               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 46857

STATE OF IDAHO,                                )
                                               )    Filed: May 19, 2020
       Plaintiff-Respondent,                   )
                                               )    Karel A. Lehrman, Clerk
v.                                             )
                                               )    THIS IS AN UNPUBLISHED
SHELAINA DANYELL NEIMEYER,                     )    OPINION AND SHALL NOT
                                               )    BE CITED AS AUTHORITY
       Defendant-Appellant.                    )
                                               )

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

       Judgment of conviction for possession of methamphetamine, possession of
       marijuana, and possession of drug paraphernalia, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Ben P. McGreevy, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Andrew V. Wake, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

BRAILSFORD, Judge
       Shelaina Danyell Neimeyer appeals from her judgment of conviction for possession of
methamphetamine, Idaho Code § 37-2732(c)(1); possession of marijuana, I.C. § 37-2732(c)(3),
and possession of drug paraphernalia, I.C. § 37-2734A. Neimeyer contends the district court
erred in denying her motion to suppress. We affirm.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       Neimeyer does not dispute the following factual findings in the district court’s decision
denying her motion to suppress:
               On August 5, 2018 at approximately 2:00 a.m., Officers Thompson and
       Comeau were dispatched to conduct a welfare check in the parking lot of [a local
       gas station] in Twin Falls, Idaho. An employee of the gas station had called the

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police about a car that had been parked in the gas station’s parking lot for over an
hour with a female occupant inside[, later identified as Neimeyer]. [Neimeyer]
had not moved from the vehicle for over a half hour and had been in the gas
station earlier purchasing alcohol.
          When Officers Thompson and Comeau arrived on scene their police
vehicles did not have their emergency lights on. Officers Thompson and Comeau
parked their vehicles several dozen feet behind [Neimeyer’s] vehicle. The
officers approached [Neimeyer’s] vehicle with their flashlights illuminated, but
they did not draw their weapons. Officer Thompson approached the driver side
window of [Neimeyer’s] vehicle while Officer Comeau approached on the
passenger side.
          As Officer Thompson approached the driver side window of [Neimeyer’s]
vehicle he observed that the vehicle’s lights were on and that the key was in the
ignition. Officer Thompson asked [Neimeyer] for identification and asked her
why she had been in the parking lot for so long. [Neimeyer] explained that she
had purchased items for a friend at the gas station and had not left yet because she
had been on the phone. Officer Thompson asked if [Neimeyer] had been drinking
and [Neimeyer] responded that she had not been. There was an alcoholic
beverage can in the center console cup holder, but [Neimeyer] explained that the
can was empty and was merely being used as an ashtray. Officer Thompson
asked about [Neimeyer’s] plans and if there was anything the officers could do for
[Neimeyer]. [Neimeyer] responded that she was going to go home and that there
was nothing the officers could do for her. [Neimeyer] remarked that she wanted
to throw away the can that was being used as an ashtray.
          At the time Officer Comeau stated “there’s some Fireball right there.”
Officer Comeau was referencing a bottle of alcohol located in the passenger area
of the vehicle. The seal on the bottle had been broken and the bottle was only
partially full. [Neimeyer] grabbed the bottle and moved it to the back seat of the
vehicle, remarking that she could now travel with the bottle stored on the back
seat. Officer Thompson indicated that [Neimeyer] was correct in stating that the
bottle could be transported closed in the back seat.
          Officer Comeau then asked about a small black container located on the
passenger seat. [Neimeyer] stated that the container was empty and had contained
“film and stuff . . . from years and years ago.” Officer Comeau asked if
[Neimeyer] could show the contents of the container to Officer Thompson.
[Neimeyer] protested by stating, “Do I really got to? I mean, I haven’t done
anything wrong.” Officer Thompson responded by stating, “Well, we have
alcohol in the vehicle now . . . .” [Neimeyer] then offered to “do a test,” which
[the district court took] to mean a sobriety test based on the context of the
conversation. Officer [Thompson] then stated, “That’s fine. What’s inside of
the . . .” at which point [Neimeyer] opened the container and showed the contents
to Officer Thompson.
          Officer Thompson stated in his affidavit and at hearing that he
immediately smelled the odor of marijuana, which he is familiar with through his
training and experience. When Officer Thompson shined his flashlight into the
container he also stated in his affidavit and at hearing that he observed a green

