               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 41158

STATE OF IDAHO,                                  )     2014 Opinion No. 43
                                                 )
       Plaintiff-Respondent,                     )     Filed: May 20, 2014
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
JOSE GUADALUPE PEREZ-JUNGO,                      )
                                                 )
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho,
       Jerome County. Hon. John K. Butler, District Judge.

       Judgment of conviction for possession of a controlled substance, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Kimberly E. Smith, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
MELANSON, Judge
       Jose Guadalupe Perez-Jungo appeals from his judgment of conviction for possession of a
controlled substance. Specifically, he alleges that the district court erred in denying his motion
to suppress based on the extension of the duration of an investigative detention. For the reasons
set forth below, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       The following facts were adduced through testimony at the motion hearing and were set
forth in the district court’s order denying Perez-Jungo’s motion to suppress. An officer came
upon Perez-Jungo’s vehicle parked to the side of a rural gravel road at approximately 1:36 a.m.
As the officer approached Perez-Jungo’s vehicle, the officer activated his patrol vehicle’s
overhead emergency lights. The officer testified that his initial reasons for approaching the
vehicle were his concern that the vehicle was abandoned, the vehicle was stolen, the driver was



                                                1
in need of assistance, or the driver may have been involved in recent vandalisms of cell towers in
the area.   After pointing his spotlight at the driver’s side mirror, the officer observed an
individual in the vehicle. The officer approached the vehicle and asked Perez-Jungo what he was
doing. Perez-Jungo responded that he was waiting for a friend and that someone had told him
there was a potential job site nearby. The officer noted that Perez-Jungo’s eyes were bloodshot
and glassy. He asked Perez-Jungo if he had been drinking and Perez-Jungo said he had not. The
officer also noticed a Santa Muerte statuette on the dashboard of Perez-Jungo’s vehicle, which
the officer testified was the patron saint of drug traffickers. 1 The officer then requested Perez-
Jungo’s driver’s license and information, returned to his patrol vehicle and ran a status check for
active warrants, which came back negative. He was also able to determine that the vehicle was
not stolen. The officer requested backup, which arrived approximately ten minutes later, and a
canine unit, which never arrived. Perez-Jungo was told to exit his vehicle and was questioned.
During questioning, other officers shined flashlights into the vehicle’s windows. The officers
eventually saw what appeared to be drug paraphernalia and a controlled substance, leading to a
search of the vehicle. The items tested presumptively positive for controlled substances.
       Perez-Jungo was charged with possession of a controlled substance (cocaine),
I.C. § 37-2732(c)(1), and possession of drug paraphernalia, I.C. § 37-2734A(1).          The state
subsequently amended       the information to       charge Perez-Jungo      with possession of
methamphetamine instead of cocaine.
       Perez-Jungo filed a motion to suppress evidence resulting from what he alleged to be an
unlawful detention. Specifically, Perez-Jungo asserted that the officer had unlawfully extended
the duration of the stop without reasonable suspicion and that he was subjected to a custodial
interrogation prior to being advised of his Miranda rights. 2         The district court granted
Perez-Jungo’s motion with regard to the Miranda issue and denied the motion with regard to the



1
       Perez-Jungo attempts to introduce new evidence on appeal regarding Santa Muerte. This
information is not contained in the record and was not provided to the district court for
consideration. Appellate court review is limited to the evidence, theories, and arguments that
were presented below. State v. Johnson, 148 Idaho 664, 670, 227 P.3d 918, 924 (2010); State v.
Mitchell, 124 Idaho 374, 376 n.1, 859 P.2d 972, 974 n.1 (Ct. App. 1993). As a result, the
introduction of this information on appeal is improper and will be disregarded.
2
       See Miranda v. Arizona, 384 U.S. 436 (1966).

