               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 43569

STATE OF IDAHO,                                 )    2017 Unpublished Opinion No. 394
                                                )
       Plaintiff-Respondent,                    )    Filed: March 9, 2017
                                                )
v.                                              )    Stephen W. Kenyon, Clerk
                                                )
JOSHUA C. POPPE,                                )    THIS IS AN UNPUBLISHED
                                                )    OPINION AND SHALL NOT
       Defendant-Appellant.                     )    BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Molly J. Huskey, District Judge.

       Order withholding judgment, reversed.

       Robyn A. Fyffe, Boise, for appellant.

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

GUTIERREZ, Judge
       Joshua C. Poppe appeals from the district court’s order withholding judgment entered
upon Poppe’s conditional guilty plea to possession of cocaine. Poppe argues the district court
erred in denying Poppe’s motion to suppress all evidence obtained as a result of his unlawful
seizure and the unlawful search of his person. Specifically, Poppe maintains the district court
erred in determining a reasonable suspicion of criminal activity justified extension of the traffic
stop and in determining the search of Poppe was lawful. For the reasons explained below, we
reverse the district court’s denial of Poppe’s motion to suppress and the order withholding
judgment.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       We incorporate the district court’s findings of fact from its order denying Poppe’s motion
to suppress:

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         Idaho State Police Trooper [] was on patrol at 3:00 p.m. on January 21,
2015, when he noticed the defendant make a quick lane change without signaling
for the required five (5) seconds. [The trooper] then ran the license plate of the
[Jeep] the defendant was driving, found that the registration had expired and
stopped the [Jeep]. The Defendant was the driver and a female was sitting in the
front passenger seat. [The trooper] noticed that both the Defendant and the
passenger seemed unusually nervous and he asked whether there were any
weapons in the [Jeep]. The passenger indicated there was a handgun under the
seat and [the trooper] asked her not to reach for it. [The trooper] specifically
observed that the Defendant’s hand was “shaking tremendously,” he wasn’t
providing any eye contact, and that the passenger was also pretty fidgety. The
behavior of the two, in combination with the information about the gun, made him
concerned. He then confirmed through dispatch that the passenger had a weapons
permit.
         Because of the behavior he saw, [the trooper] called for a drug dog within
the first minute of the stop. He testified that he had the driver get out of the [Jeep]
for safety reasons (both theirs and his) and because he did not think it would be a
“good situation” to leave them both in the [Jeep] while he tried to question them.
When the defendant got out of the [Jeep], the officer noticed a pocket knife
clipped to his pants pocket and so did a weapons patdown. No other weapons
were located.
         [The trooper] spent the first five (5) minutes of the stop asking general
questions regarding the identity of the two individuals, ownership of the [Jeep],
and questions related to officer safety. Upon receiving the information about the
handgun, [the trooper] also inquired about the gun and whether either of the
passengers had any prior convictions (presumably to confirm or dispel any
concerns about unlawful possession of a firearm.) He then inquired of dispatch
regarding the gun. At that point, and within approximately 5 minutes after the
initial stop, [the drug dog handler], and his dog, arrived. The two officers
conferred briefly and then [the trooper] went back to his patrol car to contact
dispatch for information regarding the Defendant and the passenger.
         While [the trooper] spoke with dispatch, [the drug dog handler] spoke with
the passenger, who was the owner of the [Jeep]. At that time the passenger was
still seated in the [Jeep]. She told [the drug dog handler] that she had a weapons
permit and had a loaded gun in the [Jeep]. She also informed [the drug dog
handler] that she did not want the [Jeep] searched. [The drug dog handler] then
had her step out of the [Jeep]. Six minutes after his arrival on the scene, [the drug
dog handler] ran the drug [dog] around the [Jeep]. The dog quickly alerted to the
rear driver’s side door and the rear driver’s side taillight.
         It is not entirely clear when [the trooper] gets the responsive information
from dispatch because one can hear on the video his conversation with dispatch
but before hearing any response from dispatch, [the trooper] gets out of his car
and walks back over to [the drug dog handler], who is preparing to run the drug
dog around the [Jeep]. However, [the trooper’s] testimony was that the search
occurred while he was awaiting information from dispatch. There is nothing in
the video that would dispute that testimony.

