               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                      Docket No. 46174

STATE OF IDAHO,                               )
                                              )   Filed: September 17, 2019
       Plaintiff-Respondent,                  )
                                              )   Karel A. Lehrman, Clerk
v.                                            )
                                              )   THIS IS AN UNPUBLISHED
BRANDON D G PARRIS,                           )   OPINION AND SHALL NOT
                                              )   BE CITED AS AUTHORITY
       Defendant-Appellant.                   )
                                              )

       Appeal from the District Court of the Seventh Judicial District, State of Idaho,
       Bonneville County. Hon. Bruce L. Pickett, District Judge.

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

       Eric D. Fredericksen, State Appellate Public Defender; Andrea W. Reynolds,
       Deputy Appellate Public Defender, Boise, for appellant. Andrea W. Reynolds
       argued.

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

HUSKEY, Judge
       Brandon D G Parris appeals from his judgment of conviction for possession of a
controlled substance, methamphetamine. Parris asserts the district court erred in denying his
motion to suppress. Specifically, he asserts the district court erred as a matter of fact in
concluding Parris resembled the zoo burglary suspect and erred as a matter of law in concluding
the physical resemblance provided reasonable suspicion for the officer to stop Parris in
connection to the zoo burglary. The State asserts the officer had reasonable suspicion because
Parris resembled photographs of the zoo burglary suspect. Because the district court’s finding
that Parris resembled a zoo burglary suspect was supported by substantial and competent
evidence and the officer had reasonable suspicion to conduct an investigatory stop, this Court
affirms.

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                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       There were two “incidents” at the Idaho Falls Zoo. The first incident 1 occurred in
August, and the zoo security camera took photographs of a suspect on a BMX-style bicycle. In
September, the second incident occurred when a burglar stole coins from the zoo. As in August,
the security camera took photographs of a suspect on a similar BMX-style bicycle. Photographs
of the suspect were circulated within local law enforcement agencies. Approximately seven days
after the September burglary, Officer Smith was on patrol and noticed a man riding a BMX-style
bicycle, wearing a backpack, and carrying items in his hands. Officer Smith believed the man
and his bicycle resembled the burglary suspect in the circulated photographs. Also drawing the
officer’s attention was that although it was near 11:30 p.m., the man did not have safety lights on
his bicycle. Officer Smith initiated a stop to further investigate both lines of inquiry. During the
stop, Officer Smith identified the bicyclist as Parris and discovered he was currently on
probation.
       Officer Smith noticed that Parris had a drill with him. The officer was suspicious that
Parris may have burglary tools or stolen items from the zoo in his backpack. The officer
requested Parris’s consent to search. When Parris refused to consent to the search, Officer Smith
attempted to contact Parris’s probation officer.      The officer was unable to reach Parris’s
probation officer directly, but spoke with a supervising probation officer who gave the officer
permission to search Parris. Officer Smith communicated to Parris that if Parris continued to
refuse to consent to a search, the supervising probation officer would arrive at the scene and
issue an agent’s warrant for his arrest. Parris subsequently consented to a search of his person
and backpack.
       By the time Officer Smith finished talking with the supervising probation officer, another
law enforcement officer arrived at the scene. The second officer noticed what appeared to be a
knife in Parris’s pocket. Parris was placed in handcuffs for officer safety. During a search,
Officer Smith found a small baggy containing a white crystalline substance in one of Parris’s
pockets. This substance tested presumptively positive for methamphetamine. A further search
of Parris’s backpack revealed a digital scale.



1
       The record refers to an “incident” and does not clarify the nature of the event.
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       Parris was charged with possession of a controlled substance, methamphetamine, and
possession with intent to use drug paraphernalia. Parris filed a motion to suppress all evidence
obtained by the warrantless search and seizure on the basis that Parris’s failure to use a bicycle
light was the only legitimate basis for the initial seizure. Parris alleged the officer abandoned
this initial purpose and prolonged the seizure to investigate Parris’s connection to the zoo
burglary without reasonable suspicion. Parris also argued there was not reasonable suspicion to
stop him in connection with the zoo burglary.
       The district court found Officer Smith initiated the stop of Parris for two reasons: his
failure to use a bicycle light at night and his resemblance to the zoo burglary suspect. The
district court held Officer Smith had reasonable suspicion to seize Parris in connection with the
zoo burglary because Parris and his bicycle resembled photographs of the suspect and his bicycle
that were circulated by law enforcement. The district court also found that Parris waived any
Fourth Amendment protections as a condition of probation and the methamphetamine would
have been inevitably discovered. The district court denied Parris’s motion to suppress. Parris
entered a conditional guilty plea to possession of a controlled substance, methamphetamine, and
preserved his right to appeal the court’s denial of the motion to suppress. The misdemeanor
possession with intent to use drug paraphernalia was dismissed. The district court sentenced
Parris to a unified sentence of four years, with one and one-half years determinate, suspended the
sentence, and placed Parris on probation. Parris timely appeals.
                                                II.
                                   STANDARD OF REVIEW
       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).




