               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                      Docket No. 36165

STATE OF IDAHO,                                 )     2010 Unpublished Opinion No. 733
                                                )
       Plaintiff-Respondent,                    )     Filed: December 7, 2010
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
BENJAMIN CORY SIMONS,                           )     THIS IS AN UNPUBLISHED
                                                )     OPINION AND SHALL NOT
       Defendant-Appellant.                     )     BE CITED AS AUTHORITY
                                                )

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

       Order partially denying motion to suppress, affirmed.

       Molly J. Huskey, State Appellate Public Defender; Heather M. Carlson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Judge
       Benjamin Cory Simons appeals his judgment of conviction for possession of a controlled
substance, with an intent to deliver, Idaho Code § 37-2732(a)(1)(A), rendered upon a conditional
guilty plea. Simons argues the district court erred in partially denying his motion to suppress.
We affirm.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       Idaho State Police Trooper Bingham stopped a vehicle on I-84 for speeding. Bingham
approached the vehicle from the passenger side. Simons was driving and there was a passenger
in the front seat as well as a passenger in the rear seat. Bingham smelled a strong odor of air
fresheners and all three occupants of the vehicle were smoking freshly lit cigarettes.       As
Bingham asked the driver some questions, he observed the front passenger was extremely
nervous. While Simons was producing his driver’s license, Bingham saw that Simons had an



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estimated $5,000 in cash in his wallet. Bingham collected driver’s licenses from Simons and one
passenger and wrote down the other passenger’s name and social security number. Bingham
then returned to his car and immediately requested a canine unit. Approximately three minutes
later, Bingham was advised that a canine unit would respond in approximately twenty minutes,
and Bingham began relaying the occupants’ identification information to dispatch to check for
any outstanding warrants. After Bingham finished processing the information and writing the
speeding ticket, dispatch informed him the canine unit was still six to seven minutes away.
       Trooper Bingham had Simons step out of the vehicle to give him a ticket for speeding.
Bingham returned the driver’s licenses he collected and told Simons he could go. Then Bingham
asked Simons if he could ask him some questions, and Simons agreed. Bingham asked Simons if
he had any one of a long list of drugs, which Simons denied. At the preliminary hearing,
Trooper Bingham testified that during this conversation he moved downwind of Simons and was
able to smell marijuana. Bingham asked Simons if he could search his car. Simons refused to
give consent. Bingham then informed Simons that he was being detained until the canine unit
could arrive, which was five minutes later.
       The drug dog alerted on the vehicle, and inside the car the officers found an empty 7-Up
can with a twist-off compartment that was empty, a small digital scale with white residue, and
small black Ziploc bags with marijuana leaves printed on them. Trooper Bingham decided to
release Simons and the passengers, but to impound the vehicle to allow for a more thorough
search of the vehicle and to investigate a suspicious looking switch, which Simons said was used
for his sound system. While the officers retained possession of the vehicle, the occupants were
driven to a nearby store. After the occupants of the vehicle were dropped off at the store, a
cigarette package was found where Simons had been standing during the vehicle search. It
contained multiple dime-sized black baggies with a white compressed powder substance. The
officers then returned to the store and arrested all the occupants.
       Trooper Bingham Mirandized1 Simons and then questioned him about the cigarette
package. In response, Simons said that inside the cigarette package there was a white powder
substance in small black baggies.       When Trooper Bingham asked Simons what the white
substance was, Simons stated that he wanted to talk to his attorney before telling him. Bingham

1
       See Miranda v. Arizona, 384 U.S. 436 (1966).


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questioned Simons further about who owned the backpack and whether the substance was
cocaine. Simons stated that he owned the backpack and that it was cocaine.
       The State charged Simons with possession of a controlled substance with the intent to
deliver, I.C. § 37-2732(a)(1)(A), failure to affix tax stamp, I.C. §§ 63-4202, 63-4204, 63-4205,
and possession of drug paraphernalia, I.C. § 37-2734A. Simons filed a motion to suppress all
evidence obtained as a result of the traffic stop. The district court granted the motion to suppress
regarding statements Simons made after requesting to speak with his attorney, but the court
denied the motion for all other evidence, including the physical evidence obtained from the
vehicle and the evidence found in the cigarette package. Simons entered a conditional guilty
plea to possession of a controlled substance with intent to deliver, and reserved his right to
appeal the partial denial of his motion to suppress. Simons appeals.
                                                II.
                                          DISCUSSION
       Simons contends that the district court erred in only partially granting his motion to
suppress. Simons does not dispute that Trooper Bingham was justified in initially stopping him
for speeding. He contends that Trooper Bingham impermissibly extended the duration of the
traffic stop and the physical evidence that was seized should have also been suppressed. While
the State asserts that the officer did not delay the stop, the focus of the State’s argument is that
Bingham learned of specific, articulable facts constituting reasonable suspicion to justify
extending the detention to wait for the drug dog.
       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). The determinations of reasonable suspicion and probable cause are
reviewed de novo on appeal, even though the findings of fact, which are based on the totality of
the circumstances, are only reviewed for clear error. State v. Munoz, 149 Idaho 121, 127, 233
P.3d 52, 58 (2010).


