                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                                Docket No. 46973


STATE OF IDAHO,                                       )
                                                      )        Boise, August 2019 Term
         Plaintiff-Respondent,                        )
                                                      )        Opinion Filed: October 7, 2019
v.                                                    )
                                                      )        Karel A. Lehrman, Clerk
GILBERT ALEXANDER GONZALES, JR.,                      )
                                                      )
         Defendant-Appellant.                         )
                                                      )

       Appeal from the District Court of the First Judicial District of the
       State of Idaho, Kootenai County. Lansing L. Haynes, District Judge.

       The District Court’s order denying Gonzales’ motion to suppress is
       reversed. Accordingly, the judgment of conviction is likewise vacated.

       Eric D. Frederickson, Idaho State Appellate Public Defender, Boise,
       attorney for Appellant. Jenevieve C. Swinford argued.

       Lawrence G. Wasden, Idaho Attorney General, Boise, attorney for
       Respondent. John C. McKinney argued.
                    _____________________________________

BEVAN, Justice
                                     I. NATURE OF THE CASE
       Gilbert Gonzales, Jr., appeals the district court’s order denying his motion to suppress
evidence obtained following a warrantless seizure. Gonzales was arrested and charged with
possession of methamphetamine and introducing or attempting to introduce methamphetamine
into a correctional facility. Gonzales moved to suppress, asserting the warrantless seizure was
without legal justification and the evidence obtained was fruit of that illegality. The district court
denied the motion after finding the seizure was lawful. The Court of Appeals reversed the district
court’s order denying the motion to suppress. This Court granted the State’s petition for review.
We now reverse the district court’s order denying Gonzales’ motion to suppress and vacate the
judgment of conviction.

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                              II. FACTUAL AND PROCEDURAL BACKGROUND
         At about 1:30 a.m. on March 3, 2017, Officer Joseph Scholten of the Coeur d’Alene
Police Department was patrolling a shared parking lot between the La Quinta Inn & Suites and
Shari’s Restaurant. Both businesses were open. During his patrol, Officer Scholten observed a
black Chevy Blazer parked in a dark area between the two businesses. Soon after, Officer
Scholten observed a woman exit the vehicle and walk toward the La Quinta entrance. Officer
Scholten recognized this woman from recent criminal investigations as Arielle Padel. Officer
Scholten was familiar with Padel because she had recently reported her vehicle as stolen from an
associate and later reported her vehicle had not been stolen. Additionally, Officer Scholten knew
that Padel, among other associates, was suspected of firearm thefts in the area.
         Based on the time of Padel’s presence in the parking lot, the location of her vehicle in the
darkened area, and his familiarity with Padel, Officer Scholten exited his patrol car and tried to
speak with Padel. Padel made it clear she did not want to talk and continued to walk toward the
La Quinta entrance. Officer Scholten found Padel’s behavior abnormal and suggestive of Padel
trying to get away from Officer Scholten and her own vehicle. After Padel left, Officer Scholten
approached Padel’s vehicle from the passenger side, shined his flashlight inside the vehicle and
observed a man, later identified as Gonzales, lying on the floor with his head, side, and feet on
the floor. 1 At that time, Officer Scholten turned the flashlight and shined it on himself to show
Gonzales he was a police officer. Gonzales then exited the vehicle through the driver’s side door.
As Gonzales exited, Scholten observed Gonzales to be nervous and twitching and he instructed
Gonzales to put his hands behind his back so Scholten could pat him down for weapons.
Gonzales made a slight movement as if to put his hands behind his back, but then ran away.
Officer Scholten followed Gonzales, caught him, detained him, and conducted a pat down for
weapons. While detained, Officer Scholten learned Gonzales was on probation and contacted his
probation officer who issued an agent’s warrant for his arrest. Scholten placed Gonzales under
arrest. During a later search at the jail, methamphetamine was found on Gonzales.
         The State charged Gonzales with one count of possession of a controlled substance, in
violation of Idaho Code section 37-2732(c)(1), and one count of introducing major contraband


