               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 37097

STATE OF IDAHO,                                 )       2010 Unpublished Opinion No. 735
                                                )
       Plaintiff-Respondent,                    )       Filed: December 8, 2010
                                                )
v.                                              )       Stephen W. Kenyon, Clerk
                                                )
CAIN D. PEERY,                                  )       THIS IS AN UNPUBLISHED
                                                )       OPINION AND SHALL NOT
       Defendant-Appellant.                     )       BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Second Judicial District, State of Idaho, Nez
       Perce County. Hon. Carl B. Kerrick, District Judge.

       Judgment of conviction for          possession     of   a   controlled   substance,
       methamphetamine, affirmed.

       Molly J. Huskey, State Appellate Public Defender; Justin M. Curtis, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Elizabeth A. Koeckeritz, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

WALTERS, Judge Pro Tem
       Cain D. Peery pled guilty to felony possession of a controlled substance,
methamphetamine. I.C. § 37-2732(c)(1). On appeal, he asserts that the district court erred by
denying Peery’s motion to suppress evidence. We affirm.
                                               I.
                                       BACKGROUND
       The following facts are taken from the district court’s order on Peery’s motion to
suppress. Corporal Mundell of the Lewiston Police Department and three other officers were
attempting to locate an individual who was the subject of several felony arrest warrants. When
the officers arrived at a residence where they believed the subject would be found, they observed
three or four individuals standing at the rear door of the residence. Officer Mundell recognized
one of the men, Peery, from previous encounters and, because the officer felt he had a fairly


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good rapport with Peery, approached Peery to see if he had any information about the subject the
officers were seeking. As Officer Mundell approached Peery, Peery took an item out of his truck
and began to leave in “a hurried fashion.” Officer Mundell said something to the effect of “Stop,
I want to talk to you” or “Get back here and talk to me.” Officer Mundell noted that Peery held a
screwdriver, which could potentially be a weapon, in his hand and appeared to manipulate
something in his pant’s pocket with his other hand. Officer Mundell asked Peery to drop the
screwdriver, but Peery did not comply. Officer Mundell reached for the screwdriver and ordered
Peery to remove his hand from his pocket. Peery did not comply but “started stiffening,” pulled
away, dropped the screwdriver and fled on foot while Officer Mundell was ordering him to
“Stop.” A foot chase ensued with Office Mundell and two other officers chasing Peery. Officer
Mundell again ordered Peery to stop and remove his hand from his pocket. Peery stopped, took
his hand out of his pocket and left a clear baggie exposed, which he admitted contained
marijuana. Officer Mundell pulled the baggie out of the pocket. Peery was taken to the ground,
handcuffed, arrested and advised of his rights. The officers then retraced the path of the chase
and found a small baggie containing methamphetamine. At the police station, Peery admitted to
throwing a bag of methamphetamine during the foot chase.
       Peery was charged with possession of a controlled substance, methamphetamine. He
filed a motion to suppress, asserting that the evidence and statements obtained from him were
illegally acquired as the result of an illegal detention in violation of his constitutional rights and
that the evidence against him was suppressible as fruit of the poisonous tree. 1 The district court
denied the motion to suppress, holding that although the initial stop was an improper seizure, the
seizure ended when Peery fled and that the methamphetamine discarded while Peery was fleeing
was found by the police subsequent to Peery’s arrest and was not part of an unlawful seizure.
Peery entered into a conditional guilty plea which preserved his right to appeal the denial of his
motion to suppress. This appeal followed.