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       leafy substance that he recognized as marijuana through his training and
       experience as a police officer. After opening the container quickly [Neimeyer]
       then closed the container and put it in her purse.
               At that point, Officer Thompson asked [Neimeyer] to step out of the
       vehicle. The Defendant did so, but took her purse with her. [Neimeyer] was
       placed in handcuffs. Officer Thompson explained that [Neimeyer] was being
       detained because of the alcohol found in the vehicle, the possibility that she was
       under the influence of something, and for the marijuana in the small container.
       Officer [Thompson] then searched [Neimeyer’s] purse, in which he found the
       black container, which contained a glass end to vape with green and brown
       residue at the end. In addition, the purse contained small clear baggies containing
       a green leafy substance which Officer Thompson recognized as marijuana, a small
       amount of the green leafy substance in the black container, and a zip pouch
       containing a clear glass pipe with white and brown residue, which Officer
       Thompson suspected to be used to smoke methamphetamine. Also in the pouch
       were two plastic baggies containing white residue, which Officer Thompson
       recognized as methamphetamine, and a small gray pick, which Officer Thompson
       suspected to be used to clean residue out of pipes used in the smoking of
       methamphetamine and marijuana.
               Officer Thompson then informed [Neimeyer] that she was under arrest for
       possession of methamphetamine and [Neimeyer] was transported by Officer
       Comeau to the Twin Falls County Jail for booking. Officer Thompson stayed at
       the scene to conduct an inventory search of the vehicle, so that the vehicle could
       be towed. During the inventory search Officer Thompson found a white case,
       which contained a clear plastic baggie with white and brown particles inside.
       Officer Thompson placed the baggie into an evidence bag for later testing. After
       the inventory of the vehicle was complete, the vehicle was turned over to the
       towing company.
               At the police station, Officer Thompson used a NARK II testing kit on the
       clear glass pipe and the baggie from the white case in the back seat of the vehicle.
       Both items tested a presumptive positive for methamphetamine. Officer
       Thompson also tested the green leafy substance in the black container with a
       NARK II testing kit, which tested a presumptive positive for marijuana. All items
       were sent to the state lab for further testing.
       As a result of this incident, the State charged Neimeyer with possession of
methamphetamine, marijuana, and drug paraphernalia. Neimeyer filed a motion to suppress,
arguing the officers lacked probable cause to search the small black container.               At the
suppression hearing, Officer Thompson testified that when he approached Neimeyer’s vehicle,
he suspected Neimeyer had an open container of alcohol in violation of Twin Falls City Code
Section 6-2-6.
       The district court issued a written decision denying Neimeyer’s motion to suppress. The
court ruled that the encounter “began as a care taking interaction” and that once Officer Comeau


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“observed the bottle of alcohol in the passenger area of the vehicle, the interaction became
investigatory.” Despite the encounter’s investigatory nature, the court ruled the entire interaction
between the officers and Neimeyer was consensual until they handcuffed Neimeyer. The court
further ruled that Neimeyer’s consent was not rendered invalid by Officer Thompson’s statement
implying he could arrest Neimeyer for having an open container of alcohol in the vehicle. In
support of this ruling, the court quoted Section 6-2-6; 1 ruled that the officers had probable cause
under this ordinance to arrest Neimeyer for having an open container of alcohol in the vehicle;
and as a result, ruled that Officer Thompson’s statement about alcohol in the vehicle did not
render Neimeyer’s consent invalid. Finally, the court ruled that, even if Neimeyer did not
voluntarily consent to opening the black container, the search was valid under the inevitable
discovery doctrine.
       After the district court’s ruling, Neimeyer entered a conditional guilty plea, reserving her
right to appeal the court’s denial of her motion to suppress. Neimeyer timely 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
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).




