                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 42779

STATE OF IDAHO,                                  )    2015 Unpublished Opinion No. 732
                                                 )
       Plaintiff-Respondent,                     )    Filed: November 24, 2015
                                                 )
v.                                               )    Stephen W. Kenyon, Clerk
                                                 )
MIGUEL A. GONZALEZ,                              )    THIS IS AN UNPUBLISHED
                                                 )    OPINION AND SHALL NOT
       Defendant-Appellant.                      )    BE CITED AS AUTHORITY
                                                 )

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

       Order denying motion to suppress, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Maya P. Waldron, Deputy
       Appellate Public Defender, Boise, for appellant.

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

GUTIERREZ, Judge
       Miguel A. Gonzalez appeals from his judgment of conviction entered upon his
conditional Alford1 plea to possession of methamphetamine. Gonzalez challenges the district
court’s denial of his motion to suppress. For the reasons set forth below, we affirm.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Two officers arrived at the residence of a probationer to perform a probation check.
After the probationer’s girlfriend, Yesenia Rangel, informed the officers that the probationer was
still incarcerated, the officers entered the residence to confirm that the probationer was not there.
Inside the residence, the officers smelled burnt marijuana and noticed a smoky haze. The only
individuals inside the residence were Rangel, Gonzalez, and Rangel’s young daughter. The

1
        See North Carolina v. Alford, 400 U.S. 25 (1970).

                                                 1
officers questioned Rangel and Martinez as to the smell, and both individuals denied noticing the
smell or having marijuana. The officers requested permission to search the individuals and the
residence but were denied. After separating Rangel and Gonzalez, the officers told Rangel that
they could get a search warrant for the marijuana and that she could have her daughter taken
away. When Rangel and Gonzalez were reunited, the officers told Rangel and Gonzalez to put
their cell phones on the table and informed them that they were detained. After Rangel began
crying, Gonzalez took a bag of marijuana from his clothing and gave it to the officers. The
officers then searched Gonzalez incident to arrest and found a small amount of
methamphetamine.
       The State charged Gonzalez with possession of a controlled substance. Idaho Code § 37-
2732(c)(1). Gonzalez filed a motion to suppress all evidence against him, claiming that he was
“searched and . . . seized . . . without reasonable articulable suspicion or probable cause to
believe a crime had been committed.” After conducting an evidentiary hearing, the district court
denied Gonzalez’s motion to suppress. The court found that Gonzalez’s investigative detention
was justified based upon the officers’ reasonable suspicion arising from the smell of burnt
marijuana and haze of smoke within the residence and that the methamphetamine was lawfully
discovered during a search incident to arrest.        Gonzalez entered a conditional Alford plea,
reserving the right to appeal the court’s denial of his suppression motion. He timely appeals.
                                                II.
                                           ANALYSIS
       On appeal, Gonzalez argues that the district court erred by denying his motion to
suppress. The standard of review of a suppression motion is bifurcated. When a decision on a
motion to suppress is challenged, we accept the district 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 district 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 United States and Idaho Constitutions prohibit unreasonable searches and seizures of
persons or property. U.S. CONST. amend. IV; IDAHO CONST. art. I, § 17. An arrest, characterized

