               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 45312

STATE OF IDAHO,                                 )
                                                )    Filed: June 26, 2018
       Plaintiff-Respondent,                    )
                                                )    Karel A. Lehrman, Clerk
v.                                              )
                                                )    THIS IS AN UNPUBLISHED
ISRAEL CASTRO TELLEZ,                           )    OPINION AND SHALL NOT
                                                )    BE CITED AS AUTHORITY
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. George A. Southworth, District Judge.

       Judgment of conviction and order denying motion to suppress, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Jenny C. Swinford,
       Deputy Appellate Public Defender, Boise, for appellant. Jenny C. Swinford
       argued.

       Hon. Lawrence G. Wasden, Attorney General; Jeff Nye, Deputy Attorney
       General, Boise, for respondent. Jeff Nye argued.
                 ________________________________________________

HUSKEY, Judge
       Israel Castro Tellez appeals from the district court’s judgment of conviction, asserting the
district court erred by denying his motion to suppress. Specifically, he argues the district court
erred when it concluded that he was lawfully detained and that his detention was factually
unrelated to the discovery of marijuana and drug paraphernalia. The district court’s denial of
Tellez’s motion to suppress is affirmed.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       In February 2017, officers executed a search warrant for a house in Caldwell. While
walking toward the house in a single-file line on the neighborhood sidewalk, the officers viewed
Tellez exit the house, walk down the driveway, open the door to a car parked on the side of the
road in front of the house, look into the car, close the car door, and begin to walk away from the
car toward the house. The officers split up--one group detained and frisked Tellez in the middle
of the street. Tellez told the officers he was looking for something in the car. The other group of
officers proceeded to the house and executed the search warrant. Present in the house was
Tellez’s girlfriend, who lived there with her child.
       While one group of officers searched the house, the other group led a canine around four
vehicles near the house. The canine alerted on two vehicles, including the car Tellez had
opened. The officers searched the car and found several duffle bags containing marijuana and
drug paraphernalia. Tellez told the officers that the marijuana and drug paraphernalia were his,
but that the car belonged to his brother.
       Tellez was charged with possession of a controlled substance with intent to deliver,
possession of marijuana in excess of three ounces, and possession of drug paraphernalia. He
filed a motion to suppress the evidence, arguing the evidence was seized without a warrant and
was the result of his unlawful detention. The district court denied, in the course of two hearings,
Tellez’s motion to suppress. In the first hearing, the district court concluded that Tellez’s
detention was factually unconnected to the search of the car. In the second hearing, the district
court concluded Tellez was within the immediate vicinity of the premises to be searched.
       Tellez entered a guilty plea to the charge of possession of a controlled substance with
intent to deliver, but reserved his right to appeal the denial of his motion to suppress. The district
court imposed a three-year unified sentence, with two years determinate, but suspended the
sentence and placed Tellez on probation for three years. Tellez timely appealed to this Court.
                                                 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
       Tellez argues the district court erred when it concluded he was lawfully detained. He
asserts he was not within the immediate vicinity of the premises the officers searched pursuant to
the search warrant. Because he argues his detention was unlawful and led to the search of his
brother’s car, Tellez asserts the marijuana and drug paraphernalia evidence should be suppressed
under the exclusionary rule.
A.     Tellez Has Not Proved a Factual Nexus Between His Detention and the Discovery of
       the Marijuana and Drug Paraphernalia
       Preliminarily, we resolve a point of contention between the parties: whether the district
court’s findings and conclusions in the second suppression hearing superseded those it made in
the first suppression hearing. The transcripts of the hearings show that the substance of the
second hearing was different from the first, discussing different aspects of Tellez’s motion to
suppress. The first hearing was focused on the factual connection between Tellez’s detention
and the search of the car while the second focused on whether Tellez fell within the immediate
vicinity of the premises to be searched. This Court concludes the district court’s second hearing
was merely a continuation of the first, providing an alternate ground for the denial of Tellez’s
motion to suppress.
       “The exclusionary rule calls for suppression of evidence that is gained through
unconstitutional governmental activity.” State v. Kapelle, 158 Idaho 121, 127, 344 P.3d 901,
907 (Ct. App. 2014). The “defendant bears an initial burden of going forward with evidence to
show a factual nexus between the illegality and the state’s acquisition of the evidence.” Id.