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                Once [the trooper] was aware the dog had alerted on the [Jeep], he placed
       the Defendant in handcuffs. He told the Defendant he was not being arrested, just
       “detained.” He then searched him prior to placing him in the patrol vehicle. [The
       trooper] testified that he did this because he did not want to put someone with a
       weapon or contraband in his vehicle. During this search, a vial of cocaine was
       discovered in the [D]efendant’s left breast sweatshirt pocket. The Defendant was
       then placed in the patrol car and given his Miranda[1] warnings. To this point, a
       total of fifteen minutes had elapsed since the initial stop.
                Upon questioning, the Defendant initially chose not to speak about the
       cocaine but did tell [the trooper] that there was marijuana in the center console of
       the vehicle. Upon searching the [Jeep], [the trooper] found the marijuana in the
       center console. Later, the Defendant stated that he knew the drug found in his
       pocket was cocaine and that he got it for free from another individual who wanted
       to get rid of it.
       The State charged Poppe with felony possession of cocaine, Idaho Code § 37-2732(c)(1).
Poppe filed a motion to suppress all evidence against him obtained as a result of an unlawful
extension of the traffic stop and an unlawful search of his person. After a hearing on the matter,
the district court denied the motion, reasoning that the officers had reasonable suspicion to
extend the traffic stop. The district court additionally determined that the cocaine evidence
seized as a result of the search of Poppe was admissible pursuant to the inevitable discovery
doctrine. Poppe reserved his right to appeal the district court’s denial of Poppe’s motion to
suppress and entered a conditional guilty plea to felony possession of cocaine. 2 Poppe timely
appeals.
                                                II.
                                           ANALYSIS
       Poppe argues the district court erred in denying Poppe’s 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,
1
       Miranda v. Arizona, 384 U.S. 436 (1966).
2
      Poppe also entered conditional guilty pleas to misdemeanor possession of marijuana and
misdemeanor possession of paraphernalia in a separate case. He does not appeal from that
misdemeanor case.
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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).
A.     Extension of the Traffic Stop
       Poppe first argues the district court erred in finding the State established a reasonable
suspicion of criminal activity, which justified extending the traffic stop beyond its initial
purpose. Poppe maintains that his nervousness and the presence of the loaded firearm in the Jeep
did not provide a reasonable suspicion that justified the traffic stop extension. In response, the
State contends the traffic stop was not extended to begin with and, even if it were extended,
reasonable suspicion justified the extension.
       The United States and Idaho Constitutions prohibit unreasonable searches and seizures of
persons or property. 3 A traffic stop by an officer constitutes a seizure of the vehicle’s occupants
and implicates the Fourth Amendment’s prohibition against unreasonable searches and seizures.
Delaware v. Prouse, 440 U.S. 648, 653 (1979); Atkinson, 128 Idaho at 561, 916 P.2d at 1286.
Under the Fourth Amendment, an officer may stop a vehicle to investigate possible criminal
behavior if there is a reasonable and articulable suspicion that the vehicle is being driven
contrary to traffic laws. United States v. Cortez, 449 U.S. 411, 417 (1981); State v. Flowers, 131
Idaho 205, 208, 953 P.2d 645, 648 (Ct. App. 1998).
       The determination of whether an investigative detention is reasonable requires a dual
inquiry--whether the officer’s action was justified at its inception and whether it was reasonably
related in scope to the circumstances which justified the interference in the first place. State v.
Roe, 140 Idaho 176, 181, 90 P.3d 926, 931 (Ct. App. 2004); State v. Parkinson, 135 Idaho 357,
361, 17 P.3d 301, 305 (Ct. App. 2000). 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
able to be engaged in criminal activity. State v. Sheldon, 139 Idaho 980, 983, 88 P.3d 1220,
1223 (Ct. App. 2003). Such a detention must be temporary and last no longer than necessary to
effectuate the purpose of the stop. Roe, 140 Idaho at 181, 90 P.3d at 931; State v. Gutierrez, 137
Idaho 647, 651, 51 P.3d 461, 465 (Ct. App. 2002). There is no rigid time limit for determining
when a detention has lasted longer than necessary; rather, a court must consider the scope of the
detention and the law enforcement purposes to be served, as well as the duration of the stop.