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       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); State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286
(Ct. App. 1996). 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 reasonableness of the
suspicion must be evaluated upon the totality of the circumstances at the time of the stop. 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. Id. 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). Simons concedes that Trooper Bingham had reasonable suspicion to stop his vehicle for
speeding.
       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
about 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). 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. The scope of the intrusion permitted
will vary to some extent with the particular facts and circumstances of each case. Roe, 140 Idaho
at 181, 90 P.3d at 931; Parkinson, 135 Idaho at 361, 17 P.3d at 305.
       The detention becomes unreasonable if an officer significantly extends the duration of the
stop to investigate other criminal conduct. Sheldon, 139 Idaho at 984, 88 P.3d at 1224. The


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United States Supreme Court has stated that a suspect “may not be detained even momentarily
without reasonable, objective grounds for doing so.” Florida v. Royer, 460 U.S. 491, 498
(1983). In State v. Gutierrez, 137 Idaho 647, 51 P.3d 461 (Ct. App. 2002), a vehicle was stopped
for speeding. The officer gave the driver a warning for speeding and returned the license and
registration. Then, without letting the driver know he could leave, the officer questioned the
driver about drugs or alcohol in the car, and explained the delay (which amounted to sixty to
ninety seconds) was due to the fact that one of the passengers appeared nervous. The officer
obtained consent to search the vehicle from the driver and then asked the passengers if they
objected to the driver’s consent, which they did not. The officer found marijuana that belonged
to the passengers. This Court held that because the officer had not informed the driver he was
free to leave, among other factors, the stop had not evolved into a consensual encounter. Id. at
651, 51 P.3d at 465. This Court then held that the officer impermissibly extended the detention,
beyond what was necessary to deliver the traffic warning, when he questioned the driver about
drugs and alcohol and requested consent to search the car. Id. at 652, 51 P.3d at 466.
       Similarly, in State v. Aguirre, 141 Idaho 560, 561-562, 112 P.3d 848, 849-850 (Ct. App.
2005), Aguirre was stopped for failing to yield as he exited a parking lot. After collecting the
license, registration, and insurance, the officer asked Aguirre if there was anything illegal in his
vehicle, asked for permission to search the vehicle, and finally ran a drug dog around the vehicle.
There, “[t]he purpose that justified the stop--the issuance of a traffic citation--was immediately
abandoned,” and because the officers expanded the scope of the stop without reasonable
suspicion, this Court held the use of the drug dog impermissibly extended the duration of the
detention. Id. at 564, 112 P.3d at 852.
       While a significant delay is unreasonable, officers have limited discretion to investigate
other crimes during the course of a routine traffic stop. The Supreme Court has stated “a police
officer’s brief detention of a driver to run a status check on the driver’s license, after making a
valid, lawful contact with the driver, is reasonable for purposes of the fourth amendment.” State
v. Godwin, 121 Idaho 491, 495, 826 P.2d 452, 456 (1992). An officer conducting a legal traffic
stop may permissibly ask for consent to search the vehicle while the driver is still detained, when
that request only momentarily extends the stop. State v. Silva, 134 Idaho 848, 852-53, 11 P.3d
44, 48-49 (Ct. App. 2000). Brief inquiries or other investigation techniques unrelated to the
initial purpose of the stop do not necessarily violate a detainee’s Fourth Amendment rights if


