               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 39917

STATE OF IDAHO,                                   )     2014 Unpublished Opinion No. 374
                                                  )
       Plaintiff-Respondent,                      )     Filed: February 13, 2014
                                                  )
v.                                                )     Stephen W. Kenyon, Clerk
                                                  )
BRANDON DEAN KINGSLEY,                            )     THIS IS AN UNPUBLISHED
                                                  )     OPINION AND SHALL NOT
       Defendant-Appellant.                       )     BE CITED AS AUTHORITY
                                                  )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. John T. Mitchell, District Judge.

       Judgment of conviction for possession of a controlled substance, vacated and case
       remanded.

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

       Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
       Attorney General, Boise, for respondent. Nicole L. Schafer argued.
                 ________________________________________________
GUTIERREZ, Chief Judge
       Brandon Dean Kingsley appeals from his judgment of conviction entered upon his
conditional guilty plea to possession of a controlled substance (methamphetamine). Specifically,
Kingsley argues the district court erred by denying his motion to suppress evidence. For the
reasons that follow, we reverse the ordering denying the motion to suppress evidence, vacate
Kingsley’s judgment of conviction, and remand the case to the district court.
                                                 I.
                                  FACTS AND PROCEDURE
       In September 2011, four unmarked police vehicles pulled up in front of a probationer’s
house in Post Falls. Members of the North Idaho Violent Crimes Task Force accompanied a
probation officer in order to assist with a probation search of the probationer’s house.
       As the vehicles approached the probationer’s house, Coeur d’Alene Police Department
Detective Todd saw Kingsley, whom the detective did not recognize, but knew was not the

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probationer. Kingsley was standing next to a slightly raised garage door in the probationer’s
driveway, talking on a cell phone. At the preliminary hearing and suppression hearing, Detective
Todd recalled that he was concerned that Kingsley was a lookout for the probationer. Detective
Todd exited the vehicle and showed his badge to Kingsley.             Detective Todd then “told
[Kingsley] to get off the phone” and “asked [Kingsley] to come over to where [the detective] was
at . . . .” Kingsley complied, and Detective Todd asked Kingsley if he had any weapons.
Kingsley responded that he had “glass” on him, and Detective Todd asked Kingsley if he could
take the “glass.” Kingsley responded in the affirmative. Detective Todd then asked Kingsley to
turn around for a pat-down search, and Kingsley told the detective that the “glass” was in
Kingsley’s front sweatshirt pocket.       Detective Todd reached in the pocket, retrieved a
sunglass-type pouch, and found a clear glass pipe inside the pouch that he recognized as drug
paraphernalia. After setting the glass pipe aside, Detective Todd continued his pat-down search,
and Kingsley volunteered that he had a “bindle” in his front left pocket. Detective Todd then
retrieved a small bag containing white crystals, later identified as methamphetamine, from
Kingsley’s front left pocket.
       After the pat-down search, Kingsley was issued a misdemeanor citation, and
subsequently, a criminal complaint was filed against Kingsley charging him with possession of a
controlled substance. A preliminary hearing resulted in an information being filed. Kingsley
filed a motion to suppress the evidence found as a result of the search of Kingsley. Following a
hearing on the motion to suppress, the district court issued a memorandum decision and order
denying Kingsley’s motion. Kingsley then entered a conditional plea of guilty to possession of a
controlled substance (methamphetamine), in violation of Idaho Code § 37-2732(c), reserving his
right to appeal the denial of his motion to suppress. 1 Kingsley appeals.
                                                II.
                                   STANDARD OF REVIEW
       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

