               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                  Docket Nos. 39462 & 39463

STATE OF IDAHO,                                 )      2013 Unpublished Opinion No. 498
                                                )
       Plaintiff-Respondent,                    )      Filed: May 21, 2013
                                                )
v.                                              )      Stephen W. Kenyon, Clerk
                                                )
TORREY LEE FRIEDRICH,                           )      THIS IS AN UNPUBLISHED
                                                )      OPINION AND SHALL NOT
       Defendant-Appellant.                     )      BE CITED AS AUTHORITY
                                                )

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

       Judgments of conviction and sentences for felony driving under the influence and
       grand theft, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
MELANSON, Judge
       Torrey Lee Friedrich appeals from his judgments of conviction and sentences for felony
driving under the influence (DUI) and grand theft. For the reasons set forth below, we affirm.
                                               I.
                                 FACTS AND PROCEDURE
       On December 1, 2010, Friedrich was detained and arrested in his driveway. Friedrich
was charged with felony DUI. I.C. §§ 18-8004, 18-8005(6). Friedrich filed a motion to suppress
evidence, which the district court denied. As the DUI case (Docket No. 39462) was proceeding,
Friedrich was charged with grand theft by possession of stolen property (Docket No. 39463).
I.C. §§ 18-2403(4), 18-2407(1). Pursuant to a plea agreement, Friedrich entered guilty pleas to
felony DUI and grand theft and additional charges were dismissed. The district court sentenced
Friedrich to concurrent unified terms of ten years, with minimum periods of confinement of three



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years. Friedrich appeals, challenging the district court’s denial of his motion to suppress in the
DUI case and asserting the district court imposed excessive sentences in both cases.
                                                II.
                                           ANALYSIS
A.     Motion to Suppress
       Friedrich argues that the district court erred by denying his motion to suppress in the DUI
case. Specifically, Friedrich asserts the arresting officer lacked reasonable suspicion to initiate
the warrantless detention of Friedrich and, therefore, violated his rights under both the Idaho and
United States Constitutions.
       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). Although Friedrich contends both constitutions were violated, he
provides no reason why Article I, Section 17 of the Idaho Constitution should be applied
differently than the Fourth Amendment to the United States Constitution in this case. Therefore,
we will rely on judicial interpretation of the Fourth Amendment in our analysis of Friedrich’s
claims. See State v. Schaffer, 133 Idaho 126, 130, 982 P.2d 961, 965 (Ct. App. 1999). The
Fourth Amendment safeguards citizens against unreasonable searches and seizures. When the
purpose of a detention is to investigate a possible traffic offense or other crime, it must be based
upon reasonable, articulable suspicion of criminal activity. State v. Gutierrez, 137 Idaho 647,
650, 51 P.3d 461, 464 (Ct. App. 2002). Reasonable suspicion requires less than probable cause
but more than speculation or instinct on the part of the officer. State v. McCarthy, 133 Idaho
119, 124, 982 P.2d 954, 959 (Ct. App. 1999). The reasonableness of the suspicion must be
evaluated upon the totality of the circumstances at the time of the stop, and the whole picture
must yield a particularized and objective basis for suspecting that the individual being stopped is
or has been engaged in wrongdoing. State v. Stevens, 139 Idaho 670, 672, 84 P.3d 1038, 1040
(Ct. App. 2004); State v. Sevy, 129 Idaho 613, 615, 930 P.2d 1358, 1360 (Ct. App. 1997). An


