               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 43171

STATE OF IDAHO,                                 ) 2016 Opinion No. 46
                                                )
       Plaintiff-Respondent,                    ) Filed: June 30, 2016
                                                )
v.                                              ) Stephen W. Kenyon, Clerk
                                                )
JAMES EDWIN WOLFE,                              )
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. Lansing L. Haynes, District Judge.

       Order denying motion to suppress, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Ben P. McGreevy, Deputy
       Appellate Public Defender, Boise, for appellant.

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

GRATTON, Judge
       James Edwin Wolfe appeals from the district court’s order denying his motion to
suppress. We affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       An officer stopped Joseph Schabow, Jr. (Joseph) for following a motorhome too closely.
When Joseph pulled over, the motorhome he was following also pulled over. While the officer
talked with Joseph, the motorhome’s driver exited the motorhome and approached the officer. In
response, the officer stated: “Hey man, just wait in your car for me, alright? Appreciate it.” The
motorhome’s driver returned to the motorhome.        Joseph told the officer his father, Joseph
Schabow, Sr. (Schabow), was the motorhome’s driver and his cousin, Wolfe, was a passenger in
his father’s motorhome.


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       The officer then contacted Schabow in the motorhome. Schabow stated that he stopped
because Joseph stopped. The officer asked for and obtained Schabow’s driver’s license. The
officer stated: “Understand, I didn’t stop you, but since you stopped I imagine,” at which point
Schabow reiterated he stopped because Joseph stopped. The officer then asked, “Do you have
registration and insurance for the vehicle, if you don’t mind me looking at it, sir?” Schabow
could not locate the paperwork, so he asked the officer to see if Joseph knew the location of the
paperwork. The officer walked back to Joseph’s vehicle and asked Joseph if he knew the
location of the paperwork.
       While Joseph was trying to locate the paperwork, the officer walked back to his patrol
vehicle and explained the situation to two other officers who had arrived at the scene. Schabow
stepped out of the motorhome to tell the officer he had located the paperwork, and the officer
asked Schabow to return to the motorhome. Schabow returned to the motorhome, and the officer
asked the other officers to issue Joseph a ticket for following too closely and run Schabow’s
information. While the other officers performed those tasks, the officer ran his drug dog around
both vehicles. The dog alerted on the motorhome.
       The officers removed Schabow and Wolfe from the motorhome; searched the
motorhome; and located marijuana, methamphetamine, and drug paraphernalia therein. One of
the officers gave Wolfe Miranda1 warnings and Wolfe said he understood his rights. Wolfe then
stated the drugs and paraphernalia belonged to him.
       The State charged Wolfe with possession of a controlled substance, Idaho Code
§ 37-2732(c)(1), and possession of drug paraphernalia, I.C. § 37-2734A. Wolfe moved to
suppress evidence of his statements, the drugs, and the paraphernalia, arguing the officer illegally
seized him without reasonable suspicion when he asked Schabow to wait in the motorhome, and
any evidence obtained after that point was the fruit of an illegal seizure. The district court denied
the motion to suppress. Wolfe timely appeals the denial of his motion to suppress.




1
       See Miranda v. Arizona, 384 U.S. 436 (1966).
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                                                 II.
                                            ANALYSIS
       Wolfe asserts the officer seized him without reasonable suspicion in violation of the
Fourth Amendment.2 He seeks to suppress all evidence resulting from the alleged illegal seizure.
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).
       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). The test to determine if an individual is seized
for Fourth Amendment purposes is an objective one, evaluating whether under the totality of the
circumstances a reasonable person would have believed he was not free to leave. State v.
Henage, 143 Idaho 655, 658-660, 152 P.3d 16, 19-21 (2007). 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, by asking if the individual is willing to answer some questions or by putting
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


