               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                   Docket Nos. 41772/41773

TARANGO DEFOREST PADILLA,                       ) 2014 Opinion No. 109
                                                )
       Petitioner-Appellant,                    ) Filed: December 23, 2014
                                                )
v.                                              ) Stephen W. Kenyon, Clerk
                                                )
STATE OF IDAHO,                                 )
                                                )
       Respondent.                              )
                                                )

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

       Judgment of the district court denying petition for post-conviction relief, vacated
       and case remanded.

       Nevin, Benjamin, McKay & Bartlett, LLP; Deborah A. Whipple, Boise, for
       appellant. Deborah A. Whipple argued.

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

GUTIERREZ, Chief Judge
       Tarango Deforest Padilla appeals from the district court’s judgment denying his amended
petition for post-conviction relief following an evidentiary hearing.        Specifically, Padilla
contends that defense counsel provided ineffective assistance by failing to file a motion to
suppress. For the reasons that follow, we vacate and remand.
                                                I.
                                 FACTS AND PROCEDURE
       In Twin Falls, a street runs north to south (the Street) and the Street is intersected by an
alleyway that runs east to west (the Alley). 1 At approximately 2:30 a.m. in August 2009, a Twin



1
        The district court did not make findings of fact relevant to the events leading up to
Padilla’s running from the officer. Rather, the district court summarized the procedural history
                                                1
Falls police officer was in his marked police car in the Alley on the western side of the Street,
facing the Street with the police car’s headlights turned off. The officer was slowly driving his
police car through the Alley toward the Street when he saw Padilla walking southbound on the
Street, on the side of the Street farthest from the officer. Padilla entered the Alley across the
Street from the officer (on the eastern side of the Street), fumbled around, and came out of the
Alley and proceeded southbound on the Street.             Padilla looked lost but did not appear
intoxicated. The officer, who was about 100-150 feet from the western edge of the Street,
proceeded to drive his car out of the Alley onto the Street and turned the car’s headlights on.
According to the officer, Padilla turned, looked toward the officer’s car, turned again, and started
running. The officer exited the vehicle and yelled for Padilla to stop, but Padilla kept running.
Padilla jumped a few fences and the officer lost sight of Padilla. The officer radioed for
assistance, and Padilla was eventually located under a tree by a second officer. 2
          A search of the area where Padilla was found revealed ceramic pieces of a spark plug,
two financial transaction cards that did not belong to Padilla, and a flashlight. A subsequent
warrantless search of Padilla revealed ceramic pieces of a spark plug, controlled substances, and
two more financial transaction cards that did not belong to Padilla. After Padilla was arrested
and transported to the jail, an officer determined that Padilla had an outstanding warrant for his
arrest.
          Padilla was charged with two counts of grand theft in relation to the financial transaction
cards and was alleged to be a persistent violator in separate cases that were later consolidated for
trial. Padilla was ultimately found guilty of the grand theft counts and was determined to be a
persistent violator. He appealed, contending that the district court erred by denying his motion in
limine to exclude the spark plug pieces and flashlight; we affirmed in State v. Padilla, Docket



of the case and decided the issue on the discovery of the arrest warrant. We derive our facts
from the testimony of the officer in the underlying criminal case and from our prior opinion.
2
        Padilla’s account differs from the officer’s account. According to Padilla’s testimony at
the evidentiary hearing, which was consistent with his testimony at trial, Padilla was in the
alleyway when he heard a vehicle come at him at a high rate of speed, noting that the engine was
revving. Padilla did not see headlights or any lighting before he took off running. According to
Padilla, “[he] ran between two houses, thinking [he] was going to get jumped because [he] and
[his] brothers have gotten jumped before.” Padilla also did not hear the officer tell him to stop.