1
  There is a factual dispute about what Gonzales was doing in the backseat. Gonzales testified he was sitting behind
the passenger’s seat, texting. Officer Scholten testified Gonzales was lying in a fetal position on the floorboard. The
district court found Scholten’s testimony more credible and found Gonzales to be lying on the floor.
                                                          2
into a correctional facility, in violation of Idaho Code section 18-2510(3). Gonzales moved to
suppress all evidence obtained following the warrantless seizure. Gonzales argued Officer
Scholten lacked reasonable suspicion to seize him before or after he fled. The State did not file a
response to the motion.
            A hearing on Gonzales’ motion to suppress was held and the district court orally denied
the motion to suppress. The district court determined that Gonzales was detained when Officer
Scholten shined his flashlight into the vehicle, revealed he was a law enforcement officer, and
may have suggested a need for Gonzales to exit the vehicle. The district court held there was
reasonable suspicion for this detention based on Padel’s involvement in prior investigations,
Padel walking away from Officer Scholten, and Gonzales lying down in the backseat of Padel’s
vehicle that was located in the darkest part of the parking lot. The district court also found
Officer Scholten’s reasonable suspicion was “heightened” when Gonzales fled. Finally, the
district court determined Officer Scholten had probable cause to believe that Gonzales obstructed
and delayed an officer once he fled. Thus, the district court determined the seizures were
reasonable. Based on these findings, the district court later issued a written order denying
Gonzales’ motion to suppress.
            Under a Rule 11 plea agreement, Gonzales pleaded guilty to possession of a controlled
substance and entered an Alford 2 plea to introducing major contraband into a correctional
facility. Gonzales reserved the right to appeal the denial of his motion to suppress. Gonzales
timely appealed. The Court of Appeals reversed. This Court granted the State’s petition for
review.
                                               III. ISSUE ON APPEAL
            Did the district court err when it denied Gonzales’ motion to suppress?
                                            IV. STANDARD OF REVIEW
            “When reviewing a case on petition for review from the Court of Appeals this Court
gives due consideration to the decision reached by the Court of Appeals, but directly reviews the
decision of the trial court.” State v. Schmierer, 159 Idaho 768, 770, 367 P.3d 163, 165 (2016).
            When this Court reviews a district court’s order granting or denying a motion to suppress,
“the standard of review is bifurcated.” State v. Purdum, 147 Idaho 206, 207, 207 P.3d 182, 183


2
    North Carolina v. Alford, 400 U.S. 25 (1970).
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(2009) “This Court will accept the trial court’s findings of fact unless they are clearly
erroneous.” Id. (citing State v. Watts, 142 Idaho 230, 232, 127 P.3d 133, 135 (2005)). Even so,
“this Court may freely review the trial court’s application of constitutional principles in light of
the facts found.” Id. (citing State v. Diaz, 144 Idaho 300, 302, 160 P.3d 739, 741 (2007)).
        “Determinations of reasonable suspicion are reviewed de novo.” State v. Morgan, 154
Idaho 109, 111, 294 P.3d 1121, 1123 (2013) (citing State v. Munoz, 149 Idaho 121, 127, 233
P.3d 52, 58 (2010)). “The review must be based on the totality of the circumstances rather than
examining each of the officer’s observations in isolation.” Id. (citing United States v. Arvizu, 534
U.S. 266, 274 (2002)).
                                           V. ANALYSIS
A.     The district court erred in denying Gonzales’ motion to suppress because Officer
       Scholten lacked reasonable, articulable suspicion to seize Gonzales at the vehicle.
       Gonzales argues the district court erred in denying his motion to suppress on two
grounds. First, Gonzales argues the district court should have granted the motion to suppress
because Officer Scholten did not have reasonable suspicion to seize Gonzales at the vehicle.
Second, Gonzales argues the evidence found at the jail was fruit of the unlawful seizure in the
parking lot. The State maintains Officer Scholten had reasonable suspicion to seize Gonzales.
Specifically, the State argues Gonzales has failed to show the district court erred in determining
that, even if Gonzales was briefly detained in the vehicle, that detention was supported by
reasonable suspicion, and even were it not, Gonzales’ flight provided new reasonable suspicion
to seize him—attenuated from the initial seizure. For the reasons to be discussed below, we hold
the district court erred in denying Gonzales’ motion to suppress.
               a. The State failed to adequately preserve its argument that Gonzales was seized
                  after he fled and was subsequently caught.
       To begin, the State argues that Officer Scholten did not seize Gonzales until after
Gonzales took flight. The State asserts that Officer Scholten shining his flashlight into the
interior of the vehicle did not transform an otherwise consensual encounter into a seizure. Thus,
the State argues suppression is unwarranted because the seizure after Gonzales fled was
supported by reasonable suspicion, attenuating any possible illegality that occurred before. On
the other hand, Gonzales argues the State conceded the issue of when the seizure occurred before
the district court and cannot argue otherwise on appeal.


