               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 45507

STATE OF IDAHO,                                )
                                               )    Filed: February 25, 2019
       Plaintiff-Respondent,                   )
                                               )    Karel A. Lehrman, Clerk
v.                                             )
                                               )    THIS IS AN UNPUBLISHED
KIRSTEN M. SPIER-TURNER,                       )    OPINION AND SHALL NOT
                                               )    BE CITED AS AUTHORITY
       Defendant-Appellant.                    )
                                               )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. Cynthia K.C. Meyer, District Judge.

       Order denying motion to suppress, reversed; judgment of conviction for
       possession of methamphetamine, vacated and case remanded.

       Eric D. Fredericksen, State Appellate Public Defender; Kimberly A. Coster,
       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
       Kirsten M. Spier-Turner appeals from the judgment of conviction for possession of
methamphetamine. Spier-Turner argues that the district court erred in denying her motion to
suppress evidence. For the reasons set forth below, we reverse the district court’s order denying
Spier-Turner’s motion to suppress, vacate the judgment of conviction, and remand.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       Multiple Idaho State Police troopers arrived at a residence in Post Falls with a warrant to
search the premises for drugs. When the troopers executed the warrant, Spier-Turner was an
occupant inside the residence.     The troopers called the occupants out of the residence,
handcuffed each occupant, and had the occupants sit on the curb. Spier-Turner exited the
residence with a purse over her shoulder. She was handcuffed and led to the curb to sit with the

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other detained occupants. The purse remained on her shoulder while she was handcuffed and
seated on the curb. Approximately forty minutes later, a trooper removed the purse from
Spier-Turner’s shoulder, placed the purse in the grass where Spier-Turner had been sitting, and
walked her roughly twenty-five feet away from the curb to the driveway to be interviewed.
       During the interview, Spier-Turner told the trooper that she had a marijuana pipe located
in her bra. Thereafter, the officer led Spier-Turner, still handcuffed and with the pipe in her bra,
back to the curb. The trooper moved the purse away from Spier-Turner and the other detainees.
Subsequently, another trooper questioned Spier-Turner about the pipe and released her from the
handcuffs so she could retrieve the pipe from her bra. Upon receiving the pipe and re-securing
the handcuffs, the trooper arrested Spier-Turner for possession of paraphernalia and patted her
down for weapons. Spier-Turner was transported to the police station and her purse remained at
the scene. Later, a search of the purse at the scene revealed plastic baggies containing a white
crystal residue, a tourniquet, and multiple hypodermic needles.
       The State charged Spier-Turner with possession of methamphetamine in relation to the
items found in the purse, Idaho Code § 37-2732(c)(1), and possession of drug paraphernalia in
relation to the pipe, I.C. § 37-2734A(1). Spier-Turner filed a motion to suppress the evidence
found in her purse, arguing that the search of her purse was a violation of the Fourth
Amendment. During the hearing on the motion to suppress, the State argued that the search of
the purse was either (1) constitutional under the warrant requirement because it was included in
the warrant to search the residence, or (2) a valid exception to the warrant requirement as a
search incident to lawful arrest.
       The district court held that the search was not valid pursuant to the warrant because the
warrant was never presented to the court, thus the court could not consider its scope. However,
after “turning to the issue of search incident to arrest,” the district court found that when
Spier-Turner admitted to possessing the marijuana pipe, the trooper had “probable cause to arrest
her and to search her.” Further, the court found:
       [that the purse] was subject to search. It was an item intimately involved with
       her, definitely within her wingspan at the point that she admitted that she was in
       possession of the marijuana pipe.
               ....
               Had the officer taken the purse to the Public Safety Building, it could have
       been searched as part of the booking procedure. The only question is whether the
       officers may search the purse at the location of arrest based upon the above case

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          law. [Referencing United States v. Edwards, 415 U.S. 800 (1974) and State v.
          Slaybaugh, 108 Idaho 551, 700 P.2d 954 (Ct. App. 1985).]
                  The Court finds that a search is valid which is conducted at the place--had
          it been conducted at the place of arrest, it’s also valid when conducted later. The
          purse would have been subject to search at the place and time of her arrest. It
          could have been searched also at the jail. It was searched, the purse, at the place
          of arrest after the defendant was removed, and that does not offend the Fourth
          Amendment.
          After the motion to suppress was denied, the case proceeded to trial and a jury convicted
Spier-Turner on both counts. Spier-Turner was sentenced to a unified term of three and one-half
years with one and one-half years determinate. The district court suspended the sentence and
placed Spier-Turner on probation. Spier-Turner timely appeals.
                                                  II.
                                             ANALYSIS
          Spier-Turner argues that the district court erred in denying her 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).
          Here, the district court held (1) the search of the purse was a warrantless search, and
(2) the warrantless search was constitutionally valid as a search incident to arrest. Neither party
challenges the district court’s determination that the search of the purse was warrantless, thus we
need not review that determination. State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970
(1996).
A.        Search Incident to Arrest
          Spier-Turner argues that the district court erred in determining that the search incident to
arrest exception to the warrant requirement applied to the facts of this case. 1 A warrantless