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       Where a lower court makes a ruling based on alternative grounds and only one ground is
challenged on appeal, the appellate court must affirm on the uncontested basis. Morrison v. St.
Luke's Reg'l Med. Ctr., Ltd., 160 Idaho 599, 609, 377 P.3d 1062, 1072 (2016).
                                               III.
                                           ANALYSIS
       On appeal, Parris argues that because Officer Smith did not have reasonable suspicion to
believe Parris was the zoo burglary suspect, any detention beyond the initial detention for the
failure to have a bicycle light unreasonably prolonged the detention. In asserting that there was
no reasonable suspicion to stop Parris in connection to the zoo burglary, Parris challenges the
district court’s factual finding--that Parris resembled the zoo burglary suspect--that provided the
factual basis for the officer’s reasonable suspicion about Parris’s involvement in the zoo
burglary.   Parris argues this factual finding is not supported by substantial and competent
evidence and without this fact, there is no link between Parris and the zoo burglary. The State
argues the district court’s factual finding of physical resemblance was supported by substantial
and competent evidence; therefore, the district court correctly held the officer had a reasonable
and articulable suspicion to stop Parris to investigate the zoo burglary. Additionally, the State
argues that the district court also denied Parris’s motion to suppress because Parris waived any
Fourth Amendment protections as a condition of probation and the methamphetamine would
have been inevitably discovered. The State argues that because Parris does not challenge on
appeal the alternate grounds for denying the motion to suppress, the district court’s denial must
be affirmed.
       In response, Parris argues that absent the stop, there would have been no inquiry into his
probation status, nor could there have been any inevitable discovery and so the district court’s
decision cannot be affirmed on those grounds without addressing whether the stop was
constitutionally valid. As to the district court’s factual findings regarding the resemblance
between Parris and his bicycle and the suspect and his bicycle in the photographs, Parris assumed
that the copies of the photographs from the zoo security camera in the record were the
photographs the district court reviewed. These photographs, argues Parris, were too low quality
for a trier of fact to determine that Parris resembled the person photographed. Following the
State’s motion, the Supreme Court augmented the clerk’s record with the full color, high-quality
photographs that more accurately represent the photographs considered by the district court at

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the motion to suppress hearing. These photographs showed a greater level of detail, including
that the zoo burglary suspect had facial hair and was wearing a backpack, hooded sweatshirt, and
hat--characteristics that matched Parris on the night of the seizure.
        However, Parris asserts the higher-quality pictures do not lend credence to the district
court’s factual determination. Instead, Parris argues the greater level of detail visible in the new
photographs shows discrepancies that further support his claim that he did not resemble the zoo
burglary suspect. For example, Parris argues that the higher-quality photographs show the zoo
burglary suspect had short, kempt hair and wore a clean hooded sweatshirt with no drawstrings,
baggy pants with no belt, and no headphones. At the time of the stop, Parris had long, unkempt
hair and wore a dirty hooded sweatshirt with drawstrings, baggy pants with a belt, and
headphones.
        As an initial matter, Idaho Appellate Rule 35(a)(4) requires an appellant to raise issues in
the initial appellate brief. Issues raised for the first time in a reply brief are not considered. State
v. Raudebaugh, 124 Idaho 758, 763, 864 P.2d 596, 601 (1993). Parris failed to address the
district court’s alternative grounds for denying the motion to suppress and only raised his
rationale for the omission--that the district court could not be affirmed on the alternative grounds
without addressing the constitutional validity of the stop--in the reply brief. However, even if
the district court could be affirmed on an alternative ground, Officer Smith had reasonable
suspicion for the investigative stop.
        When reviewing a trial court’s denial of a defendant’s motion to suppress, this Court
gives deference to the trial court’s findings of fact, which will be upheld so long as they are not
clearly erroneous. State v. Bishop, 146 Idaho 804, 810, 203 P.3d 1203, 1209 (2009). “Findings
of fact are not clearly erroneous if they are supported by substantial and competent evidence.”
Id.   The district court made a finding on the record that after looking at the photographs
submitted as exhibits and looking at Parris, Parris and the burglary suspect appeared to be “pretty
similar,” and later explicitly found Parris resembled the suspected zoo burglary suspect. A
review of the photographs admitted at the hearing and Officer Smith’s body camera footage
demonstrates that the district court’s conclusion is supported by substantial evidence. Parris and
the zoo burglary suspect were slim, Caucasian men with facial hair; wore baggy clothing,
baseball hats, and backpacks; and rode BMX-style bicycles with a dark frame and light colored
front fork. Although Parris points to the fact that he is forty-three years old while the email

