               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 45274

STATE OF IDAHO,                                 )
                                                )    Filed: June 14, 2018
       Plaintiff-Respondent,                    )
                                                )    Karel A. Lehrman, Clerk
v.                                              )
                                                )    THIS IS AN UNPUBLISHED
TYSON I. RACEHORSE,                             )    OPINION AND SHALL NOT
                                                )    BE CITED AS AUTHORITY
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Sixth Judicial District, State of Idaho,
       Bannock County. Hon. Robert C. Naftz, District Judge.

       Order denying motion to suppress, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Maya P. Waldron, 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
       Tyson I. Racehorse appeals from the district court’s judgment entered upon Racehorse’s
conditional guilty plea to possession of methamphetamine. Specifically, Racehorse challenges
the denial of his motion to suppress.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Racehorse ordered a “dinner deal bag” from a grocery store deli. He then took an item
off a store shelf and put it in the dinner deal bag, along with two beers. The senior loss
prevention specialist (“specialist”) at the grocery store witnessed these actions. Racehorse began
to exit the store after going through the self-check register and scanning only his dinner deal bag
and one can of beer. At that point, the specialist and another store employee stopped him and
said they needed to discuss the items he failed to pay for. Racehorse cooperated and they went


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to the store business office where Racehorse was asked to empty his pockets.         He removed a
large quantity of cash and a syringe. Specialist also noticed there was a pack of cigarettes in
Racehorse’s jacket pocket. Specialist contacted the police after asking a few questions about the
stolen items.
       An officer arrived and specialist informed him about the stolen items. The officer read
Racehorse his Miranda 1 warnings. Racehorse agreed to talk with the officer and provided
identification. He admitted to concealing one item with the intent of not paying for it, but
claimed the other was an accident. He also claimed the syringe belonged to a family member
who needed it for medical purposes. Racehorse gave the officer permission to search his jacket.
The officer removed the pack of cigarettes and inside found a plastic bag of a substance the
officer believed to be methamphetamine. The officer informed Racehorse he was under arrest.
During the search incident to arrest the officer found another plastic bag in Racehorse’s pocket
containing a substance the officer believed to also be methamphetamine.
       The State charged Racehorse with possession of methamphetamine with the intent to
deliver, Idaho Code § 37-2732(a)(1)(A), and a persistent violator enhancement, I.C. § 19-2514.
Racehorse filed a motion to suppress, which the district court denied. Racehorse entered a
conditional guilty plea, reserving the right to appeal the court’s denial of his motion to suppress.
In exchange for his guilty plea, the State agreed to amend the charge to possession of
methamphetamine, I.C. § 37-2732(c)(1). Racehorse timely appeals.
                                                II.
                                           ANALYSIS
       Racehorse requests this Court reverse the order denying his motion to suppress, vacate
his judgment of conviction, and remand the case for further proceedings. 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).

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       Miranda v. Arizona, 384 U.S. 436 (1966).
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          Racehorse challenges the search conducted by specialist, claiming specialist acted as a
government agent when he had Racehorse empty his pockets. This Court has set forth the
following standards for analyzing private searches:
                  The Fourth Amendment to the United States Constitution prohibits
          unreasonable searches and seizures. It is well established that evidence obtained
          through a private search, even if wrongfully conducted, is not excludable under
          the Fourth Amendment unless government officials instigated the search or
          otherwise participated in a wrongful search. United States v. Jacobsen, 466 U.S.
          109, 113-14, 104 S. Ct. 1652, 1656-57, 80 L.Ed.2d 85, 93-95 (1984); State v.
          Pontier, 103 Idaho 91, 94, 645 P.2d 325, 328 (1982); State v. Kopsa, 126 Idaho
          512, 517, 887 P.2d 57, 62 (Ct. App. 1994). However, where a private party acts
          as an agent of the State in effecting a search, Fourth Amendment protections are
          implicated. United States v. Walther, 652 F.2d 788, 791 (9th Cir. 1981); Kopsa,
          126 Idaho at 517, 887 P.2d at 62. The burden of proving governmental
          involvement in a search conducted by a private citizen rests on the party objecting
          to the evidence. Kopsa, 126 Idaho at 517, 887 P.2d at 62.
                  This Court has noted that there is a “gray area” between the extremes of
          overt governmental participation in a search and the complete absence of such
          participation. Kopsa, 126 Idaho at 517, 887 P.2d at 62. Courts should analyze
          gray area inquiries on a case-by-case basis, referring to certain general principles.
          Id. One such principle is that de minimis or incidental contacts between a citizen
          and law enforcement prior to or during the course of a search do not subject the
          search to Fourth Amendment scrutiny. Id. In order to bring a private citizen’s
          actions within the purview of the Fourth Amendment, the government must be
          involved either directly as a participant or indirectly as an encourager. Id.; see
          also Walther, 652 F.2d at 792 (holding that the presence of law enforcement
          officers who do not take an active role in encouraging or assisting an otherwise
          private search has been held insufficient to implicate Fourth Amendment
          interests, especially where the private party has had a legitimate independent
          motivation for conducting the search); United States v. Gomez, 614 F.2d 643, 645
          (9th Cir. 1979) (concluding that, when a common carrier conducts a search on its
          own initiative and for its own purposes, such a search is normally considered
          private and not governmental in nature and does not give rise to Fourth
          Amendment protections). Thus, when analyzing whether the person conducting
          the search is acting as an instrument or agent of the government, we consider two
          critical factors--whether the government knew of and acquiesced in the intrusive
          conduct and whether the party performing the search intended to assist law
          enforcement efforts or further his or her own ends. Walther, 652 F.2d at 791;
          Kopsa, 126 Idaho at 517, 887 P.2d at 62.
State v. Breese, 160 Idaho 841, 843-44, 379 P.3d 1111, 1113-14 (Ct. App. 2016) (emphasis
added).
          Racehorse acknowledges he did not present evidence that the officer knew of or
acquiesced in specialist’s request that Racehorse empty his pockets. Rather, his argument is that