1
       The Twin Falls City Code is published on the City’s website. Section 6-2-6(A) provides:
       No person shall have in his possession or on his person while occupying, riding
       in, riding on, or driving a motor vehicle whether upon a highway, street, or bridge
       or upon public property or private property open to public use, excluding public
       parks, any bottle, can, or other receptacle which is open, has been opened or the
       seal of which has been broken, and which contains any alcoholic beverage. The
       transportation of an alcoholic beverage in a vehicle outside of the passenger
       compartment shall not be a violation of this section.
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                                               III.
                                           ANALYSIS
        Neimeyer contends the district court erred by relying on Section 6-2-6 to deny her motion
to suppress. Neimeyer argues the court’s conclusion that “[she] voluntarily consented to the
search of the small black container was clearly erroneous[] because the officers implied they had
probable cause to arrest and search her, even though [S]ection 6-2-6 provided no legal basis to
do so,” thereby rendering her consent involuntary. Neimeyer’s assertion that Section 6-2-6 did
not provide a legal basis to arrest her is premised on her contention that the State had the burden
to prove the existence of Section 6-2-6 at the suppression hearing but failed to do so and that, as
a result, the court lacked authority to rely on this city ordinance to conclude the officers had
probable cause to arrest her and, thus, to inquire about the container’s contents without rendering
her consent invalid. 2
        As an initial matter, the State argues Neimeyer did not object to the district court
judicially noticing Section 6-2-6 and, thus, failed to preserve this issue for appeal. Generally,
issues not raised below may not be considered for the first time on appeal. State v. Fodge, 121
Idaho 192, 195, 824 P.2d 123, 126 (1992). “[T]he parties [on appeal] will be held to the theory
upon which the case was presented to the lower court.” State v. Garcia-Rodriguez, 162 Idaho
271, 275, 396 P.3d 700, 704 (2017).
        An exception to this rule exits, however, if “the issue was argued to or decided by the
trial court.” State v. DuValt, 131 Idaho 550, 553, 961 P.2d 641, 644 (1998). In this case,
Neimeyer argued the officers did not have probable cause to search the black container. The
district court ruled that the officers did have probable cause to arrest Neimeyer once Officer
Comeau saw an open bottle of alcohol in the passenger compartment of Neimeyer’s vehicle in
violation of Section 6-2-6 and, as a result, he could inquire about the container’s contents
without rendering Neimeyer’s consent invalid. Because the court sua sponte took judicial notice
of Section 6-2-6 to rule probable cause existed, the issue of whether the court had authority to

2
        Neimeyer characterizes the district court’s reliance on Section 6-2-6 as making clearly
erroneous “factual findings on the content of [S]ection 6-2-6.” Whether the court may rely on
Section 6-2-6, however, raises an issue of judicial notice. State v. Doe, 146 Idaho 386, 389, 195
P.3d 745, 748 (Ct. App. 2008) (“Judicial notice is a mechanism enabling a judge to excuse the
party having the burden of establishing a fact from producing formal proof of that fact.”); see
also I.C. § 9-101 (listing facts of which court may take judicial notice); I.R.E. 201 (providing
court may judicially notice fact not subject to reasonable dispute).
                                                5
take judicial notice of and rely on the ordinance is preserved for appeal. See DuValt, 131 Idaho
at 553, 961 P.2d at 644 (ruling issue preserved for appeal if decided by trial court). Accordingly,
we address the merits of Neimeyer’s argument.
       Neimeyer relies on Idaho case law that provides an officer’s inaccurate representation
about his ability to obtain a search warrant renders a defendant’s consent involuntary. See, e.g.,
State v. Smith, 144 Idaho 482, 489, 163 P.3d 1194, 1201 (2007) (“[A] false or erroneous
representation by police regarding the right to obtain a warrant weighs against a finding of
voluntariness.”) Based on this authority, Neimeyer contends the officers did not have probable
cause “on this record” to arrest her because “the existence of a city ordinance is a factual
question the trier of fact must prove” and the State never proved the existence of Section 6-2-6.
In support of her proposition that the State had the burden to prove Section 6-2-6’s existence,
Neimeyer relies on Marcher v. Butler, 113 Idaho 867, 749 P.2d 486 (1988).
       In Marcher, the plaintiff filed a premise liability action against the owner of a two-story
condominium after the plaintiff fell down the stairs. Id. at 868, 749 P.2d at 487. The owner
moved for summary judgment, and in response, the plaintiff “tersely mentioned a violation of the
Blaine County Building Code, but failed to attach a copy of that ordinance.” Id. The district
court granted summary judgment for the owner. Id. On appeal, the plaintiff argued the court
should have taken judicial notice of the ordinance. Id. at 869, 749 P.3d at 488. The Idaho
Supreme Court rejected this argument, concluding Marcher failed to supply the ordinance to the
court and her “offhand” mention of the ordinance was insufficient to require the court to
judicially notice the ordinance. Id. at 870, 749 P.3d at 489. After concluding the court did not
err by failing to judicially notice the ordinance, the Court noted in dicta that courts may not take
judicial notice of ordinances:
       [T]here appears to be some authority for the proposition that courts may not take
       judicial notice of municipal ordinances. Section 9-101 of the Idaho Code deals
       with judicial notice of legislative facts. It states in relevant part: “Courts take
       judicial notice of the following facts: . . . public and private official acts of the
       legislature, executive and judicial departments of this state and of the United
       States.” Inasmuch as this statute only permits a court to take judicial notice of
       legislative acts, it follows that the court may not take judicial notice of city
       ordinances or of the various codes adopted under them. Such matters must be
       proved.
Id.