3
        Poppe does not argue the Idaho Constitution affords greater protection, so this Court
follows the analysis pursuant to the Fourth Amendment to the United States Constitution.
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United States v. Sharpe, 470 U.S. 675, 685-86 (1985). The scope of the intrusion permitted will
vary to some extent with the particular facts and circumstances of each case. State v. Ramirez,
145 Idaho 886, 889, 187 P.3d 1261, 1264 (Ct. App. 2008).
         A canine sniff may be performed during a traffic stop without violating the Fourth
Amendment if the duration of the stop is not extended or if any extension of the stop is justified
by reasonable suspicion. State v. Kelley, 159 Idaho 417, 424, 361 P.3d 1280, 1287 (Ct. App.
2015). When gauging whether information known to an officer justified reasonable suspicion,
we consider the totality of the circumstances rather than viewing individual facts in isolation.
Cortez, 449 U.S. at 417; Roe, 140 Idaho at 180, 90 P.3d at 930. Even where any individual
factor “is not by itself proof of any illegal conduct and is quite consistent with innocent”
conduct, a court may nonetheless conclude that the factors amount to reasonable suspicion when
taken together. United States v. Sokolow, 490 U.S. 1, 9-10 (1989). In other words, the whole
may be greater than the sum of its parts because the officer may consider the import of one fact
in light of another fact. The reasonable suspicion standard requires less than probable cause but
more than mere speculation or instinct on the part of the officer. State v. Ferreira, 133 Idaho
474, 483, 988 P.2d 700, 709 (Ct. App. 1999). An officer may draw reasonable inferences from
the facts in his or her possession, and those inferences may be drawn from the officer’s
experience and law enforcement training. State v. Montague, 114 Idaho 319, 321, 756 P.2d
1083, 1085 (Ct. App. 1988).
         Even assuming the officers extended the traffic stop beyond its initial purpose, reasonable
suspicion justified any extension of the traffic stop. We agree with Poppe that nervousness alone
is insufficient to establish reasonable suspicion. United States v. Fernandez, 18 F.3d 874, 880
(10th Cir. 1994); State v. Neal, 159 Idaho 919, 924, 367 P.3d 1231, 1236 (Ct. App. 2016). This
is because it is common for most people to exhibit signs of nervousness when confronted by a
law enforcement officer whether or not the person is currently engaged in criminal activity.
United States v. Salzano, 158 F.3d 1107, 1113 (10th Cir. 1998). Thus, absent unusual signs of
nervousness, an officer’s reliance on nervous behavior as a basis for reasonable suspicion is
discounted. Id. “Only extraordinary and prolonged nervousness can weigh significantly in the
assessment of reasonable suspicion.” United States v. Santos, 403 F.3d 1120, 1127 (10th Cir.
2005).



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          Here, the trooper observed unusually nervous behavior from both Poppe and the
passenger. Specifically, Poppe’s hands “were trembling and shaking really bad,” Poppe was
avoiding eye contact, and the passenger was fidgety. Moreover, the passenger indicated a
firearm was under her seat. The totality of the circumstances establishes a reasonable suspicion
of criminal activity--possible weapon and/or drug violations. Moreover, the mission of a traffic
stop is not only to address the traffic violation that warranted the stop, but also “to attend to
related safety concerns.” Rodriguez v. United States, ___ U.S. ___, ___, 135 S. Ct. 1609, 1614
(2015). Based on the testimony from the trooper, the district court properly determined that
Poppe’s and the passenger’s “unusually nervous” behavior, combined with the presence of a
firearm in the Jeep, provided reasonable suspicion to extend the traffic stop to include a canine
sniff and drug investigation.
B.        Search of Poppe
          Additionally, Poppe argues the district court erred in determining the cocaine evidence
obtained from the search of Poppe’s person was admissible. The district court noted there was
no probable cause to search Poppe, but the discovery of the marijuana in the Jeep would have led
to the inevitable discovery of the cocaine incident to arrest.
          Although a drug’s odor detected by a canine alerting on a vehicle provides probable
cause to believe that the drug is present and authorizes the search of the vehicle, the mere
existence of the drug in the automobile does not itself authorize the police either to search any
other place or provide probable cause to arrest any person in the vicinity. United States v.
Humphries, 372 F.3d 653, 659 (4th Cir. 2004). Occupants of a vehicle continue to have a
heightened expectation of privacy, which protects against personal searches without a warrant.
See Wyoming v. Houghton, 526 U.S. 295, 303 (1999). “A search or seizure of a person must be
supported by probable cause with respect to that person.” Ybarra v. Illinois, 444 U.S. 85, 91
(1979).
          It is uncontested that probable cause existed to search the Jeep once the canine alerted on
the Jeep, and we agree with the district court’s determination that there was no probable cause to
search Poppe when the cocaine was discovered. We disagree, however, with the district court’s
conclusion that the exclusionary rule does not bar admission of the cocaine evidence because the
evidence would have inevitably been discovered as a search incident to arrest.