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       “Issues not raised below will not be considered by this court on appeal, and the parties
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) (quoting Heckman Ranches, Inc. v.
State, By & Through Dep’t of Pub. Lands, 99 Idaho 793, 799–800, 589 P.2d 540, 546–47
(1979)). We recently explained, “[w]e will not hold that a trial court erred in making a decision
on an issue or a party’s position on an issue that it did not have the opportunity to address.” State
v. Gonzalez, 165 Idaho 95, 99, 439 P.3d 1267, 1271 (2019). We require “both the issue and the
party’s position on the issue [to] be raised before the trial court for it to be properly preserved for
appeal.” Id.
       Below, both Officer Scholten and Gonzales testified. The district court, giving more
weight to Officer Scholten’s testimony, determined:
              The court is going to make a finding that [Gonzales] was very briefly
       detained, and in the sense that when officer signed (sic) the flashlight in on Mr.
       Gonzales and then indicated that he was shining it on himself to say he was a law
       enforcement officer, and may have indicated a need for Mr. Gonzales to get out of
       the vehicle, that a reasonable person could have viewed that as being detained.
The State did not object to the district court’s finding that Gonzales was briefly detained at the
vehicle. Even so, the State now argues that Gonzales was not seized until after he fled.
According to the State, this argument was adequately preserved at the suppression hearing when
the prosecutor explained all the circumstances, up to Gonzales’ flight, which gave Officer
Scholten reasonable suspicion to detain Gonzales. The prosecutor argued:
       Well, Your Honor it looks like we have a situation here where the officer is - - is
       in a place where he’s lawfully able to be allowed to be, he’s in a parking lot
       during work hours, and he shines a flashlight in the vehicle and sees a person, and
       he describes squinched up between the front and the rear seat and the floorboard
       of the vehicle. Apparent - - apparently to him he’s hiding.
               He doesn’t instruct the person to come out of the car. He signs [sic] the
       flashlight. He doesn’t, according to his testimony, he doesn’t pull the gun on this
       person. This person sees that he has this flashlight shining on him and then exits
       the vehicle.
               The officer at that point tells him that he wants to pat him down for
       weapons. The officer’s [sic] testified that he intended at that time to conduct an
       investigation into some suspicious activity that he saw. When, at this point, he had
       some reasonable suspicion that some criminal activity of some type was taking
       place of [sic] about to take place. And we have to look at the entirety of the
       circumstances here.
               When he went to do the weapons pat-down, he didn’t even have an
       opportunity at that point to even find out the identification of this person. He was
                                                  5
         intending on asking for his identification, run him for any warrants. And the
         person instead takes off on foot and runs from him. So, that’s what we have,
         Judge. I think that it’s a pretty simple issue, and I ask that you deny the motion.

The State asserts that including Gonzales’ flight as part of the totality of the circumstances to be
considered in determining whether Officer Scholten had reasonable suspicion to seize Gonzales
supports its current position that the prosecutor argued Gonzales was seized when he was caught
after he fled and at no time before. We disagree.
         This Court accepts the trial court’s findings of fact unless they are clearly erroneous.
State v. Purdum, 147 Idaho 206, 207, 207 P.3d 182, 183 (2009). Thus, we accept the district
court’s finding that Gonzales was first seized when Officer Scholten shined his flashlight into the
vehicle and then a later seizure occurred after Gonzales fled. At no time before this appeal did
the State contest this finding. Even assuming the State’s argument regarding the totality of
circumstances leading to the flight implied the initial contact at the vehicle was not a seizure, an
issue only mentioned in passing and unsupported by any cogent argument or authority is not
preserved for appeal. See Bach v. Bagley, 148 Idaho 784, 790, 229 P.3d 1146, 1152 (2010). The
State thus failed to preserve its argument that Gonzales was not seized until after he fled and we
decline to entertain the argument and any arguments stemming from this theory now. 3
                b. Officer Scholten did not have reasonable suspicion to seize Gonzales at the
                    vehicle.
         The district court found Officer Scholten had reasonable suspicion to seize Gonzales at
the vehicle based on these facts: 1) Padel parked her vehicle in a dark area of a parking lot late at
night; 2) Officer Scholten knew Padel and knew she was involved in an ongoing theft
investigation; 3) Padel walked away from Officer Scholten when he tried to speak with her; and
4) Officer Scholten observed Gonzales crouched down in the backseat of Padel’s vehicle.
According to the district court, under the totality of the circumstances approach, these factors



