               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 42806

STATE OF IDAHO,                                ) 2016 Opinion No. 14
                                               )
       Plaintiff-Appellant,                    ) Filed: February 25, 2016
                                               )
v.                                             ) Stephen W. Kenyon, Clerk
                                               )
BRIAN ELLIS NEAL,                              )
                                               )
       Defendant-Respondent.                   )
                                               )

       Appeal from the District Court of the Second Judicial District, State of Idaho, Nez
       Perce County. Hon. Jeff M. Brudie, District Judge.

       Judgment granting motion to suppress, affirmed.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent. Russell J. Spencer argued.

       Sara B. Thomas, State Appellate Public Defender; Eric D. Fredericksen, Deputy
       Appellate Public Defender, Boise, for appellant. Jenny C. Swinford argued.

                  ________________________________________________

GRATTON, Judge
       The State of Idaho appeals from the district court’s order granting Brian Ellis Neal’s
motion to suppress. We affirm.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       On April 24, 2014, at 12:30 a.m., Neal was stopped for failing to signal when merging,
failing to signal a lane change, and for window tinting darker than allowed by law. Upon
making contact with Neal, the officer advised Neal why he had been stopped and acquired his
Washington driver’s license, vehicle registration, and proof of insurance. Neal’s insurance card
was expired; however, Neal explained that his insurance was up-to-date and a new insurance
card was in the mail. After the exchange, the officer noted that Neal was exhibiting signs of
anxiousness and had a marijuana leaf symbol depicted on his shirt. The officer questioned Neal

                                               1
and then asked to search Neal’s vehicle which Neal refused. The officer informed Neal that he
would be calling a K-9 unit and had Neal step out of his vehicle.
       Twenty minutes later, the K-9 unit arrived and the dog quickly alerted to the odor of
drugs in the vehicle. Neal’s vehicle was then searched without a warrant. The search yielded
drug paraphernalia, two notepads with names and numbers, and $1,677.00 in cash was found in
Neal’s wallet. The officer arrested Neal for possession of drug paraphernalia and transported
him to jail. During the booking process, jail staff found a black sock in Neal’s underwear that
contained a plastic baggy with two substances believed to be heroin and methamphetamine and
pills identified as hydrocodone.
       The State charged Neal with trafficking heroin and possession with the intent to distribute
methamphetamine. Neal filed a motion to suppress the evidence, arguing that it was obtained
through an unlawful search and seizure. After a hearing on the motion, the district court granted
the motion, finding that Neal’s detention was unlawfully extended. The State filed a motion to
reconsider and the district court denied the motion. The State timely appealed.
                                                II.
                                           ANALYSIS
       On appeal, the State argues that the district court erred by granting Neal’s motion to
suppress. 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 Neal contends that both constitutions were violated, he provides no cogent
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, the Court will rely
on judicial interpretation of the Fourth Amendment in its analysis of Neal’s claims. See State v.
Schaffer, 133 Idaho 126, 130, 982 P.2d 961, 965 (Ct. App. 1999).



                                                 2
       The State challenges the district court’s conclusion that the officer unreasonably extended
the length of the traffic stop to allow for the drug investigation and drug dog search. The Fourth
Amendment to the United States Constitution prohibits unreasonable searches and seizures.
Generally, evidence obtained as a result of an unreasonable search or seizure must be suppressed.
Wong Sun v. United States, 371 U.S. 471, 485 (1963). A traffic stop by an officer constitutes a
seizure of the vehicle’s occupants and implicates the Fourth Amendment’s prohibition against
unreasonable searches and seizures. Delaware v. Prouse, 440 U.S. 648, 653 (1979); Atkinson,
128 Idaho at 561, 916 P.2d at 1286. The State may overcome this presumption by demonstrating
that a warrantless search either fell within a well-recognized exception to the warrant
requirement or was otherwise reasonable under the circumstances. State v. Weaver, 127 Idaho
288, 290, 900 P.2d 196, 198 (1995). Typically, seizures must be based on probable cause to be
reasonable.   Florida v. Royer, 460 U.S. 491, 499-500 (1983).         The reasonableness of the
suspicion must be evaluated upon the totality of the circumstances. State v. Ferreira, 133 Idaho
474, 483, 988 P.2d 700, 709 (Ct. App. 1999). The reasonable suspicion standard requires less
than probable cause but more than mere speculation or instinct on the part of the officer. Id.
       The State asserts that the drug investigation was legal because the officer observed facts
that reasonably led him to believe Neal was engaged in illegal drug activity. An 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. Montague, 114 Idaho
319, 321, 756 P.2d 1083, 1085 (Ct. App. 1988). 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 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

