               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 45373

STATE OF IDAHO,                                )
                                               )   Filed: February 25, 2019
       Plaintiff-Respondent,                   )
                                               )   Karel A. Lehrman, Clerk
v.                                             )
                                               )   THIS IS AN UPUBLISHED
BRAD CAREY REED,                               )   OPINION AND SHALL NOT
                                               )   BE CITED AS AUTHORITY
       Defendant-Appellant.                    )
                                               )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
       Falls County. Hon. Randy J. Stoker, District Judge.

       Judgment of conviction for possession of methamphetamine, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Sally J. Cooley, Deputy
       Appellate Public Defender, Boise, for appellant.

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

GRATTON, Chief Judge
       Brad Carey Reed appeals from his judgment of conviction for possession of
methamphetamine. On appeal, Reed asserts four claims of error. First, Reed argues the district
court erred in denying his motion to suppress evidence. Second, Reed argues the district court
erred in admitting evidence of his demeanor when he revoked consent to search his vehicle.
Third, Reed argues the district court erred in denying his motion for a mistrial based on a
statement in the State’s closing argument. Last, Reed argues the State committed prosecutorial
misconduct during closing argument amounting to fundamental error. For the reasons provided
below, we affirm.




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                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       The district court set forth the following facts based upon testimony and an audio
recording presented at a hearing on Reed’s motion to suppress. Police officers responded to a
call from a resident who suspected a burglary was in progress in the alley behind his property.
Officer Smotherman arrived first and immediately detained and handcuffed the driver of a white
Jeep parked at the end of the alley. Nearly a minute later, Officer Caldwell arrived. The two
officers went around the block to the resident’s house. The officers contacted the resident who
reported that he saw two vehicles in the alley: a white Jeep with one occupant and a green van
with two occupants. He also heard his backyard gate rattle, saw flashlights in his backyard, and
saw someone take a gas can from his neighbor’s garage.
       As officers were talking with the resident, a green van, driven by Reed with one
passenger, entered the alley. The officers ran around the block to the alley, had Reed and his
passenger exit the van, and placed handcuffs on both men. Officer Smotherman then returned to
the driver of the white Jeep and continued questioning him. Approximately three minutes later,
Officer Smotherman began questioning Reed and his passenger regarding the reported burglary.
In the process of questioning Reed, Officer Smotherman requested permission to search Reed’s
van for stolen items, which Reed granted. Officer Smotherman requested Reed’s identification
and began a license check. Shortly thereafter, Officer Smotherman requested identification from
the driver of the Jeep and ran that license check. As this occurred, Officer Caldwell began
searching Reed’s van. When the officer searched the glove box compartment and under the
passenger seat, Reed became upset, using profanity and eventually revoking his consent to
search his vehicle. The officers observed that Reed had become increasingly nervous.
       Officer Smotherman returned to the van as Reed was using profane language while
revoking his consent. Officer Smotherman asked to search the van again, but Reed denied
consent. Officer Smotherman then conferred with another officer regarding the situation and
called for a drug dog. Officer Smotherman then returned to Reed and sought to regain consent to
search Reed’s vehicle, asking Reed if there was anything illegal, such as drugs, in the van. Reed
continued to deny consent. Officer Smotherman went back around the block to finish his
questioning of the resident who had initially reported the alleged burglary. After completing his
discussion with the resident, Officer Smotherman returned to the alley. At some point during

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Officer Smotherman’s last conversation with the resident, a drug dog and another officer arrived
in the alley behind the house and proceeded to conduct a free-air sniff. The canine positively
alerted, the officers searched the van, and the search yielded methamphetamine. The State
thereafter charged Reed with possession of methamphetamine, and Reed responded by filing a
motion to suppress, arguing the officers unlawfully extended the duration of the stop. After a
hearing, the district court denied Reed’s motion to suppress, ruling that the scope and duration of
the stop were reasonable. Specifically, the district court determined that officers were permitted
to ask brief and general questions about drugs and weapons when making stops, and such
questioning was within the permissible scope of the initial detention. The district court also
found that Officer Smotherman did extend the stop; however, such extension was both related to
the burglary and supported by reasonable suspicion. Additionally, the district court found that
the entire drug sniff occurred while the burglary investigation was still underway.
       Reed pled not guilty and proceeded to trial. The jury found Reed guilty of possession of
methamphetamine. Reed timely appeals from his judgment of conviction.
                                                 II.
                                           ANALYSIS
A.     Motion to Suppress
       First, Reed contends the district court erred in denying his motion to suppress evidence
obtained from his vehicle because the length of his detention was impermissibly extended to
conduct a drug investigation without reasonable suspicion. Specifically, Reed argues that the
officers’ investigation into other criminal activities extended the stop to provide time for the drug
dog to arrive. The State asserts the district court correctly found the brief diversion of attention
from the burglary investigation was supported by reasonable suspicion. The State also argues
the district court correctly found that the drug-dog sniff occurred prior to the end of the burglary
investigation.
       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,

