               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                  Docket Nos. 44948 & 44949

STATE OF IDAHO,                                 )
                                                ) Filed: October 30, 2018
       Plaintiff-Respondent,                    )
                                                ) Karel A. Lehrman, Clerk
v.                                              )
                                                )
JESSICA JEAN IBARRA, aka DELEON,                )
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Christopher S. Nye, District Judge.

       Judgments of conviction and determinate sentence of seven years for possession
       of a controlled substance and consecutive indeterminate sentence of five years for
       possession of contraband in a correctional facility, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Brian R. Dickson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

LORELLO, Judge
       In these consolidated cases, Jessica Jean Ibarra, aka DeLeon, appeals from her judgments
of conviction and sentences for possession of a controlled substance and possession of
contraband in a correctional facility. Ibarra argues that the district court erred in denying her
motion to suppress evidence she discarded in the booking area of a correctional facility. She also
argues that her sentences are excessive. For the reasons set forth below, we affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Ibarra was arrested and booked into jail for possession of methamphetamine and
possession of drug paraphernalia (Docket No. 44948). While Ibarra was in custody, detention


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deputies received information from another inmate that Ibarra was concealing methamphetamine
in her vagina. Ibarra was placed in handcuffs and transported to the booking area of the jail
where a female deputy conducted a search, which did not reveal methamphetamine. While still
in the booking area, Ibarra asked to use the restroom. Officers accommodated Ibarra’s request
by providing her with a port-a-toilet. Officers visually inspected Ibarra’s urine for contraband,
but did not discover any. Ibarra was returned to the booking area for approximately two and
one-half hours while the officers attempted to obtain a warrant to search Ibarra’s body cavities.
While waiting in the booking area, Ibarra stood up and threw a small white “plastic thing”
containing methamphetamine on the ground. Ibarra was subsequently charged with possession
of a controlled substance, I.C. § 37-2732(c)(1), and possession of contraband in a correctional
facility, I.C. § 18-2510(3) (Docket No. 44949).
           Ibarra filed a motion to suppress the methamphetamine, arguing that the continued
detention after the search and inspection of her urine was unlawful and unsupported by probable
cause. 1      The district court denied Ibarra’s motion.        The district court found that the
methamphetamine was not discovered as a result of a search, but was discovered after it was
abandoned by Ibarra. The district court also found Ibarra’s detention was reasonable under the
circumstances.
           Pursuant to a plea agreement, Ibarra pled guilty to possession of a controlled substance in
Docket No. 44948 and entered a conditional guilty plea to possession of contraband in a
correctional facility in Docket No. 44949, reserving her right to appeal the denial of her motion
to suppress. As part of the plea agreement, the State dismissed the remaining charges in both
cases and the sentencing enhancements filed in both cases.            The district court imposed a
determinate term of seven years for possession of a controlled substance to run concurrently with
Ibarra’s sentences in unrelated cases and a consecutive indeterminate term of five years for
possession of contraband in a correctional facility to run concurrently with her other unrelated
sentences. Ibarra filed I.C.R. 35 motions for a reduction of her sentences, which the district
court denied. Ibarra appeals.


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        While Ibarra was in the booking area, she was also interrogated. Ibarra moved to
suppress the statements made during the interrogation. The State did not object to this aspect of
Ibarra’s motion. The district court granted Ibarra’s motion to suppress her statements.

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                                                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
A.     Motion to Suppress
       It is undisputed that Ibarra discarded the methamphetamine she possessed while detained
in jail. The only dispute is whether the property was abandoned for purposes of the Fourth
Amendment. The district court held that it was. On appeal, Ibarra asserts that she was entitled to
suppression of the methamphetamine because the jail deputies “exaggerated” their response to
the report that Ibarra possessed methamphetamine beyond what was constitutionally reasonable.
The State argues that the district court correctly concluded that Ibarra was not entitled to
suppression because Ibarra’s seizure was lawful and Ibarra abandoned the methamphetamine.
We conclude that Ibarra has failed to show error in the denial of her motion to suppress.
        Before the district court, Ibarra argued that her detention was unlawful because the only
step left in the investigation of the report that she possessed methamphetamine was obtaining a
search warrant for a body cavity search. Ibarra argued that, because there was no probable cause
to obtain a search warrant, she could not be detained after the unsuccessful search of her person
and urine and, because she was detained beyond that point, the detention was unconstitutional.
Ibarra advances these same arguments on appeal. Ibarra has failed to show that her detention
was constitutionally unreasonable.
       While inmates, like Ibarra, retain Fourth Amendment rights, those rights have limitations.
For example, the Supreme Court has held that correctional officials may “devise reasonable