                                                 3
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.
       Here, part one of the two-part test has been satisfied because a traffic infraction prompted
the initial traffic stop.   “Under the Fourth Amendment, an officer may stop a vehicle to
investigate possible criminal behavior if there is a reasonable and articulable suspicion that the
vehicle is being driven contrary to traffic laws.” Roe, 140 Idaho at 180, 90 P.3d at 930.
However, the purpose of an investigative stop is not permanently fixed at the moment the stop is
initiated because suspicion of criminality different from that which initially prompted the stop
may evolve. Sheldon, 139 Idaho at 984, 88 P.3d at 1224. After the officer acquired Neal’s
information, his questioning1 and investigation clearly went beyond the scope of a traffic
violation and an expired insurance investigation and extended the duration of the stop.2


1
        The State asserts that, regardless of any drug investigation activities, the officer did not
extend the traffic violation stop. However, we conclude that the officer began the drug
investigation activities upon his initial encounter with Neal and questioned Neal beyond that
which is generally permissible incident to a traffic stop. While certain generalized questions
have been allowed as a matter of routine during traffic stops, the officer’s questions here went
well beyond what is allowed. State v. Hays, 159 Idaho 476, 480, 362 P.3d 551, 555 (Ct. App.
2015) (“Typically, general questioning on topics unrelated to the purpose of the stop is
permissible only ‘so long as [unrelated] inquiries do not measurably extend the duration of the
stop.’” (citation omitted)).
2
       Yount:          OK. How come you’re so anxious here?
       Neal:           I don’t know. You [inaudible] get pulled over, it’s like, you know.
       Yount:          OK.
       Neal:           Makes you seem anxious.
       Yount:          You do seem anxious to me. All the property in the car belongs to
                       you?
       Neal:           Everything.
       Yount:          Any weapons or firearms in the car?
       Neal:           Absolutely not.
       Yount:          OK. Anything illegal in the vehicle?
       Neal:           Absolutely not.
       Yount:          OK. What’s on your shirt there?
       Neal:           Space Needle.
                                                 4
Therefore, we must determine if the officer had reasonable suspicion under the totality of the
circumstances to justify the extended detention.
       In the order granting Neal’s motion to suppress, the district court determined that the
detention of Neal was unlawfully extended. The court found that signs of anxiety, attire, and
refusal to allow the vehicle to be searched were insufficient to establish reasonable suspicion for
a drug investigation. The district court also determined that the officer’s investigative actions


       Yount:         OK. Looks like a marijuana leaf there.
       Neal:          Something like that.
       Yount:         Yeah. Do you promote marijuana?
       Neal:          No, I don’t promote it. I don’t think that it should be illegal, but I
                      don’t take it. I don’t partake. I don’t care either way. It doesn’t
                      matter to me. I like Seattle. I lived there for like 16 years.
       Yount:         OK. Is there any marijuana in the car?
       Neal:          Absolutely not.
       Yount:         OK. And you didn’t have that more current insurance card?
       Neal:          No, it’s in the mail probably. I’m up-to-date.
       Yount:         OK. You still seem to be sweating there in the face.
       Neal:          Yeah, I know it’s cause I’m hot. I got my hat on. Take my hat off.
       Yount:         It’s pretty cool out here.
       Neal:          I know it feels good out there.
       Yount:         So you’re saying that there’s noth . . .
       Neal:          [Inaudible].
       Yount:         You’re saying there’s nothing illegal in the car at all?
       Neal:          No there’s nothing illegal in the car.
       Yount:         And your anxiety is because you got . . .
       Neal:          Yeah. I do take anxiety meds.
       ....
       Yount:         When we finish up here will you let me search your car?
       Neal:          No, no, no I don’t really want you to search my car.
       Yount:         OK. Well, I think, you know, based on how you’re acting I think
                      there’s something in the car you shouldn’t have. Is there any
                      reason a narcotics K-9 will alert to anything?
       Neal:          No. No.
       Yount:         OK. Well I’m gonna go request one come out here.
       Neal:          Alright.
       Yount:         OK. Any paraphernalia or anything?
       Neal:          Nope.
       Yount:         OK. Now you’re starting to breathe heavier.
       Neal:          Sir, you’re giving me the third degree. I don’t have nothing wrong
                      with me.
       Yount:         I’m just asking you simple questions, and you’re beginning to
                      sweat more from your face.
                                                   5
were inconsistent with his articulated basis for the investigation--driving under the influence of
drugs--because while waiting for the K-9 unit, the officer did not call a drug recognition expert,
conduct any drug recognition tests himself, or conduct standard field sobriety tests.3
        The State asserts that the officer was entitled to expand the scope of his investigation into
drug crimes because, based upon his experience and law enforcement training, he believed that
Neal was under the influence of a central nervous system drug. During his encounter with Neal,
the officer testified that he noticed that Neal’s face was wet with sweat, his left leg was bouncing
steadily, he appeared to have difficulty sitting still, and his speech was quick or rapid. A nervous
demeanor during an encounter with law enforcement is of limited significance in establishing the
presence of reasonable suspicion because it is common for people to exhibit signs of nervousness
when confronted with law enforcement regardless of criminal activity. State v. Zuniga, 143
Idaho 431, 435, 146 P.3d 697, 701 (Ct. App. 2006); State v. Gibson, 141 Idaho 277, 285-86, 108
P.3d 424, 432-33 (Ct. App. 2005).4 Each of the attributes attached to Neal’s purported demeanor
are consistent with signs of nervousness and as such, are alone insufficient to establish
reasonable suspicion. Moreover, the district court observed that the videotape of the encounter
did not support the officer’s testimony regarding Neal’s anxious behavior. While the State
disagrees with the district court’s finding, it is supported by the record. Therefore, this Court
accepts the trial court’s finding.
        The State also contends that Neal’s attire contributed to the officer’s reasonable suspicion
that Neal was engaged in illegal drug activity. Neal’s t-shirt depicted a marijuana leaf behind the
Seattle Space Needle.      Idaho case law does not address whether a marijuana leaf on an
individual’s t-shirt is significant or sufficient to establish reasonable suspicion. In State v.
Morfin-Estrada, 283 P.3d 378, 385 (Or. Ct. App. 2012), the court held that appearance alone