                                                   2
Nos. 38899/38900 (Ct. App. Dec. 28. 2012) (unpublished). Padilla then filed a pro se petition
for post-conviction relief and with the assistance of counsel filed an amended petition for post-
conviction relief. Relevant to this appeal, Padilla contended that defense counsel provided
ineffective assistance by failing to file a motion to suppress. Specifically, Padilla argued that
defense counsel should have moved to suppress evidence obtained as a result of an investigatory
stop that was unsupported by reasonable suspicion.         Following an evidentiary hearing, the
district court denied the amended petition for post-conviction relief, and Padilla appeals.
                                                 II.
                                   STANDARD OF REVIEW
         In order to prevail in a post-conviction proceeding, the petitioner must prove the
allegations by a preponderance of the evidence. Idaho Code § 19-4907; Stuart v. State, 118
Idaho 865, 869, 801 P.2d 1216, 1220 (1990).            When reviewing a decision denying post-
conviction relief after an evidentiary hearing, an appellate court will not disturb the lower court’s
factual findings unless they are clearly erroneous. Idaho Rule of Civil Procedure 52(a); Russell
v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). The credibility of the witnesses,
the weight to be given to their testimony, and the inferences to be drawn from the evidence are
all matters solely within the province of the district court. Larkin v. State, 115 Idaho 72, 73, 764
P.2d 439, 440 (Ct. App. 1988). We exercise free review of the district court’s application of the
relevant law to the facts. Nellsch v. State, 122 Idaho 426, 434, 835 P.2d 661, 669 (Ct. App.
1992).
                                                III.
                                           ANALYSIS
         On appeal, Padilla contends the district court erred by denying his petition for post-
conviction relief, alleging ineffective assistance of defense counsel. A claim of ineffective
assistance of counsel may properly be brought under the post-conviction procedure act. Murray
v. State, 121 Idaho 918, 924-25, 828 P.2d 1323, 1329-30 (Ct. App. 1992). To prevail on an
ineffective assistance of counsel claim, the defendant must show that the attorney’s performance
was deficient and that the defendant was prejudiced by the deficiency. Strickland v. Washington,
466 U.S. 668, 687-88 (1984); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct. App.
1995). To establish a deficiency, the petitioner has the burden of showing that the attorney’s
representation fell below an objective standard of reasonableness. Aragon v. State, 114 Idaho

                                                 3
758, 760, 760 P.2d 1174, 1176 (1988). To establish prejudice, the petitioner must show a
reasonable probability that, but for the attorney’s deficient performance, the outcome of the trial
would have been different. Id. at 761, 760 P.2d at 1177. This Court has long adhered to the
proposition that tactical or strategic decisions of trial counsel will not be second-guessed on
appeal unless those decisions are based on inadequate preparation, ignorance of relevant law, or
other shortcomings capable of objective evaluation. Howard v. State, 126 Idaho 231, 233, 880
P.2d 261, 263 (Ct. App. 1994).
       Specifically, Padilla argues that defense counsel should have moved to suppress evidence
obtained as a result of an investigatory stop and subsequent search.         In a post-conviction
proceeding challenging an attorney’s failure to pursue a motion in the underlying criminal action,
the district court may consider the probability of success of the motion in question in
determining whether the attorney’s inactivity constituted incompetent performance. Boman v.
State, 129 Idaho 520, 526, 927 P.2d 910, 916 (Ct. App. 1996). Where the alleged deficiency is
counsel’s failure to file a motion, a conclusion that the motion, if pursued, would not have been
granted by the trial court, is generally determinative of both prongs of the Strickland test.
Boman, 129 Idaho at 526, 927 P.2d at 916.
A.     The Arrest Warrant’s Impact on the Search
       Following the evidentiary hearing, the district court denied Padilla’s petition on the basis
that even if the investigatory stop was improper, the officer would have had the right to search
Padilla following the discovery of the warrant for his arrest. On appeal, Padilla contends the
district court’s reasoning is incorrect because even if the warrant existed, the officers did not
know about the warrant at the time of the search and thus, the warrant does not remove the taint
from an unlawful seizure, citing State v. Page, 140 Idaho 841, 847, 103 P.3d 454, 460 (2004).
The State acknowledges that the Idaho Supreme Court has applied the intervening circumstances
test in determining whether evidence found as a result of a valid arrest on a warrant is
sufficiently attenuated from an unlawful seizure immediately preceding the arrest, as articulated
in Page.
       Generally, evidence obtained as a result of an unlawful search or as a result of an
unlawful seizure may not be used against the victim of the search. State v. Van Dorne, 139
Idaho 961, 963, 88 P.3d 780, 782 (Ct. App. 2004); see Wong Sun v. United States, 371 U.S. 471,
485 (1963). However, an exception to the Wong Sun rule was recognized by the Idaho Supreme