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       This dicta in Marcher is inconsistent with the Idaho Supreme Court’s decision in City of
Lewiston v. Frary, 91 Idaho 322, 420 P.2d 805 (1966). In that case, a police court convicted the
defendants of violating a city ordinance. Id. at 324, 42 P.2d at 807. On an intermediate appeal,
the district court likewise convicted the defendants after a de novo trial. Id. On appeal to the
Idaho Supreme Court, the defendants argued the prosecution failed to plead and prove the
ordinance they violated thereby requiring a reversal of their convictions. Id. The Court rejected
this argument. It noted that “usually local courts will take judicial notice of ordinances in force
within their respective jurisdictions, and where this is the case, a reviewing court may take
judicial notice of an ordinance judicially noticed in the court below in the same proceedings.”
Id. at 326, 42 P.2d at 809 (internal quotation marks omitted). Further, the Court noted that “it
must be remembered that the statutory rule, I.C. [§] 9-101, is not exclusive and is not one of
limitation. Facts within common knowledge are not mentioned in the statute, yet universally
such facts are judicially noticed by the courts.” Id. at 325, 42 P.2d at 808; see also Idaho Rule of
Evidence 201 (“The court may judicially notice a fact that is not subject to reasonable dispute
because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be
accurately and readily determined from sources whose accuracy cannot reasonably be
questioned.”). Accordingly, the Court held that “the police court was required to take judicial
notice of the ordinance . . . and that the district court on trial de novo on appeal properly took
judicial notice of the ordinance.” Frary, 91 Idaho at 328, 42 P.2d at 811.
       This Court in State v. Doe, 146 Idaho 386, 389, 195 P.3d 745, 748 (Ct. App. 2008),
addressed the conflict between Marcher and City of Lewiston and rejected the dicta in Marcher
as controlling: “the Court’s discussion in Marcher was dicta and should not be considered as
having altered or overruled sub silentio the rule established by the Court’s earlier decision in City
of Lewiston.” The Idaho Supreme Court’s decision in Lowery v. Bd. of Cty. Comm’rs for Ada
County, 115 Idaho 64, 764 P.2d 431 (1988), supports this Court’s rejection of the dicta in
Marcher. Lowery issued after Marcher, did not cite Marcher but instead relied on City of
Lewiston to conclude that “although not included in the record, we can take judicial notice of city
and county ordinances.” Lowery, 115 Idaho at 69, 764 P.2d at 436. Based on these authorities,
we hold that the district court properly took judicial notice of Section 6-2-6 to rule that the
officers had probable cause to arrest Neimeyer for having an open container of alcohol in the
vehicle’s passenger compartment.

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       Neimeyer’s only specific challenge to the district court’s ruling that she consented to the
search of the black container is her assertion the court could not judicially notice Section 6-2-6.
Because this assertion fails and because substantial evidence otherwise supports the court’s
ruling, we hold the court did not err by concluding Neimeyer consented. As a result, we do not
need to address Neimeyer’s argument that the inevitable discovery doctrine is inapplicable.
                                               IV.
                                        CONCLUSION
       The district court properly took judicial notice of Section 6-2-6 and substantial evidence
supports its ruling that Niemeyer consented to the search of the black container. Accordingly,
we affirm Neimeyer’s judgment of conviction and the denial of her motion to suppress.
       Chief Judge HUSKEY and Judge LORELLO CONCUR.




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