                                                2
alleged unlawful extension of the stop.3        The district court ruled that the officer lawfully
extended the investigative detention based on the officer’s reasonable suspicion that Perez-Jungo
either had been or was about to be involved in illegal drug activity or impaired driving.
Specifically, the district court found that the totality of the circumstances--the remote location,
the late hour, Perez-Jungo’s questionable explanation for why he was there, his bloodshot and
glassy eyes, the Santa Muerte statuette, and the officer’s training and experience in recognizing
the significance of the statuette--provided reasonable suspicion to support further investigation.
       Pursuant    to   a   plea   agreement,    Perez-Jungo    pled   guilty   to   possession      of
methamphetamine, the state dismissed the possession of drug paraphernalia charge, and
Perez-Jungo preserved his right to appeal the partial denial of his motion to suppress. The
district court sentenced Perez-Jungo to a unified term of five years, with a minimum period of
confinement of two years, but suspended the sentence and placed Perez-Jungo on probation for
three years. Perez-Jungo appeals.
                                                 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
       Perez-Jungo concedes that his initial contact with the officer and the temporary detention
while the officer performed a status check on Perez-Jungo’s driver’s license were lawful based
on the officer’s community caretaking function. He contends, however, that this initially lawful
detention was unlawfully prolonged after the initial purposes for the stop were resolved and any



3
       The state does not challenge the district court’s ruling on the Miranda issue on appeal.

                                                  3
initial suspicion dispelled. 4 He also asserts that the scope of the investigation was not reasonably
related to one of the subsequent justifications for his detention. Consequently, he contends, the
open-view discovery of the controlled substance occurred during an unlawful detention and the
district court erred in denying his motion to suppress that evidence.
A.       Reasonable Suspicion
         The Fourth Amendment to the United States Constitution, and its counterpart, Article I,
Section 17 of the Idaho Constitution, guarantee the right of every citizen to be free from
unreasonable searches and seizures. 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). 5 An investigative detention is
permissible if it is based upon specific articulable facts which justify reasonable suspicion that
the detained person is, has been, or is about to be engaged in criminal activity. Terry v. Ohio,
392 U.S. 1, 26 (1968); State v. Sheldon, 139 Idaho 980, 983, 88 P.3d 1220, 1223 (Ct. App.
2003).




4
         Although Perez-Jungo argues that the officer was not justified in extending the initial
investigative detention based on the officer’s community caretaking function, the state does not
assert this as a basis for finding the continued detention lawful. Accordingly, we address only
the arguments concerning whether reasonable suspicion was present to justify extension of the
initially lawful investigative detention.
5
        The district court found that Perez-Jungo’s initial detention occurred when the officer
activated the overhead emergency lights on his patrol vehicle after parking behind Perez-Jungo’s
vehicle. See State v. Maddox, 137 Idaho 821, 824, 54 P.3d 464, 467 (Ct. App. 2002) (holding
that an officer effectuated a seizure of the occupants of a vehicle when he activated the overhead
emergency lights of his patrol vehicle); State v. Mireles, 133 Idaho 690, 694, 991 P.2d 878, 880
(Ct. App. 1999) (finding that use of emergency lights created a de facto detention based on
I.C. § 49-625 and I.C. § 49-1404); but see State v. Willoughby, 147 Idaho 482, 487, 211 P.3d 91,
96 (2009) (distinguishing Mireles and holding that the use of overhead emergency lights is a
significant factor when considering the totality of the circumstances, but declining to hold that it
constitutes a de facto seizure resulting from I.C. §§ 49-625 and 49-1404 when the driver is
already stopped before activation of the lights). The state does not dispute this finding, so for the
purposes of our analysis, we assume--without deciding--that Perez-Jungo was detained upon the
officer’s activation of his patrol vehicle’s overhead emergency lights.