1
       The misdemeanor charge, possession of paraphernalia, was dismissed as part of the
conditional plea agreement.

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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).
                                               III.
                                           ANALYSIS
       Kingsley argues the district court erred by denying his motion to suppress. Kingsley
contends he was unlawfully seized and, consequently, the district court should have suppressed
the evidence found as a result of the search of Kingsley.
       The Fourth Amendment to the United States Constitution, and its counterpart, article I,
section 17 of the Idaho Constitution, guarantee the right of every citizen to be free from
unreasonable searches and seizures. However, not all encounters between the police and citizens
involve the seizure of a person. Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968); State v. Jordan, 122
Idaho 771, 772, 839 P.2d 38, 39 (Ct. App. 1992). Only when an officer, by means of physical
force or show of authority, restrains the liberty of a citizen may a court conclude that a seizure
has occurred. State v. Fry, 122 Idaho 100, 102, 831 P.2d 942, 944 (Ct. App. 1991). A seizure
does not occur simply because a police officer approaches an individual on the street or other
public place and asks if the individual is willing to answer some questions or puts forth questions
if the individual is willing to listen. Florida v. Bostick, 501 U.S. 429, 434 (1991); Florida v.
Royer, 460 U.S. 491, 497 (1983). Unless and until there is a detention, there is no seizure within
the meaning of the Fourth Amendment and no constitutional rights have been infringed. Royer,
460 U.S. at 498. Even when officers have no basis for suspecting a particular individual, they
may generally ask the individual questions and ask to examine identification. Fry, 122 Idaho at
102, 831 P.2d at 944. So long as police do not convey a message that compliance with their
requests is required, the encounter is deemed consensual and no reasonable suspicion is required.
Id.
       Warrantless searches are per se unreasonable, subject only to a few specifically
established and well-delineated exceptions. Minnesota v. Dickerson, 508 U.S. 366, 372 (1993).
If evidence is not seized pursuant to a recognized exception to the warrant requirement, the
evidence discovered as a result of the warrantless search must be excluded as the fruit of the
poisonous tree. State v. Van Dorne, 139 Idaho 961, 963, 88 P.3d 780, 782 (Ct. App. 2004)


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(citing Wong Sun v. United States, 371 U.S. 471, 487-88 (1963)). Consent to search does not
expunge the taint of unlawful police activity where the events are irrevocably intertwined. State
v. Kerley, 134 Idaho 870, 874, 11 P.3d 489, 493 (Ct. App. 2000).
       Fourth Amendment jurisprudence recognizes three types of permissible encounters
between police and citizens. United States v. Smith, 594 F.3d 530, 535 (6th Cir. 2010); State v.
Zapp, 108 Idaho 723, 726-27, 701 P.2d 671, 674-75 (Ct. App. 1985). The first type is the
consensual encounter that does not implicate any Fourth Amendment right because there is no
seizure. State v. Page, 140 Idaho 841, 843-44, 103 P.3d 454, 456-57 (2004). When the person
has been seized, the second type of permissible encounter is the investigatory stop.            The
investigatory stop (also known as the investigative detention, investigatory seizure, or Terry
stop) “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.
Moran-Soto, 150 Idaho 175, 181, 244 P.3d 1261, 1267 (Ct. App. 2010) (citing State v. Sheldon,
139 Idaho 980, 983, 88 P.3d 1220, 1223 (Ct. App. 2003)); accord Terry, 392 U.S. at 21. The
third type of permissible encounter, which also involves a seizure of the person, is the arrest
supported by probable cause. State v. Bishop, 146 Idaho 804, 816, 203 P.3d 1203, 1215 (2009).
       The question raised in this appeal is what type of encounter occurred, and if a seizure did
occur, whether there was reasonable suspicion to justify the warrantless seizure. Kingsley argues
that when he was told to get off the phone, this amounted to an order, detaining or seizing him.
Further, Kingsley maintains that the detective lacked reasonable suspicion based on specific,
articulable facts to justify an investigatory stop. Accordingly, Kingsley contends the evidence
obtained as a result of the unlawful seizure must be suppressed.          The State responds that
Kingsley’s encounter with the detective was consensual. Alternatively, the State maintains that
under the totality of the circumstances, the detective had a reasonable suspicion based on
specific, articulable facts to seize Kingsley. The district court determined the encounter was
consensual, not involving a seizure, based on the brevity of the encounter and the facts of the
encounter: the detective was wearing plainclothes; the incident occurred during the daytime;
there were other officers present who were not focused on Kingsley; there were few demands or
orders by the detective; Kingsley was cooperative in responding to the detective’s requests; and
Kingsley was not physically restrained.




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        To determine if a seizure occurred, one must ask if, under the totality of the
circumstances, the police conduct would have communicated to a reasonable person that he or
she was not at liberty to ignore the police presence and go about his or her business. Bostick,
501 U.S. at 436. This test, “however, is not whether a person interviewed by the police would
find himself psychologically compelled to cooperate with an officer’s requests.” United States v.
Winston, 892 F.2d 112, 118 (D.C. Cir. 1989). According to LaFave, “The critical factor is
whether the policeman, even if making inquiries a private citizen would not, has otherwise
conducted himself in a manner which would be perceived as a nonoffensive contact if it occurred
between two ordinary citizens.” 4 WAYNE R. LAFAVE, SEARCH           AND   SEIZURE: A TREATISE   ON

THE   FOURTH AMENDMENT § 9.4(a) (5th ed. 2012) (footnote omitted).             The United States
Supreme Court, in United States v. Mendenhall, 446 U.S. 544, 554 (1980), stated:
        Examples of circumstances that might indicate a seizure, even where the person
        did not attempt to leave, would be the threatening presence of several officers, the
        display of a weapon by an officer, some physical touching of the person of the
        citizen, or the use of language or tone of voice indicating that compliance with the
        officer’s request might be compelled.

