               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 40139

STATE OF IDAHO,                                 )     2013 Unpublished Opinion No. 659
                                                )
       Plaintiff-Respondent,                    )     Filed: September 5, 2013
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
ROBERT LEROY HUCK,                              )     THIS IS AN UNPUBLISHED
                                                )     OPINION AND SHALL NOT
       Defendant-Appellant.                     )     BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Eric J. Wildman, District Judge. Hon. Richard D. Greenwood
       District Judge.

       Judgments of conviction for possession of a controlled substance and for
       possession of drug paraphernalia, affirmed; order denying motion to suppress,
       affirmed.

       Sara B. Thomas, State Appellate Public Defender; Justin M. Curtis, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
WALTERS, Judge Pro Tem
       Robert Leroy Huck appeals from his judgments of conviction for possession of a
controlled substance, Idaho Code § 37-2732(c), and for possession of drug paraphernalia, I.C.
§ 37-2734A.   He contends that the district court erred by denying his motion to suppress
evidence. We affirm.
                                               I.
                                       BACKGROUND
       The following facts are taken from the district court’s findings of fact in the decision
denying the motion to suppress.     On June 18, 2011, Boise City Police Officers Montoya,
Schiffler, Borgeau, and Phillips were working together as a “direct patrol team.” Shortly before
7:30 p.m., Officer Phillips received information regarding a drug transaction occurring in a



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supermarket parking lot at the corner of Overland Road and Vista Avenue in Boise. Officer
Phillips dispatched the other officers who were each in separate patrol vehicles to respond to the
scene. He informed the officers that Huck may be in possession of narcotics and provided a
description of Huck and the vehicle he was driving. In responding to the scene, Officer Montoya
observed Huck driving westbound on Overland Road and proceeded to follow the vehicle from a
distance of about two car lengths. The other officers followed behind at various car lengths.
       At approximately 7:30 p.m., Officer Montoya witnessed Huck’s vehicle make a
northbound turn onto Roosevelt Street. Montoya proceeded to initiate a traffic stop based on his
observation that Huck failed to utilize his signal for the period of time or distance as required by
I.C. § 49-808(2), prior to making the turn. Officers Schiffler and Borgeau arrived at the scene
within a few seconds of the stop.       Officer Montoya obtained Huck’s driver’s license and
informed him of the reason for the traffic stop, explaining that when Huck turned onto Roosevelt
Street he did not engage his turn signal until he was already into the turn. After returning to his
vehicle and running Huck’s information through dispatch, Montoya asked Huck for permission
to search his vehicle. Huck refused the request, stating that it was not his vehicle. Officer
Montoya then asked Officer Schiffler to write the traffic citation while Montoya went to retrieve
his K-9 drug dog.
       After returning with the drug dog, Officer Montoya advised Huck that he was going to
use the dog to conduct a sniff around the exterior of the vehicle and directed Huck to exit the
vehicle and to stand next to Officer Borgeau. Officer Borgeau also directed Huck to exit the
vehicle and directed him not to put his hands in his pockets. Officer Borgeau testified that Huck
appeared nervous, was hesitant to exit the vehicle, and prior to exiting rolled up the window and
locked the door.    Officer Borgeau ordered Huck to place the keys on the top of the car,
explaining that it was a “safety issue.” Huck reluctantly complied, but questioned the request
arguing that it was not his car. Officer Borgeau testified that after Huck exited the vehicle he
turned away from him and towards the car, dropping his hands down towards the front of his
waistband area and out of sight. This sudden movement immediately led Officer Borgeau to
suspect Huck was either attempting to conceal evidence or retrieve a weapon. Officer Borgeau
grabbed Huck by the forearm and led Huck to the rear of the vehicle for the purpose of
conducting a pat-down search. Prior to conducting the pat-down, Officer Borgeau asked Huck if
he had anything on his person that he (Officer Borgeau) needed to know about, including