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they do not extend the duration of the stop. Roe, 140 Idaho at 181-82, 90 P.3d at 931-32. In
Parkinson, 135 Idaho at 362-63, 17 P.3d at 306-07, this Court held that it was permissible for
one officer to question a vehicle’s driver about drugs and weapons and to take a drug dog around
the vehicle while another officer was busy checking with dispatch on the driver’s status and
writing out a traffic citation. It is also within an officer’s discretion to instruct the driver to exit
or remain in the vehicle during a lawful stop. Id. at 363, 17 P.3d at 307.
       Even though detentions must ordinarily be temporary and last no longer than necessary to
effectuate the purpose of the stop, when the investigative detention discloses evidence of other
possible crimes the officer may expand the duration and focus of the detention.                State v.
Brumfield, 136 Idaho 913, 916-17, 42 P.3d 706, 709-10 (Ct. App. 2001) (holding that a stop to
investigate the operation of an unregistered automobile justifiably developed into an
investigation for drug activity and the sixteen-minute delay in waiting for the canine unit was
reasonable). The length and scope of an investigatory detention may be expanded if objective
and specific articulable facts exist to justify the suspicion that a detained person is engaged in
criminal activity. State v. Grantham, 146 Idaho 490, 496, 198 P.3d 128, 134 (Ct. App. 2008). In
Grantham, a deputy stopped a vehicle that had swerved on suspicion that the driver was under
the influence. During the course of the stop, the deputy observed that both the driver and
Grantham had characteristics of extended methamphetamine use--“appeared disheveled and
unkempt, had pock-marked skin, were gaunt or underweight, and had missing or rotted-out
teeth.” Id. at 497, 198 P.3d at 135. The deputy learned that neither the driver nor Grantham
owned the vehicle, the driver did not know the owner’s name, and Grantham only knew the
owner’s first name. Consistent with methamphetamine use, the driver was unable to stand still.
The driver’s demeanor also changed visibly when asked if there was methamphetamine in the
vehicle. This Court held that the deputy’s “observations considered together, and including his
training and experience, give rise to reasonable suspicion sufficient to expand the scope of the
traffic stop.” Id. Further, the deputy’s request for background information on the suspects and
requesting a drug dog to search the vehicle were held to be reasonable methods of investigating
this suspicion.
       In this case, the district court recited the facts as follows:
              The testimony of Bingham at the preliminary hearing and his observations
       on the ISP video indicate that Bingham observed that all three occupants were
       smoking freshly lit cigarettes; that there were numerous air fresheners on the

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       steering column; that Simons had an inordinate amount of cash in his wallet
       which Bingham estimated to be in the range of $5,000.00; that the occupants
       appeared to be nervous; that there was large quantity of beer in the back seat; and
       that he had a 99% belief that he smelled the odor of marijuana emanating from the
       person of Simons. The use of cigarette smoke and air fresheners under certain
       circumstances can be used to be a “drug-masking odor.” This information was
       known to Bingham after his initial contact with the occupants of the vehicle, and
       became especially noteworthy in light of the testimony of Bingham that he
       detected the odor of marijuana after he had Simons exit his vehicle. Brumfield,
       136 Idaho at 917, 42 P.3d at 710; United States v. Wisniewski, [358 F.Supp.2d
       1074, 1090 (D. Utah 2005)].

The district court held that Trooper Bingham was lawful in removing Simons from the vehicle
and when Simons was outside of the car Bingham detected the odor of marijuana. The district
court also held that the odor of marijuana, together with the other observed facts, supported
Bingham’s reasonable objective belief that Simons was engaged in illicit drug activity. Thus, the
district court held that the detention of Simons after issuing the citation was lawful and did not
violate the Fourth Amendment.
       Simons does not dispute that Trooper Bingham had reasonable suspicion to detain him
once Bingham smelled marijuana. Rather, Simons focuses on the three-minute delay after
Bingham had obtained Simons’ identification information and requested a drug dog. Simons
points out that Bingham waited for three minutes until he heard back from dispatch that a canine
unit was en route before beginning to process Simons’ information. Simons contends that this
three-minute delay in waiting for a response from dispatch was beyond what was necessary and
reasonable for a routine traffic stop.
       The State argues that Simons assumes that Trooper Bingham was doing nothing in
furtherance of the original purpose of the stop, such as writing the ticket, and that such an
assumption is unsupported by the record. The record supports Simons’ assertion that Trooper
Bingham requested dispatch to send a canine unit and then waited for three minutes without
processing the traffic ticket. The video and audio of the stop show that Bingham returned to his
car and requested a canine unit at nine minutes fifteen seconds into the recording. At 13:46
dispatch indicates that the canine unit is en route and should arrive in twenty minutes. Bingham
then begins to relay the identification information to dispatch. The State argues that Bingham
could have been doing something in furtherance of the traffic stop, such as writing the ticket,




