               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 43691

STATE OF IDAHO,                                 ) 2016 Opinion No. 56
                                                )
       Plaintiff-Respondent,                    ) Filed: August 23, 2016
                                                )
v.                                              ) Stephen W. Kenyon, Clerk
                                                )
SPENCER NEWELL BREESE,                          )
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Steven J. Hippler, District Judge.

       Judgment of conviction for trafficking in marijuana, affirmed.

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

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

MELANSON, Chief Judge
       Spencer Newell Breese appeals from his judgment of conviction entered upon his
conditional guilty plea to trafficking in marijuana. Specifically, Breese argues that the district
court erred in denying his motion to suppress evidence found in Breese’s backpack. For the
reasons set forth below, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       Breese was traveling aboard a common carrier bus from Portland, Oregon, to Salt Lake
City, Utah, when the bus made a scheduled stop in Boise. An employee of the bus company
began rearranging passenger luggage in the bus’s luggage compartment and detected a strong
odor of marijuana emanating from a backpack. The employee locked the backpack in the

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compartment and contacted law enforcement. Upon an officer’s arrival, the employee explained
his suspicion that the backpack contained an illegal substance. The employee indicated that he
had a right to search the backpack under his company’s published policy and wanted the officer
to witness the search. Standing outside the compartment, the officer leaned forward in an effort
to detect the odor of marijuana but indicated that he could not smell the odor. However, the
employee confirmed that he could still detect the odor, removed the backpack from the luggage
compartment, and searched it. The employee extracted three bags of a substance believed to be
marijuana from the backpack.      The officer directed that the three bags be returned to the
backpack. The backpack had a tag on it identifying Breese as its owner. Breese was called to
the area and he confirmed that the backpack was his. During the ensuing discussion about the
contents of the backpack, Breese acknowledged that the substance was marijuana.
       Breese was charged with one count of trafficking in marijuana. I.C. § 37-2732B(a)(1).
Breese filed a motion to suppress the marijuana, arguing that the search of the backpack was
unlawful under the Fourth Amendment. Following a hearing, the district court denied Breese’s
motion, finding that at no time did the officer instruct the employee, touch the backpack, or
physically enter the bus’s luggage compartment. The district court also found that the employee
had a legitimate independent motivation for conducting the search of Breese’s backpack.
Consequently, the district court concluded that the Fourth Amendment was not implicated
because the employee was not an agent of the government at the time of the search, and thus the
marijuana was not suppressible under the exclusionary rule. Alternatively, the district court also
held that, even if the search was governmental, the search fell within the automobile exception to
the warrant requirement and was supported by probable cause. Breese entered a conditional
guilty plea.   The district court sentenced Breese to a determinate term of one year of
confinement. Breese appeals.
                                               II.
                                          ANALYSIS
       Breese argues that the search of the backpack was an illegal search and that the evidence
found during the search should have been suppressed. 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


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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).
         The Fourth Amendment to the United States Constitution prohibits unreasonable searches
and seizures. It is well established that evidence obtained through a private search, even if
wrongfully conducted, is not excludable under the Fourth Amendment unless government
officials instigated the search or otherwise participated in a wrongful search. United States v.
Jacobsen, 466 U.S. 109, 113-14 (1984); State v. Pontier, 103 Idaho 91, 94, 645 P.2d 325, 328
(1982); State v. Kopsa, 126 Idaho 512, 517, 887 P.2d 57, 62 (Ct. App. 1994). However, where a
private party acts as an agent of the State in effecting a search, Fourth Amendment protections
are implicated. United States v. Walther, 652 F.2d 788, 791 (9th Cir. 1981); Kopsa, 126 Idaho at
517, 887 P.2d at 62. The burden of proving governmental involvement in a search conducted by
a private citizen rests on the party objecting to the evidence. Kopsa, 126 Idaho at 517, 887 P.2d
at 62.
         This Court has noted that there is a “gray area” between the extremes of overt
governmental participation in a search and the complete absence of such participation. Kopsa,
126 Idaho at 517, 887 P.2d at 62. Courts should analyze gray area inquiries on a case-by-case
basis, referring to certain general principles. Id. One such principle is that de minimis or
incidental contacts between a citizen and law enforcement prior to or during the course of a
search do not subject the search to Fourth Amendment scrutiny. Id. In order to bring a private
citizen’s actions within the purview of the Fourth Amendment, the government must be involved
either directly as a participant or indirectly as an encourager. Id.; see also Walther, 652 F.2d at
792 (holding that the presence of law enforcement officers who do not take an active role in
encouraging or assisting an otherwise private search has been held insufficient to implicate
Fourth Amendment interests, especially where the private party has had a legitimate independent
motivation for conducting the search); United States v. Gomez, 614 F.2d 643, 645 (9th Cir. 1979)
(concluding that, when a common carrier conducts a search on its own initiative and for its own
purposes, such a search is normally considered private and not governmental in nature and does


