               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 44247

STATE OF IDAHO,                                ) 2017 Opinion No. 28
                                               )
       Plaintiff-Appellant,                    ) Filed: June 9, 2017
                                               )
v.                                             ) Stephen W. Kenyon, Clerk
                                               )
GABBRIELLE RAMONA                              )
ABERASTURI, aka POWELL,                        )
                                               )
       Defendant-Respondent.                   )
                                               )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Richard D. Greenwood, District Judge.

       Order granting motion to suppress, affirmed.

       Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney
       General, Boise, for appellant. Kale D. Gans argued.

       Eric D. Fredericksen, State Appellate Public Defender; Jenny C. Swinford,
       Deputy Appellate Public Defender, Boise, for respondent. Jenny C. Swinford
       argued.
                ________________________________________________

MELANSON, Judge
       The State appeals from the district court’s order granting a motion to suppress evidence.
Specifically, the State argues that the district court erred in finding that the investigative
detention of Gabbrielle Ramona Aberasturi aka Powell was unlawfully extended.            For the
reasons set forth below, we affirm.
       An officer observed Aberasturi’s vehicle parked near a dumpster in a private alley behind
a commercial building. The responding officer also observed Aberasturi in the dumpster and her
acquaintance in the vehicle. It is disorderly conduct and therefore unlawful to loiter, prowl, or
wander upon the private property of another without permission of the owner.
I.C. § 6-01-05(B). The responding officer instructed Aberasturi to get out of the dumpster and


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her acquaintance to exit the vehicle. Less than two minutes later, a second officer arrived. The
responding officer told Aberasturi and her acquaintance to wait while their information was run
through police dispatch. The responding officer returned to his vehicle while the second officer
stayed with Aberasturi and her acquaintance.
       Approximately four minutes after the initial contact was made, a third officer with a
canine arrived and made contact with Aberasturi. Neither the responding officer nor the second
officer requested the canine officer’s assistance.     The canine officer later testified that he
requested Aberasturi’s permission to search her vehicle and that she had consented.            The
responding officer testified that he heard Aberasturi give permission to search her vehicle.
Throughout the investigation, only the second officer used an audio recording device. The
responding officer gave Aberasturi a warning about disorderly conduct, which can be heard on
the second officer’s recording. The district court inferred that the responding officer concluded
his warning when Aberasturi thanked the responding officer.            At some point while the
responding officer gave Aberasturi a warning, the canine officer conducted a canine drug sniff of
Aberasturi’s vehicle. The responding officer and canine officer testified that the canine officer
gestured to the responding officer while he was still warning Aberasturi, which would indicate
that the canine alerted before the responding officer concluded his warning. The audio recording
reveals that over ten minutes passed between the time Aberasturi thanked the responding officer
and the time that Aberasturi was called away from the second officer to discuss the drugs found
in the vehicle. The district court found that the officers’ testimonies conflicted with the audio
recording and were not sufficiently reliable to find that the canine alert occurred before the
responding officer concluded his warning. The district court further found that the purpose of
the investigatory detention for disorderly conduct was effectuated when Aberasturi thanked the
responding officer for his warning. The district court concluded that the State failed to meet its
burden of establishing that probable cause to search arose before the purpose of the initial stop
was effectuated. The district court granted Aberasturi’s motion to suppress evidence obtained as
a result of the search. The State appeals.
       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