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       We agree with Perez-Jungo’s assertion that the officer’s initial purposes for approaching
and detaining Perez-Jungo were quickly dispelled. Indeed, once the officer shined his spotlight
on the vehicle and was able to see that there was an occupant inside, there was no longer a
concern that the vehicle was abandoned. After making contact with Perez-Jungo, the officer was
quickly able to determine that Perez-Jungo was not in need of assistance; moreover, there was no
indication that Perez-Jungo had been involved in the recent vandalisms in the area. Following
the check of Perez-Jungo’s license and registration, the officer was able to determine that the
vehicle was not stolen.
       However, this is not dispositive. The purpose of a stop is not fixed at the time the stop is
initiated. Parkinson, 135 Idaho at 362, 17 P.3d at 306. Any routine investigative detention
might turn up suspicious circumstances which could justify an officer asking questions unrelated
to the initial purpose for the stop. State v. Myers, 118 Idaho 608, 613, 798 P.2d 453, 458 (Ct.
App. 1990). Such unrelated inquiries, if brief, do not necessarily exceed the scope of the initial
detention and violate a detainee’s Fourth Amendment rights. Parkinson, 135 Idaho at 362, 17
P.3d at 306.     Moreover, an officer’s observations and general inquiries, and the events
succeeding the stop, may--and often do--give rise to legitimate reasons for particularized lines of
inquiry and further investigation by an officer. Myers, 118 Idaho at 613, 798 P.2d at 458.
Indeed, a detention initiated for one investigative purpose may disclose suspicious circumstances
that justify expanding the investigation to other possible crimes. State v. Brumfield, 136 Idaho
913, 916, 42 P.3d 706, 709 (Ct. App. 2001).           Thus, the length and scope of the initial
investigatory detention may be lawfully expanded if there exist objective and specific articulable
facts that justify reasonable suspicion that the detained person is, has been, or is about to engage
in criminal activity. State v. Gomez, 144 Idaho 865, 869, 172 P.3d 1140, 1144 (Ct. App. 2007).
       Accordingly, our inquiry is directed at determining whether the officer had reasonable
suspicion, upon resolution of the initial justifications for the stop, to continue the detention to
investigate other possible crimes. 6 The reasonableness of the suspicion must be evaluated upon



6
        For purposes of this inquiry, we agree with the district court’s determination that
reasonable suspicion must have existed prior to the arrival of additional officers and the initial
officer’s request that Perez-Jungo exit the vehicle. Indeed, all of the officer’s justifications for
the initial stop were dispelled after contacting Perez-Jungo and upon verification from dispatch
that Perez-Jungo’s license was valid, he had no active warrants, and the vehicle was not stolen.

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the totality of the circumstances at the time of the stop. United States v. Cortez, 449 U.S. 411,
417-18 (1981); State v. Bishop, 146 Idaho 804, 811, 203 P.3d 1203, 1210 (2009); State v.
Ferreira, 133 Idaho 474, 483, 988 P.2d 700, 709 (Ct. App. 1999). The reasonable suspicion
standard requires less than probable cause but more than mere speculation or instinct on the part
of the officer. Terry, 392 U.S. at 27; Bishop, 146 Idaho 804, 811, 203 P.3d 1203, 1210; State v.
Grigg, 149 Idaho 361, 363, 233 P.3d 1283, 1285 (Ct. App. 2010). An officer may draw
reasonable inferences from the facts in his or her possession to support reasonable suspicion, 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).
       Here, although the officer’s initial reasons for making contact with Perez-Jungo were
quickly resolved, the officer became aware of objective facts during the course of his initial
investigation that caused him to subsequently suspect Perez-Jungo of involvement in either
impaired driving or illegal drug activity. Perez-Jungo argues that the extension of his detention
could only be justified by reasonable suspicion that a specific crime had been committed. In
other words, he contends that there must have been objective facts that provided reasonable
suspicion of at least one of the specific crimes the officer suspected Perez-Jungo of having
committed. As a result, he argues at length that the facts of this case were not sufficient to
provide reasonable suspicion of impaired driving or illegal drug activity separately, meaning that
the officer did not have reasonable suspicion to prolong the duration of the initially lawful
detention.
       Perez-Jungo misapprehends the applicable standard. Just as with probable cause to
search a vehicle, reasonable suspicion does not require a belief that any specific criminal activity
is afoot to justify an investigative detention; instead, all that is required is a showing of objective
and specific articulable facts giving reason to believe that the individual has been or is about to
be involved in some criminal activity. Cf. State v. Newman, 149 Idaho 596, 600-01, 237 P.3d
1222, 1226-27 (Ct. App. 2010) (noting this standard for probable cause); see also United States
v. Guardado, 699 F.3d 1220, 1225 (10th Cir. 2012) (stating that direct evidence of a specific,
particular crime is unnecessary for an investigatory stop); United States v. Pack, 612 F.3d 341,




This occurred approximately five minutes before the second officer arrived. As a result, any
observations made thereafter cannot contribute to the totality of the circumstances.