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       The exclusionary rule is the judicial remedy for addressing illegal searches and bars the
admission or use of evidence gathered pursuant to the illegal search. State v. Bunting, 142 Idaho
908, 915, 136 P.3d 379, 386 (Ct. App. 2006). The inevitable discovery doctrine is an exception
to the exclusionary rule that was established by the United States Supreme Court in Nix v.
Williams, 467 U.S. 431, 444 (1984) and adopted by the Idaho Supreme Court in Stuart v. State,
136 Idaho 490, 497-99, 36 P.3d 1278, 1285-87 (2001). The doctrine applies when the State
establishes by a preponderance of the evidence that the evidence discovered pursuant to an
unlawful search or seizure would have inevitably been discovered by lawful methods. Nix, 467
U.S. at 444; Bunting, 142 Idaho at 915, 136 P.3d at 386. “[T]he core inquiry is whether the
police would have discovered the evidence if the misconduct had not occurred.” United States v.
Ramirez-Sandoval, 872 F.2d 1392, 1396 (9th Cir. 1989) (quoting United States v. Namer, 835
F.2d 1084, 1087 (5th Cir. 1988)). The State “can meet its burden by establishing that, by
following routine procedures, the police would inevitably have uncovered the evidence.” Id. at
1399. The inevitable discovery doctrine “involves no speculative elements but focuses on
demonstrated historical facts capable of ready verification or impeachment and does not require
a departure from the usual burden of proof at suppression hearings.” Nix, 467 U.S. at 444 n.5.
       This doctrine balances society’s interests in deterring illegal police conduct and in having
juries receive all probative evidence of a crime by only applying the exclusionary rule to put the
government in the same, not a worse, position that it would have occupied absent the police
misconduct. Nix, 467 U.S. at 443; State v. Russo, 157 Idaho 299, 306, 336 P.3d 232, 239 (2014).
When the discovery of the evidence would have been inevitable as a result of other lawful
means, the exclusionary rule fails to serve this purpose and, therefore, does not apply. Nix, 467
U.S. at 443-44.
       Although those lawful means need not be the result of a wholly independent
investigation, State v. Buterbaugh, 138 Idaho 96, 102, 57 P.3d 807, 813 (Ct. App. 2002), they
must be the result of some action that actually took place (or was in the process of taking place)
that would inevitably have led to the discovery of the unlawfully obtained evidence, Bunting,
142 Idaho at 915-16, 136 P.3d at 386-87. Indeed, the inevitable discovery doctrine was never
intended to swallow the exclusionary rule by substituting what the police should have done for
what they really did or were doing. State v. Holman, 109 Idaho 382, 392, 707 P.2d 493, 503 (Ct.
App. 1985); State v. Cook, 106 Idaho 209, 226, 677 P.2d 522, 539 (Ct. App. 1984).

                                                7
       Here, there is no certainty that Poppe would have been arrested and then searched
incident to that arrest because the officers let the passenger go after issuing her a citation for the
marijuana and paraphernalia. Poppe could have been issued a citation rather than been arrested.
The officers chose not to arrest the passenger for the very crimes that, according to the State,
would have inevitably led to Poppe’s arrest.
       The State did not establish by a preponderance of the evidence that, as a matter of routine
procedure, Poppe would have been arrested for marijuana and paraphernalia. Nor did the State
meet its burden by relying on historical facts capable of ready verification or impeachment. We
will not engage in speculation. Therefore, the district court erred in applying the inevitable
discovery doctrine.
       Furthermore, the search incident to arrest exception to the warrant requirement is
inapplicable here. “Where the formal arrest followed quickly on the heels of the challenged
search of petitioner’s person, we do not believe it particularly important that the search preceded
the arrest rather than vice versa.” Rawlings v. Kentucky, 448 U.S. 98, 11 (1980). So long as a
search and arrest are substantially contemporaneous, and there is probable cause to arrest without
depending on the fruits of the search, a valid search incident to arrest may precede the actual
arrest. State v. Crabb, 107 Idaho 298, 304, 688 P.2d 1203, 1209 (Ct. App. 1984). Probable
cause to arrest is, of course, a predicate for either a search or arrest. Id. Here, it is undisputed
that there was no probable cause to arrest Poppe at the time of the search. The canine alert only
provided probable cause to search the Jeep. Thus, any search incident to arrest that occurred
before the arrest was not valid. In sum, the district court erred in determining the cocaine
evidence was admissible.
                                                 III.
                                          CONCLUSION
       The district court erred in determining the cocaine evidence was admissible pursuant to
the inevitable discovery doctrine and the search incident to arrest exception. Therefore, we
reverse the district court’s denial of Poppe’s motion to suppress all evidence obtained against
him as a result of his seizure and the search of his person, as well as the district court’s order
withholding judgment.
       Chief Judge GRATTON and Judge MELANSON CONCUR.



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