1
        In his motion to suppress, Peery did not make clear whether he was focusing on his
admission to the officers that the baggie in open view in his pocket contained marijuana, which
resulted in his arrest, or whether he was focusing on his post-arrest admission (after having been
advised of his rights upon the arrest) to the police at the police station that he had thrown away
the baggie containing methamphetamine during the police chase. The district court did not make
a separate determination with regard to the supressibility of any statements given by Peery and
no issue is raised in that regard on this appeal.
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                                                 II.
                                          DISCUSSION
       The standard of review of a suppression motion is bifurcated. The appellate court accepts
the trial court’s findings of fact that are supported by substantial evidence, but freely reviews the
application of constitutional principles to the facts as found. State v. Watts, 142 Idaho 230, 232,
127 P.3d 133, 135 (2005).
       The facts recited by the district court in its decision denying Peery’s motion to suppress
are not disputed by the parties and are fully supported by the record submitted at the evidentiary
hearing before the district court.
        The right to be free from unreasonable searches and seizures is protected by the Fourth
Amendment of the United States Constitution and article 1, section 17 of the Idaho Constitution.
The constitutional protections against unreasonable seizures include seizures of the person.
Henry v. United States, 361 U.S. 98, 100 (1959). Furthermore, it is well established that if
evidence is directly or indirectly obtained through the government’s exploitation of
unconstitutional methods, that evidence must be excluded as “fruit of the poisonous tree.” Wong
Sun v. United States, 371 U.S. 471, 487-88 (1963).
       We begin with Officer Mundell’s initial contact with Peery.            Not every encounter
between a law enforcement officer and a citizen triggers Fourth Amendment scrutiny. State v.
Reese, 132 Idaho 652, 653, 978 P.2d 212, 213 (1999). An encounter becomes a seizure, for
Fourth Amendment purposes, when an officer, by means of physical force or by show of
authority, has in some way restrained the liberty of a citizen. California v. Hodari D., 499 U.S.
621, 625 (1991); United States v. Mendenhall, 446 U.S. 544, 553-54 (1980). Whenever an
officer detains a person, however briefly, a seizure has taken place. Terry v. Ohio, 392 U.S. 1,
20-22 (1968); State v. Wixom, 130 Idaho 752, 754, 947 P.2d 1000, 1002 (1997). The test for
deciding whether someone has been seized by a show of authority is an objective one.
Mendenhall, 446 U.S. at 554. A person is deemed “seized within the meaning of the Fourth
Amendment only if, in view of all the circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave.” Mendenhall, 446 U.S. at 554; see
also Michigan v. Chesternut, 486 U.S. 567, 573 (1988) (acknowledging that the Supreme Court
has embraced the test set forth by Justice Stewart). Thus, an officer’s verbal request or command
can amount to a seizure of a person if, in view of all of the circumstances surrounding the

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incident, the command would cause a reasonable person to believe that he was not free to leave
and the person accedes to the command. Mendenhall, 446 U.S. at 554. See also State v.
Harwood, 133 Idaho 50, 53, 981 P.2d 1160, 1163 (Ct. App. 1999); State v. Agundis, 127 Idaho
587, 590-93, 903 P.2d 752, 755-58 (Ct. App. 1995).
       Here, the evidence showed that when Officer Mundell approached Peery, Peery started to
walk away and it is reasonable to conclude that he felt free to do so, until the officer asked Peery
to stop. When Officer Mundell told him to stop, Peery acceded to the officer’s command and he
stopped. At that point, the presence of the police officers, in conjunction with their individual
focus on him, constituted a show of authority and, thus, a reasonable person would not have felt
free to leave. Peery submitted to this show of authority by stopping and allowing Officer
Mundell to approach. It is clear that at this point he had been seized by Officer Mundell within
the context of constitutional law.
       The Fourth Amendment generally precludes the detention of an individual by an officer
unless the officer has a reasonable, articulable suspicion that the person to be seized had
committed or was about to commit a crime. Florida v. Royer, 460 U.S. 491, 498 (1983); United
States v. Brignoni-Ponce, 422 U.S. 873, 881-82 (1975); Terry, 392 U.S. at 22; State v. Fry, 122
Idaho 100, 103, 831 P.2d 942, 945 (Ct. App. 1991). Whether an officer had reasonable suspicion
to detain a citizen is determined on the totality of the circumstances. United States v. Cortez, 449
U.S. 411, 417 (1981); State v. Johns, 112 Idaho 873, 877, 736 P.2d 1327, 1331 (1987). “In the
absence of any basis for suspecting appellant of misconduct, the balance between the public
interest and appellant’s right to personal security and privacy tilts in favor of freedom from
police interference.” Brown v. Texas, 443 U.S. 47, 52 (1979).
       The district court determined from the totality of the circumstances that there was no
evidence that Peery was, or apparently had been, engaging in any criminal activity when Officer
Mundell approached him to ask about the person the police were seeking. Accordingly, the
district court held that the initial seizure of Peery was unjustified, and we agree with that
decision.
       The district court next considered whether, under Terry, Officer Mundell’s momentary
physical contact with Peery in reaching for the screwdriver was reasonable. Once the police stop
an individual, physical contact with that individual is not warranted unless the officer has
reasonable grounds to believe that the individual is “armed and dangerous, and it [is] necessary