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circulated by the detective investigating the burglary described the suspect as a male in his 20s or
30s, this difference is insufficient for this Court to overturn the district court’s factual finding.
Absent a clearly erroneous finding, re-analyzing the facts presented is not within the purview of
this Court.   As such, the district court did not err in its factual determination that Parris
resembled the zoo burglary suspect.
        Next, this Court must determine whether based on the physical resemblance, Officer
Smith had reasonable suspicion to conduct an investigatory stop of Parris in connection to the
zoo burglary. Unlike the deference given to the factual findings of the district court, this Court
freely reviews the constitutionality of the seizure. Bishop, 146 Idaho at 810, 203 P.3d at 1209.
Parris contends that the seizure was unconstitutional because Officer Smith lacked reasonable
suspicion to support an investigative stop in connection to the zoo burglary.
        The Fourth Amendment protects the “right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures” and applies to the states
through the Due Process Clause of the Fourteenth Amendment. U.S. CONST. amend. IV; Bishop,
146 Idaho at 810, 203 P.3d at 1209. “Evidence obtained in violation of the amendment generally
may not be used as evidence against the victim of the illegal government action.” Bishop, 146
Idaho at 810-11, 203 P.3d at 1209-10. When a defendant moves to exclude evidence on the
grounds that it was obtained in violation of the Fourth Amendment, the government carries the
burden of proving that the search or seizure in question was reasonable. Id. at 811, 203 P.3d at
1210.
        The Fourth Amendment’s protection against unreasonable seizures includes brief
investigatory stops by law enforcement officers. United States v. Cortez, 449 U.S. 411, 417
(1981). 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



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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).
        The level of justification required for a seizure to be reasonable at its inception depends
on the intrusiveness of the seizure. Bishop, 146 Idaho at 811, 203 P.3d at 1210. Although the
“quantity and quality of information necessary to establish reasonable suspicion is less than that
necessary to establish probable cause,” an officer’s mere hunch that the individual is involved in
criminal activity is not enough. Id. Instead, the totality of the circumstances must show that the
detaining officer had a particularized and objective basis for suspecting the particular person of
criminal activity prior to the stop. Cortez, 449 U.S. at 417-18; Bishop, 146 Idaho at 811, 203
P.3d at 1210.
       The particularized and objective basis can be the product of the inferences and deductions
made by an officer analyzing objective information, including information from police reports
and various observations. Cortez, 449 U.S. at 418. Although particularized suspicion must be
grounded in the standard of reasonableness embodied in the Fourth Amendment, inherent in this
determination is an acknowledgment that investigatory stops concern probabilities, not hard
certainties, that the individual is involved in criminal activity. See id.; State v. Munoz, 149 Idaho
121, 126, 233 P.3d 52, 57 (2010).
       Parris concedes Officer Smith’s initial detention for Parris’s failure to use a bicycle light
after dark was constitutional.        However, Parris asserts that any further seizure was
unconstitutional because Officer Smith did not have reasonable suspicion to believe Parris was
the zoo burglary suspect at the inception of the investigatory detention or as a basis to continue
the stop based on the lack of a bicycle light. Parris asserts that the reasons for the initial stop
were abandoned and Officer Smith extended the search on a hunch that Parris had drugs.
       However, Officer Smith testified, and the district court found, that Parris was stopped for
two reasons: his failure to use a bicycle light at night and his resemblance to the zoo burglary
suspect. Throughout the duration of the stop, Officer Smith pursued both lines of inquiry.
Although no further investigation may have been needed for Parris’s failure to use a bicycle
light, Officer Smith took steps to further confirm or dispel his suspicion that Parris resembled the
zoo burglary suspect. For example, Officer Smith asked Parris if he had been involved in any
burglaries; attempted to download the electronic message containing the photographs of the zoo
burglary suspect; and discussed Parris’s resemblance to the zoo burglary suspect with a