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officer may draw reasonable inferences from the facts in his or her possession, and those
inferences may be drawn from the officer’s experience and law enforcement training. State v.
Roe, 140 Idaho 176, 180, 90 P.3d 926, 930 (Ct. App. 2004).
       In this case, the officer who detained and arrested Friedrich testified at the hearing on
Friedrich’s motion to suppress. The officer explained that, about a week prior to making the
arrest, he and another officer attempted to conduct a traffic stop of a vehicle. Because of slick
and snowy road conditions, it took the officers some time to turn the patrol car around. By the
time the officers caught up to the vehicle they wanted to stop, the vehicle had turned into a
subdivision and the driver had parked and departed on foot. The officer testified that he and the
other officer followed footprints in the snow for about an hour but were unable to locate the
driver of the vehicle. The officer stated that it was discovered the vehicle was registered to
Friedrich and a driver’s license status check revealed Friedrich’s license was suspended. The
officer testified that, some time later, he was informed at a unit briefing that a sergeant had a
discussion with Friedrich about the suspended license. The sergeant explained that Friedrich
informed the sergeant during that discussion that Friedrich was the person who had been driving
the vehicle the night the officers attempted to conduct the traffic stop. The sergeant provided
Friedrich’s address. The officer explained that, thereafter, on December 1, 2010, the officer
drove by Friedrich’s residence to see if his vehicle was there. Because Friedrich’s vehicle was
not there, the officer decided to park down the road to watch and see if Friedrich would return.
The officer testified as follows:
                [COUNSEL] And did you at any point notice any vehicles that caught
       your attention after you set up to try to watch for Mr. Friedrich?
                [OFFICER] Yes, I did.
                [COUNSEL] What vehicle--could you describe the vehicle that you saw,
       and what about the vehicle drew your attention to it?
                [OFFICER] Well, it was coming northbound on Upland from Seneca.
       As the vehicle was heading northbound, I noticed it fishtailed a couple of times,
       and then it turned into the driveway that I knew was very close to, if not the
       driveway, of where [Friedrich] was living.
                [COUNSEL] From your vantage point, could you see what the vehicle
       itself looked like?
                [OFFICER] From where I was sitting, I was pretty sure it was his, but it
       was dark out. All I had was the headlights and the turn signal lights.
                [COUNSEL] So not certainly, but did it--not with absolute certainty, you
       couldn’t tell it was his, but--
                [OFFICER] Correct.


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                [COUNSEL] --based on your prior knowledge of what his vehicle looked
       like and the vehicle that you saw at that point driving northbound on Upland, did
       it appear to match the description of Mr. Friedrich’s vehicle?
                [OFFICER] It did appear to, yes.
                [COURT]          Okay. So this is the SUV that was off the side of the road?
                [OFFICER] Yes.
                [COURT]          Oh, okay.
                [OFFICER] From the previous week.
                [COURT]          Oh, from the previous week.
                [OFFICER] Well, I mean, that’s how I knew his vehicle. That’s how I
       was familiar with his vehicle was from the previous week.
                [COURT]          Okay.
                [COUNSEL] So--
                [COURT]          So you saw [Friedrich’s] car coming up to his place?
                [OFFICER] Yes.
                        ....
                [COUNSEL] Based on your observations of the fishtailing and your
       belief that he was operating the vehicle without a license, what steps did you take
       at that time?
                [OFFICER] I pulled up into his driveway behind his vehicle and
       initiated a traffic stop.
                [COUNSEL] When you initiated the traffic stop, did you make contact
       with the driver of the vehicle?
                [OFFICER] I did.
                [COUNSEL] And who was the driver of that vehicle?
                [OFFICER] It was [Friedrich].

       During cross-examination, the officer testified that he was “pretty sure that it was Mr.
Friedrich driving the vehicle,” but admitted he was not completely certain the vehicle had pulled
into Friedrich’s driveway. The officer also testified that, once he saw the vehicle enter the
driveway, the officer pulled out from his parking spot, drove into the driveway behind the
vehicle, activated his overhead emergency lights, turned on a spotlight, and recognized and
approached Friedrich. The officer talked to Friedrich about the suspended driver’s license while
Friedrich was still in his vehicle. The officer explained that, at that point, he developed concern
that Friedrich had been drinking alcohol. Specifically, the officer could smell a strong odor of an
alcoholic beverage and saw a crushed can of beer behind the passenger seat. Based upon these
observations and because of the snowy and slick conditions, the officer escorted Friedrich to jail
to conduct standard field sobriety tests, which Friedrich failed.       A subsequent breath test
indicated Friedrich’s breath alcohol concentration was above the legal limit.