                                                4
Court in Page. In Page, the Idaho Supreme Court addressed a situation involving the unlawful
seizure of Page, the discovery of an arrest warrant for Page following the unlawful seizure, and
the search of Page incident to his arrest on the outstanding arrest warrant. The Idaho Supreme
Court recognized that the attenuation doctrine--”whether the causal chain has been sufficiently
attenuated to dissipate the taint of the unlawful conduct”--might support the admission of
evidence obtained from a search following the lawful arrest. Page, 140 Idaho at 846, 103 P.3d at
459. The Court turned to a Seventh Circuit case, United States v. Green, 111 F.3d 515 (7th Cir.
1997), and found the attenuation analysis used by Green persuasive. Page, 140 Idaho at 846,
103 P.3d at 459. In Green, the Seventh Circuit considered three factors in determining whether
the unlawful conduct was adequately attenuated from the search. Page, 140 Idaho at 846, 103
P.3d at 459. “The factors are: (1) the elapsed time between the misconduct and the acquisition
of the evidence, (2) the occurrence of intervening circumstances, and (3) the flagrancy and
purpose of the improper law enforcement action.” Id. The Idaho Supreme Court then analyzed
the Green factors in Page and ultimately determined that the post-arrest search of Page was
attenuated from the unlawful seizure. Page, 140 Idaho at 847, 103 P.3d at 460.
       However, Page specifically noted that if the search at issue occurred prior to an
intervening circumstance (the discovery of an arrest warrant in that case), the “evidence seized
prior to the arrest, unless justified by some other exception, would not be admissible simply
because, ultimately, a valid arrest warrant was discovered.” Id. In support of its contention, the
Idaho Supreme Court cited to and relied on State v. Maland, 140 Idaho 817, 823-24, 103 P.3d
430, 436-37 (2004), a case it had decided a month before Page. In Maland, the Idaho Supreme
Court held that the discovery of an arrest warrant following a search cannot be an intervening
circumstance “because it occurred after the wrongful seizure of the evidence.” Maland, 140
Idaho at 824, 103 P.3d at 437.
       In this case, the evidence at issue originated from the search that occurred prior to the
discovery of the arrest warrant. Thus, as in Maland, if the seizure of Padilla was unlawful, then
the evidence resulting from the search prior to the discovery of the search warrant would not be
admissible under the attenuation doctrine because the unearthing of the arrest warrant was not an
intervening circumstance. Therefore, we examine whether we may affirm the denial of Padilla’s




                                                5
petition on the alternative theory that the police had reasonable suspicion to seize Padilla, as the
State argues. 3
B.      The Investigatory Stop
        Padilla contends that he established both deficient performance and prejudice in his
attorney’s failure to file a motion to suppress evidence seized as a result of the investigatory stop.
The investigatory stop (also known as the investigative detention, investigatory seizure, or Terry 4
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)). Padilla asserts that when he was
stopped, the only facts the officer had to support the investigatory stop were Padilla’s presence
near the alleyway and his subsequent flight. Under circumstances similar to these, Padilla avers
that several courts throughout the country have determined that flight may be a relevant factor in
the totality of circumstances analysis following the United States Supreme Court’s decision in
Illinois v. Wardlow, 521 U.S. 119 (2000), but he asserts that flight by itself does not give rise to
reasonable suspicion. With this in mind, Padilla argues that had defense counsel filed a motion
to suppress, the trial court would have granted the motion to suppress, finding that the officer
lacked reasonable suspicion based on specific articulable facts that Padilla was, had been, or was
about to be engaged in criminal activity. Further, Padilla asserts that had his motion to suppress
been granted, the State would have had no evidence linking Padilla to any thefts and the case
would have been dismissed. 5