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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 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. In this regard, we must focus on the
intensity of the detention, as well as its 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. Roe, 140 Idaho at 181, 90 P.3d at 931; Parkinson, 135 Idaho at 361,
17 P.3d at 305. Brief inquiries not otherwise related to the initial purpose of the stop do not
necessarily violate a detainee’s Fourth Amendment rights. Roe, 140 Idaho at 181, 90 P.3d at
931.
       Reed concedes the initial stop was lawful; however, he contends that the stop was
unlawfully extended when the officers sought consent to search the vehicle after Reed withdrew
his initial consent. Specifically, Reed argues that the request to search for “anything” illegal was
beyond the scope of the related burglary investigation and therefore unlawfully extended the
purpose of the stop in order to provide time for the drug dog to arrive.
       The record reflects officers originally responded to a call regarding a burglary in an alley
near midnight on the Fourth of July. Reed initially consented to a search of his van. However,
when Officer Caldwell looked in the glove box and under the seat, Reed became very upset and




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vocal.    Reed revoked his consent to search the car. 1 Officer Smotherman attempted to regain
consent, including suggesting to Reed a broader scope of the proposed search, without success.
The officers’ conduct and questioning were still part of the burglary investigation. The situation
with respect to an investigation, based upon a third-party complaint, is not identical to the
conduct of a traffic stop. In the traffic stop context, the officer knows the facts of the traffic
violation justifying the stop, and the scope of police conduct related to that stop is relatively
narrow. In the context of an investigation, the officers are attempting to determine if criminal
conduct has occurred or is occurring.       Consequently, the scope of police activity in an
investigation of criminal conduct is not necessarily more broad than the processing of a traffic
violation. Here, the investigation into a possible burglary did not end until Officer Smotherman
completed his final discussion with the complaining party, by which time the canine had alerted
on the van. The collective conduct of the officers occurred during and did not extend the
burglary investigation or detention associated therewith. The district court did not err in denying
Reed’s motion to suppress evidence.
B.       Demeanor Evidence
         Reed next argues the district court erred by allowing testimony regarding his demeanor
when he revoked his consent to search his vehicle. Specifically, Reed argues the revocation and
his demeanor were so intertwined that mention of his demeanor could not be detached from the
inference that he revoked his consent to search his vehicle. Thus, Reed argues that because it
was impermissible to comment on his revocation of consent, it was likewise impermissible to
comment on his demeanor at the time he revoked consent. The State agrees that testimony
regarding Reed’s revocation of consent was inadmissible. However, the State argues that the
district court properly allowed testimony regarding Reed’s demeanor when he revoked his
consent to establish knowledge of the contraband.
         The parties do not dispute that evidence of revocation of consent to search is
inadmissible. Reed argues that, in addition, evidence of his sudden change in demeanor at the
time he revoked his consent was inextricably tied to his revocation of consent and, therefore,
similarly inadmissible. We agree with the district court that the line is a narrow one; but under


