               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 43838

STATE OF IDAHO,                                 )    2016 Unpublished Opinion No. 696
                                                )
       Plaintiff-Respondent,                    )    Filed: September 20, 2016
                                                )
v.                                              )    Stephen W. Kenyon, Clerk
                                                )
TERENCE PAK SING TSUI,                          )    THIS IS AN UNPUBLISHED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. Lynn G. Norton, District Judge.

       Order denying motion to suppress, reversed; judgment of conviction for
       possession of methamphetamine, vacated.

       Eric D. Fredericksen, Interim State Appellate Public Defender; Andrea W.
       Reynolds, Deputy Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GUTIERREZ, Judge
       Terence Pak Sing Tsui appeals from his judgment of conviction entered upon his
conditional guilty plea to possession of methamphetamine. Specifically, Tsui argues the district
court erred in denying Tsui’s motion to suppress evidence found on his person. For the reasons
set forth below, we reverse the district court’s order and vacate Tsui’s judgment of conviction.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Two probation officers arrived at the home of a felony probationer to conduct a residence
check. While outside the home, the officers encountered an individual sitting in a parked
vehicle. The individual indicated he was waiting for someone across the street. After knocking
on the door of the probationer’s home, a woman let them inside. The woman called upstairs for


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the probationer, who came downstairs. Tsui came to the stairs shortly thereafter. As Tsui came
downstairs, he had his hands in the pockets of his sweatshirt, and he appeared nervous. One of
the officers asked Tsui if he had any weapons, and he responded that he did not. Tsui did not
make eye contact with the officer and kept looking around the room. Once Tsui reached the
bottom of the stairs, the officer told Tsui that the officer needed to search Tsui for weapons. Tsui
complied with the officer’s demand.
         As the officer was performing a frisk of Tsui’s torso, the officer detected a strong odor of
marijuana. The officer also felt a significant bulge in Tsui’s pants pocket. The officer asked
Tsui if he had marijuana on his person, and Tsui responded affirmatively. The officer asked to
see the marijuana, and Tsui removed a bag of marijuana from his pants pocket. The officer then
contacted the Boise Police Department. An officer with the Boise Police Department then
arrested Tsui and searched him incident to arrest. During that search, the officer discovered
methamphetamine.
         The State charged Tsui with felony possession of a controlled substance, misdemeanor
possession of a controlled substance, and misdemeanor possession of drug paraphernalia. Tsui
filed a motion to suppress on the grounds that the officer’s frisk was unlawful. Following a
hearing, the district court denied Tsui’s motion. Tsui entered a conditional guilty plea to felony
possession of a controlled substance, Idaho Code § 37-2732(c), reserving his right to appeal the
district court’s denial of the suppression motion. Tsui timely appeals.
                                                 II.
                                            ANALYSIS
         Tsui contends the district court erred in denying the motion to suppress. 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).



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A.     Frisk
       Tsui argues that the district court erred in finding the officer’s frisk lawful. He contends
the officer did not have the requisite particularized suspicion that Tsui was armed and presently
dangerous, and thus the frisk violated his Fourth Amendment right to be free from unreasonable
searches. The Fourth Amendment to the United States Constitution prohibits unreasonable
searches and seizures. Generally, evidence obtained as a result of an unreasonable search must
be suppressed. Wong Sun v. United States, 371 U.S. 471, 485 (1963). Warrantless searches are
presumed to be unreasonable. State v. Weaver, 127 Idaho 288, 290, 900 P.2d 196, 198 (1995).
The State may overcome this presumption by demonstrating that a warrantless search either fell
within a well-recognized exception to the warrant requirement or was otherwise reasonable
under the circumstances. Id. One such exception is an officer’s frisk for weapons acknowledged
by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 27 (1968).
       Under Terry, an officer may conduct a limited pat-down search, or frisk, “of the outer
surfaces of a person’s clothing all over his or her body in an attempt to find weapons.” Id. at 16.
A frisk is justified only if the officer can point to specific and articulable facts that would lead a
reasonably prudent person to believe that the individual with whom the officer is dealing may be
armed and presently dangerous, and nothing in the initial stages of the encounter serves to dispel
this belief. Id. at 27; State v. Babb, 133 Idaho 890, 892, 994 P.2d 633, 635 (Ct. App. 2000);
State v. Fleenor, 133 Idaho 552, 555, 989 P.2d 784, 787 (Ct. App. 1999). In our analysis of a
frisk, we look to the facts known to the officer on the scene and the inferences of risk of danger
reasonably drawn from the totality of those specific circumstances. Babb, 133 Idaho at 892, 994
P.2d at 635; Fleenor, 133 Idaho at 555, 989 P.2d at 787. Although an officer need not possess
absolute certainty that an individual is armed and presently dangerous, an officer’s “inchoate and
unparticularized suspicion or ‘hunch’” will not justify a frisk. Terry, 392 U.S. at 27.
       Idaho courts consider several factors in deciding whether a reasonable person in an
officer’s position would conclude that a particular individual is armed and dangerous. See, e.g.,
State v. Bishop, 146 Idaho 804, 819, 203 P.3d 1203, 1218 (2009); State v. Crooks, 150 Idaho
117, 120-21, 244 P.3d 261, 264-65 (Ct. App. 2010). These factors include, but are not limited to,
whether the suspect appears to be armed or concealing a weapon, see, e.g., Fleenor, 133 Idaho at
556, 989 P.2d at 788 (considering individual had knife sheath on his belt); the time and location
of the encounter, see, e.g., Crooks, 150 Idaho at 120, 244 P.3d at 264 (considering encounter