3
        We note, further, that when the officer stated to Neal he was going to expand the drug
investigation, it was not due to suspicion of driving under the influence of drugs, but because the
officer thought “there’s something in the car you shouldn’t have.”
4
        The State asserts that Neal’s explanation for his nervousness demeanor is not sufficient
because “the existence of alternative innocent explanations does not necessarily negate
reasonable suspicion.” State v. Danney, 153 Idaho 405, 411, 283 P.3d 722, 728 (2012).
However, the issue is not Neal’s alternative explanation for his nervous behavior. Rather, the
issue is that the behavior he exhibited is consistent with signs of nervousness which have limited
significance in establishing reasonable suspicion.


                                                  6
cannot support reasonable suspicion of criminal activity. The court noted, however, that clothing
may announce gang affiliation. Id. Here, Neal’s clothing may suggest non-opposition to or
support for marijuana use, but by itself does not support reasonable suspicion of current criminal
activity.
        The State notes that the district court failed to consider in its analysis that the events took
place at 12:40 a.m. However, the State offers no further analysis as to why the timing of the stop
is relevant.5 We have previously held that time of day is of little significance in determining
reasonable suspicion. State v. Emory, 119 Idaho 661, 664, 809 P.2d 522, 525 (Ct. App. 1991)
(“the fact that the stop occurred in the early morning hours does not enhance the suspicious
nature of the observation”). The State has not offered a reason why the time of the stop helps to
establish reasonable suspicion.
        During the officer’s investigation, he asked to search Neal’s vehicle. Neal denied the
officer’s request to search, after which the officer informed Neal he intended to have a narcotics
detection canine respond to the scene and had Neal step out of the vehicle. We have not been
directed to any case law that expressly addresses the role that refusal to consent to a search may
play in determining reasonable suspicion for an investigatory stop. However, as we noted in
State v. Aguirre, 141 Idaho 560, 564, 112 P.3d 848, 852 (Ct. App. 2005), a driver has the right to
refuse to consent to a search. It is an individual’s right to refuse the search of his vehicle and
that right would be eviscerated if such refusal could itself give rise to reasonable suspicion,
thereby rendering consent unnecessary.
        While none of these factors alone is sufficient to establish reasonable suspicion, our
analysis must evaluate the totality of the circumstances. The United States Supreme Court has
held that innocent acts, when considered together, can be sufficiently suspicious so as to justify
an investigative detention. United States v. Sokolow, 490 U.S. 1, 9-10 (1989). The factors
known to the officer were Neal’s nervousness, attire, and the time of day, and after substantial
questioning, Neal’s refusal to consent to a search of his automobile. As noted above, none of
these factors alone bears more than little significance in a reasonable suspicion analysis. Taken
together, they still do not support a reasonable suspicion, even considering the officer’s
experience, that Neal was engaged in criminal activity. The sequence of events resembles an

5
       The State’s only reference to the time of day is “[T]he court failed to weigh the fact that
the encounter occurred at 12:40 a.m.”
                                                  7
experienced officer’s “hunch” that something was out of the ordinary, but a hunch is not
sufficient to meet the stringent requirements of the Fourth Amendment. Id. at 7. Absent other
articulable facts that Neal was engaged in criminal activity, the officer’s detainment was
unjustified.6 As such, we hold that the totality of the circumstances were inadequate to create
reasonable suspicion for a drug investigation.
                                                 III.
                                         CONCLUSION
       The facts known by the officer in totality did not support reasonable suspicion that Neal
was engaged in criminal activity. Therefore, the stop was impermissibly extended and the
district court did not commit error in granting Neal’s motion to suppress. Accordingly, the
judgment of the district court is affirmed.
       Chief Judge MELANSON and Judge HUSKEY CONCUR.




6
       The State argues that the officer learned from dispatch of Neal’s drug history and
probation status in Washington, which further supports reasonable suspicion. However, that
information came after the officer improperly extended the stop.
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