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weapons, needles or anything that would hurt him. Huck responded he had no weapons or
needles. When asked if he had “something else” on his person, Huck admitted to having
methamphetamine in his pocket.
       Meanwhile, the drug dog sniff of the vehicle’s exterior resulted in an alert near the driver-
side door. (According to the district court, the evidence was unclear whether the drug dog
alerted first or whether Huck admitted to possessing methamphetamine first.) Officer Montoya
proceeded to deploy the dog to conduct a sniff of the interior of the vehicle, resulting in the dog
alerting to a black bag sitting on the passenger seat. A subsequent search of the bag by Montoya
revealed seven syringes and a digital scale. Huck was subsequently placed under arrest. At no
time prior to the arrest was Huck read his Miranda rights. 1 The period of time from the traffic
stop until the time of the arrest was approximately ten minutes.
       Huck was charged with possession of a controlled substance, methamphetamine, I.C.
§ 37-2732(c), a felony, and with possession of drug paraphernalia, I.C. § 37-2734A, a
misdemeanor. Huck filed a motion to suppress evidence, asserting that the state lacked probable
cause to conduct a traffic stop and that there was no reasonable, articulable suspicion to remove
Huck from his vehicle. He further asserted that his detention was unduly prolonged; that the
officers failed to give him Miranda warnings prior to questioning him at the scene; and that no
evidence existed to show the drug dog’s qualification. After a hearing, the district court denied
Huck’s motion. Huck entered conditional pleas of guilty to the charges, reserving his right to
appeal the denial of the suppression motion.         The district court entered a judgment of
           2
conviction, and imposed a unified seven-year sentence with a three-year minimum period of
confinement on the felony charge.        The court imposed a jail term of 180 days on the
misdemeanor charge and gave Huck credit for 180 days for incarceration served prior to the
sentencing hearing.     The district court entered an order retaining jurisdiction to allow
consideration of release on probation pursuant to I.C. § 19-2601(4).          Huck has appealed,
asserting the district court erred by denying his motion to suppress.



1
       Miranda v. Arizona, 384 U.S. 486 (1966).
2
       The judgments of conviction were entered and the sentences were imposed by District
Judge Richard D. Greenwood. The decision and order denying Huck’s suppression motion was
rendered by District Judge Eric J. Wildman.

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                                                II.
                                  STANDARD OF REVIEW
       The standard of review of a suppression motion is bifurcated. The appellate court accepts
the trial court’s findings of fact that are supported by substantial evidence and exercises free
review of the trial court’s determination as to whether constitutional standards have been
satisfied in light of the facts found. State v. Willoughby, 147 Idaho 482, 485-86, 211 P.3d 91,
94-95 (2009); State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct. App. 1996).
Decisions regarding the credibility of witnesses and the weight to be given to evidence, together
with the power to resolve factual conflicts and to draw factual inferences from the evidence, are
matters vested in the trial court to be determined within the court’s discretion. 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.
                                         DISCUSSION
       The issues on appeal concern the rulings of the district court on Huck’s motion to
suppress. Huck contends the district court erred in concluding that there was a valid basis for
Officer Montoya of the Boise City Police Department to effect a traffic stop of Huck and the
vehicle he was driving. He further asserts that the district court erred in determining that there
was a reasonable, articulable suspicion on the officers’ part to remove Huck from the vehicle.
Next, he contends that the district court erred in determining that the officers did not
unreasonably prolong their investigation at the scene of the traffic stop. He also argues that the
district court erred in holding that Huck’s Miranda rights were not violated. Finally, he claims
that the district court erred in concluding that Huck lacked standing to contest the search of the
automobile he was driving. These issues will be addressed in turn. 3



3
         One of the grounds upon which Huck challenged the search of his vehicle was a claim
that the drug dog was not qualified. This argument was based on the fact that no evidence had
been disclosed concerning the training or experience of the dog. Subsequently, evidence was
presented at the hearing on the suppression motion relative to the dog’s training, from which the
district court found that the dog was sufficiently trained to provide probable cause for the search
of the vehicle’s interior. In his brief on appeal, Huck acknowledges that the dog’s qualifications
were addressed at the hearing on the suppression motion, and he does not pursue the question of
the dog’s qualification as an issue on appeal.