        We examine the circumstances suggestive of a seizure listed in Mendenhall: police
presence, display of weapons, physical touching, and language or tone of voice. The record
reveals that several law enforcement officers arrived at the probationer’s house, including
Detective Todd and Post Falls Police Department Detective Williamson who rode together in the
lead car. Detective Todd was the only law enforcement officer to focus on Kingsley, although
Detective Williamson was with Detective Todd. The other law enforcement officers, including
Detective Williamson, were focused on the probationer’s house. The record reveals that neither
detective drew his weapon on Kingsley. Detective Todd acknowledged that the holstered gun he
had on him may have been visible to Kingsley. Detective Williamson, who was near Detective
Todd, testified that his badge and gun were visible. It is also apparent from the record that
Detective Todd did not initiate physical contact with Kingsley until Kingsley consented to a
search by the detective. The last Mendenhall circumstance is where an officer uses “language or
tone of voice indicating that compliance with the officer’s request might be compelled.”
Mendenhall, 446 U.S. at 554. It is this circumstance that Kingsley primarily focuses on.
        The critical juncture in our analysis begins with whether Detective Todd’s statement to
Kingsley, telling Kingsley to “get off the phone,” is an order or merely a query. An “oral


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command” constitutes a seizure when the citizen yields to the command, as the oral command
constitutes a show of authority. State v. Maland, 140 Idaho 817, 820, 103 P.3d 430, 433 (2004).
The Massachusetts Supreme Judicial Court has provided a succinct delineation of a question as
compared to an order or command:
              A question, however, is typically not an order. A question is an inquiry;
       an order is a command. A question requests an answer, while an order demands
       obedience. To recognize that questions and orders are different creatures is not,
       of course, to ignore the fact that circumstances of an encounter with police may
       be sufficiently intimidating that a reasonable person would feel compelled to
       respond to a police officer’s question as he believes the officer would wish him
       to.

Commonwealth v. Lopez, 887 N.E.2d 1065, 1067 (Mass. 2008). The Massachusetts delineation
is in line with our analysis in State v. Linenberger, 151 Idaho 680, 684, 263 P.3d 145, 149 (Ct.
App. 2011): “So long as police do not convey a message that compliance with their requests is
required, the encounter is deemed consensual and no reasonable suspicion is required.” Thus, a
law enforcement officer can ask a citizen to come to the officer or effectively halt the movement
of a pedestrian by asking a question, without seizing the person. E.g., United States v. Thornton,
463 F.3d 693, 698 (7th Cir. 2006) (finding no seizure where officers were at a gas station’s door
and the officers asked two citizens exiting the gas station to step aside and then posed questions
to the citizens); United States v. Broomfield, 417 F.3d 654, 656 (7th Cir. 2005) (discussing how a
police officer could appropriately “bring [a] pedestrian to a halt,” and not seize the person, by
asking the pedestrian, “Excuse me, we’re investigating a robbery, and we’d like to know whether
you’ve seen a black man wearing dark clothing.”); Linenberger, 151 Idaho at 684, 264 P.3d at
149 (finding no seizure when the defendant was merely asked to step from his boat to the dock);
Lopez, 887 N.E.2d 1065 (finding no seizure where an officer motioned to a bicyclist to come to
the officer and asking the cyclist “Can I speak with you?”). But see State v. Cardenas, 143 Idaho
903, 908, 155 P.3d 704, 709 (Ct. App. 2006) (concluding that the defendant was unlawfully
seized when a deputy told the defendant he needed to come speak to the officer because, under
the circumstances of the case, “the officer’s language was inherently coercive such that
reasonable people would not believe they were free to go about their business.”).
       Here, the statement by Detective Todd to Kingsley was distinctively a command. At the
preliminary hearing in this case, the prosecutor asked Detective Todd, “And what did you do
after seeing the defendant in--standing in the driveway?” Detective Todd responded, “I exited