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for the protection of himself and others to take swift measures to discover the true facts and
neutralize the threat of harm if it materialize[s].” Terry, 392 U.S. at 30. The district court
concluded that it was unreasonable for Officer Mundell to order Peery to drop the screwdriver
and attempt to grab the screwdriver from Peery’s hand because there were no articulable facts
that he or others were in danger. The district court found that the facts suggested that Peery had
the tool in his hand because he was working on a vehicle when the police approached, and he
appeared to be manipulating something in one of his pockets with his other hand. Under the
circumstances presented, the district court held it was reasonable to conclude that the screwdriver
was being used as a tool on the car, not as a weapon dangerous to the police. The district court
determined that Officer Mundell’s order to drop the screwdriver and his grabbing of the
screwdriver was an unlawful seizure. Thus, concluded the district court, Peery was unlawfully
seized from the point he was ordered to stop and the officer engaged in contact with regard to the
screwdriver.
       We agree with the district court’s conclusions. The district court correctly held that
Peery’s initial detention by Officer Mundell was unreasonable under Fourth Amendment
protections.
       We turn next to the district court’s conclusion that the methamphetamine dropped by
Peery during the chase culminating in his physical capture by Officer Mundell was properly
seized and was not suppressible. The district court relied upon Hodari D., 499 U.S. 621, and
State v. Zuniga, 143 Idaho 431, 146 P.3d 697 (Ct. App. 2006), to support its conclusion. Based
upon those cases, the district court concluded that the initial seizure of Peery without reasonable
suspicion ended when Peery elected to terminate his unlawful seizure and fled from the police.
Hodari D. makes clear that a seizure can occur either by submission to an officer’s show of
authority, or by the officer’s application of physical force. Hodari D., 499 U.S. at 626-28. Here,
after first acceding to Officer Mundell’s command, Peery then withdrew from submission to the
officer’s order to remain where he was at by fleeing. Accordingly, the detention ceased when
Peery fled.
       In Zuniga this Court explained that the facts of Hodari D. illustrate how the concept of a
seizure should be applied. Zuniga, 143 Idaho at 436, 146 P.3d at 702. In Hodari D., when two
police officers approached a group of young men gathered around a car, the group immediately
dispersed, prompting one officer to pursue the individual later identified as Hodari. By taking a

                                                5
side street, the officer was able to overtake Hodari.       Surprised, Hodari tossed away what
appeared to be a small rock, moments before the officer tackled him. The central question before
the United States Supreme Court was whether the small rock, which turned out to be crack
cocaine, should be suppressed. The Court held that even assuming that the officers did not have
reasonable suspicion to stop Hodari when the pursuit began, the cocaine should not have been
suppressed, for Hodari never complied with the police officer’s original show of authority and
therefore was not seized when he threw the substance aside. The Court said:
               In sum, assuming that [Officer] Pertoso’s pursuit in the present case
       constituted a “show of authority” enjoining Hodari to halt, since Hodari did not
       comply with that injunction he was not seized until he was tackled. The cocaine
       abandoned while he was running was in this case not the fruit of a seizure, and his
       motion to exclude the evidence of it was properly denied.