3
        At oral argument, the State, for the first time, argued that the officers had probable cause
to arrest Padilla based on their finding financial transaction cards and ceramic spark plug pieces
on the ground near Padilla. With this assertion, the State contended that even if there was a
preceding illegal seizure, the probable cause to arrest Padilla and subsequent discovery of the
warrant sufficiently attenuated the illegality to allow admission of the evidence on his person.
The district court did not address this claim, and we will not address it further.
4
        Terry v. Ohio, 392 U.S. 1, 21-22 (1968).
5
       We do not express an opinion on whether the financial transaction cards and spark plug
pieces located in the area where Padilla was ultimately detained, although not on his person,
were abandoned. “Abandonment, in the Fourth Amendment context, occurs through words, acts,
and other objective facts indicating that the defendant voluntarily discarded, left behind, or
otherwise relinquished his interest in his property.” State v. Harwood, 133 Idaho 50, 52, 981
                                                   6
       The State contends the district court did not err by denying the amended petition for post-
conviction relief because the motion to suppress would not have been granted. The State argues
that the officer who initially attempted to make contact with Padilla had reasonable suspicion to
seize Padilla based on “commonsense judgments and inferences about human behavior.”
Wardlow, 528 U.S. at 125. Specifically, the State asserts that “Padilla’s entire behavior, from
walking in and out of the alley at 2:30 in the morning, to fleeing when he saw [the officer], to
emptying his pockets and hiding in the bushes was more than adequate to give [the officer]
reasonable articulable suspicion to detain [Padilla].”
       At the time of Padilla’s arrest, the United States Supreme Court had declined to adopt
per se rules regarding flight, but retained the totality of circumstances analysis when considering
whether reasonable suspicion existed. In Wardlow, 528 U.S. at 124-25, a majority of the United
States Supreme Court held that Wardlow’s “presence in an area of heavy narcotics trafficking”
along with “his unprovoked flight upon noticing the police” gave the officer reasonable
suspicion under the totality of the circumstances to conduct an investigatory stop. There the
majority explained that “[h]eadlong flight--wherever it occurs--is the consummate act of evasion:
It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Id. at 124.
Unprovoked flight, according to the majority, “is simply not a mere refusal to cooperate. Flight,
by its very nature, is not ‘going about one’s business’; in fact, it is just the opposite.” Id. at 125.
The majority also explained that a reviewing court considering whether an officer had reasonable
suspicion must take into account that “the determination of reasonable suspicion must be based
on commonsense judgments and inferences about human behavior.” Id.
       The rationale behind the majority decision was further elucidated by four justices who
concurred in part and dissented in part. Justice Stevens, who authored the four justices’ opinion,
explained that Illinois asked the Court “to announce a ‘bright-line rule’ authorizing the
temporary detention of anyone who flees at the mere sight of a police officer.” Id. at 126
(Stevens, J. concurring in part and dissenting in part). Wardlow asked the Court to adopt the
opposite per se rule: “that the fact that a person flees upon seeing the police can never, by itself,



P.2d 1160, 1162 (Ct. App. 1999). Evidence that is abandoned prior to a seizure is not fruit of a
seizure. State v. Agundis, 127 Idaho 587, 591, 903 P.2d 752, 756 (Ct. App. 1995). But, when
the abandonment is the result of illegal police conduct, the abandonment is not voluntary.
Harwood, 133 Idaho at 52, 981 P.2d at 1162.
                                                  7
be sufficient to justify a temporary investigative stop.” Id. According to the four justices, the
Court wisely retained the totality of circumstances analysis:
        The Court today wisely endorses neither per se rule. Instead, it rejects the
        proposition that “flight is . . . necessarily indicative of ongoing criminal
        activity,” . . . adhering to the view that “[t]he concept of reasonable suspicion . . .
        is not readily, or even usefully, reduced to a neat set of legal rules,” but must be
        determined by looking to “the totality of the circumstances--the whole picture.”