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the vehicle. Showed Mr. Kingsley my badge and told him to get off the phone.” After the
prosecutor then asked what the detective did next, Detective Todd stated, “I asked him to come
over to where I was at and asked him if he had any weapons.” The instruction to Kingsley to get
off the phone was an order that commanded Kingsley to obey and hang up the phone so that
Detective Todd could talk to Kingsley.
       To place the detective’s command in context, contact with Kingsley began with four
unmarked police vehicles approaching the probationer’s house carrying several plainclothes
police officers and a probation officer. Detective Todd, upon exiting his vehicle, displayed his
law enforcement badge to Kingsley. Then, Detective Todd directed Kingsley to end the phone
call and asked Kingsley to approach him. Certainly, at this point in the overall chain of events,
Kingsley was seized. A reasonable person, in seeing the badge and being told to end a phone
call, would no longer think that he or she was free to ignore the police presence and go about his
or her business.
       What separates Kingsley’s get-off-the-phone scenario from other scenarios we have
analyzed is the command. This distinction, though, is not based on the most literal reading of the
test developed from the Mendenhall line of cases--that is, whether one would feel free to walk
away, 4 LAFAVE, supra, § 9.4(a)--because almost every encounter with police may
psychologically compel a reasonable person to cooperate with the law enforcement officer,
Winston, 892 F.2d at 118. Our decision in Linenberger, relied on by the State and by the district
court, is in line with the above jurisprudence. In Linenberger, we accepted the district court’s
factual finding that the defendant was asked if he could step out of the boat onto the dock, as
opposed to being ordered from the boat. Linenberger, 151 Idaho at 684, 263 P.3d at 149. We
also noted that the law enforcement officers in that case did not display weapons or physically
touch the defendant. Id. Accordingly, we concluded that, “Taking into account all of the
surrounding circumstances, a reasonable person would have felt free to decline the detective’s
request and terminate the encounter.” Id. The same cannot be said in this scenario because the
nature of Detective Todd’s request to Kingsley is different: instead of asking Kingsley if he
would mind ending the phone call, the detective “told him to get off the phone.” It is one thing
to ask a passing citizen a question, e.g., “Excuse me, we’re investigating a robbery, and we’d like
to know whether you’ve seen a black man wearing dark clothing,” Broomfield, 417 F.3d at 656,




                                                7
and another to walk up to a citizen, show a badge, and tell the citizen to end their cell phone
conversation.
       Having concluded that Kingsley was seized at the point he was told to get off the phone,
we must now determine if this seizure could be justified as an investigatory stop.               The
determination of whether an investigatory stop 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 that 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 investigatory stop is permissible if it is based upon specific articulable facts that
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.
       The district court, when analyzing whether Kingsley was seized when Detective Todd
asked Kingsley to come to him, found Kingsley was involved in a consensual encounter. The
district court concluded, in the alternative, that if Kingsley was seized, the seizure was
permissible because it was brief and reasonable and because the detective “had specific
articulable facts to justify his ‘suspicion’ that Kingsley was engaged in criminal activity (out in
front of a house of a known drug dealer, on a cell phone) and as such, was able to detain him
mere seconds longer and ask if he had any weapons.” However, the district court’s factual
determinations are at odds with the district court’s conclusion. According to the district court,
“There is no indication that Kingsley acted suspiciously, made furtive movements, or raised a
reasonable suspicion that he was armed and/or dangerous. Kingsley was merely present in a
location suspected of criminal activity.” Moreover, the district court found, “All we have is
Kingsley standing on [the probationer’s] driveway holding a cell phone with the garage door
very slightly open.” We accept these findings of fact because they are supported by substantial
evidence, but we disagree with the conclusion that reasonable suspicion existed at the moment
the seizure occurred, as we freely review the application of constitutional principles to the facts.
See Atkinson, 128 Idaho at 561, 916 P.2d at 1286
       Our first inquiry in determining whether an investigatory stop is reasonable is whether
the detective’s action was justified at its inception. That is, was the stop based upon specific,
articulable facts that justify suspicion that the detained person is, has been, or is about to be
engaged in criminal activity. Based on the totality of the circumstances at the time the seizure