Hodari D., 499 U.S. at 629.
       Here, like the defendant in Zuniga, Peery first complied with the officer’s command to
stop until the officer could approach and talk to him. Had Peery been searched at that time and
the methamphetamine found, it would have been suppressible as fruit of the poisonous tree due
to the unlawful detention without reasonable suspicion.        But Peery decided to forgo the
opportunity to challenge his seizure at that stage. Instead, he chose to terminate the seizure
through escape from Officer Mundell’s authority. Just as in Zuniga and Hodari D., it would not
be realistic for us to hold that Peery was still under seizure by Officer Mundell while he was
running away and no longer submitting or yielding to Officer Mundell’s authority. Hodari D.
recognized that, with regard to a show of authority as with the application of physical force, a
seizure does not occur where the subject refuses to yield to that authority. Hodari D., 499 U.S.
at 626. Analogizing to an arrest, the Supreme Court said:

                To say that an arrest is effected by the slightest application of physical
       force despite the arrestee’s escape, is not to say that for Fourth Amendment
       purposes there is a continuing arrest during the period of fugitivity. If, for
       example, [Officer] Pertoso had laid his hands upon Hodari to arrest him, but
       Hodari had broken away and had then cast away the cocaine, it would hardly be
       realistic to say that disclosure had been made during the course of an arrest. Cf.
       Thompson v. Whitman, 18 Wall. 457, 471, 21 L.Ed. 897, 902 (1874) (“A seizure
       is a single act, and not a continuous fact”).

Hodari D., 499 U.S. at 625 (emphasis in original); Zuniga, 143 Idaho at 436-37, 146 P.3d at
702-03.

                                               6
       The same circumstance as described by the Supreme Court above happened in the instant
case. After Officer Mundell made contact with Peery to remove the screwdriver, Peery broke
away and ran, casting the methamphetamine as he fled. It would hardly be realistic to say that
the disclosure of that evidence had been made during the course of an arrest or detention.
       Peery suggests on appeal that he did not “abandon” the controlled substance while he was
fleeing from the officers because an abandonment caused by illegal police conduct is not a
voluntary abandonment, citing cases where the police have illegally seized luggage and the
owner disclaims ownership of the contents in order to avoid prosecution for possession of illegal
items. It does not appear from the record that such an argument was made in the district court
below and, even if made, would not have survived the application of Hodari D. by the district
court. To reiterate, the Supreme Court succinctly stated that “The cocaine abandoned while
[Hodari] was running was in this case not the fruit of a seizure, and his motion to exclude the
evidence was properly denied.” Hodari D., 499 U.S. at 629. The use of the exclusionary rule to
inhibit production of evidence gathered in police chases was further addressed when the
Supreme Court said:
       Street pursuits always place the public at some risk, and compliance with police
       orders to stop should therefore be encouraged. Only a few of those orders, we
       must presume, will be without adequate basis, and since the addressee has no
       ready means of identifying the deficient ones it almost invariably is the
       responsible course to comply. Unlawful orders will not be deterred, moreover, by
       sanctioning through the exclusionary rule those of them that are not obeyed.
       Since policemen do not command “Stop!” expecting to be ignored, or give chase
       hoping to be outrun, it fully suffices to apply the deterrent to their genuine,
       successful seizures.

Hodari D., 499 U.S. at 627 (emphasis in original); see also Zuniga, 143 Idaho at 437, 146 P.3d at
703.
                                               IV.
                                        CONCLUSION
       Accordingly, we hold that when Peery disobeyed Officer Mundell’s order to stop and fled
from the scene, he was no longer the subject of an unlawful detention. The chase by Officer
Mundell did not constitute a new seizure under Hodari D. until Peery finally acceded to Officer
Mundell’s command to stop during the chase. The methamphetamine discarded by Peery during
the chase was not the fruit of a poisonous tree nor was it abandoned because of police

                                                7
misconduct. The district court correctly concluded that the evidence should not be suppressed.
The order denying Peery’s motion to suppress is upheld and we affirm Peery’s judgment of
conviction.
       Judge GRATTON and Judge MELANSON CONCUR.




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