1
       Reed’s invocation of his right, by revoking consent, even in a belligerent or profane
manner, may have been a factor, but did not, by itself, establish reasonable suspicion of other
criminal conduct.
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these circumstances, testimony regarding Reed’s demeanor at the time he revoked consent was
admissible. Officer Caldwell testified that Reed consented to a search of the vehicle for stolen
items. When the officer began the search by looking in the glove box and under the seat, Reed’s
demeanor rapidly changed as Reed became increasingly upset and started cursing and yelling.
Up to that time, Reed had been upset but relatively cooperative. Evidence of a person’s behavior
or change of behavior during a police interaction may be admissible to establish or infer facts of
consequence. See State v. Grantham, 146 Idaho 490, 497, 198 P.3d 128, 135 (Ct. App. 2008).
Here, the district court allowed the State to put on evidence of Reed’s change of behavior to
infer, under the circumstances, his knowledge of contraband in the vehicle. Reed’s argument
that either the evidence of his behavior change infers invocation of his rights or is inadmissibly
misleading because it omits the context of his revocation of consent is not well taken. The
district court correctly concluded that evidence of Reed’s change of behavior was relevant under
the circumstances and admissible so long as not contextualized by his revocation of consent.
C.     Motion for Mistrial
       Next, Reed argues the district court erred in denying his motion for a mistrial because, in
closing argument, the State commented on Reed’s revocation of his consent to search his vehicle,
which the district court specifically stated would result in a mistrial if mentioned. The State
argues the district court properly denied the motion because it was unclear from the State’s
comment whether the State was referring to Reed’s revocation of consent. Additionally, the
State argues the comment had no continuing impact on the trial.
       In criminal cases, motions for mistrial are governed by Idaho Criminal Rule 29.1. A
mistrial may be declared upon motion of the defendant when there occurs during the trial an
error or legal defect in the proceedings, or conduct inside or outside the courtroom, which is
prejudicial to the defendant and deprives the defendant of a fair trial. I.C.R. 29.1(a). Our
standard for reviewing a district court’s denial of a motion for mistrial is well established:
       [T]he question on appeal is not whether the trial judge reasonably exercised his
       discretion in light of circumstances existing when the mistrial motion was made.
       Rather, the question must be whether the event which precipitated the motion for
       mistrial represented reversible error when viewed in the context of the full record.
       Thus, where a motion for mistrial has been denied in a criminal case, the “abuse
       of discretion” standard is a misnomer. The standard, more accurately stated, is
       one of reversible error. Our focus is upon the continuing impact on the trial of the
       incident that triggered the mistrial motion. The trial judge’s refusal to declare a


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       mistrial will be disturbed only if that incident, viewed retrospectively, constituted
       reversible error.
State v. Urquhart, 105 Idaho 92, 95, 665 P.3d 1102, 1105 (Ct. App. 1983). The threshold
inquiry is whether the State introduced error. State v. Shepherd, 124 Idaho 54, 57, 855 P.2d 891,
894 (Ct. App. 1993). The right to due process does not guarantee a defendant an error-free trial,
but rather a fair one. Id. at 58, 855 P.2d at 895. Consequently, error is not reversible unless it is
shown to be prejudicial. Id.
       At the close of the trial and after the jury was dismissed, the district court stated its
reasoning for denying Reed’s motion for a mistrial. In so doing, the district court identified the
problematic language as: “We have somebody who owns the van and who tries to stop the
officers from searching his vehicle.” To which the district court determined:
       I don’t know what [the State] meant by that. [It] could have meant that it was,
       defendant says, go close the doors. That would be stopping, trying to stop the
       search, it could be the statements made and yelling about being upset. That could
       be interpreted that way. What I don’t find is that it is not a comment that the
       defendant withdrew his consent under [the] Fourth Amendment, and that was the
       issue that we had earlier this morning on the motion in limine. As I said earlier
       this morning, close line here. I don’t think the State crossed that line, and that’s
       why I denied the motion for mistrial.
       Basically, Reed argues the entire trial was infested with references to Reed’s revocation
of his consent in order to prove the knowledge element of the offense. However, the statement
that was objected to and was the basis for the motion for mistrial was that “Reed tried to stop
officers from searching his van.” We agree with the district court that the ambiguous statement
at issue did not amount to the State’s introduction of error in violation of the district court’s prior
order in limine. Therefore, the district court did not err in denying Reed’s motion for a mistrial.
D.     Prosecutorial Misconduct
       Last, Reed argues the State committed prosecutorial misconduct during closing argument
amounting to fundamental error. Specifically, Reed takes issue with three statements made
during closing argument, one to which Reed objected and two to which he did not object. Two
of the statements, one objected to and one not, referred to Reed objecting to the officer’s search
of his vehicle. The third, unobjected-to statement referred to the sympathetic nature of defense
counsel’s presentation of Reed.
       While our system of criminal justice is adversarial in nature, and the prosecutor is
expected to be diligent and leave no stone unturned, the prosecutor is nevertheless expected and