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       The State indicated in its brief that we need not address the search incident to arrest
exception as we could uphold the district court on the inventory search exception in so doing.
The State indicates that it would “submit” on the search incident to arrest issue. While
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search is presumptively unreasonable unless it falls within certain special and well-delineated
exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 454-55
(1971); State v. Ferreira, 133 Idaho 474, 479, 988 P.2d 700, 705 (Ct. App. 1999). A search
incident to a valid arrest is among those exceptions and, thus, does not violate the Fourth
Amendment proscription against unreasonable searches. Chimel v. California, 395 U.S. 752,
762-63 (1969); State v. Moore, 129 Idaho 776, 781, 932 P.2d 899, 904 (Ct. App. 1996).
Pursuant to this exception, the police may search an arrestee incident to a lawful custodial arrest.
United States v. Robinson, 414 U.S. 218, 235 (1973); Moore, 129 Idaho at 781, 932 P.2d at 904.
The permissible scope and purposes of a search incident to an arrest is not limited to the removal
of weapons but includes the discovery and seizure of evidence of crime and articles of value
which, if left in the arrestee’s possession, might be used to facilitate his escape. Moore, 129
Idaho at 781, 932 P.2d at 904.
       Here, the district court found that the purse was within Spier-Turner’s “wingspan” when
the police developed probable cause to arrest her at the scene. Based in part upon this factual
finding, the district court made the legal conclusion that the purse (1) could have been searched
at the time of arrest; and (2) could have been searched at the jail had it been transported with
Spier-Turner, thus it was valid to search the purse “at the place of arrest after the defendant was
removed.”    We disagree.      We conclude that the search of Spier-Turner’s purse was not
constitutionally reasonable as a search incident to arrest.
       First, Spier-Turner challenges the district court’s finding of fact regarding the purse’s
location at the time of her confession. Specifically, she argues that the finding of fact that the
purse was within Spier-Turner’s “wingspan” when she admitted to possessing the marijuana pipe
is not supported by substantial evidence. We agree. The undisputed evidence presented below
was that Spier-Turner’s purse had been removed from her person when she was sitting on the
curb. In addition, the State’s witnesses testified that the purse was twenty to twenty-five feet
away from Spier-Turner when she admitted to the interviewing officer that she had a marijuana
pipe in her bra. However, other factual findings that the district court made were based upon
substantial evidence presented during the motion to suppress hearing and are unchallenged on




submitting on an issue is not consistent with the Idaho Appellate Rules, see I.A.R. 35(b)(6), we
nonetheless have addressed the merits of the issue.
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appeal. This includes the following findings: Spier-Turner had been arrested for possession of
paraphernalia in relation to the marijuana pipe that she admitted was in her bra, Spier-Turner was
transferred to jail and her purse remained at the scene, and the purse was searched at the location
of arrest after Spier-Turner was transported to jail.
       Next, Spier-Turner challenges the district court’s conclusions of law. Notwithstanding
the erroneous fact that the district court found (i.e., the location of the purse at the time of
confession) and accepting the district court’s other factual findings as true, a de novo review of
the constitutional principles of the search incident to arrest exception to the warrant requirement
provides that the search was unreasonable. A search incident to arrest may include the arrestee’s
person and the area “within the arrestee’s immediate control,” meaning “the area from within
which he might gain possession of a weapon or destructible evidence.” State v. Lee, 162 Idaho
642, 650, 402 P.3d 1095, 1103 (2017) (quoting Chimel, 395 U.S. at 762). Here, Spier-Turner’s
purse was not on her person or within her immediate control when it was searched. Spier-Turner
was transported to the jail, and the purse was searched at the location of her arrest after she had
been removed. Therefore, regardless of where the purse was located at the time of Spier-
Turner’s confession, the search was not constitutional as a search incident to arrest.
B.     Inventory Exception
       The State argues although the “district court did not use the words ‘inventory exception,’
it is clear from its reasoning and from the case law upon which it relied, that it found the search
was authorized under the inventory exception because it was conducted as part of routine
administrative procedure incident to incarceration.” In response to this argument, Spier-Turner
argues: (1) the State made no claims in the district court that the search of the purse was an
inventory search; (2) the district court did not decide that the inventory search exception applied
in this case; and (3) even if we were to consider this newly raised argument, the inventory search
exception does not apply.
       In a suppression case, a warrantless search remains unreasonable unless the State can
prove the 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). In doing so, the State has the burden of proving the facts necessary to establish
an exception to the warrant requirement. State v. Jenkins, 143 Idaho 918, 920, 155 P.3d 1157,
1159 (2007). However, the Idaho Supreme Court has made clear that “issues not raised below

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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)). On a suppression issue, the
State is limited to arguing on appeal the exceptions to the warrant requirement that were
presented in the district court.
        The only exception to the warrant requirement that the State argued below was the search
incident to arrest exception. In support of its theory, the State cited to various case law including
Slaybaugh, 108 Idaho at 551, 700 P.2d at 954, and Edwards, 415 U.S. at 800. Subsequently, the
district court cited to the above case law and adopted the State’s argument that the search
incident to arrest exception justified the search. Now, the State asks this Court to conclude that,
based on the cases cited by the district court, the district court impliedly held that the inventory
exception applied. We decline to do so. The State misconstrues the district court’s holding. The
district court turned to the issue of search incident to arrest and found that the search was
justified under that theory. The State did not argue below, and the district court did not find, that
the inventory exception applied. Because the inventory exception to the warrant requirement is
not preserved for appeal, we decline to address this newly raised argument on appeal.
Garcia-Rodriguez, 162 Idaho at 275, 396 P.3d at 704. Therefore, we conclude that the district
court erred in denying Spier-Turner’s motion to suppress.
                                                 III.
                                          CONCLUSION
        The district court erred in determining that the search incident to arrest exception justified
the warrantless search of Spier-Turner’s purse. Additionally, we will not consider the State’s
argument that the inventory exception applies as it was not preserved for appeal. Therefore, the
district court’s order denying Spier-Turner’s motion to suppress is reversed, and the judgment of
conviction for possession of methamphetamine is vacated and the case remanded.
        Judge HUSKEY and Judge LORELLO CONCUR.




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