                                                  6
357 (5th Cir. 2010) (noting that officers need not observe the equivalent of direct evidence of a
particular specific crime in order to detain a lawfully stopped individual to investigate further so
long as there is reasonable suspicion of some criminal activity). This analysis is based on the
totality of the circumstances, meaning that we look at the whole picture, including those facts
that may support suspicion of one crime but not another.            Even if there is not sufficient
reasonable suspicion of any specific crime, there may still be reasonable suspicion that some
criminal activity is afoot, which is all that is required to extend an investigative detention. See,
e.g., United States v. Arvizu, 534 U.S. 266, 272 (2002) (noting that the Fourth Amendment is
satisfied if the officer’s action is supported by reasonable suspicion that criminal activity may be
afoot); Brown v. Texas, 443 U.S. 47, 52 (1979) (noting that an officer must have reasonable
suspicion, based on objective facts, that the individual is involved in criminal activity).
       The circumstances known to the officer here provided reasonable suspicion to believe
that some criminal activity was afoot. The officer testified that, after the concerns justifying his
initial contact with Perez-Jungo had been resolved, he suspected that Perez-Jungo might be
involved in impaired driving or illegal drug activity. Specifically, the officer came upon Perez-
Jungo’s vehicle parked on a gravel road in a remote area late at night. Although this was
insufficient alone to create reasonable suspicion, officers are not required to ignore the
suspicious nature of relevant surrounding circumstances, such as location or time. See, e.g.,
Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (noting that police may consider location, even
when not in a high-crime area, when determining if reasonable suspicion exists); State v.
McAfee, 116 Idaho 1007, 1010, 783 P.2d 874, 877 (Ct. App. 1989) (agreeing that “unusual
activities at unusual hours” can contribute to establish reasonable suspicion, but noting that
citizens do not become prospective detainees because they lawfully drive and park late at night).
The officer also observed that Perez-Jungo had bloodshot, glassy eyes. Again, the presence of
bloodshot and glassy eyes is not alone sufficient to provide reasonable suspicion. Grigg, 149
Idaho at 364, 233 P.3d at 1286. However, it nonetheless supports suspicion of both intoxication
and illegal drug activity. See State v. Sheldon, 139 Idaho 980, 985, 88 P.3d 1220, 1225 (Ct. App.
2003) (noting that glassy, bloodshot eyes not caused by alcohol consumption can contribute to
reasonable suspicion of illegal drug activity).
       Indeed, few additional facts are needed beyond bloodshot and glassy eyes to provide
reasonable suspicion of impaired driving or illegal drug activity. See Grigg, 149 Idaho at 364,


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233 P.3d at 1286 (finding reasonable suspicion to support an extended detention where defendant
had bloodshot and glassy eyes, reddening of the conjunctiva of his eyes, and eyelid tremors).
Although Perez-Jungo denied having consumed alcohol or drugs recently, it was reasonable for
the officer to believe Perez-Jungo was being untruthful, especially in light of the questionable
explanation Perez-Jungo provided for what he was doing. He asserted that he was waiting to
meet with a friend and look into possible employment in the area. However, as noted by the
district court, Perez-Jungo was in a remote area with no businesses or residences nearby and it
was late at night, making his explanation unlikely. Finally, the officer observed a Santa Muerte
statuette on the dashboard of Perez-Jungo’s vehicle. The officer testified that, based on his
training and experience, Santa Muerte is a patron saint for drug traffickers. 7
       Based on the totality of these circumstances, the officer had reasonable suspicion to
detain Perez-Jungo for further investigation. Taken individually, none of these facts would be
sufficient to provide reasonable suspicion that Perez-Jungo was, had been, or was about to be
involved in criminal activity. However, when taken together and viewed as a whole picture,
these facts support extension of the initially lawful detention to further investigate potential
crimes involving impaired driving and illegal drug activity. See Brumfield, 136 Idaho at 917, 42
P.3d at 710 (noting that facts susceptible to innocent explanations separately may still warrant
further investigation when taken together). The district court did not err in finding that the
extension of Perez-Jungo’s detention was supported by reasonable suspicion.
B.      Scope of the Investigation
       Perez-Jungo also asserts that the scope of the investigation was not reasonably related to
one of the alleged justifications for his prolonged detention. An investigative 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). Where a person is detained, the scope of detention must be carefully tailored to its
underlying justification. Roe, 140 Idaho at 181, 90 P.3d at 931; Parkinson, 135 Idaho at 361, 17
P.3d at 305. In this regard, we must focus on the intensity of the detention, as well as its

