               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 45957

STATE OF IDAHO,                                )
                                               )    Filed: November 6, 2019
       Plaintiff-Respondent,                   )
                                               )    Karel A. Lehrman, Clerk
v.                                             )
                                               )    THIS IS AN UNPUBLISHED
BRANDON MICHAEL ALEXANDER,                     )    OPINION AND SHALL NOT
                                               )    BE CITED AS AUTHORITY
       Defendant-Appellant.                    )
                                               )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Samuel A. Hoagland, District Judge.

       Order denying motion to suppress and judgment of conviction, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Kimberly A. Coster,
       Deputy Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

GRATTON, Chief Judge
       Brandon Michael Alexander appeals from the district court’s denial of his motion to
suppress. Alexander argues the district court erred in determining the search of his person was
justified because that determination is not supported by the record. For the reasons set forth
below, we affirm.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       Officers responded to a call from an employee at a restaurant who had concerns that
Alexander and a female companion were using or selling drugs in the restaurant’s bathroom area.
A week earlier, the employee found a bag with black skull markings in the bathroom.
Employees believed it was drug paraphernalia after seeing Alexander and the same woman
spend extended periods of time going back and forth between the bathroom and dining area.



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When Alexander and the woman returned and resumed similar behavior, the employee called
police.
          When Officer Ludwig and Sergeant Gonzalez arrived, a woman matching the description
given by the employee was seated at a table. Officer Ludwig testified that he believed she
noticed their presence and began manipulating her phone. He assumed she was sending a
warning message to Alexander in the bathroom. Officer Ludwig tried to open the bathroom door
but it was locked. After directing Sergeant Gonzalez to make contact with the woman, Officer
Ludwig knocked on the bathroom door and Alexander exited.             Officer Ludwig described
Alexander’s movements as slow and unnatural, leading him to believe that he was under the
influence of a controlled substance. Additionally, Alexander’s shorts appeared to be weighed
down by several heavy, unknown items in his pockets. Officer Ludwig also noticed Alexander
had a wrap around his wrist which Alexander described as being from an abscess. Observing
Alexander’s arm prompted Officer Ludwig to inquire if it was a result of drug use but Alexander
said it was not. Officer Ludwig later testified that Alexander’s appearance, bulging pockets, and
the perceived warning text led him to believe Alexander posed a safety risk.
          Officer Ludwig performed a pat-down frisk and felt items he suspected were drug
paraphernalia. Alexander was placed in restraints and the items were removed from his pockets.
Officer Ludwig then removed a syringe, tinfoil, and a pocket knife from the pockets. An
additional search of Alexander’s shirt pocket revealed a zip lock bag consistent with the one
described by employees, which contained what appeared to be heroin. Other items including an
electronic scale were also discovered in his backpack. Alexander was charged with trafficking in
heroin and possession of drug paraphernalia. Alexander moved to suppress, arguing the search
was not justified. The district court denied the motion and held that the officer had articulated
multiple facts that would lead a person in his position to reasonably suspect that Alexander was
armed and dangerous, justifying a Terry 1 frisk for weapons.
          After a jury trial, Alexander was found guilty and the court imposed a sentence of a
unified term of ten years with three years determinate for the trafficking conviction and a
concurrent term of ninety days for the drug paraphernalia conviction. Alexander timely appeals.