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not give rise to Fourth Amendment protections). Thus, when analyzing whether the person
conducting the search is acting as an instrument or agent of the government, we consider two
critical factors--whether the government knew of and acquiesced in the intrusive conduct and
whether the party performing the search intended to assist law enforcement efforts or further his
or her own ends. Walther, 652 F.2d at 791; Kopsa, 126 Idaho at 517, 887 P.2d at 62.
       On appeal, Breese contends that the employee was a government agent when he searched
Breese’s backpack because the officer knew and acquiesced to the search and because the
employee intended to aid law enforcement efforts. In this instance, we conclude the second
factor of the government agent analysis is determinative in deciding whether the bus employee
was a government agent when he conducted the search of Breese’s backpack, and therefore we
need not address the first factor.
       In support of his contention that the employee acted as a government agent, Breese relies
on portions of the employee’s testimony at the suppression hearing. Specifically, Breese cites
the employee’s response to the State’s question, “Why do you prefer to have law enforcement
present when you believe luggage contains [a] controlled substance?” The employee responded,
“Because I never know what the quantities are going to be.” Breese also relies on a follow-up
exchange between the district court and the employee:
       COURT:      I do have one more question. Help me understand why is it you
            wanted law enforcement there when you opened the bag that you were
            concerned about.
       [EMPLOYEE]:         One, I’m never sure what the quantity is and I’m not--don’t
            know what the legal--I know it’s illegal as a substance. I’m not sure when
            I’m smelling it in a bag what the quantity is.
       COURT:      Does the quantity make a difference in terms of whether or
            not--what [the bus company] is going to do?
       [EMPLOYEE]:         No, it would be a difference on what the [police], on what
            the law enforcement is going to do with it.
Breese argues that this testimony shows that, when the employee contacted law enforcement, he
intended to assist their efforts by identifying an individual whom the employee believed to be in
possession of an illegal substance.      Thus, Breese asserts that the employee’s testimony
contradicts the district court’s findings and indicates the employee’s intent in conducting the
search was to assist law enforcement efforts.




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       The Idaho Supreme Court has previously noted that, when common carriers have a
suspicion that a package may contain contraband, the carrier has the right, rooted in common
law, to make an inspection of the package’s contents. Pontier, 103 Idaho at 94 n.1, 645 P.2d at
328 n.1; see also Illinois v. Andreas, 463 U.S. 765, 769 n.1 (1983); United States v. Pryba, 502
F.2d 391, 399-400 (D.C. Cir. 1974). However, such a search may be classified as governmental
intrusion where a carrier’s employee engaged in a search for the sole purpose of assisting the
government. Walther, 652 F.2d at 792. Conversely, there is no state action where the private
party has a legitimate, independent motivation for conducting the search and acting in
accordance with that motive. Id.; see also United States v. Smythe, 84 F.3d 1240, 1243 (10th Cir.
1996) (holding that a search was not governmental because a bus employee had a legitimate,
independent motivation to open a package based on his independently formed belief that
something was dangerous about the package and his concern for the passengers on the bus in
which the package was to be shipped); United States v. Entringer, 532 F.2d 634, 637 (8th Cir.
1976) (holding that the Fourth Amendment does not require officers to obtain a warrant prior to
entering upon a common carrier’s premises with its consent to observe a search conducted in
accordance with the carrier’s own policies).
       Even when a private person has authority to conduct a search, the person’s motivation for
exercising that authority and engaging in a search, especially in the presence of law enforcement,
is a critical consideration when determining if the person is a private or government agent. See,
e.g., Walther, 652 F.2d 788; Gomez, 614 F.2d 643. Walther concerned actions taken by an
airline employee who believed federal regulations gave him the right to open any piece of
luggage and had routinely reported suspicious packages to federal agents in exchange for
monetary reward. Walther, 652 F.2d at 790. Applying the second factor of the government
agent analysis, the court held that the airline employee’s conduct was subject to the Fourth
Amendment because the record supported the trial court’s finding that the airline employee was
motivated by receiving an award from law enforcement and not by pursuing his employer’s
interest. Id. at 792. Thus, the court concluded that such a motivation provided the airline
employee with the requisite mental state of a government agent in the government’s effort to
conduct a search. Id.