                                                4
A.     The Traffic Stop
       Huck contends that there was not a valid basis for Officer Montoya to effect a traffic
stop. The district court found otherwise.
       The Fourth Amendment to the United States Constitution and Article 1, § 17, of the
Idaho Constitution prohibit unreasonable searches and seizures. Searches and seizures without a
valid warrant are presumed unreasonable and violate both constitutional provisions. State v.
Nunez, 138 Idaho 636, 640, 67 P.3d 831, 835 (2003). The purpose of these constitutional rights
is to “impose a standard of reasonableness upon the exercise of discretion by government agents
and thereby safeguard the individual’s privacy and security against arbitrary invasions.” State v.
Maddox, 137 Idaho 821, 824, 54 P.3d 464, 467 (Ct. App. 2002). A vehicle stop constitutes a
seizure of its occupants and is therefore subject to constitutional limits. State v. Cerino, 141
Idaho 736, 737, 117 P.3d 876, 878 (Ct. App. 2005); State v. Roark, 140 Idaho 868, 870, 103 P.3d
481, 483 (Ct. App. 2004). While routine traffic stops by officers implicate the constitutional
prohibitions against unreasonable searches and seizures, the reasonableness of a traffic stop is
analyzed under Terry v. Ohio, 392 U.S. 1 (1968), inasmuch as a traffic stop is more analogous to
an investigative detention than a custodial arrest because such a stop is normally limited in scope
and of short duration. Delaware v. Prouse, 440 U.S. 648, 653-54 (1979); State v. Sheldon, 139
Idaho 980, 983, 88 P.3d 1220, 1223 (Ct. App. 2003).           Applying the Terry standard, “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.”
Sheldon, 139 Idaho at 983, 88 P.3d at 1223, (citing Terry, 392 U.S. at 21); see also United States
v. Cortez, 449 U.S. 411, 417 (1981). The reasonableness of the officer’s suspicion is evaluated
based upon the totality of the circumstances at the time of the seizure. State v. Evans, 134 Idaho
560, 563, 6 P.3d 416, 419 (Ct. App. 2000); State v. Flowers, 131 Idaho 205, 208, 953 P.2d 645,
648 (Ct. App. 1998). When an officer observes a traffic violation, initiating a traffic stop is
reasonable. Whren v. United States, 517 U.S. 806, 810 (1996).
       Here, from the evidence presented at the suppression hearing, the district court found that
Officer Montoya initiated a traffic stop based on his observation that Huck did not activate his
turn signal until he had commenced the turn from Overland Road to Roosevelt Street. In his
brief on appeal, Huck concedes that I.C. § 49-808(2) requires a signal of intention to turn for not
less than the last one hundred feet before turning. Although Huck testified at the suppression


                                                5
hearing that he had engaged his signal about two to three seconds before commencing the turn,
Officer Montoya’s testimony and an audiotape of the officer’s initial contact with Huck was to
the contrary--that the signal was not activated until Huck had already begun to turn his vehicle
onto Roosevelt Street. The district court found that there was conflicting evidence concerning
when Huck activated his signal. The district court found Officer Montoya to be more credible
because his testimony was corroborated by the audio of the stop and because Huck’s recollection
lacked the same degree of certainty. The district court noted that even if Huck was correct and
he activated his turn signal as he claimed, the minimal distance and time involved was well
within the margin of reasonableness for purposes of initiating the stop for a suspected traffic
violation. The district court concluded that the evidence would give Officer Montoya reasonable
suspicion to stop the vehicle to investigate further.
       Huck argues that the district court should have accepted his version of the turn signal
circumstance over that given by Officer Montoya and as corroborated by the audio recording of
the initiation of the traffic stop. However, the decision regarding the credibility of witnesses and
the power to resolve conflicts in the evidence lies solely in the province of the trier of fact.
Valdez-Molina, 127 Idaho at 106, 897 P.2d at 997. There is sufficient evidence to support the
district court’s findings and Huck does not contend otherwise. Considering the authority of the
trial court to determine credibility, the weight of the evidence, and to resolve conflicts in the
testimony and evidence, we uphold the district court’s determination that the traffic stop was
based upon reasonable suspicion and was lawful.
B.     Removal From the Vehicle
       Huck next argues that his Fourth Amendment rights were violated when he was ordered
to exit his vehicle. His position is predicated upon the claim that the traffic stop was invalid. It
is well settled that once an officer has stopped a motor vehicle for a traffic violation, an order by
the officer for an occupant to exit the vehicle does not offend the Fourth Amendment. State v.
Irwin, 143 Idaho 102, 104, 137 P.3d 1024, 1026 (Ct. App. 2006); see also Pennsylvania v.
Mimms, 434 U.S. 106, 111 n.6 (1977). We have concluded that the district court correctly
determined that the traffic stop was lawful. Accordingly, Huck’s Fourth Amendment rights were
not violated when the officers ordered him to exit his vehicle.