3
  Evidence obtained in violation of the Fourth Amendment is subject to the exclusionary rule, which requires
unlawfully seized evidence to be excluded from trial. See, e.g., Wong Sun v. United States, 371 U.S. 471, 485
(1963); State v. Page, 140 Idaho 841, 846, 103 P.3d 454, 459 (2004). One exception to the exclusionary rule is the
attenuation doctrine. See Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016). Based on the State’s unpreserved argument
that Gonzales was not seized until after he fled, the State further argues that even if the initial seizure at the vehicle
was illegal, the evidence should not be suppressed under the attenuation doctrine. However, the State did concede
the seizure at the vehicle was illegal below and thus made no argument about the attenuation doctrine at that time.
Thus, we decline to entertain this argument on appeal.
                                                            6
were enough to provide Officer Scholten with reasonable suspicion to seize Gonzales at the
vehicle. We disagree.
       Under the Fourth Amendment of the United States Constitution, “[t]he right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated.” U.S. CONST. amend. IV. “The Fourth Amendment’s
reasonableness requirement has been held to apply to brief investigatory detentions.” State v.
Bishop, 146 Idaho 804, 811, 203 P.3d 1203, 1210 (2000) (citing Terry v. Ohio, 392 U.S. 1, 19
(1968) (explaining an investigatory seizure is permissible if it is based on specific articulable
facts which justify suspicion that the detained person is, has been, or is about to be engaged in
criminal activity). “The quantity and quality of information necessary to establish reasonable
suspicion is less than that necessary to establish probable cause.” Id. (citing Alabama v. White,
496 U.S. 325, 330 (1990)). “Still, reasonable suspicion requires more than a mere hunch or
‘inchoate and unparticularized suspicion.’ ” Id. (quoting United States v. Sokolow, 490 U.S. 1, 7
(1989)). “Whether an officer possessed reasonable suspicion is evaluated based on the totality of
the circumstances known to the officer at or before the time of the stop.” Id. at 811, 203 P.3d at
1210 (citing State v. Sheldon, 139 Idaho 980, 983, 88 P.3d 1220, 1223 (Ct. App. 2003)).
       Not every suspicious or abnormal behavior is sufficient to establish reasonable suspicion.
See State v. Bly, 159 Idaho 708, 711, 366 P.3d 193, 196 (Ct. App. 2016). The officer must be
able to articulate more than an “inchoate and unparticularized suspicion or ‘hunch’ ” of criminal
activity.” Illinois v. Wardlow, 528 U.S. 119, 123–24 (2000) (quoting Terry, supra, at 27). An
officer conducting an investigatory stop . . . must articulate “a particularized and objective basis
for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449
U.S. 411, 417–418 (1981). That determination, the U.S. Supreme Court admonished, “becomes
meaningful only when it is assured that at some point the conduct of those charged with
enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must
evaluate the reasonableness of a particular search or seizure in light of the particular
circumstances.” Terry, 392 U.S. at 21. In undertaking that neutral scrutiny, “the relevant inquiry”
concerning the inferences and conclusions a court draws “is not whether particular conduct is
‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal
acts.” Sokolow, 490 U.S., at 10. The district court here performed this neutral inquiry, but erred
in finding reasonable suspicion based on the facts.
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       “An individual’s presence in an area of expected criminal activity, standing alone, is not
enough to support a reasonable particularized suspicion that the person is committing a crime.”
Illinois v. Wardlow, 528 U.S. 119, 124 (2000). Similarly, an individual’s proximity to others
suspected of or associated with criminal activity, without more, is also insufficient. See Ybarra v.
Illinois, 444 U.S. 85, 91 (1979) (stating that the standard applied in order to search or seize a
person must be particularized to that specific individual). Even more, an individual exercising
their right to refuse to speak with law enforcement, on its own, is insufficient to support a finding