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probation officer, the supervising probation officer, and the second law enforcement officer who
arrived at the scene. Therefore, contrary to Parris’s argument, Officer Smith was investigating
the reasonable suspicion that gave rise to the initial detention and he did not abandon the initial
lines of inquiry to initiate another.
        Parris relies on the factors enumerated in State v. Kessler, 151 Idaho 653, 262 P.3d 682
(Ct. App. 2011) to support his argument that even if Parris resembled the zoo burglary suspect,
this did not constitute reasonable suspicion to conduct the investigatory stop. However, Kessler
applies to situations where officers are responding to the scene of a crime that had just been
committed. Id. at 655, 262 P.3d at 684. In affirming the district court’s order denying the
motion to suppress, the Kessler Court noted that “a crime, a car break-in, had just occurred and
that at least two of the suspected perpetrators were still at large.” Id. About six to eight blocks
from the crime scene, an officer saw Kessler, who matched the description of the suspects.
Believing that Kessler was about to flee, the officer ordered Kessler to the ground. Upon
removing a knife from Kessler’s front pocket, methamphetamine also fell out. In analyzing
whether the officer had reasonable suspicion that Kessler was involved in the crime, the Court
noted that “while the concept of reasonable suspicion cannot be reduced to a neat formula, a
leading commentator has suggested a number of commonsense factors for consideration in
determining whether there exists reasonable suspicion that a particular individual was involved
in a very recent crime.” Id. Those factors are relevant in cases involving very recent crimes
“because they tend to limit focus to the universe of persons who could have been involved in the
reported crime and increase the likelihood that a particular person was involved.” Id.
        Here, the record indicates that the zoo was burglarized approximately seven days prior to
the officer’s investigatory stop of Parris. Therefore, the Kessler factors are largely inapplicable
to a determination of whether the officer had reasonable suspicion to stop Parris because the zoo
burglary suspect had approximately one week to flee the immediate area, change clothing, or
take other precautions to separate himself from the crime. Instead, this Court must assess the
totality of the circumstances to determine if the detaining officer had a particularized and
objective basis for suspecting Parris’s connection to the zoo burglary at the time of the stop.
Cortez, 449 U.S. at 417-18; Bishop, 146 Idaho at 811, 203 P.3d at 1210.
        Courts have consistently held that a particularized and objective basis exists for an
investigatory stop when an officer believes an individual matches the description of a suspect

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wanted for a prior crime if the description comes from a reliable source and shows indicia of
reliability. See United States v. Hensley, 469 U.S. 221, 232 (1985) (holding that a police officer
who lacked personal knowledge of the facts giving rise to reasonable suspicion may stop an
individual based solely on a wanted flyer as long as the officer who issued the flyer had
reasonable suspicion to believe that the individual committed a crime); Bishop, 146 Idaho at 811-
812, 203 P.3d at 1210-1211 (holding that a tip providing a description of a suspect alleged to
have committed a crime amounts to reasonable suspicion when the tip was from an ascertainable
informant and contained an indicia of reliability).
       Here, at the inception of the investigatory stop, Officer Smith had various pieces of
objective and reliable data from which to form a particularized suspicion that Parris resembled
the zoo burglary suspect and might have committed the zoo burglary, including Parris’s physical
resemblance to the zoo burglary suspect and his use of a similar bicycle, at night, while carrying
a drill. Prior to the stop, Officer Smith had reviewed an internally circulated email with four
pictures of the zoo burglary suspect. The email described the suspect as a “white male in his 20s
or 30s with a thin build” riding a BMX-style bicycle with a dark frame and light colored front
fork. The law enforcement officer who circulated the email had reasonable suspicion to believe
the individual in the photographs burglarized the zoo because the images were taken from
security camera footage during the two nights when the incidents occurred and each depicted a
similar-looking man riding a similar-style bicycle through the zoo parking lot. Officer Smith
received this information from a police detective investigating the incidents; thus, the
descriptions of the suspect came from a reliable source. Officer Smith reasonably relied on his
observations of Parris and reasonably concluded that Parris resembled the person in the
photographs. The investigatory stop to investigate Parris’s connection to the zoo burglary was
justified in its inception because Officer Smith had reasonable, articulable suspicion based on
particular and objective facts that Parris was the zoo burglary suspect. Officer Smith did not
abandon this line of inquiry during the investigative detention.          Because the officer had
reasonable suspicion to conduct an investigatory stop, the district court did not err in its denial of
Parris’s motion to suppress.




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                                              IV.
                                        CONCLUSION
       The district court’s factual finding that Parris resembled the zoo burglary suspect was
supported by substantial and competent evidence and gave rise to the officer’s reasonable
suspicion to conduct an investigatory stop. Consequently, the officer did not unlawfully extend
the stop to investigate the zoo burglary. Accordingly, the district court did not err in denying
Parris’s motion to suppress and the judgment of conviction is affirmed.
       Judge LORELLO and Judge BRAILSFORD CONCUR.




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