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search policies to detect and deter the possession of contraband in their facilities.” Florence v.
Bd. of Chosen Freeholders, 566 U.S. 318, 328 (2012). Such search policies will withstand
constitutional challenge absent substantial evidence that the policies constitute an “exaggerated”
response to legitimate security interests. Id. at 330. As noted, Ibarra’s constitutional claim in
this case is not based on a challenge to a search but is, instead, based on a challenge to her
detention while officers were investigating a report that Ibarra possessed methamphetamine.
Ibarra suggests that the reasoning of the cases involving searches in correctional facilities
extends to detentions in those facilities. However, Ibarra cites no authority to support the
conclusion that such an extension is warranted, particularly on the facts of her case.
       The distinctions between searches and seizures under the Fourth Amendment are
apparent even under circumstances outside of correctional facilities where a search requires
probable cause and a warrant or an exception to the warrant requirement, but a seizure can occur
based solely on reasonable articulable suspicion. See State v. Pachosa, 160 Idaho 35, 39, 368
P.3d 655, 659 (2016); State v. Bowman, 134 Idaho 176, 179, 997 P.2d 637, 640 (Ct. App. 2000).
Inside a correctional facility, neither probable cause nor a warrant are required in order to
conduct a search, and reasonable suspicion is not required in order to seize an inmate. Indeed,
inmates inside correctional facilities are already seized by virtue of their detention. To the extent
the Fourth Amendment governs additional restrictions on movement for inmates already
detained, the only limitation is the Fourth Amendment’s reasonableness requirement.              See
California v. Ciraolo, 476 U.S. 207, 211 (1986) (noting that the touchstone of the Fourth
Amendment is reasonableness).       The district court concluded that Ibarra’s detention in the
booking room during the ongoing investigation of the reported methamphetamine was
reasonable under the circumstances. We agree. Requiring Ibarra to remain in the booking room
after the unsuccessful search of Ibarra’s person and urine (the period of time Ibarra concedes was
reasonable), while the officer indicated he was going to seek a warrant for a cavity search, was
not constitutionally unreasonable. Ibarra has cited no authority that persuades us to conclude
otherwise.
       Ibarra also argues that, because she discarded the methamphetamine “while still being
subjected to the unlawful additional restrictions,” her act of abandonment was caused by the
complained of conduct and, therefore, she retained a privacy interest in the methamphetamine.


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While the State argued that Ibarra lacked a privacy interest in the methamphetamine based on
abandonment, Ibarra never argued or presented evidence that the alleged unlawful detention
caused the abandonment. Ibarra’s only argument was that her seizure was illegal. Appellate
court review is limited to the evidence, theories, and arguments that were presented below. State
v. Garcia-Rodriguez, 162 Idaho 271, 275, 396 P.3d 700, 704 (2017).
       Even if we consider Ibarra’s claim that her abandonment of the methamphetamine was
caused by the “additional restrictions” placed on her at the jail, Ibarra’s causation argument fails.
The Fourth Amendment prohibition of unreasonable searches and seizures protects only those
places and items in which a person has a legitimate expectation of privacy. State v. Shearer, 136
Idaho 217, 221, 30 P.3d 995, 999 (Ct. App. 2001). A person has no Fourth Amendment privacy
interest in abandoned property. State v. Ross, 160 Idaho 757, 759, 378 P.3d 1056, 1058 (Ct.
App. 2016). For purposes of the Fourth Amendment, abandonment occurs through words, acts,
and other objective facts indicating that the defendant voluntarily discarded, left behind, or
otherwise relinquished interest in the property. Id. If the abandonment is caused by illegal
police conduct, however, the abandonment is not voluntary. Id. at 760, 378 P.3d at 1059.
       That an act of abandonment occurs during a detention does not mean the abandonment
was caused by the detention. To the extent Ibarra relies on Ross as holding otherwise, her
reliance is misplaced. In Ross, the defendant abandoned a duffle bag after the officers refused to
allow him to take it and after officers told him the duffle bag would be searched and inventoried.
Id. at 760, 378 P.3d at 1059. Based on the State’s concession in Ross that the seizure of the
duffle bag was illegal, and the defendant’s agitation after the officers refused to allow him to
take the duffle bag, this Court concluded the abandonment was the result of illegal police
activity. Id. The Court did not conclude, as Ibarra’s argument suggests, that the illegal police
activity caused the abandonment simply because the abandonment occurred in conjunction with
the police activity. Unlike the defendant in Ross, who demonstrated an interest in taking the
searched property, and who was agitated when he could not, Ibarra never claimed possession of,
or an interest in, the discarded methamphetamine. Rather, the evidence showed that Ibarra
discarded the methamphetamine when it appeared none of the officers present were looking.
The video of the incident, which was admitted at the suppression hearing, showed Ibarra stood
up from her chair, inched toward a nearby bin, threw the methamphetamine, and returned to her


                                                 5
chair. We see no basis to conclude that Ibarra’s abandonment was caused by the police conduct
in this case.
        Because Ibarra’s detention was constitutionally reasonable, and her abandonment of the
methamphetamine was not caused by police conduct, the district court did not err in denying
Ibarra’s motion to suppress.
B.      Excessive Sentences
        Appellate review of a sentence is based on an abuse of discretion standard. State v.
Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal,
the appellant has the burden to show that it is unreasonable and, thus, a clear abuse of discretion.
State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such
an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice,
103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it
appears at the time of sentencing that confinement is necessary to accomplish the primary
objective of protecting society and to achieve any or all of the related goals of deterrence,
rehabilitation, or retribution applicable to a given case. State v. Toohill, 103 Idaho 565, 568, 650
P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the sentencing court imposed
an excessively harsh sentence, we conduct an independent review of the record, having regard
for the nature of the offense, the character of the offender, and the protection of the public
interest. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982).
        Ibarra argues that her determinate sentence of seven years for possession of a controlled
substance and her consecutive five-year indeterminate sentence for possession of contraband in a
correctional facility are excessive because the district court failed to “sufficiently consider the
various mitigating factors.” The mitigating factors Ibarra cites include her rehabilitative efforts
and potential, her age, and her family support. Ibarra contends that lesser sentences more
appropriately served the goals of sentencing.        Applying the aforementioned standards, and
having reviewed the record in this case, we cannot say that the district court abused its
sentencing discretion.




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                                             III.
                                      CONCLUSION
       The district court did not err in denying Ibarra’s motion to suppress and the sentences
imposed by the district court are not excessive. Accordingly, Ibarra’s judgments of conviction
and sentences are affirmed.
       Judge GUTIERREZ and Judge HUSKEY, CONCUR.




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