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specialist intended to aid the government when making the request. His argument is based on
the fact that specialist did not tell Racehorse he could put the items he had removed back into his
pockets. Specialist testified the request to empty Racehorse’s pockets was “[f]or the safety of
myself and other associates and customers, to remove all merchandise and recover all
merchandise that was not paid for and to validate that there is no weapons on the subject, for my
safety and the safety of our employees and customers.” There was no evidence he made the
request to assist law enforcement. Specialist further testified that it is his “standard procedure”
to not instruct someone who is being detained for shoplifting that the items removed from his or
her pockets may be returned to the pockets. He stated, “it’s not something that I do with any
subject ever.” There is substantial and competent evidence to support the district court’s finding
that specialist’s search was not conducted to assist law enforcement; thus, the protections
provided under the Fourth Amendment were not implicated. Racehorse has failed to show the
district court erred in denying his motion to suppress evidence obtained as a result of specialist’s
search.
          Racehorse also alleges the officer exceeded the scope of Racehorse’s consent when he
searched the cigarette pack. A warrantless search conducted pursuant to valid consent does not
violate the Fourth Amendment. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (citations
omitted). Consent is valid if it is free and voluntary. Id. at 225-26. In such instances, the State
has the burden of demonstrating consent by a preponderance of the evidence. State v. Kilby, 130
Idaho 747, 749, 947 P.2d 420, 422 (Ct. App. 1997). The State must show that consent was not
the result of duress or coercion, either direct or implied. Schneckloth, 412 U.S. at 248; State v.
Whiteley, 124 Idaho 261, 264, 858 P.2d 800, 803 (Ct. App. 1993). The voluntariness of an
individual’s consent is evaluated in light of all the circumstances. Whiteley, 124 Idaho at 264,
858 P.2d at 803. Consent to search may be in the form of words, gestures, or conduct. State v.
Knapp, 120 Idaho 343, 348, 815 P.2d 1083, 1088 (Ct. App. 1991). The standard for measuring
the scope of a suspect’s consent under the Fourth Amendment is that of “objective”
reasonableness--what would the typical reasonable person have understood by the exchange
between the officer and the suspect? Florida v. Jimeno, 500 U.S. 248, 251 (1991).
          Racehorse does not challenge the district court’s finding that the officer had valid consent
to search his jacket. He asserts the search of the cigarette pack exceeded the scope of his consent
to search his jacket because he contends the cigarette pack had been removed. Thus, he argues

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that the district court’s factual finding that the cigarette pack was in his jacket is clearly
erroneous. Findings will not be considered clearly erroneous if they are supported by substantial
evidence in the record. State v. Stewart, 145 Idaho 641, 648, 181 P.3d 1249, 1256 (Ct. App.
2008). Racehorse acknowledges that the officer testified the cigarette pack was in the jacket. He
asserts specialist’s testimony on direct examination indicates the pack had been removed; he
specifically points to specialist’s statement that “Mr. Racehorse removed several items. There
was a large quantity of cash, there was a needle . . . there was a pack of cigarettes that was in the
jacket, and . . . after confirming that that was all that was in the jacket, I just set that aside.”
However, Racehorse acknowledges that specialist confirmed the cigarette pack was still in the
jacket on cross-examination.      Racehorse also focuses on testimony of the employee that
accompanied specialist to the store business office with Racehorse. The employee indicated she
thought the cigarette pack had been pulled out of the jacket, but also that she could not remember
whether the officer or specialist removed the cigarette pack. This potential conflicting evidence
does not meet the burden of proving the district court’s finding that the cigarette pack was in the
jacket is clearly erroneous. The district court’s finding is supported by substantial evidence in
the record. As such, Racehorse has failed to show the district court erred in denying his motion
to suppress evidence obtained as a result of the officer’s search of his pack of cigarettes.
                                                 III.
                                          CONCLUSION
       The district court did not err in denying Racehorse’s motion to suppress. Accordingly,
Racehorse’s judgment of conviction is affirmed.
       Judge GUTIERREZ and Judge LORELLO CONCUR.




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