1
          See Terry v. Ohio, 392 U.S. 1 (1968).
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                                                 II.
                                           ANALYSIS
       Alexander requests this Court vacate his judgment of conviction and reverse the district
court’s order denying his motion to suppress. He contends his frisk was unlawful because the
officer did not have reasonable suspicion that Alexander was armed and dangerous.                We
disagree. 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).
        A warrantless search is presumptively unreasonable unless it falls within certain special
and well-delineated exceptions to the warrant requirement. Coolidge v. New Hampshire, 403
U.S. 443, 454-55 (1971); State v. Ferreira, 133 Idaho 474, 479, 988 P.2d 700, 705 (Ct. App.
1999). In Terry v. Ohio, 392 U.S. 1 (1968), the United States Supreme Court created a stop-and-
frisk exception to the Fourth Amendment warrant requirement. The stop and the frisk constitute
two independent actions, each requiring a distinct and separate justification. State v. Babb, 133
Idaho 890, 892, 994 P.2d 633, 635 (Ct. App. 2000); State v. Fleenor, 133 Idaho 552, 556, 989
P.2d 784, 788 (Ct. App. 1999).
       The stop is justified if there is a reasonable and articulable suspicion that the individual
has committed or is about to commit a crime. Florida v. Royer, 460 U.S. 491, 498 (1983); Terry,
392 U.S. at 30; State v. DuValt, 131 Idaho 550, 553, 961 P.2d 641, 644 (1998); Ferreira, 133
Idaho at 479, 988 P.2d at 705. However, merely because there are reasonable grounds to justify
a lawful investigatory stop, such grounds do not automatically justify a frisk for weapons. Babb,
133 Idaho at 892, 994 P.2d at 635. An officer may frisk an individual if the officer can point to
specific and articulable facts that would lead a reasonably prudent person to believe that the
individual with whom the officer is dealing may be armed and presently dangerous and nothing
in the initial stages of the encounter serves to dispel this belief. Terry, 392 U.S. at 27; Babb, 133
Idaho at 892, 994 P.2d at 635; Fleenor, 133 Idaho at 555, 989 P.2d at 787. In our analysis of a

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frisk, we look to the facts known to the officer on the scene and the inferences of risk of danger
reasonably drawn from the totality of those specific circumstances. Babb, 133 Idaho at 892, 994
P.2d at 635; Fleenor, 133 Idaho at 555, 989 P.2d at 787.
         Alexander does not challenge the initial grounds for the stop, only whether the frisk was
justified. Pursuant to Terry, Officer Ludwig could only frisk Alexander if there were facts
leading to the reasonable inference that Alexander was armed and dangerous. In State v. Bishop,
146 Idaho 804, 203 P.3d 1203 (2009), the Idaho Supreme Court discussed several factors that are
relevant in determining if a reasonable person in the officer’s position would conclude that a
person was armed and dangerous:
         [W]hether there were any bulges in the suspect’s clothing that resembled a
         weapon; whether the encounter took place late at night or in a high crime area;
         and whether the individual made threatening or furtive movements, indicated that
         he or she possessed a weapon, appeared nervous or agitated, appeared to be under
         the influence of alcohol or illegal drugs, was unwilling to cooperate, or had a
         reputation for being dangerous.
Id. at 819, 203 P.3d at 1218.       Whether any of these considerations, taken together or by
themselves, are enough to justify a Terry frisk depends on an analysis of the totality of the
circumstances. Bishop, 146 Idaho at 819, 203 P.3d at 1218. Additionally, even if a frisk is
permitted under Terry, the scope of a frisk must be limited to that which is necessary for the
discovery of weapons which might be used to harm the officer or others nearby. Terry, 392 U.S.
at 26.
         In determining Officer Ludwig reasonably suspected Alexander was armed and
dangerous, the district court found the following facts: (1) Alexander had bulging pockets that
resembled a weapon; (2) Alexander appeared nervous; (3) Alexander appeared to be under the
influence of drugs; and (4) Alexander was uncooperative to the extent that he denied using or
possessing drugs. In addition to the findings related to the Bishop factors, the court found that
the officers were relying on a tip that Alexander may be selling drugs from the bathroom and that
the officers saw the female suspect send what they assumed was a warning text to Alexander.
On appeal, Alexander argues that the findings used by the court to support the first factor are not
supported by the record, and that no other facts support a reasonable suspicion that he was armed
and dangerous. We disagree.
         The district court’s finding that the bulges in Alexander’s shorts “resembled a weapon” is
supported by the record. Though no testimony specifically describes the exact resemblance of a