Thus, a defendant must show “the evidence sought to be suppressed would not have come to
light but for the government’s unconstitutional conduct.” Id.; see also State v. McBaine, 144
Idaho 130, 133, 157 P.3d 1101, 1104 (Ct. App. 2007); State v. Babb, 136 Idaho 95, 98, 29 P.3d
406, 409 (Ct. App. 2001).
       In an attempt to meet his burden under the exclusionary rule, Tellez argues that if he had
not been detained, he would have driven his brother’s car away from the house, the car would
not have been present for the canine sniff, and the marijuana and drug paraphernalia never would
have been discovered. Even assuming Tellez was unlawfully detained, this bare assertion is not
sufficient to establish a factual nexus between Tellez’s detention and the discovery of the drug
evidence. Indeed, the available evidence from the record supports the conclusion that Tellez had
no intention to drive away in the car, but had closed the door and was heading back towards the
house, walking in the road to walk around the snow on the unshoveled sidewalk.                Thus,
regardless of his detention, the officers would have led the canine around the cars near the
premises they were searching. In the words of the district court, the discovery of the drug
evidence was totally unrelated to Tellez’s detention. Because Tellez has failed to show a factual
nexus between his detention and the discovery of the drug evidence, the exclusionary rule is not
in play and the district court did not err by denying Tellez’s motion to suppress.
B.     Even If There Were a Factual Nexus Between Tellez’s Detention and the Discovery
       of the Marijuana and Drug Paraphernalia, Tellez’s Detention Was Justified
       Even assuming there was a factual nexus between Tellez’s detention and the discovery of
the drug evidence, the exclusionary rule does not result in the suppression of the drug evidence
because Tellez’s detention was lawful. In Bailey, the United States Supreme Court held that law
enforcement may, incident to the execution of a search warrant, detain individuals within the
“immediate vicinity” of the premises to be searched. Bailey v. U.S., 568 U.S. 186, 194-202
(2013). Faced with the argument that officers should also be able to detain individuals outside of
the immediate vicinity, the Court analyzed three justifications for detention it had previously
used in Michigan v. Summers, 452 U.S. 692, 702-03 (1981). Bailey, 568 U.S. at 194-202. The
Court concluded the three detention justifications did not support the proposition that a search
warrant provides law enforcement cause to detain individuals outside the immediate vicinity of
the premises to be searched. Id. In other words, the Court stated that the “categorical authority to
detain incident to the execution of a search warrant must be limited to the immediate vicinity of
the premises to be searched.” Id. at 199. The Court in Bailey also clarified what constitutes the
“immediate vicinity” of the premises to be searched. In close cases, courts should consider
several factors: whether an individual (1) was within the lawful limits of the premises, (2) was
within the line of sight of the premises to be searched, (3) was able to easily reenter the premises
to be searched from his location, and (4) other relevant factors. Id. at 201.
       In Davis, this Court heard argument from a defendant who was detained on a “communal
sidewalk that led to the common entry area of only four apartments,” just “8 to 10 feet . . . from
the bottom of the stairs” which led to the premises to be searched. State v. Davis, 158 Idaho 857,
862, 353 P.3d 1091, 1096 (Ct. App. 2015). The Court concluded the defendant was within the
immediate vicinity of the apartment to be searched without engaging the four factors outlined in
Bailey. Id.
       Tellez argues his case would stretch the applicable limits of the “immediate vicinity”
definition such that this Court should review the four factors from Bailey and consider the
detention justifications from Summers. We disagree. Tellez does not ask us to apply the
Summers rule to a new category of cases, thus justifying the analysis of the additional factors.
Instead, Tellez simply argues he was not in the immediate vicinity of the premises to be
searched; this is a straightforward application of Summers.
       Like the detention in Davis, Tellez’s detention occurred within the immediate vicinity of
the premises to be searched. The touchstone of the Fourth Amendment is reasonableness. In this
case, given the circumstances, it was objectively reasonable for the officers to consider someone
who was in the process of reentering the house and was in close geographical proximity to the
house, to be within the immediate vicinity of the house to be searched. He was detained directly
outside his girlfriend’s house. Therefore, his detention was lawful incident to the search warrant
the officers were serving upon Tellez’s girlfriend’s house. Because his detention was lawful, and
even assuming a factual nexus between the detention and the discovery of the drug evidence, the
district court did not err in denying Tellez’s motion to suppress.
                                                IV.
                                         CONCLUSION
       Because there was no factual nexus between Tellez’s detention and the discovery of the
marijuana and drug paraphernalia evidence, the judgment of conviction and the district court’s
denial of Tellez’s motion to suppress are affirmed.
       Chief Judge GRATTON and Judge GUTIERREZ CONCUR.