of reasonable suspicion. Florida v. Royer, 460 U.S. 491, 498 (1983) (stating a person “may not
be detained even momentarily without reasonable, objective grounds for doing so; and his refusal
to listen or answer does not, without more, furnish these grounds.”). Even so, innocent acts,
when considered together, may be suspicious enough to justify an investigative detention if an
officer points to articulable facts that the individual is engaged in criminal activity. Sokolow, 490
U.S. at 9–10; State v. Neal, 159 Idaho 919, 925, 367 P.3d 1231, 1237 (Ct. App. 2016).
       Here, none of the factors alone or when taken together provided Officer Scholten with
reasonable suspicion to seize Gonzales when he found him in the vehicle. Gonzales’ location,
even in a dark area, late at night, is not a sufficient basis for finding reasonable suspicion.
Wardlow, 444 U.S. at 124. There is no evidence that the parking lot where Padel parked her
vehicle was a high-crime area; even if it were, the mere parking of Padel’s vehicle between two
businesses during operating hours, albeit late at night and in a dark area, is insufficient to support
a finding of reasonable suspicion. Id. Additionally, Padel’s decision not to speak with Officer
Scholten cannot be considered when evaluating reasonable suspicion to detain Gonzales because
Padel had every right to refuse to speak with Officer Scholten. Royer, 460 U.S. at 498. Even
more, Officer Scholten’s knowledge of Padel and familiarity with Padel’s previous interactions
with law enforcement is not sufficient to justify reasonable suspicion in regards to Gonzales. See
Ybarra, 444 U.S. at 91 (“a person’s mere propinquity to others independently suspected of
criminal activity does not, without more, give rise to probable cause to search that person.”).
Gonzales’ proximity to Padel is not an adequate reason to transfer the officer’s suspicion about
Padel to Gonzales. Indeed, the State concedes in its briefing that the past theft investigations and
avoidance behavior of Padel were alone insufficient to justify Gonzales’ seizure at the vehicle.
       While we agree that finding an individual horizontal on the floor of a vehicle may be
suspicious, without more it cannot be a sufficient basis on which an officer finds reasonable
                                                  8
suspicion of criminal activity. See Wardlow, 444 U.S. at 124; see also Bly, 159 Idaho at 195, 366
P.3d at 195. The fatal flaws in the State’s case are that Officer Scholten never articulated what
criminal suspicion he had of Gonzales’ behavior, other than the fact that Gonzales was perhaps
hiding from him. As we have iterated above, an officer must “articulate a particularized and
objective basis for suspecting the particular person stopped of criminal activity.” United States v.
Cortez, 449 U.S. at 417–418. Here, the officer failed to articulate what suspicion of criminal
behavior he had that led him to direct the flashlight onto himself and detain 4 Gonzales.
        As a result, we hold the district court erred in finding Officer Scholten had reasonable
suspicion to detain Gonzales at the vehicle. The district court thus erred in denying Gonzales’
motion to suppress.
                                               VI. CONCLUSION
        For these reasons, this Court reverses the district court’s order denying Gonzales’ motion
to suppress. Accordingly, the judgment of conviction is likewise vacated.
        Chief Justice BURDICK and Justices BRODY, STEGNER and MOELLER, CONCUR.




4
  There was some dispute during oral argument about the district court’s finding regarding this detention, and
whether the officer ordered Gonzales out of the car. For purposes of our analysis we accept the district court’s
findings as true where they are supported by substantial evidence. State v. Wolfe, 445 P.3d 147, 150 (Idaho 2019)
Here the record contains facts which support the court’s conclusion that the officer “may have indicated a need for
Mr. Gonzales to get out of the vehicle . . . .” While the conditional nature of this finding is inexact, it is still
supported by the record and we thus accept the finding that Gonzales was ordered out of the car by Officer Scholten.
Thus, this would constitute a seizure for Fourth Amendment purposes.
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