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       Conversely, in Gomez, 614 F.2d 643, the same court concluded that the opening of a
misplaced suitcase by an airline employee looking to identify the owner was a private search
even though law enforcement had carried the suitcase to an employee work area and directly
aided in an effort to bypass the luggage lock. Id. at 645. The Gomez court based its holding on
the trial court’s express findings that the airline employee’s motivation to conduct the search was
driven by the legitimate purpose of identifying the owner of the luggage and that his opening of
the luggage was pursuant to that motivation. Id. Thus, the court declined to hold that the
officer’s slight participation converted the private search to a governmental one. Id.
       In this case, the district court made the following factual findings relevant to the
employee’s motivation for the search:
                [The bus company’s] policy prohibits passengers from utilizing the carrier
       to transport illegal substances and puts passengers on notice of this prohibition.
       [The bus company] further warns its passengers that their “belongings and
       packages” are subject to being searched at any time. Such notices are
       prominently posted at the ticketing counters and doors within [the bus company’s]
       stations as well as in each passenger’s ticketing envelopes. . . . [The employee]
       testified that if illegal substances are discovered during a search of passenger
       luggage, he revokes the passenger’s ticket to prevent continued travel with illegal
       substances on board.
                Although [the bus company’s] policy gave [the employee] a right to
       search [Breese’s] backpack without the presence of law enforcement, he testified
       that he wanted an officer present during the search for three reasons. First, he
       noted his other employees were inside the terminal taking care of customers at the
       time. Second, he testified that he wanted law enforcement to be there because he
       is “never sure what the quantity is going to be.” Third, the arrival of law
       enforcement, especially the canine unit, provides some degree of entertainment
       for the passengers and breaks up the routine of [the employee’s] day. [The
       employee] is not compensated by law enforcement or by [the bus company] for
       discovering illegal substances.
Based on the evidence introduced at the suppression hearing, the district court found that the
employee’s “primary motivation for conducting the search was to pursue [the bus company’s]
interest in deterring the transportation of illegal or dangerous substances.” Additionally, the
district court found that the employee was acting in accordance with that policy when he formed
the independent belief that an illegal substance was being transported and when he searched the
backpack.




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       Breese points to a portion of the employee’s testimony that may indeed, on its own,
contradict the district court’s findings and suggest that the employee may have acted with the
intent to assist law enforcement. However, the employee also testified about the bus company’s
policies, reporting and search procedures, and prior similar incidents.       The employee also
testified regarding his reason for engaging in the search and his personal interests for having law
enforcement present when conducting the search. In addition, the record includes copies of the
bus company’s search policy notices and a recording of the interaction between the employee
and the officer. This Court will not substitute its view for that of the trier of fact as to the
credibility of the witnesses, the weight to be given to the testimony, and the reasonable
inferences to be drawn from the evidence. State v. Flowers, 131 Idaho 205, 207, 953 P.2d 645,
647 (Ct. App. 1998). Upon review, we conclude that there was substantial evidence to support
the district court’s finding that the employee’s primary motive in conducting the search was in
the legitimate pursuit of his employer’s interests. Thus, we hold that such findings were not
clearly erroneous. Breese has failed to show that Breese’s motivation in conducting the search
was to assist law enforcement efforts. Consequently, given the express findings of the district
court, we hold that the employee was not a government agent when he conducted the search of
Breese’s backpack after requesting the presence of the officer.1
                                               III.
                                        CONCLUSION
       Breese has not shown that the employee possessed the requisite mental state of a
government agent and has failed to show that the employee was a government agent when he
searched the backpack. Therefore, we hold that that the district court did not err in denying
Breese’s motion to suppress the marijuana found inside his backpack. Accordingly, Breese’s
judgment of conviction for trafficking in marijuana is affirmed.
       Judge GUTIERREZ and Judge HUSKEY, CONCUR.




1
       Because we hold that the bus employee was not a government agent, we need not address
Breese’s additional argument that the search did not fall under the automobile exception to the
warrant requirement.

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