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took place in location where narcotics transaction had just taken place); and the general
demeanor or reputation of the suspect, see, e.g., State v. Johnson, 137 Idaho 656, 661, 51 P.3d
1112, 1117 (Ct. App. 2002) (considering whether the individual is under the influence of an
illicit drug).
        In State v. Henage, 143 Idaho 655, 152 P.3d 16 (2007), an officer testified that he frisked
an individual who was acting nervous and admitted to having a knife. Id. at 661, 152 P.3d at 22.
The officer stated that “once a person tells me they’re in possession of a weapon, it compromises
my safety.” Id. at 662, 152 P.3d at 23. However, the officer also testified that the individual was
otherwise cooperative and polite during the encounter. Id. at 661, 152 P.3d at 22. The officer
articulated no other facts regarding the individual’s behavior that would lead a reasonable person
to conclude that the individual posed any safety risk. Id. at 661-62, 152 P.3d at 22-23. The
Court concluded that the officer’s nonparticularized safety concern regarding individuals with
weapons was insufficient to establish the requisite particularized concern as to that particular
individual in that specific factual situation. Id. at 662, 162 P.3d at 23. Thus, the Court held the
officer’s frisk was unjustified based on the absence of particularized facts to support a reasonable
inference that this particular individual was both armed and presently dangerous. Id.
        In this case, we focus our inquiry on whether it was objectively reasonable for the officer
to conclude a frisk of Tsui was necessary for the protection of the officer and others. At the
suppression hearing, the State asked the officer about the circumstances giving rise to his
concern that Tsui might be armed and dangerous. The following exchange occurred:
        State:     Was there anything about [Tsui’s] [demeanor] after he said no [to
                   having any weapons on his person] that gave rise to any concerns for
                   you?
        Officer:   Yeah, just the nervousness. He didn’t want to really face me. He just
                   kind of turned and was looking away, trying to look away from me.
                   When I said that I--when I told him I needed to search him, he
                   complied.
        State:     Do you recall where his hands were?
        Officer:   His hands were in his sweatshirt pocket, as I recall, when he first came
                   down the stairs.
        State:     Is there anything about your interaction with Mr. Tsui that based upon
                   your training and experience gave you any concern for your personal
                   safety?
        Officer:   Yeah, these--I mean, I’ve ran into situations where people lie to us. So
                   I wanted to make sure that he did not have any fire--or any weapons on
                   him.

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In finding the officer’s frisk justified, the district court also relied on the fact that Tsui was
present at the home of a felony probationer and that there were other people in the general area
outside the residence.
       Notably absent from the officer’s testimony is any specific and articulable fact that would
support an inference that Tsui was either armed or presently dangerous. The officer testified that
when he asked Tsui if he had any weapons, Tsui replied that he did not. The officer also testified
that Tsui had his hands in his sweatshirt pocket, but did not connect that fact to any belief that
Tsui was concealing a weapon in that pocket. Although the officer testified that there was a
person sitting outside the home in a parked car, the officer failed to articulate any connection
between that person and Tsui, the probationer, or the residence. The officer also failed to
articulate how Tsui’s presence in this particular probationer’s residence established a unique
safety concern.
       During the hearing, the officer admitted that his basis for conducting the frisk was Tsui’s
nervousness and the officer’s subjective experience that people lie about not having weapons.
Similar to the officer’s nonparticularized general concern regarding individuals with weapons in
Henage, this officer’s subjective mistrust of individuals is not sufficiently particularized to Tsui
and this specific factual situation. Just as the Court in Henage held that the individual’s
nervousness combined with the officer’s subjective mistrust was insufficient to justify the frisk
in that case, we conclude that Tsui’s nervousness and the officer’s mistrust is insufficient to
justify the frisk in Tsui’s case. None of the objective circumstances preceding the officer’s frisk
of Tsui justify a suspicion that Tsui was armed and presently dangerous. The officer’s frisk of
Tsui was unlawful and violated his Fourth Amendment protection against unreasonable searches.
B.     Discovery of Marijuana
       Tsui’s next contention on appeal is that the district court erred in finding that the
marijuana was not discovered as a result of the frisk. Tsui argues that the marijuana would not
have been discovered but for the unlawful frisk, thus it must be suppressed. The exclusionary
rule calls for suppression of evidence obtained through unconstitutional governmental activity.
Segura v. United States, 468 U.S. 796, 815 (1984); State v. Wigginton, 142 Idaho 180, 184, 125
P.3d 536, 540 (Ct. App. 2005). This prohibition against use of derivative evidence extends to the
indirect as well as the direct fruit of the government’s misconduct. Segura, 468 U.S. at 804.
Evidence will be excluded as “fruit” where the illegality is the “but for” cause of the discovery of