2
        A seizure 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. State v.
Sheldon, 139 Idaho 980, 983, 88 P.3d 1220, 1223 (Ct. App. 2003).
                                                  3
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.
       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.
       Wolfe asserts a seizure occurs when an officer orders a person to wait for the officer at a
particular place and the person complies with the order. Thus, Wolfe argues the officer in this
case seized Wolfe when the officer asked Schabow to wait in the motorhome and Schabow
complied. According to Wolfe, the officer seized Wolfe when the officer seized Schabow
because Wolfe was a passenger in Schabow’s vehicle. See State v. Gutierrez, 137 Idaho 647,
650, 51 P.3d 461, 464 (Ct. App. 2002).
       The State conceded to the district court that any seizure of Schabow was also a seizure of
Wolfe. Further, it is clear the officer did not have reasonable suspicion that Schabow committed,
was committing, or was about to commit a crime when the officer asked Schabow to wait in the
motorhome. Thus, the dispositive issue in this case is whether the officer seized Schabow when
the officer asked Schabow to wait in the motorhome.3
       The district court held that under the totality of circumstances the officer’s initial
encounter with Schabow was consensual. According to the court, the officer’s statement to
Schabow consisted of “directions about what [Schabow and Wolfe] could do at [the] scene, but
not prohibitions from those individuals driving off.” Thus, the court found the statement implied
that Schabow and Wolfe could stay at the scene or leave; but if they remained, they should stay
back and not join the conversation between the officer and Joseph.


3
        Wolfe also argues “[t]he taking of Mr. Schabow’s driver’s license was unreasonable
because it came after the illegal seizure.” Wolfe does not argue the taking of Schabow’s driver’s
license alone created an illegal seizure. Thus, Wolfe’s argument is premised on the occurrence
of an illegal seizure when the officer asked Schabow to wait in the motorhome and is therefore
superfluous. Accordingly, we will not consider this argument.
                                                4
       We agree.     The officer stated:     “Hey man, just wait in your car for me, alright?
Appreciate it.” When viewed in isolation, this statement might seem to imply that Schabow was
not free to leave. However, we must examine whether under the totality of the circumstances a
reasonable person in Schabow’s position would have believed he was not free to leave. See
Henage, 143 Idaho at 658-660, 152 P.3d at 19-21. The totality of the circumstances in this case
indicates that the officer’s initial encounter with Schabow was consensual. Schabow voluntarily
stopped his motorhome, exited the motorhome, and approached the officer while the officer was
speaking with Joseph. This behavior expressed Schabow’s desire to become involved in the
conversation between the officer and Joseph. For the officer’s safety, the officer indicated that
Schabow should not join the conversation and asked if Schabow would remain in his
motorhome. The officer expressed a willingness to address Schabow’s concerns by asking
Schabow to wait in his motorhome until the officer completed his conversation with Joseph.
Thus, the officer’s statement did not imply Schabow was not free to leave. Rather, it implied
that if Schabow wished to remain at the scene and discuss his concerns with the officer (as
Schabow had indicated), Schabow should wait in his motorhome until the officer could come
speak with Schabow.       The officer’s subsequent conversation with Schabow confirms this
interpretation of the officer’s initial statement to Schabow. The officer stated: “Understand, I
didn’t stop you, but since you stopped I imagine,” and Schabow expressed that he was Joseph’s
father and he stopped because Joseph stopped, not because of any action by the officer. Thus,
Schabow understood that the officer had not seized him. Additionally, the officer was the only
officer at the scene when he initially made contact with Schabow and did not display his weapon,
make any physical contact, or use a tone of voice indicating compliance with his requests might
be compelled. Rather, the officer kept the situation light and maintained a respectful, agreeable
tone throughout the encounter. Thus, we are not convinced the officer’s mere choice of words
converted the voluntary encounter between the officer and Schabow into a seizure. Accordingly,
the district court correctly held that, under the totality of the circumstances, the officer’s initial
encounter with Schabow was consensual. Because the officer’s initial encounter with Schabow
was consensual, Wolfe is not entitled to suppression of any evidence resulting from the alleged
seizure and the district court correctly denied his motion to suppress.




                                                  5
                                             III.
                                       CONCLUSION
       The officer’s initial encounter with Schabow was consensual. The district court’s order
denying Wolfe’s motion to suppress is affirmed.
       Judge GUTIERREZ and Judge HUSKEY CONCUR.




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