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weapon such as a gun, it does reveal the weight of the unknown objects was causing the officer
concern including the possibility Alexander had a firearm in his pocket. The unusually heavy
object or objects weighing down Alexander’s shorts support the belief in the presence of
something that was or could be used as a weapon.
        In addition to the heavy bulges, the testimony demonstrates that Officer Ludwig also
reasonably inferred there might be weapons present based on his experience with individuals that
are under the influence of drugs:
       Obviously people that are under the influence of controlled substances can act in
       irrational or dangerous manners. An individual that is under the influence and has
       access to a knife or a syringe or anything else can become concerned about the
       level of punishment that they’re potentially looking at, become frightened by the
       presence of law enforcement and can lash out.
               Based on the contents of the individual’s pockets, that was obviously
       something that I was concerned about.
(Emphasis added.) Notably, these inferences include concern related to syringes, which was a
concern for Officer Ludwig, based on the markings on Alexander’s arm: “I believed that there
was intravenous drug use [that was going to be] in play during this situation and I was concerned
about the presence of syringes.” Officer Ludwig reasonably felt Alexander was armed and
dangerous during their encounter because his apparent drug use and wounded arm would lead
any officer to infer a syringe and needle was likely present and could easily be utilized as a
weapon. Contrary to Alexander’s assertion, it is not simply a blanket assumption of what can
happen when an individual is suspected of being under the influence of drugs; it is directly
related to Alexander’s appearance and behavior. This inference is permissible under the Fourth
Amendment and justified Officer Ludwig’s individualized suspicion Alexander was armed and
presently dangerous.
       Alexander also argues the court’s finding that he was uncooperative is a misapplication
of Bishop.    On this point, we agree.        The court’s determination that Alexander was
“uncooperative to the extent that he denied using or possessing drugs” does nothing to aid in
determining if an individual is armed and presently dangerous. At no time did Alexander
demonstrate an unwillingness to cooperate or comply with the directives of Officer Ludwig.
Though Officer Ludwig may have had a reasonable suspicion that Alexander was under the
influence of drugs based on his behavior, Alexander’s denial of drug use cannot be deemed as
uncooperative in terms of satisfying this Bishop factor. To require an individual to admit to the


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accusations of law enforcement or else be deemed dangerous for purposes of a frisk is unrelated
to the proper inquiry of whether he posed a safety risk. We cannot say failing to cooperate is the
same as an officer’s assumption that an individual may be lying and therefore does not satisfy
any factor from Bishop.
       The remaining factors found by the court are supported by the record, including
Alexander’s nervousness and his appearing to be under the influence. Alexander was sweating
profusely during his encounter with Officer Ludwig and was described as appearing nervous:
“And in your observations of the defendant, you said he appeared nervous? Yes. Just based on
the glossed-over look and the fact that he was sweating profusely . . . .” Even without the
uncooperative factor, the factors present are more than enough to support the officer’s suspicion
that Alexander was armed and presently dangerous.
       Further, the court’s additional findings add to the reasonable inference that Alexander
posed a safety risk.      Officer Ludwig testified he was concerned that Alexander’s female
companion sent him a warning text, alerting him to police presence.
       My concern was that we had information that there were two parties in the store
       together. One of the parties at that time was believed to be in the bathroom, was
       identified as being in the bathroom by the calling party, and them notifying--the
       female notifying the male of officers’ presence.
Given the information provided by the employee’s tip, the female companion’s “manipulation”
of her phone could reasonably be inferred to be a warning text, alerting Alexander to the
officers’ presence. In State v. Crooks, 150 Idaho 117, 121, 244 P.3d 261, 265 (Ct. App. 2010),
we held a lack of particularized suspicion does not necessarily preclude the reasonable inference
that an individual may be armed and dangerous. The tip in this case only serves as additional
information, making the inferences by the officer more reasonable.
                                               III.
                                        CONCLUSION
       The district court did not err when it denied Alexander’s motion to suppress because his
frisk was supported by the reasonable suspicion that Alexander was armed and presently
dangerous.   Accordingly, we affirm the district court’s order denying suppression and the
judgment of conviction.
       Judge HUSKEY and Judge LORELLO CONCUR.



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