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       Friedrich asserts the officer did not have any information at or before the time the officer
initiated the warrantless detention of Friedrich that would give the officer reasonable suspicion to
believe the driver of the vehicle was not licensed. Specifically, Friedrich asserts that, because
the officer admitted he could not identify the vehicle or the driver with complete certainty until
he pulled up to Friedrich’s driveway with his emergency lights activated, he could not have
reasonably based his decision to detain the driver based on knowledge that the driver had a
suspended license. Therefore, Friedrich concludes the warrantless detention was illegal and
violated both the Idaho and United States Constitutions. However, as explained above, complete
certainty is not what is required. While reasonable suspicion requires more than speculation or
instinct on the part of the officer, an officer may draw reasonable inferences from known facts.
Here, the officer knew where Friedrich lived and what his vehicle looked like from the encounter
with the vehicle the week prior to Friedrich’s arrest. The officer also knew from that encounter
that Friedrich had been driving that vehicle with a suspended driver’s license. While the officer
was not completely certain that the vehicle pulled into Friedrich’s driveway or was Friedrich’s
vehicle being driven by Friedrich, given the specific articulable facts in the officer’s possession
and the totality of the circumstances at the time of the stop, it was reasonable for the officer to
draw those inferences. We conclude that, taken together, these objective and specific articulable
facts justified the suspicion that Friedrich was engaged in driving with a suspended license.
Therefore, the district court did not err by denying Friedrich’s motion to suppress evidence in the
DUI case.
B.     Excessive Sentences
       Friedrich argues the sentences imposed by the district court for felony DUI and grand
theft were excessive because they were imposed without sufficient consideration of mitigating
factors present in this case. An appellate review of a sentence is based on an abuse of discretion
standard. State v. Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a
sentence is not illegal, the appellant has the burden to show that it is unreasonable and, thus, a
clear abuse of discretion. State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A
sentence may represent such an abuse of discretion if it is shown to be unreasonable upon the
facts of the case. State v. Nice, 103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of
confinement is reasonable if it appears at the time of sentencing that confinement is necessary
“to accomplish the primary objective of protecting society and to achieve any or all of the related


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goals of deterrence, rehabilitation or retribution applicable to a given case.” State v. Toohill, 103
Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the
sentencing court imposed an excessively harsh sentence, we conduct an independent review of
the record, having regard for the nature of the offense, the character of the offender, and the
protection of the public interest. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct.
App. 1982). When reviewing the length of a sentence, we consider the defendant’s entire
sentence. State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007).
       The record in this case reveals Friedrich has an extensive criminal record and history of
parole violations. Indeed, in sentencing Friedrich, the district court stated:
                Well, Mr. Friedrich, the reality is, you are coming before the court on a
       fifth felony, and you have multiple misdemeanors on your record, and you have a
       juvenile record, and so the evidence in this file is--doesn’t back up a person that
       the court should have confidence about.
                The evidence in the file is also that you were paroled multiple times, and
       you violated your parole multiple times. So the evidence--the honest truth is, the
       evidence is not there to back up what you are saying, that you see things
       differently.
                ....
                But the evidence is, also, I think, pretty persuasive. You have a history of
       burglarizing and selling what you steal to buy drugs, and you topped out on your
       sentence in May of 2010.
                You pick up all sorts of misdemeanors in between, and then you pick up
       these offenses pretty quickly, same kind of offenses you had before. So, I mean,
       the reality--the truth is, the evidence isn’t there.
                ....
                Now, I think that the DUI in this case is certainly part of a longstanding
       pattern. Clearly, the truth is, if you look at your DUI record, you could say the
       truth is that you don’t know when you have had too much, like lots of people who
       drink too much, you don’t have a clue when you are over the limit, because that’s
       the proof that’s there in black and white, based on how many DUIs you have.
                As far as the thefts go, you’ve got a big pattern of that. . . .
                ....
                What I’m going to do in this case--of course, I’m signing an order of
       restitution. I’m going to impose a sentence in each of these cases of three years
       fixed, followed by seven years indeterminate, for a ten-year sentence.
                I will recommend the Therapeutic Community, because with the credit
       you’ve got for time served, I think that would be an option if you were really
       serious about working on changing directions, because I think this is the better
       way to get at it.




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Having reviewed the record in these cases, we cannot say the district court abused its discretion
by sentencing Friedrich to concurrent unified terms of ten years, with minimum periods of
confinement of three years.
                                              III.
                                        CONCLUSION
       The district court did not err by denying Friedrich’s motion to suppress evidence in the
DUI case and did not err by imposing concurrent unified terms of ten years, with minimum
periods of confinement of three years. Accordingly, Friedrich’s judgments of conviction and
sentences for felony DUI and grand theft are affirmed.
       Chief Judge GUTIERREZ and Judge LANSING, CONCUR.




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