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because the video from the squad car does not show Bingham inside the car.               However,
Bingham’s testimony at the preliminary hearing states:
               Q:      Okay. And upon collecting that information, [identification
       information of Simons and the passengers,] what did you do?
               A:      I returned to my vehicle.
               Q:      And then, while in your vehicle, what did you do?
               A:      I contacted the Idaho State Police dispatch. I - immediately I
       requested a canine unit to respond to my location.
               Q:      And so the first thing you did was contact Idaho State Police and
       request the canine unit?
               A:      That’s correct, yes.
               Q:      And then upon requesting the canine unit, what did you do?
               A:      I waited for them to tell me what - if a canine unit was coming or
       not. They advised me that Twin Falls County would be coming over with a
       canine unit. Then I did a driver’s check on - on the occupants, or checked for
       driver status and for warrants. . . .

The record supports Simons’ assertion that Trooper Bingham collected the identification
information, returned to his squad car, and then was not actively investigating the traffic
violation while he waited three minutes for a response from dispatch about the canine unit. This
was a significant delay of the traffic stop and the detention was, at that time, no longer carefully
tailored to investigate speeding. However, the State argues this was justified because at the time
of the delay Trooper Bingham possessed reasonable suspicion of drug activity and requesting a
canine unit was part of investigating that suspicion.
       At the time Trooper Bingham returned to his patrol car after collecting Simons’
identification information, he had many more facts to consider than merely that Simons had
committed a traffic infraction.     On the videotape of the stop, Trooper Bingham is heard
describing facts to dispatch that justify requesting the canine unit. He stated there were multiple
air fresheners, Simons and the passenger were extremely nervous, Simons had an excessive
amount of cash in his wallet, including new $100 bills that Trooper Bingham estimated as
$5,000, and the car had dark-tinted windows. At the preliminary hearing, Trooper Bingham
testified that in his training and experience masking agents, such as cigarettes and air fresheners,
are used to cover the odor of drugs in a car.
       Trooper Bingham possessed reasonable suspicion that drug activity may have been
occurring when he requested the canine unit.            This Court has previously recognized the
significance of suspects using masking odors, such as a cigar, in attempting to cover drug odors.


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Brumfield, 136 Idaho at 916-17, 42 P.3d at 709-10.        Bingham’s observation that all three
occupants of the vehicle were smoking freshly lit cigarettes and multiple air fresheners were
hanging in the car provided similar or greater suspicion.       In addition, while a suspect’s
nervousness may be of “limited significance,” State v. Gibson, 141 Idaho 277, 285-86, 108 P.3d
424, 432-33 (Ct. App. 2005), a suspect’s excessive nervousness may contribute to a finding of
reasonable suspicion. See State v. Johnson, 137 Idaho 656, 660, 51 P.3d 1112, 1116 (Ct. App.
2002). “[T]he possession of unusually large amounts of cash or the making of uncommonly
large cash purchases may be circumstantial evidence of drug trafficking.” United States v.
Thomas, 913 F.2d 1111, 1115 (4th Cir. 1990) (citations omitted).            Trooper Bingham’s
observation that Simons possessed an estimated $5,000 in cash reasonably added to his
suspicion.
       Once Trooper Bingham possessed reasonable suspicion of drug activity he was allowed
to expand the stop to pursue an investigation into drug activity.         In this case, it took
approximately thirty-three minutes for the canine unit to arrive after Trooper Bingham made the
request. During that period of time Trooper Bingham was also continuing with an investigation
normally associated with a traffic stop, including writing and citing the driver for speeding.
Additionally, prior to the arrival of the canine unit, Trooper Bingham smelled marijuana on
Simons, which would have given Bingham probable cause to arrest Simons at that point. On
appeal, Simons only argues that the three-minute delay after Trooper Bingham first requested the
canine unit was unreasonable. This Court has previously upheld a delay to wait over one-half
hour until the canine unit could arrive where the officer pursued the investigation into drug
activity diligently and with reasonable speed. Brumfield, 136 Idaho at 917, 42 P.3d at 710.
Simons has failed to demonstrate the delay was caused by a lack of diligence or unreasonable
delay. Considering Trooper Bingham’s reasonable suspicion of drug activity, the three-minute
delay was not an unreasonable detention.
                                              III.
                                       CONCLUSION
       Simons failed to demonstrate that the district court erred in partially denying his motion
to suppress. The judgment of conviction is affirmed.
       Chief Judge LANSING and Judge GUTIERREZ, CONCUR.




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