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C.       Duration of Detention
         Huck next argues the district erred by failing to conclude that his detention was
unreasonably prolonged by the time the drug dog alerted to the vehicle. His argument focuses on
the activities occurring from the time of the traffic stop until his arrest, which the district court
determined lasted approximately ten minutes.
         An investigative detention must not only be justified at its inception, but must also be
conducted in a manner that is reasonably related in scope and duration to the circumstances
which justified the interference in the first place. Florida v. Royer, 460 U.S. 491, 499-500
(1983); State v. Roe, 140 Idaho 176, 181, 90 P.3d 926, 931 (Ct. App. 2004). “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.” State v. Grantham, 146 Idaho 490, 496, 198 P.3d 128, 134 (Ct. App.
2008).
         The district court held that Huck’s detention was not prolonged by Officer Montoya
presenting his drug dog to conduct an open air sniff while another officer prepared a citation.
The district court noted that the dog was with Officer Montoya when he initiated the traffic stop
and thus, there was no delay in the duration of the stop to wait for the dog to arrive. The district
court also observed that the sniff took place contemporaneously with the other officer writing the
traffic citation, referencing State v. Parkinson, 135 Idaho 357, 362-63, 17 P.3d 301, 307-08 (Ct.
App. 2000) (holding that it is permissible for one officer to conduct a drug dog sniff while
another officer is busy checking with dispatch on the driver’s status and writing out a traffic
citation). The court concluded that the stop did not last longer than was necessary to effectuate
the purpose of the stop and therefore did not unconstitutionally expand the duration of the traffic
stop or violate Huck’s Fourth Amendment rights.
         Huck asserts that because the officers ultimately did not issue him a citation and because
the officers took time to interrogate him while Officer Montoya was in the process of getting his
dog from the patrol car, the duration of the detention was unduly extended.             We are not
persuaded.
         From the testimony presented at the suppression hearing, it appears that Huck was not
issued a citation because he “stated he wanted to help himself out with working as a confidential
informant.” It also appears the process of questioning Huck by the officers developed after


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learning of Huck’s criminal history, his involvement with drugs, and to allay concerns over
whether Huck was in possession of any weapon. Routine traffic stops may turn up suspicious
circumstances which could justify an officer asking questions unrelated to the stop. State v.
Myers, 118 Idaho 608, 613, 798 P.2d 453, 458 (Ct. App. 1990). Asking Huck limited questions
about narcotics and weapons, after learning of his history of narcotics and weapons violations,
would constitute part of a reasonable investigation, even if it was not the purpose of the initial
stop. See Grantham, 146 Idaho at 496, 198 P.3d at 134; Parkinson, 135 Idaho at 362-62, 17 P.3d
at 306-07. Huck has failed to show error in the district court’s determination that his detention
was reasonable.
D.     Miranda Issue
       After Huck was ordered to remove himself from his vehicle, he was frisked and
questioned by the officers during the detention. Huck was not given any Miranda warnings.
The responses he gave to the officers led to disclosure of methamphetamine in his possession.
Huck argues that the district court erred by concluding that he was not in custody for purposes of
Miranda.
       In discussing the Miranda issue, the district court quoted from the audio recording of the
traffic stop revealing the following exchange between Officer Borgeau and Huck:
       BORGEAU: This is for safety. I am going to check you for weapons. Is there
                anything on you I need to know about?
       HUCK:    No.
       BORGEAU: Okay. Leave your hands right there; if you pull them away you are
                going to the ground. Do you understand?
       HUCK:    They are right there.
       BORGEAU: Do you have anything on you I want to know about?
       HUCK:    Um.
       BORGEAU: Do you have any weapons, any needles, anything that is going to
                hurt me?
       HUCK:    I have no weapons. No. I have no needles.
       BORGEAU: Okay. Do you have something else?
       HUCK:    Um. Yeah.
       BORGEAU: You seem to be hesitating. What do you have?
       HUCK:    I have a little methamphetamine.
       BORGEAU: Okay. Where is this methamphetamine?
       HUCK:    In my pocket.

From this exchange, the district court found that the amount of questions asked to be modest and
to be consistent with the stop-and-frisk procedure enunciated in Terry, for officer’s safety. The