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required to be fair. State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007). However, in
reviewing allegations of prosecutorial misconduct, we must keep in mind the realities of trial. Id.
A fair trial is not necessarily a perfect trial. Id.
        As discussed above, the objected-to statement in the State’s closing argument regarding
Reed’s attempt to stop the search of his vehicle did not constitute error. Accordingly, we need
not discuss the issue further.
        In State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), the Idaho Supreme Court clarified
the fundamental error doctrine as it applies to allegations of prosecutorial misconduct. If the
alleged misconduct was not followed by a contemporaneous objection, an appellate court should
reverse when the defendant persuades the court that the alleged error: (1) violates one or more of
the defendant’s unwaived constitutional rights; (2) is clear or obvious without the need for
reference to any additional information not contained in the appellate record; and (3) affected the
outcome of the trial proceedings. Id. at 226, 245 P.3d at 978.
        During rebuttal argument, the prosecutor stated “[Reed’s] the one who objected to
officers searching his--or to--started getting frustrated.” Reed contends that it was misconduct
for the prosecutor to make the statement that Reed “objected” to the search of his vehicle
because it violated the district court’s order in limine prohibiting mentioning that Reed revoked
his consent. The State asserts that the prosecutor immediately clarified his statement, and the
statement therefore cannot be deemed to be deliberately designed to violate the district court’s
order. Additionally, the State notes that prior to this statement by the prosecutor, defense
counsel in closing argument classified Reed’s words and actions as objecting to the officer’s
search of his vehicle.
        The second prong of the fundamental error analysis requires that the appellant show that
the error was “clear or obvious, without the need for any additional information not contained in
the appellate record, including information as to whether the failure to object was a tactical
decision.” Id. at 226, 245 P.3d at 978. In Perry, the prosecutor elicited improper vouching
testimony from witnesses on numerous occasions; however, defense counsel only objected in
one instance. Id. at 228-29, 245 P.3d at 980-81. The Supreme Court determined that because the
attorney objected to the same questioning in one instance but did not object on subsequent
occasions, there was a reasonable possibility that the failure to object was a strategic choice and
therefore did not amount to fundamental error. Id.

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       Similarly here, there were two instances where the prosecutor referenced Reed’s
reactions to the officer’s searching his vehicle, but defense counsel chose to object only to the
first statement made by the prosecutor. Thus, there is a reasonable probability defense counsel
made a strategic choice not to object to the prosecutor’s second statement in order to downplay
the statement and also to not highlight to the jury that defense counsel had previously made a
similar statement. Thus, Reed has failed to meet the second prong of the fundamental error
analysis and therefore has not shown fundamental error.
       Next, Reed contends that it was misconduct for the prosecutor to make disparaging
comments regarding Reed’s difficulty with movement, which amounted to fundamental error.
Specifically, Reed takes issue with the prosecutor’s final closing statements in which he stated:
               Remember my picture of Lady Justice? We’re blind to sympathy. That’s
       what the defense has given you today, really, a sympathy case. Please feel so
       sorry for the defendant that you acquit. He has all these health problems. He has
       his cane that [defense counsel] even stood up after the defendant walked halfway
       to the stand and was like, do you need this? Oh, no, I’m okay.
Reed argues these statements implied that Reed was faking his disability and therefore should
not be believed. The State argues these statements were to rebut defense counsel’s theory that
Reed’s sudden change in demeanor and profanity were spawned by his foot injury.
       In closing, defense counsel’s explanation of his changed demeanor was:
       So [Reed] says, he starts to get upset. He used profanity. Yeah, he’s excitable.
       He’s upset at that point. He’s being detained; right? He’s being delayed, standing
       in handcuffs on the side of that car with the foot that he struggles to stand on
       waiting for officers to conclude an investigation when he’s been told, we’re really
       not sure what we’re looking for.
       To the extent that Reed’s own defense was that his change of demeanor was attributable
to his foot injury, we will not automatically infer the more damaging interpretation of the
prosecutor’s statements. State v. Severson, 147 Idaho 694, 719, 215 P.3d 414, 439 (2009). Thus,
the statement was not misconduct and did not amount to fundamental error.
                                               III.
                                         CONCLUSION
       The burglary investigation encompassed the activities of the officers and did not conclude
until after the canine alert.   Therefore, the investigative detention was not impermissibly
extended. The district court did not err in limiting the officers’ testimony to omit Reed’s
revocation of consent but permit testimony regarding his demeanor. The district court did not err

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in denying Reed’s motion for a mistrial because the prosecutor’s ambiguous statement did not
violate the previous order in limine prohibiting mentioning Reed’s withdrawal of consent to
search his car. Finally, the challenged prosecutor’s closing remarks have not been shown to
amount to fundamental error.   Accordingly, the district court’s judgment of conviction for
possession of methamphetamine is affirmed.
       Judge HUSKEY and Judge LORELLO CONCUR.




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