                                                 2
as a full-scale seizure of a person, must be supported by probable cause. State v. Ferreira, 133
Idaho 474, 479, 988 P.2d 700, 705 (Ct. App. 1999). On the other hand, an investigative
detention, characterized as a seizure of limited duration, falls within one of the exceptions to the
probable cause requirement and need only be supported by an officer’s reasonable suspicion of
criminal activity. Id. at 479, 988 P.2d at 705. An arrest that is not supported by probable cause
is unreasonable, and evidence obtained as a result is inadmissible as “fruit of the poisonous tree.”
State v. Bishop, 146 Idaho 804, 811, 203 P.3d 1203, 1210 (2009).
       Here, Gonzalez specifically asserts that the circumstances of his interactions with the
officers transformed what began as a justified investigative detention, requiring only reasonable
suspicion of criminal activity, into a de facto arrest, requiring probable cause. See United States
v. Sharpe, 470 U.S. 675, 689-90 (1985) (Marshall, J., concurring). Gonzalez argues that because
probable cause did not exist at the time he handed the officers the marijuana, all evidence
obtained as a result of the unlawful de facto arrest must be suppressed.
       A “de facto arrest” describes a seizure of an individual that exceeds the bounds of an
investigative detention. Sharpe, 470 U.S. at 683; Ferreira, 133 Idaho at 480, 988 P.2d at 706;
State v. Frank, 133 Idaho 364, 367-68, 986 P.2d 1030, 1033-34 (Ct. App. 1999). There is no
bright line rule for determining when an investigative detention has escalated into a de facto
arrest; instead, “common sense and ordinary human experience must govern over rigid criteria.”
State v. Pannell, 127 Idaho 420, 423, 901 P.2d 1321, 1324 (1995). To determine whether an
investigative detention escalated into a de facto arrest, courts “must consider all of the
surrounding circumstances and determine whether the investigative methods employed were the
least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short
period of time.” Frank, 133 Idaho at 368, 986 P.2d at 1034. Factors to consider include the
location of the encounter, length of the detention, seriousness of the crime, reasonableness of the
officer’s display of force, and conduct of the suspect as the encounter unfolds. Ferreira, 133
Idaho at 480, 988 P.2d at 706. We have previously held that the duration of the stop is the
primary factor that may render a detention unreasonable. State v. Stewart, 145 Idaho 641, 646,
181 P.3d 1249, 1254 (Ct. App. 2008).
       In light of the surrounding circumstances and in consideration of the above-mentioned
factors, we hold that the officers did not exceed the bounds of the investigative detention. Upon
arriving at the private residence, the officers announced that the purpose of their visit was to look

                                                 3
for the probationer. The officers then lawfully performed a brief security sweep inside the
residence to check for the probationer’s presence. While inside the residence, the officers
smelled burnt marijuana and observed a smoky haze. These circumstances gave the officers
reasonable suspicion to believe someone inside the residence had been smoking marijuana, a
misdemeanor crime.
        To verify or dispel their suspicion, the officers performed tasks directly related to
investigating the source of the marijuana smoke. See Ferreira, 133 Idaho at 480, 988 P.2d at
706 (holding that officers are justified in utilizing investigative tools to confirm or dispel their
reasonable suspicion of criminal activity). While still inside the private residence, the officers
requested permission to search Rangel, Gonzalez, and the residence. Their request was denied
and the officers did not conduct a search. Officers then separated Rangel from Gonzalez, at
which point they informed Rangel of the procedure for obtaining a search warrant and warned
her that they could call the Department of Health and Welfare to have her daughter taken away.
See State v. Ballou, 145 Idaho 840, 848, 186 P.3d 696, 704 (Ct. App. 2008) (holding that it is not
coercive for an officer to threaten to do something that, based on the circumstances, is within the
officer’s authority to do). After deciding to obtain a search warrant, the officers made no show
of force, but instead asked Rangel and Gonzalez to put their cell phones on the table and told
them that they were detained. See Ferreira, 133 Idaho at 480, 988 P.2d at 706 (“In any
investigative detention the individual is not free to leave; that element of compulsion is what
distinguishes an investigative detention from a consensual encounter.”). As the investigative
detention continued to unfold, Rangel began crying. In response, Gonzalez voluntarily handed
the officers marijuana from Gonzalez’s clothing. The duration of the investigative detention was
relatively short--only twenty to thirty minutes elapsed from the time officers arrived at the
residence until Gonzalez handed the officers the marijuana. This duration was not longer than
necessary to effectuate the purpose of the investigation. See State v. Buti, 131 Idaho 793, 797,
964 P.2d 660, 664 (1998) (finding that an investigative detention lasting approximately one hour
was not unreasonable).
        The investigative measures employed by the officers were the least intrusive means
reasonably available to verify or dispel their suspicion that someone in the residence had
marijuana. Thus, we hold that at no time did Gonzalez’s investigative detention escalate into a
de facto arrest.

                                                 4
                                               III.
                                        CONCLUSION
       The circumstances of Gonzalez’s investigative detention did not constitute a de facto
arrest. The district court’s order denying the motion to suppress evidence is affirmed.
       Chief Judge MELANSON and Judge GRATTON CONCUR.




                                                5