Id. at 126-27. Unlike the majority, the four justices were not persuaded that the officer had
reasonable suspicion, id. at 127, because of the factual insufficiency of the officer’s testimony,
id. at 137.
        In light of Wardlow, courts considering how flight factors into reasonable suspicion have
developed competing rationales to hold that flight alone is sufficient or insufficient to give rise to
reasonable suspicion, as explained by the Iowa Supreme Court in State v. Kreps, 650 N.W.2d
636, 643-44 (Iowa 2002). Some courts, for instance, have held that flight alone is insufficient.
E.g., State v. Hicks, 488 N.W.2d 359, 363-65 (Neb. 1992) (detailing why flight alone is
insufficient, although decided pre-Wardlow).          The Iowa Supreme Court summarized its
understanding of the applicability of flight in the reasonable suspicion analysis by noting that
“the circumstances surrounding the suspect’s efforts to avoid the police must be such as to allow
a rational conclusion that flight indicated a consciousness of guilt.” Kreps, 650 N.W.2d at 644
(citing Smith v. United States, 558 A.2d 312, 316 (D.C. 1989)). According to the Iowa Supreme
Court, “the key is that the relationship between the police presence and the suspect’s flight was
causal rather than coincidental.” Id.
        The “key” factor for flight, recognized by the Iowa Supreme Court, was implicit in the
United States Supreme Court’s Wardlow analysis, as the Court relied on Wardlow’s unprovoked
flight upon noticing the police. Wardlow, 528 U.S. at 124. One of the pre-Wardlow cases, cited
and quoted in Kreps, further explains why a defendant’s flight may not give rise to reasonable
suspicion:
        Jones’s evasive actions and flight from two strange men riding in an unmarked
        car and exhibiting no indicia of lawful authority were only natural reactions to the
        circumstances. While a person’s flight from law enforcement officers may be a
        fact used to support an officer’s reasonable suspicion that criminal activity is
        afoot, here Deputy Herrington had no reason to suspect that Jones was
        consciously trying to evade a law enforcement officer. . . . The initial stop was
        illegal.

                                                  8
United States v. Jones, 619 F.2d 494, 498 (5th Cir. 1980). Other cases have expounded upon
how provocation impacts the flight analysis. See State v. Benton, 43 A.3d 619, 628 (Conn. 2012)
(“As these cases make clear, the judicial concern over provoked flight does not arise every time
police conduct precipitates flight, but, rather, pertains to situations in which police have engaged
in the sort of provocative conduct that could cause a reasonable individual to take flight for
reasons other than criminal culpability.”); see also United States v. Franklin, 323 F.3d 1298,
1305 (11th Cir. 2003) (Pogue, J., dissenting) (“Where an individual’s flight is provoked,
however, it cannot support reasonable suspicion. The police may not frighten an individual into
fleeing, and then assert his flight as a justification for pursuing and stopping him.”); Marshall ex
rel. Gossens v. Teske, 284 F.3d 765, 771 (7th Cir. 2002) (“But it’s doubtful that the officers had
even reasonable suspicion to stop Marshall, given that his flight was not ‘unprovoked.’ Marshall
did what any sane person would do if he saw masked men with guns running toward him: he ran
like hell. And he ran right to uniformed police officers for protection! He wasn’t trying to get
away from the ‘police’ he was trying to get to the ‘police’ as fast as he could.”).
       Although the United States Supreme Court has explicitly addressed a situation involving
flight and the impact of flight in a reasonable suspicion analysis, an Idaho appellate court has
neither applied the analysis to a published opinion nor adopted the Wardlow reasoning under the
Idaho Constitution. Nevertheless, each party in this appeal argues its position on the basis of
whether the motion to suppress would or would not have been granted. In essence, each party
asks this Court to decide whether the motion to suppress should have been granted, as though
this were a direct appeal. As noted above, the probability of success of a motion to suppress may
be determinative of whether counsel provided deficient performance and might also be
determinative of prejudice. Hollon v. State, 132 Idaho 573, 579, 976 P.2d 927, 933 (1999). We
examine the probability of success “in order to determine whether counsel’s decision against
pressing the motion was within the wide range of permissible discretion and sound trial
strategy.” Id. “If the motion lacked merit and would have been denied, counsel ordinarily would
not be deficient for failing to pursue it, and, concomitantly, the petitioner could not have been
prejudiced by the want of its pursuit.” Huck v. State, 124 Idaho 155, 158-59, 857 P.2d 634, 637-
38 (Ct. App. 1993).