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the evidence. Id. A defendant need only show that the discovery of the challenged evidence was
a product or result of the unlawful government conduct. State v. McBaine, 144 Idaho 130, 134,
157 P.3d 1101, 1105 (Ct. App. 2007). Once a defendant meets the burden of showing a factual
nexus between the illegality and the discovery of the challenged evidence, the State bears the
burden of persuasion to prove the challenged evidence is untainted. Alderman v. United States,
394 U.S. 165, 183 (1969); Wigginton, 142 Idaho at 184, 125 P.3d at 540.
       Here, after the district court found the frisk lawful, it went on to find that discovery of the
marijuana was not a result of the frisk. This Court defers to the factual findings of the district
court unless those findings are clearly erroneous. Therefore, we review the facts that the district
court relied upon to reach its conclusion that the marijuana was not discovered as a result of the
frisk. The district court found the following:
               The next issue is actually whether the discovery of the marijuana was from
       the pat search. In this case I find that it was not. [The officer] actually smelled
       the marijuana based on his training and experience. And under State v. Rogoulot,
       123 Idaho 267, and State v. Shepherd, 118 Idaho 121, there’s no search where an
       officer lawfully was positioned to smell marijuana. He smelled the marijuana,
       questioned [Tsui]. [Tsui] consented and pulled the marijuana out of his own
       pocket. It was not [the officer] going into Mr. Tsui’s pocket to obtain the
       marijuana.
       This finding by the district court is not supported by the record. The officer’s testimony
regarding his detection of the scent of marijuana is as follows:
       State:      And as you got close to [Tsui], did you make any observations?
       Officer:    Yeah, I could smell marijuana.
       State:      Was that a light odor or a strong odor?
       Officer:    It was pretty strong.
       State:      And then as you smelled the--if you could please sequence it for us,
                   the smell of the marijuana to the pat search and how that worked.
       Officer:    As I was pat searching his torso and as I moved down his torso, I could
                   smell marijuana pretty strong. And then I felt a pretty significant
                   bulge in his pocket, in his pant pocket.
       State:      And what did you ask him at that point, if anything?
       Officer:    I asked him if he had marijuana on him. He said, “Yes.”
       State:      What did you ask him next?
       Officer:    I asked him if he would show it to me and he retrieved the bag out of
                   his pocket.”
The officer’s testimony indicates that he did not detect the odor of marijuana until he was in the
process of conducting the frisk, which would have required an unusually close proximity
between Tsui and the officer. Moreover, the officer did not question Tsui about possessing

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marijuana until after the officer both smelled the odor of marijuana and felt a bulge in Tsui’s
pants pocket. The State presented no evidence to indicate that the officer detected or would
otherwise have been able to detect the odor of marijuana absent his close proximity during the
frisk. There is also no evidence that the officer observed a bulge in Tsui’s pocket absent the
frisk. Moreover, there was no testimony that the officer would otherwise have inquired about
Tsui’s possession of marijuana absent the frisk. The record here shows that “but for” the
officer’s illegal frisk, the marijuana would not have been discovered. Therefore, all evidence
obtained as a result of the initial unlawful frisk should have been suppressed.
                                                III.
                                         CONCLUSION
       Based on the totality of the circumstances, the officer’s frisk of Tsui was not justified by
specific and articulable facts that would lead a reasonably prudent person to believe that Tsui
may be armed and presently dangerous. Because the officer’s frisk was an unlawful violation of
Tsui’s Fourth Amendment right, all evidence obtained as a result of the illegal frisk should have
been suppressed. Therefore, the district court’s order denying Tsui’s motion to suppress is
reversed, and Tsui’s judgment of conviction is vacated.
       Chief Judge MELANSON and Judge GRATTON CONCUR.




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