7
       Perez-Jungo attempts to argue for the first time on appeal that the Santa Muerte statuette
cannot be used to support reasonable suspicion. Generally, issues not raised below may not be
considered for the first time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126
(1992). Accordingly, we do not address this issue.


                                                  8
duration. Roe, 140 Idaho at 181, 90 P.3d at 931. The scope of the intrusion permitted will vary
to some extent with the particular facts and circumstances of each case. Id.; Parkinson, 135
Idaho at 361, 17 P.3d at 305.
       Perez-Jungo argues only that the officer failed to perform field sobriety tests or otherwise
investigate him for impaired driving, and thus the officer did not use the least intrusive means to
investigate whether Perez-Jungo was driving under the influence. See State v. Ferreira, 133
Idaho 474, 483, 988 P.2d 700, 709 (Ct. App. 1999) (finding field sobriety tests to be the least
intrusive means reasonably available to verify or dispel an officer’s suspicion in a short period of
time that a driver is driving under the influence). Although we look at the intensity of the
investigative measures used, the primary factor that may render a detention unreasonable is its
duration. United States v. Sokolow, 490 U.S. 1, 11 (1989); State v. Stewart, 145 Idaho 641, 646,
181 P.3d 1249, 1254 (Ct. App. 2008). Indeed, the reasonableness of an officer’s extended
detention of a suspect does not turn on the availability of less intrusive investigatory techniques.
Sokolow, 490 U.S. at 11. Such a rule would require courts to indulge in “unrealistic second-
guessing” and would unduly hamper responsive investigative decision making. Id.; United
States v. Sharpe, 470 U.S. 675, 686 (1985). Thus, our statement in Ferreira did not mean that
the only permissible means for investigating impaired driving was through field sobriety tests.
Instead, we simply held that field sobriety tests would not render an investigative detention on
suspicion of impaired driving unreasonable. See Ferreira, 133 Idaho at 483, 988 P.2d at 709.
Other investigative techniques are permissible if reasonable under the circumstances. See id.
(noting that the “least intrusive means reasonably available” should be used); State v. Martinez,
129 Idaho 426, 431, 925 P.2d 1125, 1130 (Ct. App. 1996) (finding that “the use of the drug-
detection dog was one of the least intrusive means available) (emphasis added). However,
Perez-Jungo does not argue that the techniques used--continued questioning and inspecting his
vehicle with flashlights--were unreasonable under the circumstances.
       Moreover, there is no requirement that the officer pursue to conclusion investigation of
each crime he suspected Perez-Jungo of having committed. The officer developed reasonable
suspicion that Perez-Jungo was involved in either impaired driving or illegal drug activity, and it
was entirely reasonable for the officer to limit or abandon the impaired driving investigation to
pursue the investigation of illegal drug activity, as the circumstances supported reasonable
suspicion of either crime. Perez-Jungo does not assert that the scope of the investigation was not


                                                 9
reasonably related to suspicion of illegal drug activity. As a result, the scope of the investigation
did not render his extended detention unreasonable.
                                                IV.
                                         CONCLUSION
       Perez-Jungo has failed to demonstrate that the district court erred in denying his motion
to suppress based on its finding that the officer had reasonable suspicion to justify extending the
duration of his investigative detention.     Moreover, the scope of the investigation was not
unreasonable. Accordingly, we affirm Perez-Jungo’s judgment of conviction for possession of a
controlled substance.
       Chief Judge GUTIERREZ and Judge LANSING, CONCUR.




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