                                                8
district court also determined that Huck was not “in custody” when he admitted to having
methamphetamine on his person because he was not deprived of his freedom of action in any
significant way.
         The defendant bears the burden of establishing that he was in custody for purposes of
Miranda. State v. James, 148 Idaho 574, 577, 225 P.3d 1169, 1172 (2010). The test for
determining whether an individual is in custody for the purposes of Miranda is whether,
objectively considering the totality of the circumstances surrounding an interrogation, there was
a “formal arrest or restraint on freedom of movement of the degree associated with a formal
arrest.” California v. Beheler, 463 U.S. 1121, 1125 (1983) (internal quotations omitted); Oregon
v. Mathiason, 429 U.S. 492, 495 (1977). Relevant factors in making this determination include
the time, location, public visibility of the interrogation, the conduct of the officers, the nature and
manner of the questioning, the extent to which officers confront the suspect with evidence of his
guilt, and the presence of other persons. State v. Albaugh, 133 Idaho 587, 591, 990 P.2d 753,
757 (Ct. App. 1999); State v. Medrano, 123 Idaho 114, 118, 844 P.2d 1364, 1368 (Ct. App.
1992).    Because the “in custody” test for Miranda requires a restraint on freedom associated
with formal arrest, “the temporary and relatively nonthreatening detention involved in a traffic
stop . . . does not constitute Miranda custody.” Maryland v. Shatzer, 559 U.S. 98, 113 (2010)
(citing Berkemer v. McCarty, 468 U.S. 420, 439-40 (1984)).
         The district court correctly applied the relevant legal standards to the facts before it in
concluding that Huck was not in custody prior to his arrest on the drug charges. The traffic stop
lasted roughly ten minutes which the officers testified was a normal duration for a traffic stop.
The district court found that the traffic stop occurred in a public area along relatively busy
streets. The court decided that the number of questions asked by the investigating officer was
modest, and the questions were consistent with a Terry stop. The district court found that Huck
was not handcuffed, nor was he informed that his detention would not be temporary.
         Huck posits that he was in custody because he had been ordered out of his vehicle, he
was frisked despite denying that he had any weapons, and there were at least three officers at the
scene of his arrest. These factors, while relevant to the inquiry, do not establish custody for the
purposes of Miranda. There is no question that Huck was seized when he was subjected to a
traffic stop and frisked. The other indicia, however, are consistent with an investigatory or
traffic stop, and the “detention involved in a traffic stop . . . does not constitute Miranda


                                                  9
custody.” Shatzer, 559 U.S. at 113; see also State v. Young, 136 Idaho 711, 720, 39 P.3d 651,
660 (Ct. App. 2002) (where a team of officers did not draw their weapons, use force or
handcuffs, the suspect was not in custody for purposes of Miranda; even though “the officers
controlled [his] movements to a certain degree, they did not control his movements to degree
associated with formal arrest”); State v. Ybarra, 102 Idaho 573, 576, n.5, 634 P.2d 435, 438, n.5
(1981) (bank robbery suspect removed from vehicle at gunpoint, while resulting in some degree
of intimidation, was not “deprived of his freedom of action in a significant was so that Miranda
warnings were required” prior to questioning).
       Here, the facts found by the district court in relation to Huck’s suppression motion clearly
establish that Huck was detained. They do not, however, establish that Huck was deprived of his
freedom of action in a significant way so as to implicate Miranda. Although ordering Huck out
of his vehicle and frisking him for weapons had the effect of restricting Huck’s movement to a
certain degree, that restriction was not sufficient for a reasonable person in Huck’s position to
believe he was in police custody to the degree associated with a formal arrest. Huck has failed to
meet his burden of establishing that he was in custody for purposes of Miranda. The district
court’s decision on this point will be affirmed.
E.      Standing Issue
       In response to Huck’s motion to suppress evidence seized from the vehicle, the state
challenged Huck’s standing to make such a motion because Huck had informed the police that he
was not the owner of the vehicle, but was driving it with the owner’s permission, and had no
authority to consent to a search of it. The district court agreed with the state’s position and held
that Huck failed to show that he had a legitimate expectation of privacy in the vehicle search.
However, the district court held that even if Huck possessed the requisite standing to challenge
the lawfulness of the search, the search of the vehicle was nonetheless lawful because the search
was based on a drug dog sniff and there was no unreasonable delay in the duration of the
encounter. The district court recognized that an officer’s investigation at the scene of a stopped
automobile can ripen into probable cause as soon as a drug dog alerts on the exterior of the
vehicle, justifying a search of the interior of the vehicle without the necessity of obtaining a
warrant. Parkinson, 135 Idaho at 362, 17 P.3d 307.
        On appeal, Huck contends the district court erred in determining Huck lacked standing to
challenge the search of his vehicle. We hold that even if the district court incorrectly determined


                                                   10
that Huck lacked standing, the error is harmless because the district court correctly held that the
search was valid.
                                               IV.
                                        CONCLUSION
       The district court did not err in denying Huck’s motion to suppress evidence. The
judgments of conviction for possession of controlled substances and paraphernalia are affirmed.
       Chief Judge GUTIERREZ and Judge LANSING CONCUR.




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