                                                 8
was effected (when Kingsley was told to get off the phone), the facts here do not indicate that
Detective Todd had reasonable suspicion that Kingsley had engaged, was engaging, or was about
to engage in criminal activity. 2
        We have upheld pat-down searches of individuals during the execution of warrantless
probation searches in certain circumstances, as the State aptly cites. However, the reasoning
behind our prior holdings is inapplicable to Kingsley’s case. For example, in State v. Crooks,
150 Idaho 117, 244 P.3d 261 (Ct. App. 2010), law enforcement had just completed a controlled
buy when they executed a probation search while awaiting a search warrant. An agent frisked
Crooks inside the home. In upholding the frisk, we explained, “Agent Sotka knew that drug
transactions were occurring in the apartment--specifically that K. K. had just purchased drugs in
the residence, and he had reason to believe Crooks was the supplier of at least some of the drugs
sold there.” Id. at 122, 244 P.3d at 266. In State v. Dreier, 139 Idaho 246, 76 P.3d 990 (Ct. App.
2003), law enforcement conducted a probation search of a home for suspected drug
manufacturing activity and conducted a pat-down search of Dreier. We concluded that the
pat-down search was the result of a lawful frisk based on specific, articulable facts. Id. at 250,
76 P.3d at 994. The officer who had conducted the pat-down search had previously executed a
search warrant at the same home and had removed several weapons from the home and, “[t]he
officer was also aware that Dreier was a frequent visitor to the home and that Dreier was known
to carry a firearm.” Id. at 251, 76 P.3d at 995.
        In this case, unlike in Crooks and Dreier, the officers had no probable cause or
reasonable suspicion to believe that there was ongoing drug activity in the house. Although a
resident of the house had been involved in drug sales conducted from his automobile in the past,
the last of those transactions of which the police had knowledge occurred about four months
earlier, and none of the past drug activity was known to have occurred in the house. Thus, the
residence where Kingsley was seen was not a known drug house. Therefore, any belief that
Kingsley could be a lookout for drug users inside the house was little more than speculation.



2
       Detective Todd, part of a group performing a probation search, knew that he was visiting
the home of a known drug dealer; the officers did not have a search warrant or arrest warrant for
the probationer. The probationer, though, was known to have provided controlled substances to
two confidential informants several months prior.


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       Nor did Kingsley’s conduct give a basis to suspect him of criminality. When Detective
Todd arrived at the house, “[a]ll we have is Kingsley standing on [the probationer’s] driveway
holding a cell phone with the garage door very slightly open,” according to the district court.
There was not a known nexus between Kingsley and any criminal activity, unlike Crooks where
there was a known drug transaction that had just occurred and the law enforcement officer had
reason to believe that Crooks was a supplier. Moreover, Detective Todd did not even know who
Kingsley was upon arriving at the scene. Although Kingsley was standing in the driveway, there
is no indication that Kingsley, in any way, posed a threat to the officers, unlike Dreier where the
officer knew of Dreier and knew that Dreier was known to carry a firearm. Detective Todd
testified at the preliminary hearing that, prior to telling Kingsley to get off the phone, Kingsley
did not do anything to make Kingsley seem suspicious, Kingsley did not make the detective
think Kingsley was a threat to the detective or other persons, and Detective Todd did not see
anyone else in front of the residence. Detective Williamson, who was riding in the same vehicle
as Detective Todd, testified that there was nothing unusual about the way Kingsley was standing
in the driveway: “It was just somebody standing outside talking on a phone.” Detective
Williamson testified that Kingsley did not try to flee, nor did Detective Williamson think that
Kingsley was a threat to himself or anyone else. Accordingly, the factual record here does not
indicate that Detective Todd had reasonable suspicion based on specific, articulable facts that
Kingsley had engaged, was engaging, or was about to engage in criminal activity simply because
Kingsley, the person known not to be the probationer, was standing near a slightly open garage
door talking on a cell phone.
       Because the seizure cannot be justified as an investigatory stop, evidence discovered on
Kingsley as a result of the warrantless search after the seizure must be excluded as fruit of the
poisonous tree. Van Dorne, 139 Idaho at 963, 88 P.3d at 782 (citing Wong Sun, 371 U.S. at
487-88). Kingsley’s consent to the pat-down search does not expunge the taint of unlawful
police activity where the events are irrevocably intertwined. Kerley, 134 Idaho at 874, 11 P.3d at
493.
                                               III.
                                        CONCLUSION
       We conclude that the district court erred by denying Kingsley’s motion to suppress
evidence. Kingsley was seized at the point Detective Todd “told him to get off the phone.”


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Based on the record, the seizure was not supported by reasonable suspicion based on specific,
articulable facts that Kingsley had engaged, was engaging, or was about to engage in criminal
activity. Accordingly, the motion to suppress should have been granted and, hence, the evidence
discovered on Kingsley should have been excluded. Because we reverse the district court’s
order denying Kingsley’s motion to suppress, we vacate the judgment of conviction and remand
the case for further proceedings consistent with this opinion.
       Judge LANSING and Judge MELANSON CONCUR.




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