                                                  9
       We have applied the probability of success analysis in situations where the facts and law
dictate a result. For example, in Huck, the defendant challenged the address on his search
warrant, but we determined that upon the facts and existing law, the motion to suppress would
have been meritless. See id. at 159, 857 P.2d at 638. In a similar vein, but at the opposite end of
the spectrum, in Hoffman v. State, 153 Idaho 898, 277 P.3d 1050 (Ct. App. 2012), this Court
considered the summary dismissal of a claim that counsel provided ineffective assistance by
failing to pursue a motion to suppress. Taking the facts set forth by Hoffman as true, we
concluded that the law at the time of the search of Hoffman’s automobile trunk “did not,
however, provide authority for the warrantless search of a trunk incident to a lawful custodial
arrest of an occupant of an automobile.” Id. at 904, 277 P.3d at 1056. According to the Court,
unless another exception to the warrant requirement applied, the motion to suppress “may well
have succeeded and altered the outcome of Hoffman’s case.” Id. at 905, 277 P.3d at 1057.
       Unlike Huck, there are factual disputes here based upon the criminal trial record, and
these disputes center upon facts that would have played into the totality of the circumstances, had
a motion to suppress been filed. The facts potentially giving rise to reasonable suspicion, based
on the officer’s account, are that around 2:30 a.m., a male walked into and out of the Alley and
then, upon the police officer’s pulling his car into the Street and engaging the vehicle’s
headlights, the male turned and looked toward the officer’s vehicle, turned again, ran, continued
running after the officer exited his vehicle and yelled for the male to stop, and was eventually
found hiding under a tree. 6 Unlike Wardlow, there was no testimony that Padilla was in a high-
crime area or an area with heavy narcotics trafficking. In contrast to the officer’s account,
Padilla testified that he did not see headlights or any lighting from the vehicle before he ran.
And, according to Padilla, “[he] ran between two houses, thinking [he] was going to get jumped
because [he] and [his] brothers have gotten jumped before.” Padilla further claimed that he did
not hear the officer tell him to stop. The district court, however, did not address these factual
disputes.
       Furthermore, even though Padilla’s amended petition and testimony at the evidentiary
hearing addressed the failure to file a motion to suppress theory, the district court did not make

6
        Although the State asserts that the fact that Padilla had emptied his pockets before being
detained should enter into our analysis, the State does not point to any testimony in the record in
which an officer witnessed Padilla emptying his pockets or that the second officer knew that
Padilla had emptied his pockets prior to seizing Padilla.
                                                10
findings of fact or conclusions of law relating to this theory, except to say that the evidence
would have been admissible even if the investigatory stop were unlawful. Thus, we remand the
case to the district court to make the requisite factual findings. With these factual findings, the
district court may also make conclusions of law including (a) whether it would have been
objectively reasonable for defense counsel to file a motion to suppress, arguing that officers
lacked reasonable suspicion under the totality of the circumstances, and (b) whether there is a
reasonable probability that the outcome of the proceedings would have been different had
counsel filed a motion to suppress.
                                               IV.
                                        CONCLUSION
       The district court erred when it determined that evidence would have been admissible,
even if the investigatory stop were unlawful. However, the district court did not make factual
findings or conclusions of law relevant to determine whether defense counsel provided
ineffective assistance of counsel by failing to file a motion to suppress. Therefore, we vacate the
judgment denying Padilla post-conviction relief, and remand the case to the district court for
further proceedings consistent with this opinion.
       Judge GRATTON and Judge MELANSON CONCUR.




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