lights were off. Because the officer
had made multiple drug arrests in that area, he decided to investigate whether potential criminal
activity was underway. The officer drove past the vehicle, checked its license plate, and then
parked his patrol car about seven to ten feet behind the vehicle. The officer did not activate the
patrol car’s overhead lights. As the officer exited his patrol car, Pena exited his vehicle with his
hands in his pockets. The officer asked Pena why he was there, and Pena replied that he was
picking up a friend at a nearby hotel. Although Pena provided his friend’s name, he could not
provide the name of the hotel.
       Pena provided identification, but declined the officer’s request to check Pena’s pockets
for weapons. Pena did not, however, object when the officer used a flashlight to look through
Pena’s car windows. When the officer looked in the windows, he noticed a saw in the backseat.
During Pena’s conversation with the officer, Pena admitted he was on parole for burglary and
stated he did not think a Fourth Amendment waiver was included as one of his parole conditions.
       After the officer checked Pena’s identification and determined he did not have any
outstanding warrants, the officer returned Pena’s identification and told him he was free to leave.
A few seconds later, the officer said, “I saw that you stuffed a little tissue in your pockets. Is



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there anything in that tissue?” In response, Pena reached into his left sweatshirt pocket and
moved his hand around in the pocket. The officer then asked Pena, “Can you put it on the hood
for me?” Pena fumbled around in his pocket for approximately twenty-five seconds, removed
multiple items, placed the tissue in his right hand, and quickly returned his left hand to his
pocket. In the meantime, the officer saw that the item Pena returned to his pocket was a bulbous
glass object with white residue on it, resembling a pipe used to smoke methamphetamine. The
officer then called a second officer to assist and no longer considered Pena free to leave. Prior to
the arrival of the second officer, Pena was again asked the name of the friend he was picking up.
This time, Pena paused for several seconds before providing a different name than he previously
gave.
         While Pena was being arrested, the officers attempted to put Pena’s hands behind his
back. Pena then removed the glass object from his pocket and threw it on the ground. The glass
pipe contained a substance which tested positive for methamphetamine. Pena also had a bag of
methamphetamine in his pocket.
         The district court denied Pena’s motion to suppress, concluding that the initial encounter
between Pena and the officer was consensual because the officer did not employ any show of
force or authority to restrain Pena’s liberty. On this point, the district court noted that: (1) the
officer parked several feet away from Pena, leaving sufficient room for Pena to leave if he chose
to do so; (2) the officer did not activate his overhead lights; (3) the officer was alone when he
approached Pena and did not request assistance until he saw Pena’s pipe; (4) the officer did not
draw his weapon or touch Pena; (5) the officer spoke to Pena “in a casual and conversational
tone”; (6) the officer’s question about the tissue in Pena’s pocket was phrased and sounded like a
question, not a command; and (7) the officer returned Pena’s identification and told him he was
free to go after determining he did not have any outstanding warrants. Based on the totality of
these circumstances, the district court concluded a reasonable person would have felt free to
leave.
         The district court further concluded Pena was not detained until the officer noticed the
glass pipe, which provided reasonable suspicion for the detention. The district court explained
that Pena “could have declined the officer’s request to remove the tissue from his pocket and left
in his vehicle.” Instead, Pena “voluntarily chose to comply with the officer’s request.”


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       On appeal, Pena argues that his encounter with the officer “was an unlawful investigative
detention at the outset” and that the district court’s “factual findings relating to show of authority
and tone were clearly erroneous and its application of constitutional principles was flawed based
upon an incomplete and isolated analysis.” Pena contends that the “hearing testimony and video
tape of the encounter” demonstrate clear error with respect to the district court’s factual findings.
In support of this argument, Pena notes that the officer drove past Pena’s vehicle and “ran his
license plate,” came back around and parked seven to ten feet away, left his patrol lights on, and
“walked directly” to Pena while wearing a uniform and “likely” a service weapon. Pena argues
this was a “clear show of authority” even if it was not a detention. Pena also argues that the
officer’s verbal communications with Pena had “an accusatory and challenging tone” and were
“pointed and a show of authority” because they included telling Pena that he would be “good to
go” if “everything clears out” after checking his identification, to keep his hands out of his
pockets, to stand in a particular place, and to lean against his vehicle. Pena contends the officer
“rejected” Pena’s attempts to assert his rights as evidenced by Pena declining to allow the officer
to search Pena’s pockets, asking why the officer needed Pena’s identification, and telling the
officer he was going to leave. According to Pena, refusing the requested search and asking the
officer questions demonstrated he was “not voluntarily there.” Finally, Pena contends that the
officer’s possession of Pena’s identification was a seizure because, although the officer obtained
the identification through a request, the request was “reasonably perceived as a command.”
       We first note that, although Pena contends the district court’s factual findings were
clearly erroneous, he has failed to demonstrate as much. Substantial evidence supports each of
the district court’s findings enumerated above. Thus, the core of Pena’s argument is that the
district court erred in determining the facts showed the encounter was consensual.             In its
memorandum decision, the district court clearly articulated the legal standards applicable to
determining whether an encounter is consensual. Consistent with those standards, the district
court correctly concluded that the officer’s conduct in this case would have communicated to a
reasonable person that he was free to ignore the police presence and go about his business. The




                                                  6
officer did not activate his overhead lights or impede Pena’s ability to exit the parking lot, 1 nor
did the officer require Pena to exit his vehicle or force him to provide his identification. That
Pena asked the officer questions shows that Pena did not engage with the officer involuntarily,
and there is no evidence to support Pena’s argument that the officer ignored Pena’s assertion of
his rights. To the contrary, the officer respected Pena’s rights as evidenced by the officer
responding, “that’s fine” when Pena declined the officer’s request to check Pena’s pocket for
weapons.    The officer’s request to examine Pena’s identification also did not convert the
otherwise consensual encounter into a detention. It is well-settled that an officer may generally
ask an individual questions and ask to examine identification without reasonable suspicion. Fry,
122 Idaho at 102, 831 P.2d at 944. Indeed, Pena acknowledges on appeal that he provided his
identification voluntarily. We are unpersuaded by Pena’s claim that he did so only because the
officer’s request could only be “reasonably perceived as a command.”
       Based on the totality of the circumstances, the district court did not err in its conclusion
that the encounter between Pena and the officer was consensual up until the officer had
reasonable suspicion that Pena possessed paraphernalia. 2
                                                IV.
                                         CONCLUSION
       The district court correctly concluded the initial encounter between Pena and law
enforcement was consensual and that Pena was not detained until the officer had reasonable
suspicion that Pena possessed paraphernalia. Therefore, Pena has failed to show the district
court erred in denying his motion to suppress, and his judgment of conviction is affirmed.
       Chief Judge GRATTON and Judge BRAILSFORD, CONCUR.


1
        Pena also contends that the officer was standing near the driver’s side of Pena’s vehicle
such that, had Pena “tried to reverse to exit the lot, he would have struck” the officer. This
assertion appears to be speculative based on what would have happened if Pena was in his car
while the officer was standing near Pena’s vehicle or if the officer would have remained standing
in the same place if Pena had gotten back in his car and attempted to leave. We decline to
consider this speculative factual claim as part of our analysis.
2
       Because we conclude the encounter was consensual, we need not address the alternative
arguments regarding whether the officer had reasonable suspicion to detain Pena upon initial
contact.

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