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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 determination of whether an investigative detention is reasonable requires a dual
inquiry--whether the officer’s action was justified at its inception and whether it was reasonably
related in scope to the circumstances which justified the interference in the first place. State v.
Roe, 140 Idaho 176, 181, 90 P.3d 926, 931 (Ct. App. 2004); State v. Parkinson, 135 Idaho 357,
361, 17 P.3d 301, 305 (Ct. App. 2000). An investigative detention 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. Sheldon, 139 Idaho 980, 983, 88 P.3d 1220,
1223 (Ct. App. 2003). Such a detention must be temporary and last no longer than necessary to
effectuate the purpose of the stop. Roe, 140 Idaho at 181, 90 P.3d at 931; State v. Gutierrez, 137
Idaho 647, 651, 51 P.3d 461, 465 (Ct. App. 2002). Where a person is detained, the scope of the
detention must be carefully tailored to its underlying justification. Roe, 140 Idaho at 181, 90
P.3d at 931; Parkinson, 135 Idaho at 361, 17 P.3d at 305. In this regard, we must focus on the
intensity of the detention, as well as its duration. Roe, 140 Idaho at 181, 90 P.3d at 931.
       The scope of the intrusion permitted will vary to some extent with the particular facts and
circumstances of each case. Roe, 140 Idaho at 181, 90 P.3d at 931; Parkinson, 135 Idaho at 361,
17 P.3d at 305. Brief inquiries not otherwise related to the initial purpose of the stop do not
necessarily violate a detainee’s Fourth Amendment rights. Roe, 140 Idaho at 181, 90 P.3d at
931. It is the State’s burden to demonstrate that the seizure it seeks to justify on the basis of
reasonable suspicion was sufficiently limited in scope and duration to satisfy the condition of an
investigative detention. Parkinson, 135 Idaho at 361-62, 17 P.3d at 305-06. This Court will not
substitute its view for that of the trier of fact as to the credibility of the witnesses, the weight to
be given to the testimony, and the reasonable inferences to be drawn from the evidence. State v.
Flowers, 131 Idaho 205, 207, 953 P.2d 645, 647 (Ct. App. 1998).
       On appeal, the State’s assertion that the stop was not unlawfully extended rests on the
proposition that the canine alert occurred before the responding officer concluded his warning to


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Aberasturi. The State argues that the district court erred when it concluded that the State failed
to prove whether the canine alert happened before the end of the initial investigation. The State
contends the record demonstrates that the responding officer learned of the canine alert before
the initial investigation was concluded. Specifically, the State points to the officers’ testimonies
that the canine officer indicated to the responding officer that the canine alerted while the
responding officer was warning Aberasturi. The State further insists the district court affirmed
that the responding officer became aware of the canine alert during the responding officer’s
warning.
       While the district court acknowledged the responding officer’s testimony that the canine
alert happened during the warning, the district court appears to have questioned that testimony.
Indeed, the district court found that there were enough discrepancies in the officers’ testimonies
that the district court was not confident that all the details were remembered exactly as they
happened or in the order they occurred. The district court observed that nothing in the second
officer’s recording suggested that the responding officer was aware of the canine alert before the
responding officer concluded his warning to Aberasturi. Because neither the responding officer
nor the canine officer used a recording device, the officers’ testimony was the only evidence
indicating when the canine officer notified the responding officer of the canine alert. A review
of the record, including the second officer’s audio recording, supports the district court’s finding
that the State failed to prove that the canine alert occurred before the initial stop was concluded.
The district court determined that the purpose of the initially valid stop was effectuated when the
responding officer concluded his warning about disorderly conduct to Aberasturi. Thus, the
officers needed reasonable suspicion of future criminal activity to conduct a search of
Aberasturi’s vehicle.
       The district court found that the officers did not have probable cause to search
Aberasturi’s vehicle. The State asserts that the district court applied the incorrect legal standard
by requiring the State to prove probable cause, rather than reasonable suspicion, to search
Aberasturi’s vehicle. While the State is correct that reasonable suspicion of criminal activity
would have been sufficient to extend the scope of the investigatory detention, it is
inconsequential because the district court found that the canine alert gave the officer probable
cause to search Aberasturi’s vehicle. However, because the State could not show that the canine


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alerted prior to the conclusion of the initial stop, reasonable suspicion was not developed during
the course of the valid stop. An investigative detention must be temporary and last no longer
than necessary to effectuate the purpose of the stop. State v. Howell, 159 Idaho 245, 248, 358
P.3d 806, 809 (Ct. App. 2015). Thus, the canine officer unlawfully extended the stop to conduct
a canine search, and any evidence obtained as a result of the unlawful search was fruit of the
poisonous tree. Accordingly, the district court’s order granting Aberasturi’s motion to suppress
is affirmed.
       Judge GUTIERREZ and Judge HUSKEY, CONCUR.




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